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Exhibit 4(b)
THE SEAGRAM COMPANY LTD.
AND
THE BANK OF NEW YORK,
as Unit Agent
FORM OF MASTER UNIT AGREEMENT
Dated as of May -, 1999
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TABLE OF CONTENTS
Page
RECITALS................................................................. 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions................................................ 1
SECTION 102. Form of Documents Delivered to Unit Agent.................. 8
SECTION 103. Acts of Holders; Record Dates.............................. 9
SECTION 104. Notices, etc. to Unit Agent and the Company................ 10
SECTION 105. Notice to Holders; Waiver.................................. 11
SECTION 106. Effect of Headings and Table of Contents................... 11
SECTION 107. Successors and Assigns..................................... 11
SECTION 108. Separability Clause........................................ 12
SECTION 109. Benefits of Agreement...................................... 12
SECTION 110. Governing Law.............................................. 12
SECTION 111. Legal Holidays............................................. 12
SECTION 112. Counterparts............................................... 13
SECTION 113. Inspection of Agreement.................................... 13
ARTICLE TWO
UNIT CERTIFICATE FORMS
SECTION 201. Forms of Unit Certificates Generally....................... 13
SECTION 202. Form of Unit Agent's Certificate of Authentication......... 14
ARTICLE THREE
THE UNITS
SECTION 301. Title and Terms; Denominations............................. 14
SECTION 302. Rights and Obligations Evidenced by the Unit Certificates.. 14
SECTION 303. Execution, Authentication, Delivery and Dating............. 14
SECTION 304. Temporary Unit Certificates................................ 15
SECTION 305. Registration; Registration of Transfer and Exchange........ 16
SECTION 306. Mutilated, Destroyed, Lost and Stolen Unit Certificates.... 18
SECTION 307. Persons Deemed Owners...................................... ▇▇
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▇▇▇▇▇▇▇ ▇▇▇. Cancellation............................................... 20
SECTION 309. Units Not Separable........................................ 20
SECTION 310. Payments on the Units...................................... 21
ARTICLE FOUR
THE PLEDGED SECURITIES
SECTION 401. Payments on the Pledged Securities......................... 21
SECTION 402. Transfer of Pledged Securities Upon Occurrence of
Termination Event.................................... 22
ARTICLE FIVE
THE PURCHASE CONTRACTS
SECTION 501. Purchase of Common Shares.................................. 23
SECTION 502. Contract Fees.............................................. 24
SECTION 503. Deferral of Payment Dates For Contract Fee................. 25
SECTION 504. Payment of Purchase Price.................................. 26
SECTION 505. Issuance of Common Shares.................................. 28
SECTION 506. Adjustment of Settlement Rate.............................. 28
SECTION 507. Notice of Adjustments and Certain Other Events............. 34
SECTION 508. No Fractional Shares....................................... 34
SECTION 509. Charges and Taxes.......................................... 35
SECTION 510. Termination Event; Notice.................................. 35
SECTION 511. Early Settlement........................................... 35
ARTICLE SIX
REMEDIES
SECTION 601. Unconditional Rights of Holders............................ 37
SECTION 602. Restoration of Rights and Remedies......................... 38
SECTION 603. Rights and Remedies Cumulative............................. 38
SECTION 604. Delay or Omission Not Waiver............................... 38
SECTION 605. Undertaking for Costs...................................... 38
SECTION 606. Waiver of Stay or Extension Laws........................... 39
ARTICLE SEVEN
THE UNIT AGENT
SECTION 701. Certain Duties and Responsibilities........................ 39
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SECTION 702. Notice of Default.......................................... 40
SECTION 703. Certain Rights of Unit Agent............................... 40
SECTION 704. Not Responsible for Recitals or Issuance of Units.......... 41
SECTION 705. May Hold Units............................................. 41
SECTION 706. Money Held in Trust........................................ 42
SECTION 707. Compensation and Reimbursement............................. 42
SECTION 708. Unit Agent Required; Eligibility........................... 43
SECTION 709. Resignation and Removal; Appointment of Successor.......... 43
SECTION 710. Acceptance of Appointment by Successor..................... 44
SECTION 711. Merger, Conversion, Consolidation or Succession to
Business............................................. 45
SECTION 712. Preservation of Information; Communications to Holders..... 45
SECTION 713. No Obligations of Unit Agent............................... 46
SECTION 714. Tax Compliance............................................. 46
ARTICLE EIGHT
SUPPLEMENTAL AGREEMENTS
SECTION 801. Supplemental Agreements Without Consent of Holders......... 47
SECTION 802. Supplemental Agreements with Consent of Holders............ 47
SECTION 803. Execution of Supplemental Agreements....................... 49
SECTION 804. Effect of Supplemental Agreements.......................... 49
SECTION 805. Reference to Supplemental Agreements....................... 49
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 901. Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions............. 50
SECTION 902. Rights and Duties of Successor Corporation................. 50
SECTION 903. Opinion of Counsel to Unit Agent........................... 51
ARTICLE TEN
COVENANTS
SECTION 1001. Performance Under Purchase Contracts...................... 51
SECTION 1002. Maintenance of Office or Agency........................... 51
SECTION 1003. Company to Reserve Common Shares.......................... 52
SECTION 1004. Covenants as to Common Shares............................. 52
SECTION 1005. Statements of Officers of the Company as to Default....... 52
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TESTIMONIUM.............................................................. 52
SIGNATURES............................................................... 52
EXHIBIT A Form of Unit Certificate
EXHIBIT B Form of Pledge Agreement
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MASTER UNIT AGREEMENT, dated as of May -, 1999, between THE SEAGRAM
COMPANY LTD., a Canadian corporation (the "Company"), and THE BANK OF NEW YORK,
a New York corporation, acting as unit agent for the Holders of Units from time
to time (the "Unit Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Unit Certificates evidencing the Units.
All things necessary to make the Company's obligations under the Units,
when the Unit Certificates are executed by the Company and authenticated,
executed on behalf of the Holders and delivered by the Unit Agent, as in this
Agreement provided, the valid obligations of the Company, and to constitute
these presents a valid agreement of the Company, in accordance with its terms,
have been done.
WITNESSETH:
For and in consideration of the premises and the purchase of the Units
by the Holders thereof, it is mutually agreed as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. 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
(b) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to
any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 103.
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"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.
"Average Trading Price" has the meaning specified in Section 501.
"Board of Directors" means the board of directors of the Company or a
duly authorized committee of that board.
"Board Resolution" means one or more resolutions of the Board of
Directors, a copy of which has been certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification and delivered
to the Unit Agent.
"Business Day" means any day other than Saturday, Sunday or any other
day on which banking institutions in The City of New York are authorized or
obligated by law or executive order to be closed.
"Cash Merger" has the meaning specified in Section 511.
"Closing Price" has the meaning specified in Section 501.
"Collateral Agent" means -, as Collateral Agent under the Pledge
Agreement, until a successor Collateral Agent shall have become such pursuant to
the applicable provisions of the Pledge Agreement, and thereafter "Collateral
Agent" shall mean the Person who is then the Collateral Agent thereunder.
"Common Shares" means the Common Shares, without nominal or par value,
of the Company having such terms as set forth in the Company's Articles of
Amalgamation, as amended from time to time.
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"Company" means the Person designated as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Contract Fee" means, with respect to each Purchase Contract, a fee
payable by the Company to the Holder of the related Unit, accruing on the Stated
Amount of such Unit from and including the date of first issuance of any Units
to but excluding the Stock Purchase Date and payable quarterly in arrears on
each Quarterly Payment Date to and including the Stock Purchase Date at a rate
per annum equal to the Contract Fee Rate (and computed on the basis of a 360-day
year of twelve 30-day months), plus any additional fees accrued thereon pursuant
to Section 503.
"Contract Fee Rate" means 0.-%.
"Corporate Trust Office" means the principal office of the Unit Agent,
at which at any particular time its corporate trust business shall be
administered, which office at the date hereof is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Current Market Price" has the meaning specified in Section 506(a)(8).
"Deferral Rate" means -% per annum plus, for the period after the
Remarketing Date, the amount (if any) by which the interest rate on the Notes
shall have been increased on the Remarketing Date in accordance with the terms
of the Notes.
"Depositary" means a clearing agency registered under the Exchange Act
that is designated to act as Depositary for Global Units as contemplated by
Section 305.
"Early Settlement" has the meaning set forth in Section 511.
"Early Settlement Date" has the meaning set forth in Section 511.
"Exchange Act" means the Securities Exchange Act of 1934 or any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 103.
"Global Unit Certificate" means a Unit Certificate that evidences all
or part of the Normal Units or a Unit Certificate that evidences all or a part
of the Stripped Units and is registered in the name of the Depositary or a
nominee thereof.
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"Guarantees" means the Company's guarantees of the Notes.
"Holder" means a Person in whose name a Unit Certificate is registered
in the Unit Register; "Holder", when used with respect to any particular Unit
Certificate (or Unit), means a Person in whose name such Unit Certificate (or
the Unit Certificate evidencing such Unit) is registered in the relevant Unit
Register.
"Indenture" means the Indenture, dated as of September 15, 1991, among
the Company, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & Sons, Inc. and The Bank of New York, as
Trustee, as the same may be amended or supplemented from time to time with
respect to the terms of the Notes in accordance with the terms thereof.
"Issuer Order" or "Issuer Request" means a written order or request
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, its Chief Financial Officer, a Vice Chairman
or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Controller, an Assistant Controller, its Secretary or an Assistant Secretary,
and delivered to the Unit Agent.
"JES" means ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & Sons, Inc., an Indiana corporation.
"Notes" means the -% Subordinated Deferrable Notes due -, 2004 of JES
issued under the Indenture and guaranteed, on a subordinated basis, by the
Company.
"NYSE" has the meaning specified in Section 501.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Financial
Officer, a Vice Chairman or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary of the Company and delivered to the Unit Agent.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company.
"Outstanding Unit Certificates" means, as of the date of determination,
all Unit Certificates theretofore authenticated, executed and delivered pursuant
to this Agreement, except:
(a) Unit Certificates theretofore canceled by the Unit Agent
or delivered to the Unit Agent for cancellation; and
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(b) Unit Certificates in exchange for or in lieu of which
other Unit Certificates have been authenticated and delivered pursuant
to this Agreement, other than any such Unit Certificate in respect of
which there shall have been presented to the Unit Agent proof
satisfactory to it that such Unit Certificate is held by a bona fide
purchaser in whose hands the Units evidenced by such Unit Certificate
are valid obligations of the Company.
"Outstanding Units" means, as of the date of determination, all Units
evidenced by then Outstanding Unit Certificates, except, on or after the
Termination Date or Stock Purchase Date, Units for which the underlying Pledged
Securities or the Common Stock purchasable upon settlement of the underlying
Purchase Contracts, as the case may be, have been theretofore deposited with the
Unit Agent in trust for the Holders of such Units; provided, however, that in
determining whether the Holders of the requisite number of Units have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Units owned by the Company or any Affiliate of the Company shall be disregarded
and deemed not to be outstanding, except that, in determining whether the Unit
Agent shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Units which the Unit
Agent actually knows to be so owned shall be so disregarded. Units so owned
which have been pledged in good faith may be regarded as Outstanding Units if
the pledgee establishes to the satisfaction of the Unit Agent the pledgee's
right so to act with respect to such Units and that the pledgee is not the
Company or any Affiliate of the Company.
"Paid Units" has the meaning specified in Section 504(a).
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pledge" means the pledge of the Pledged Securities under the Pledge
Agreement.
"Pledge Agreement" means the Pledge Agreement, dated as of the date
hereof, among the Company, the Collateral Agent and the Unit Agent, in its
capacity as Unit Agent and as attorney-in-fact for the Holders from time to time
of the Units, the form of which is attached hereto as Exhibit B, as the same may
be amended from time to time in accordance with the terms hereof and thereof.
"Pledged Securities" has the meaning specified in the Pledge Agreement.
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"Predecessor Unit Certificate" of any particular Unit Certificate means
every previous Unit Certificate evidencing all or a portion of the rights and
obligations of the Holder under the Units evidenced thereby; and, for the
purposes of this definition, any Unit Certificate authenticated and delivered
under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Unit Certificate shall be deemed to evidence the same rights and
obligations of the Holder as the mutilated, destroyed, lost or stolen Unit
Certificate.
"Principal Agreements" means this Agreement (including the obligations
under the Purchase Contracts) and the Pledge Agreement.
"Purchase Contract" means the obligation of the Company to sell and the
Holder of the related Unit to purchase Common Shares on the terms and subject to
the conditions set forth in Article Five hereof.
"Purchase Contract Settlement Fund" has the meaning specified in
Section 505.
"Quarterly Payment Date" means each -, -, - and - commencing -, 1999.
"Record Date", when used with respect to any payment date, means the
Business Day next preceding such payment date.
["Remarketing Date" -]
"Reorganization Event" has the meaning specified in Section 506(b).
"Responsible Officer", when used with respect to the Unit Agent, means
any officer of the Unit Agent assigned by the Unit Agent to administer corporate
trust matters and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Senior Indebtedness" has the meaning specified in the Indenture.
"Settlement Rate" has the meaning specified in Section 501.
"Stated Amount" means $- per Unit.
"Stock Purchase Date" means -, 2002 or such earlier date on which the
Purchase Contract may be settled pursuant to Section 511.
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"Termination Date" means the date, if any, on which a Termination Event
occurs.
"Termination Event" means the occurrence of any of the following events
at any time on or prior to the Stock Purchase Date: (a) the entry by a court
having jurisdiction in the premises of (1) a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any applicable
bankruptcy law or (2) a decree or order adjudging the Company a bankrupt or
insolvent, or approving as property filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company under any
applicable bankruptcy law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or of
substantially all of the property of the Company, or ordering the winding up or
liquidation of the affairs of the Company, and the continuance of any decree or
order for relief or any such other decree or order unstayed and in effect for a
period of 90 consecutive days; or (b) the commencement by the Company of a
voluntary case or proceeding under any applicable bankruptcy law, or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by the Company to the entry of a decree or order for relief in respect
of the Company in an involuntary case or proceeding under any applicable
bankruptcy law, or to the commencement of any bankruptcy or insolvency case or
proceeding against the Company, or the filing by the Company of a petition or
answer or consent seeking reorganization or relief under any applicable
bankruptcy law, or the consent by the Company to the filing of such petition or
to the appointment of or the taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the Company
or of substantially all or the property of the Company, or the making by the
Company of an assignment for the benefit of creditors, or the admission by the
Company in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company in furtherance of any such
action.
"Threshold Appreciation Price" means $_______ per Common Share.
"TIA" means the Trust Indenture Act of 1939 or any statute successor
thereto, in each case as amended from time to time.
"Trading Day" has the meaning specified in Section 501.
"Treasury Securities" means United States Treasury securities.
"Underwriting Agreement" means the Underwriting Agreement dated -,
1999, among the Company, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & Sons, Inc., and ▇▇▇▇▇▇▇, Sachs &
Co. and _________, _________ and _________, as representatives of the
Underwriters named therein.
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"Unit" means the rights to purchase Common Stock under a Purchase
Contract, together with ownership of the Notes or other Pledged Securities
pledged to secure the obligations owed to the Company under such Purchase
Contract, and subject to the pledge arrangements securing the foregoing
obligations. The Purchase Contracts and/or Pledged Securities constituting a
part of any Units are sometimes referred to herein as "underlying" such Units
and are sometimes herein said to "underlie" such Units.
"Unit Agent" means the Person named as the "Unit Agent" in the first
paragraph of this Agreement until a successor Unit Agent shall have become such
pursuant to the applicable provisions of this Agreement, and thereafter "Unit
Agent" shall mean the Person who is then the Unit Agent hereunder.
"Unit Certificate" means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Units, as the case may be,
specified on such certificate.
"Unit Register" and "Unit Registrar" have the respective meanings
specified in Section 305.
"Unpaid Units" has the meaning specified in Section 504(a).
"Vice President" means any vice president, whether or not designated by
a number or a word or words added before or after the title "vice president".
SECTION 102. Form of Documents Delivered to Unit 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
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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 103. 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 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 Unit Agent and, where it is hereby expressly required, to the Company.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Agreement and (subject to Section 701) conclusive in favor of the Unit Agent and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Unit Agent deems sufficient.
(c) The ownership of Units shall be proved by the Unit Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Unit shall bind every future Holder of
the same Unit and the Holder of every Unit Certificate evidencing such Unit
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
Unit Agent or the Company in reliance thereon, whether or not notation of such
action is made upon such Unit Certificate.
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(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Units entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Agreement to be given, made or taken by
Holders of Units. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Units on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite number of Outstanding Units on such record date. Nothing in
this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite number of Outstanding Units on the date
such action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Unit Agent in writing and to each Holder of Units in the manner set
forth in Section 105.
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 Unit Agent in writing, and to each Holder of Units in the manner
set forth in Section 105, 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 104. Notices, etc. to Unit Agent and the Company.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Agreement to be made upon, given or furnished to, or filed with,
(a) the Unit Agent by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing and
personally delivered or mailed, first-class postage prepaid, to the
Unit Agent at 101 ▇▇▇▇▇▇▇, the Corporate Trust Office,
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Attention: -, or at any other address previously furnished in writing
by the Unit Agent to the Holders and the Company, or
(b) the Company by the Unit Agent or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing and
personally delivered or mailed, first-class postage prepaid, to the
Company at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ 159,
Attention: -, or at any other address previously furnished in writing
by the Company to the Unit Agent.
SECTION 105. Notice to Holders; Waiver.
Where this Agreement provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Unit 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
Unit 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 Unit Agent
shall constitute a sufficient notification for every purpose hereunder.
SECTION 106. 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 107. Successors and Assigns.
All covenants and agreements in this Agreement by the Company shall
bind its successors and assigns, whether so expressed or not.
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SECTION 108. Separability Clause.
In case any provision in this Agreement or in the Units 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 109. Benefits of Agreement.
Nothing in this Agreement or in the Unit Certificates, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefits or any legal or equitable
right, remedy or claim under this Agreement. The Holders from time to time shall
be beneficiaries of this Agreement and shall be bound by all of the terms and
conditions hereof and of the Units evidenced by their Unit Certificates by their
acceptance of delivery thereof.
SECTION 110. Governing Law.
THIS AGREEMENT AND THE UNITS SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
SECTION 111. Legal Holidays.
In any case where any Quarterly Payment Date or the Stock Purchase Date
shall not be a Business Day, then (notwithstanding any other provision of this
Agreement or of the Units) payment in respect of distributions or interest on or
principal of Pledged Securities or Contract Fees shall not be made, Purchase
Contracts shall not be performed and other actions described herein shall not
occur, but such payments shall be made, the Purchase Contracts shall be
performed and such other actions shall occur, as applicable, on the next
succeeding Business Day with the same force and effect as if made on such
Quarterly Payment Date or Stock Purchase Date, as the case may be; provided,
that to the extent such payment is made on the next succeeding Business Day, no
distributions or interest shall accrue or be payable by the Company or any
Holder for the period from and after any such Quarterly Payment Date or Stock
Purchase Date, as the case may be, to the date of payment or performance; except
that if such next succeeding Business Day is in the next succeeding calendar
year, such payment shall be made, the Purchase Contracts shall be performed or
such other action shall occur on the immediately preceding Business Day with the
same force and effect as if made on such Quarterly Payment Date or the Stock
Purchase Date.
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SECTION 112. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which, when so executed, shall be deemed an original, but all such counterparts
shall together constitute one and the same instrument.
SECTION 113. Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable times at
the Corporate Trust Office for inspection by any Holder.
ARTICLE TWO
UNIT CERTIFICATE FORMS
SECTION 201. Forms of Unit Certificates Generally.
Unit Certificates evidencing Normal Units 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 Units are listed or Depositary therefor, or as
may, consistently herewith, be determined by the officers of the Company
executing such Unit Certificates, as evidenced by their execution of the Unit
Certificates.
The definitive 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 Unit Certificates,
consistent with the provisions of this Agreement, as evidenced by their
execution thereof.
Every Global Unit Certificate authenticated, executed and delivered
hereunder shall bear a legend in substantially the following form:
THIS UNIT CERTIFICATE IS A GLOBAL UNIT CERTIFICATE WITHIN THE MEANING
OF THE MASTER UNIT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS UNIT CERTIFICATE
MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A UNIT CERTIFICATE
REGISTERED, AND NO TRANSFER OF THIS UNIT CERTIFICATE IN WHOLE OR IN
PART MAY BE REGISTERED, IN THE NAME OF ANY
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PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
MASTER UNIT AGREEMENT.
SECTION 202. Form of Unit Agent's Certificate of Authentication.
The form of the Unit Agent's certificate of authentication of the Units
shall be in substantially the form set forth on the form of the Unit
Certificates.
ARTICLE THREE
THE UNITS
SECTION 301. Title and Terms; Denominations.
The aggregate number of Units evidenced by Unit Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to -, except for Unit Certificates authenticated, executed and delivered
upon registration of transfer of, in exchange for, or in lieu of, other Unit
Certificates pursuant to Section 304, 305, 306 or 805.
Unit Certificates shall be issuable only in registered form and only in
denominations of a single Unit and any integral multiple thereof.
SECTION 302. Rights and Obligations Evidenced by the Unit Certificates.
Each Unit Certificate shall evidence the number of Units specified
therein. Prior to the purchase, if any, of Common Shares under the Purchase
Contracts, the Units shall not entitle the Holders to any of the rights or
privileges of a holder of Common Shares by virtue of holding such Units,
including, without limitation, the right to vote or receive any dividends or
other distributions or to consent or to receive notice as stockholders in
respect of the meetings of stockholders or for the election of directors of the
Company or for any other matter.
SECTION 303. Execution, Authentication, Delivery and Dating.
Subject to the provisions of Section 309 hereof, upon the execution and
delivery of this Agreement, and at any time and from time to time thereafter,
the Company may deliver Unit Certificates executed by the Company to the Unit
Agent for authentication, execution on behalf of the Holders and delivery,
together with its Issuer Order for authentication of such Unit Certificates, and
the Unit Agent in accordance with such Issuer Order shall
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authenticate, execute on behalf of the Holders and make such Unit Certificates
available for delivery.
The Unit Certificates shall be executed on behalf of the Company by its
Chairman of the Board, its Chief Executive Officer, its President, its Chief
Financial Officer or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Unit Certificates may
be manual or facsimile.
Unit 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 Unit
Certificates or did not hold such offices at the date of such Unit Certificates.
Each Unit Certificate shall be dated the date of its authentication.
No Purchase Contract evidenced by a Unit Certificate shall be valid
until such Unit Certificate has been executed on behalf of the Holder by the
manual signature of an authorized signatory of the Unit Agent, as such Holder's
attorney-in-fact. Such signature by an authorized signatory of the Unit Agent
shall be conclusive evidence that the Holder of such Unit Certificate has
entered into the Purchase Contracts evidenced by such Unit Certificate.
No Unit Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose unless there appears on such
Unit Certificate a certificate of authentication substantially in the form
provided for herein executed by an authorized signatory of the Unit Agent by
manual signature, and such certificate upon any Unit Certificate shall be
conclusive evidence, and the only evidence, that such Unit Certificate has been
duly authenticated and delivered hereunder.
SECTION 304. Temporary Unit Certificates.
Pending the preparation of definitive Unit Certificates, the Company
shall execute and deliver (together with an Issuer Order) to the Unit Agent, and
the Unit Agent shall authenticate, execute on behalf of the Holders, and
deliver, in lieu of such definitive Unit Certificates, temporary Unit
Certificates which are in substantially the form set forth in Exhibit A hereto,
with such letters, numbers or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon as may be
required by the rules of any securities exchange on which the Units are listed
or Depositary
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therefor, or as may, consistently herewith, be determined by the officers of the
Company executing such Unit Certificates, as evidenced by their execution of the
Unit Certificates.
If temporary Unit Certificates are issued, the Company will cause
definitive Unit Certificates to be prepared without unreasonable delay. After
the preparation of definitive Unit Certificates, the temporary Unit Certificates
shall be exchangeable for definitive Unit Certificates upon surrender of the
temporary Unit 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 Unit Certificates, the Company shall execute and deliver
to the Unit Agent, and the Unit Agent shall authenticate, execute on behalf of
the Holder, and deliver in exchange therefor, one or more definitive Unit
Certificates of authorized denominations and evidencing a like number of Units,
as the case may be, as the temporary Unit Certificate or Unit Certificates so
surrendered. Until so exchanged, the temporary Unit Certificates shall in all
respects evidence the same benefits and the same obligations with respect to the
Units evidenced thereby as definitive Unit Certificates.
SECTION 305. Registration; Registration of Transfer and Exchange.
The Unit Agent shall keep at the Corporate Trust Office registers (the
registers maintained in such office being herein referred to as the "Unit
Registers") in which, subject to such reasonable regulations as it may
prescribe, the Unit Agent shall provide for the registration of Unit
Certificates evidencing the Units and of transfers of Unit Certificates
evidencing Units (the Unit Agent, in such capacity, the "Unit Registrar"). Upon
request from any Trustee or the Company, the Unit Agent shall furnish to such
requesting party a copy of the Unit Register for the Unit Certificates
evidencing the Units as promptly as practicable.
Upon surrender for registration of transfer of any Unit Certificate at
the Corporate Trust Office, the Company shall execute and deliver to the Unit
Agent, and the Unit 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 Unit Certificates evidencing a like
number of Units.
At the option of the Holder, Unit Certificates may be exchanged for
other Unit Certificates evidencing a like number of Units upon surrender of the
Unit Certificates to be exchanged at the Corporate Trust Office. Whenever any
Unit Certificates are so surrendered for exchange, the Company shall execute and
deliver to the Unit Agent, and the Unit Agent shall authenticate, execute on
behalf of the Holder, and deliver the Unit Certificates which the Holder making
the exchange is entitled to receive.
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All Unit Certificates issued upon any registration of transfer or
exchange of a Unit Certificate shall evidence the ownership of the same number
of Units, and be entitled to the same benefits and subject to the same
obligations, under the Principal Agreements as the Units, evidenced by the Unit
Certificate surrendered upon such registration of transfer or exchange.
Every Unit Certificate presented or surrendered for registration of
transfer or for exchange shall (if so required by the Unit Agent) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Unit Agent duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of a Unit Certificate, but the Company and the Unit 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 Unit Certificates (which, for these purposes, includes a
transfer of Pledged Securities as contemplated by Section 504(a)), other than
any exchanges pursuant to Sections 304, 306 and 805 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Unit Agent, and the Unit Agent shall not be obligated
to authenticate, execute on behalf of the Holder and deliver any Unit
Certificate in respect of a Unit Certificate presented or surrendered for
registration of transfer or for exchange on or after the Stock Purchase Date or
the Termination Date. In lieu of delivery of a new Unit Certificate, upon
satisfaction of the applicable conditions specified above in this Section and
receipt of appropriate registration or transfer instructions from such Holder,
the Unit Agent shall (a) if the Stock Purchase Date has occurred, deliver the
Common Shares issuable in respect of the Purchase Contracts forming a part of
the Units evidenced by such Unit Certificate, or (b) if a Termination Event
shall have occurred on or prior to the Stock Purchase Date, transfer the
liquidation or principal amount of the Pledged Securities evidenced thereby, in
each case subject to the applicable conditions and in accordance with the
applicable provisions of Article Five hereof.
The provisions of Clauses (a), (b), (c) and (d) below shall apply only
to Global Unit Certificates:
(a) Each Global Unit Certificate authenticated and executed on
behalf of the Holders under this Agreement shall be registered in the
name of the Depositary designated for such Global Unit Certificate or a
nominee thereof and delivered to such Depositary or a nominee thereof
or custodian therefor, and each such Global
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Unit Certificate shall constitute a single Unit Certificate for all
purposes of this Agreement.
(b) Notwithstanding any other provision in this Agreement, no
Global Unit Certificate may be exchanged in whole or in part for Unit
Certificates registered, and no transfer of a Global Unit Certificate
in whole or in part may be registered, in the name of any Person other
than the Depositary for such Global Unit Certificate or a nominee
thereof unless (i) such Depositary (x) has notified the Company that it
is unwilling or unable to continue as Depositary for such Global Unit
Certificate or (y) has ceased to be a clearing agency registered under
the Exchange Act or (ii) there shall have occurred and be continuing a
default by the Company in respect of its obligations under one or more
Principal Agreements.
(c) Subject to Clause (b) above, any exchange of a Global Unit
Certificate for other Unit Certificates may be made in whole or in
part, and all Unit Certificates issued in exchange for a Global Unit
Certificate or any portion thereof shall be registered in such names as
the Depositary for such Global Unit Certificate shall direct.
(d) Every Unit Certificate authenticated and delivered upon
registration of transfer of, in exchange for or in lieu of a Global
Unit Certificate or any portion thereof, whether pursuant to this
Section, Section 304, 306 or 805 or otherwise, shall be authenticated,
executed on behalf of the Holders and delivered in the form of, and
shall be, a Global Unit Certificate, unless such Unit Certificate is
registered in the name of a Person other than the Depositary for such
Global Unit Certificate or a nominee thereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Unit Certificates.
If any mutilated Unit Certificate is surrendered to the Unit Agent, the
Company shall execute and deliver to the Unit Agent, and the Unit Agent shall
authenticate, execute on behalf of the Holder, and deliver in exchange therefor,
a new Unit Certificate, evidencing the same number of Units and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Unit Agent (a)
evidence to their satisfaction of the destruction, loss or theft of any Unit
Certificate, and (b) such security or indemnity as may be required by them to
save each of them and any agent of any of them harmless, then, in the absence of
notice to the Company or the Unit Agent that such Unit Certificate has been
acquired by a bona fide purchaser, the Company shall execute and deliver to the
Unit Agent, and the Unit Agent shall authenticate, execute on behalf of the
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Holder, and deliver to the Holder, in lieu of any such destroyed, lost or stolen
Unit Certificate, a new Unit Certificate, evidencing the same number of Units
and bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Unit Agent, and the Unit Agent shall not be obligated
to authenticate, execute on behalf of the Holder, and deliver to the Holder, on
or after the Stock Purchase Date or the Termination Date, a Unit Certificate in
respect of any mutilated, destroyed, lost or stolen Unit Certificate. In lieu of
delivery of a new Unit Certificate, upon satisfaction of the applicable
conditions specified above in this Section and receipt of appropriate
registration or transfer instructions from such Holder, the Unit Agent shall (a)
if the Stock Purchase Date has occurred, deliver the Common Shares issuable in
respect of the Purchase Contracts forming a part of the Units evidenced by such
Unit Certificate, or (b) if a Termination Event shall have occurred on or prior
to the Stock Purchase Date, transfer the liquidation or principal amount of the
Pledged Securities evidenced thereby, in each case subject to the applicable
conditions and in accordance with the applicable provisions of Article Five
hereof.
Upon the issuance of any new Unit Certificate under this Section, the
Company and the Unit 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
Unit Agent) connected therewith.
Every new Unit Certificate issued pursuant to this Section in lieu of
any destroyed, lost or stolen Unit Certificate shall constitute an original
additional contractual obligation of the Company and of the Holder, whether or
not the destroyed, lost or stolen Unit Certificate shall be at any time
enforceable by anyone, and shall be entitled to all the benefits and be subject
to all the obligations of the Principal Agreements equally and proportionately
with any and all other Unit Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
settlement of mutilated, destroyed, lost or stolen Unit Certificates.
SECTION 307. Persons Deemed Owners.
Prior to due presentment of a Unit Certificate for registration of
transfer, the Company and the Unit Agent, and any agent of the Company or the
Unit Agent, may treat the Person in whose name such Unit Certificate is
registered as the owner of the Units evidenced thereby, for the purpose of
receiving payments of distributions or interest on the Pledged Securities,
receiving or making payments of Contract Fees and performance of the
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underlying Purchase Contracts and for all other purposes whatsoever, whether or
not the payment of distributions or interest on the Pledged Securities or any
Contract Fee payable in respect of the Purchase Contracts constituting a part of
the Units evidenced thereby shall be overdue and notwithstanding any notice to
the contrary, and neither the Company nor the Unit Agent, nor any agent of the
Company or the Unit Agent, shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Unit
Certificate, nothing herein shall prevent the Company, the Unit Agent or any
agent of the Company or the Unit Agent, from giving effect to any written
certification, proxy or other authorization furnished by any Depositary (or its
nominee), as a Holder, with respect to such Global Unit Certificate or impair,
as between such Depositary and owners of beneficial interests in such Global
Unit Certificate, the operation of customary practices governing the exercise of
rights of such Depositary (or its nominee) as Holder of such Global Unit
Certificate.
SECTION 308. Cancellation.
All Unit Certificates surrendered for delivery of Common Shares on or
after the Stock Purchase Date, transfer of Pledged Securities after the
occurrence of a Termination Event or registration of transfer or exchange shall,
if surrendered to any Person other than the Unit Agent, be delivered to the Unit
Agent and, if not already canceled, shall be promptly canceled by it. The
Company may at any time deliver to the Unit Agent for cancellation any Unit
Certificates previously authenticated, executed and delivered hereunder which
the Company may have acquired in any manner whatsoever, and all Unit
Certificates so delivered shall, upon Issuer Order, be promptly canceled by the
Unit Agent. No Unit Certificates shall be authenticated, executed on behalf of
the Holder and delivered upon transfer of, in exchange for or in lieu of any
Unit Certificates canceled as provided in this Section, except as expressly
permitted by this Agreement. All canceled Unit Certificates held by the Unit
Agent shall be disposed of as directed by Issuer Order.
If the Company or any Affiliate of the Company shall acquire any Unit
Certificate, such acquisition shall not operate as a cancellation of such Unit
Certificate unless and until such Unit Certificate is delivered to the Unit
Agent canceled or for cancellation.
SECTION 309. Units Not Separable.
For so long as the Purchase Contract underlying a Unit remains in
effect such Unit shall not be separable into its constituent parts, and the
rights and obligations of the Holder of such Unit in respect of the Pledged
Securities and Purchase Contract underlying such Unit may be acquired, and may
be transferred and exchanged, only as an integrated Unit. Other
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than a Unit Certificate, no Holder of a Unit, nor any transferee thereof, shall
be entitled to receive a certificate evidencing the ownership of Pledged
Securities or any other rights or obligations underlying such Unit for so long
as the Purchase Contract underlying such Unit remains in effect.
SECTION 310. Payments on the Units.
Contract Fees payable by the Company to the Holders, and all amounts
payable to Holders as required by Section 401 or 504(b), will be payable at the
office of the Unit Agent in The City of New York maintained for that purpose or,
at the option of the Company, by check mailed to the address of the Person
entitled thereto at such address as it appears on the relevant Unit Register on
the Record Date; provided, however, that for so long as any Units are evidenced
by Global Certificates, the Unit Agent will pay each such amount payable in
respect of such Units by wire transfer in same-day funds, no later than 2:00
p.m., New York City time, on the Business Day such amount is received by the
Unit Agent from the Collateral Agent or the Company (or, if such amount is
received by the Unit Agent after 1:00 p.m., New York City time, on a Business
Day or on a day that is not a Business Day, no later than 10:00 a.m., New York
City time, on the next succeeding Business Day), to the Depositary, to the
account or accounts designated by it for such purpose.
ARTICLE FOUR
THE PLEDGED SECURITIES
SECTION 401. Payments on the Pledged Securities.
On each Quarterly Payment Date, as provided by the terms of the Pledge
Agreement, subject to receipt by the Collateral Agent of the relevant payments
in respect of the Pledged Securities underlying any Holder's Units, (a) the
Collateral Agent shall, subject to Section 504(b), remit to the Unit Agent the
amount of such payments and (b) the Unit Agent shall pay the amount referred to
in clause (a) above, subject to receipt thereof by the Unit Agent from the
Collateral Agent, to the Person in whose name the Unit Certificate (or one or
more Predecessor Unit Certificates) evidencing such Units is registered at the
close of business on the Record Date next preceding such Quarterly Payment Date.
Payments on the Pledged Securities on the Stock Purchase Date are
addressed in Section 504.
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SECTION 402. Transfer of Pledged Securities Upon Occurrence of Termination
Event.
Upon the occurrence of a Termination Event and the transfer of the
Pledged Securities underlying each Holder's Units to the Unit Agent pursuant to
the terms of the Pledge Agreement, the Unit Agent shall request transfer
instructions with respect to such Pledged Securities from such Holder by written
request mailed to such Holder at his address as it appears in the relevant Unit
Register and shall give notice of such Termination Event to the Collateral
Agent. Thereafter, upon surrender to the Unit Agent of a Unit Certificate
evidencing a Holder's Units, with transfer instructions in proper form for
transfer of the underlying Pledged Securities, the Unit Agent shall transfer the
Pledged Securities evidenced by such Unit Certificate to such Holder in
accordance with such instructions; provided, however, that if the Pledged
Securities are to be transferred to a Person other than the Person in whose name
such Unit Certificate is registered, no such transfer shall be made unless the
Person requesting the transfer has paid any transfer and other taxes required by
reason of such transfer to a Person other than the registered Holder of such
Unit Certificate or has established to the satisfaction of the Company that such
tax either has been paid or is not payable. Until the foregoing conditions to
transfer any of the Pledged Securities underlying any Units has been met, the
Unit Agent shall hold such Pledged Securities as custodian for the Holder of
such Units.
If upon a Termination Event any Holder of Units would, after satisfying
the foregoing conditions, otherwise be entitled to receive (or have transferred
to such Holder's designee) Treasury Securities of any series having a principal
amount that is not an integral multiple of $1,000, such Holder shall instead be
entitled to receive (or have transferred to such Holder's designee) Treasury
Securities of such series in a principal amount equal to the next lower integral
multiple of $1,000 plus a portion of the net proceeds from the sale of Treasury
Securities of such series contemplated by the succeeding sentence representing
such Holder's interest therein. As soon as practicable after transfer to the
Unit Agent of the Pledged Securities as provided in the Pledge Agreement, the
Unit Agent shall, on behalf of all Holders who, by virtue of the preceding
sentence, will not be entitled to a portion of the Treasury Securities of any
series to which they would otherwise be entitled, aggregate and sell the
Treasury Securities of such series representing such portion to or through one
or more U.S. government securities dealers at then prevailing prices, deduct
from the proceeds of such sales all commissions and other out-of-pocket
transaction costs incurred in connection with such sales and, until the net
proceeds therefrom have been distributed to the Holders entitled thereto or
their designees, hold such proceeds in trust for such Holders.
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ARTICLE FIVE
THE PURCHASE CONTRACTS
SECTION 501. Purchase of Common Shares.
Each Holder of a Unit Certificate, by his acceptance thereof, agrees
that it has entered into and shall be bound by the underlying Purchase Contract
the terms and conditions of which are set forth in this Article Five. Each
Purchase Contract shall obligate the Holder of such Unit to purchase, and the
Company to sell, on the Stock Purchase Date, at a price equal to the Stated
Amount, a number of shares of Common Stock equal to the Settlement Rate, unless,
on or prior to the Stock Purchase Date, there shall have occurred a Termination
Event. The "Settlement Rate" is equal to (a) if the Average Trading Price (as
defined below) is greater than or equal to the Threshold Appreciation Price, -
of a Common Share per Purchase Contract, (b) if the Average Trading Price is
less than the Threshold Appreciation Price but is greater than the Stated
Amount, a fractional share of Common Share per Purchase Contract equal to the
Stated Amount divided by the Average Trading Price (rounded upward or downward
to the nearest 1/10,000th of a share or, if there is not a nearest 1/10,000th of
a share, to the next lower 1/10,000th of a share) and (c) if the Average Trading
Price is less than or equal to the Stated Amount, one Common Share per Purchase
Contract, in each case subject to adjustment as provided in Section 506. As
provided in Section 509, no fractional Common Shares will be issued upon
settlement of Purchase Contracts.
The Average Trading Price means the average of the Closing Prices per
Common Share on each of the twenty consecutive Trading Days ending on the last
Trading Day immediately preceding the Stock Purchase Date. The "Closing Price"
of the Common Shares on any date of determination means the closing sale price
(or, if no closing price is reported, the last reported sale price) of the
Common Shares on the New York Stock Exchange (the "NYSE") on such date or, if
the Common Shares are not listed for trading on the NYSE on any such date, as
reported in the composite transactions for the principal United States
securities exchange on which the Common Shares are so listed, or if the Common
Shares are not so listed on a United States national or regional securities
exchange, as reported by The NASDAQ Stock Market, or, if the Common Shares are
not so reported, the last quoted bid price for the Common Shares in the
over-the-counter market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the market value of the
Common Shares on such date as determined by a nationally recognized investment
banking firm retained for this purpose by the Company. A "Trading Day" means a
day on which the Common Shares (A) are not suspended from trading on any
national or regional securities exchange or association or over-the-counter
market at the close of business and (B) have traded at least once on the
national or regional
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securities exchange or association or over-the-counter market that is the
primary market for the trading of the Common Shares.
Each Holder of a Unit Certificate evidencing Units, by his acceptance
thereof, irrevocably authorizes the Unit Agent to enter into and perform the
underlying Purchase Contracts on his behalf as his attorney-in-fact, agrees to
be bound by the terms and provisions thereof, covenants and agrees to perform
his obligations under such Purchase Contracts, consents to the provisions of the
Principal Agreements, irrevocably authorizes the Unit Agent to enter into and
perform the Pledge Agreement on his behalf as his attorney-in-fact, and consents
to and agrees to be bound by the Pledge of the Pledged Securities underlying
such Units pursuant to the Pledge Agreement. Each Holder of Units, by his
acceptance thereof, further irrevocably covenants and agrees that, unless such
Holder satisfies its obligations to the Company under the Purchase Contracts
underlying such Units as provided in Section 504(a), then to the extent and in
the manner provided in Section 504(b) and the Pledge Agreement, but subject to
the terms thereof, payments in respect of all or a portion of the principal of
or proceeds from the Pledged Securities on the Stock Purchase Date shall be paid
by the Collateral Agent to the Company in satisfaction of such Holder's
obligations under such Purchase Contract and such Holder shall acquire no right,
title or interest in such payments.
Upon registration of transfer of a Unit Certificate, the transferee
shall be bound (without the necessity of any other action on the part of such
transferee) by the terms of the Purchase Contracts evidenced thereby and by the
Pledge Agreement and the transferor shall be released from all such obligations
evidenced by the Unit Certificate so transferred. The Company covenants and
agrees, and each Holder of a Unit Certificate, by his acceptance thereof,
likewise covenants and agrees, to be bound by the provisions of this paragraph.
SECTION 502. Contract Fees.
Subject to Section 503, if any Contract Fees are or will be payable by
the Company to the Holders, the Company shall pay, prior to 1:00 p.m., New York
City time, on each Quarterly Payment Date to and including the Stock Purchase
Date, the Contract Fees payable in respect of each Purchase Contract to the
Person in whose name the Unit Certificate (or one or more Predecessor Unit
Certificates) evidencing such Purchase Contract is registered at the close of
business on the Record Date next preceding such Quarterly Payment Date. The
Company's obligations with respect to such Contract Fees are hereby expressly
subordinated in right of payment to the prior payment in full of all Senior
Indebtedness, to the extent and in the manner set forth in the Guarantees.
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Each Unit Certificate delivered under this Agreement upon registration
of transfer of, in exchange for or in lieu of any other Unit Certificate shall
carry the rights to receive and obligations to pay Contract Fees accrued and
unpaid, and to accrue, which were carried by the Purchase Contracts evidenced by
such other Unit Certificate.
SECTION 503. Deferral of Payment Dates For Contract Fee.
So long as no default in the Company's obligations under the Principal
Agreements has occurred and is continuing, the Company shall have the right, at
any time prior to the Stock Purchase Date, to defer the payment of any or all of
the Contract Fees otherwise payable by the Company on any Quarterly Payment
Date, but only if the Company shall give the Holders and the Unit Agent written
notice of its election to defer such payment (specifying the amount to be
deferred) at least five Business Days prior to the earlier of (a) the next
succeeding Quarterly Payment Date or (b) the date the Company is required to
give notice of the Record Date or Quarterly Payment Date with respect to payment
of such Contract Fee to the NYSE or other applicable self-regulatory
organization or to Holders, or (c) the Record Date for such Quarterly Payment
Date. Any Contract Fees so deferred shall bear additional Contract Fees thereon
at a rate per annum equal to the Deferral Rate (computed on the basis of a
360-day year of twelve 30-day months), compounding on each succeeding Quarterly
Payment Date, until paid in full. Deferred Contract Fees (and additional
Contract Fees accrued thereon) shall be due on the next succeeding Quarterly
Payment Date except to the extent that payment is deferred pursuant to this
Section. No Contract Fees may be deferred to a date that is after the Stock
Purchase Date.
In the event the Company exercises its option to defer the payment of
Contract Fees payable by it, then, until all deferred Contract Fees (including
additional Contract Fees accrued thereon) and all deferred interest (including
additional interest accrued thereon) have been paid in full, the Company shall
not (a) declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the Company's
capital stock, (b) make any payment of principal, interest or premium, if any,
on or repay, repurchase or redeem any debt securities of the Company that rank
pari passu with or junior in right of payment to the Guarantees or (c) make any
guarantee payments with respect to any guarantee by the Company if such
guarantee ranks pari passu or junior in right of payment to the Guarantees
(other than, in the case of clause (a) (i) dividends or distributions in, or
options, warrants or rights to subscribe for or purchase, common shares of the
Company, (ii) any declaration of a dividend in connection with the
implementation of a stockholder's rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (iii) as a result of a reclassification of the Company's
capital stock solely into shares of one or more classes or series of the
Company's capital stock or the exchange or conversion of one class or series
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of the Company's capital stock for another class or series of the Company's
capital stock, (iv) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the securities being converted or exchanged and (v)
purchases of common stock in connection with the Company's normal course issuer
mid-purchases or satisfaction by the Company of its obligations under any
benefit plans for its and its subsidiaries' directors, officers or employees or
any of the Company's dividend reinvestment plans).
SECTION 504. Payment of Purchase Price.
(a) A Holder of Units shall, by no later than 10:00 a.m., New York City
time, on the Stock Purchase Date, deliver to the Unit Agent payment of the
purchase price for the shares of Common Stock to be purchased pursuant to the
Purchase Contracts underlying such Units, which payment shall be made in lawful
money of the United States by certified or cashier's check payable to the order
of the Company in immediately available funds in an amount equal to the
aggregate Stated Amount of such Holder's Units.
By 12:00 noon, New York City time, on the Stock Purchase Date, the Unit
Agent shall (i) transfer to the Company all of the payments the Company is
entitled to receive as contemplated by the preceding sentence, (ii) notify the
Collateral Agent and the Company as to the number of Normal Units with respect
to which payment has been received as aforesaid (such Units being collectively
referred to as "Paid Units") and the number of Units with respect to which
payment has not been received as aforesaid (such Units being collectively
referred to as "Unpaid Units"), and (iii) request the Collateral Agent (with
notice of such request to the Company) to release the Pledged Securities
underlying the Paid Units (or, in the case of Treasury Securities, the cash
payments received thereon) from the Pledge and transfer such released Pledged
Securities (or such cash) to the Unit Agent for delivery to the Holders of such
Units entitled thereto, free and clear of the Company's security interest
therein.
By 1:00 p.m., New York City time, on the Stock Purchase Date, the
Collateral Agent shall, as provided by the terms of the Pledge Agreement, comply
with the request referred to in clause (iii) of the preceding sentence (subject
to the Company's right under the Pledge Agreement to prevent the Collateral
Agent from doing so to the extent the aggregate amount the Company has received
as contemplated by clause (i) of the preceding sentence is less than the
aggregate amount payable with respect to the Units referred to in such request).
The Unit Agent shall thereupon, subject to its receipt from the Collateral Agent
of the Pledged Securities (or cash) referred to in such request and subject to
Section 305, transfer such released Pledged Securities (or cash) to the
respective Holders entitled thereto in accordance with the settlement
instructions specified in the form of Settlement Instructions appearing
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on the Unit Certificates evidencing the Paid Units; provided, however, that if
any such Unit Certificate is not surrendered to the Unit Agent with the form of
Settlement Instructions thereon duly completed and executed, the Unit Agent
shall hold such Pledged Securities (or cash), and any distributions or interest
received on such Pledged Securities, as custodian for the Holder entitled
thereto, to be delivered to such Holder (without any interest thereon and
subject to Section 305) upon surrender of such Unit Certificate to the Unit
Agent (with the form of Settlement Instructions thereon duly completed and
executed).
(b) With respect to each Holder's Unpaid Units, pursuant to the terms
of the Pledge Agreement,
(i) the Collateral Agent shall deliver to the Company, out of
the proceeds from the payment at maturity of Treasury Securities,
underlying such Unpaid Units, an amount equal to the aggregate Stated
Amount of such Unpaid Units plus the unpaid Contract Fees, if any,
payable by such Holder to the Company in respect of such Unpaid Units
to satisfy in full such Holder's obligations under such Unpaid Units;
and
(ii) the Collateral Agent shall remit to the Unit Agent, on
behalf of such Holder, the remainder of the proceeds, if any, from the
Pledged Securities underlying such Unpaid Units for distribution to
such Holder.
The amount referred to in clause (ii) above shall, subject to receipt thereof by
the Unit Agent from the Collateral Agent, be paid to the Person in whose name
the Unit Certificate (or one or more Predecessor Unit Certificates) evidencing
such Unpaid Units is registered at the close of business on the Record Date next
preceding the Stock Purchase Date.
(c) Each Holder will be entitled to apply any unpaid amounts owing by
the Company to such Holder as a set-off to reduce, dollar-for-dollar, any
amounts then owing by such Holder to the Company in respect of such Holder's
Units, and such set-off amounts will be treated for all purposes as having been
paid in full by such Holder as required hereby.
(d) 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 of the related Unit unless the Company shall have received payment in
full of the aggregate purchase price for Common Shares to be purchased
thereunder in the manner herein set forth (either directly or by operation of
set-off as contemplated by the preceding sentence).
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SECTION 505. Issuance of Common Shares.
As promptly as practicable on or after the Stock Purchase Date, upon
receipt by the Company of payment in full of the aggregate purchase price for
the Common Shares purchased by the Holders pursuant to the foregoing provisions
of this Article, and subject to Section 506(b), the Company shall deposit with
the Unit Agent, for the benefit of the Holders of the Units, one or more
certificates representing the Common Shares registered in the name of the Unit
Agent (or its nominee) as custodian for the Holders (such certificates for
Common Shares, together with any dividends or distributions with respect
thereto, 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 Unit Certificate to the Unit Agent on or after the Stock
Purchase Date, with the form of Settlement Instructions thereon duly completed
and executed, the Holder of such Unit Certificate shall be entitled to receive
in exchange therefor a certificate representing that number of whole Common
Shares which such Holder is entitled to receive pursuant to the provisions of
this Article Five (after taking into account all Units then held by such Holder)
together with cash in lieu of fractional shares as provided in Section 509 and
any dividends or distributions with respect to such shares constituting part of
the Purchase Contract Settlement Fund, but without any interest thereon, and the
Unit 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 form of Settlement Instructions appearing on the surrendered Unit
Certificate.
If any Common Shares issued in respect of a Purchase Contract are to be
registered to a Person other than the Person in whose name the Unit 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 Unit Certificate evidencing such Purchase Contract
or has established to the satisfaction of the Company that such tax either has
been paid or is not payable.
SECTION 506. Adjustment of Settlement Rate.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(1) In case the Company shall pay or make a dividend or other
distribution on any class of common stock of the Company in Common Shares, the
Settlement Rate in effect at the opening of business on the day following the
date fixed for the determination of stockholders entitled to receive such
dividend or other distribution shall be increased by dividing such Settlement
Rate by a fraction of which the numerator shall be the number of Common Shares
outstanding at the close of business on the date fixed for such determination
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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 Common Shares at any time outstanding shall not
include shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of Common
Shares. The Company will not pay any dividend or make any distribution on Common
Shares held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to all
holders of its Common Shares (not being available on an equivalent basis to
Holders of the Units upon settlement of the Purchase Contracts underlying such
Units) entitling them, for a period expiring within 45 days after the record
date for the determination of stockholders entitled to receive such rights,
options or warrants, to subscribe for or purchase Common Shares at a price per
share less than the Current Market Price per Common Share on the date fixed for
the determination of stockholders entitled to receive such rights, options or
warrants (other than pursuant to a dividend reinvestment plan), the Settlement
Rate in effect at the opening of business on the day following the date fixed
for such determination shall be increased by dividing such Settlement Rate by a
fraction of which the numerator shall be the number of Common Shares outstanding
at the close of business on the date fixed for such determination plus the
number of Common Shares which the aggregate of the offering price of the total
number of Common Shares so offered for subscription or purchase would purchase
at such Current Market Price and the denominator shall be the number of Common
Shares outstanding at the close of business on the date fixed for such
determination plus the number of Common Shares so offered for subscription or
purchase, such increase to become effective immediately after the opening of
business on the day following the date fixed for such determination. For the
purposes of this paragraph (2), the number of Common Shares at any time
outstanding shall not include shares held in the treasury of the Company but
shall include shares issuable in respect of scrip certificates issued in lieu of
fractions of Common Shares. The Company shall not issue any such rights, options
or warrants in respect of Common Shares held in the treasury of the Company.
(3) In case outstanding Common Shares shall be subdivided into a
greater number of Common Shares, the Settlement Rate in effect at the opening of
business on the day following the day upon which such subdivision becomes
effective shall be proportionately increased, and, conversely, in case
outstanding Common Shares shall each be combined into a smaller number of Common
Shares, the Settlement Rate in effect at the opening of business on the day
following the day upon which such combination becomes effective shall be
proportionately reduced, such increase or reduction, as the case may be, to
become effective
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immediately after the opening of business on the day following the day upon
which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Share evidences of its indebtedness or assets
(including securities, but excluding any rights or warrants referred to in
paragraph (2) of this Section, any dividend or distribution paid exclusively in
cash and any dividend or distribution referred to in paragraph (1) of this
Section), the Settlement Rate shall be 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 the determination of stockholders
entitled to receive such distribution by a fraction of which the numerator shall
be the Current Market Price per share of the Common Shares on the date fixed for
such determination less the then fair market value (as determined by the Board
of Directors, whose determination shall be conclusive and described in a Board
Resolution filed with the Unit Agent) of the portion of the assets or evidences
of indebtedness so distributed applicable to one Common Share and the
denominator shall all be such Current Market Price per Common Share, such
adjustment to become effective immediately prior to the opening of business on
the day following the date fixed for the determination of stockholders entitled
to receive such distribution. In any case in which this paragraph (4) is
applicable, paragraph (2) of this Section shall not be applicable.
(5) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Shares cash (excluding any cash that is distributed in
a Reorganization Event to which Section 506(b) applies or as part of a
distribution referred to in paragraph (4) of this Section) in an aggregate
amount that, when combined with (I) the aggregate amount of any other
distributions to all holders of its Common Shares made exclusively in cash
within the 12 months preceding the date of payment of such distribution to the
extent such amount has not already been applied in a prior adjustment pursuant
to this paragraph (5) and (II) 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 date of expiration of
such tender or exchange offer, of the consideration paid in respect of any
tender or exchange offer by the Company or any of its subsidiaries for all or
any portion of the Common Stock expiring within the 12 months preceding the date
of payment of such distribution and in respect of which no adjustment pursuant
to paragraph (6) of this Section has been made, exceeds 15% of the product of
the Current Market Price per Common Share on the date fixed for the
determination of stockholders entitled to receive such distribution times the
number of Common Shares outstanding on such date (such excess portion of such
distribution being herein referred to as the "Excess Amount"), 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 the determination
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of stockholders entitled to receive such distribution by a fraction of which (i)
the numerator shall be the Current Market Price per Common Share on the date
fixed for such determination less an amount equal to (x) such Excess Amount
divided by (y) the number of Common Shares outstanding at the close of business
on the date fixed for such determination and (ii) the denominator shall be the
Current Market Price per Common Share on the date fixed for such determination,
such adjustment to become effective immediately prior to the opening of business
on the day following the date fixed for the determination of stockholders
entitled to receive such distribution.
(6) In case the Company or any subsidiary of the Company shall
consummate a tender or exchange offer for all or any portion of the Common
Shares and pay an aggregate consideration in respect thereof having a fair
market value (as determined by the Board of Directors, whose determination shall
be conclusive and described in a Board Resolution) that, when combined with (I)
the aggregate of the cash plus the fair market value (as determined by the Board
of Directors, whose determination shall be conclusive and described in a Board
Resolution), as of the date of expiration of such tender or exchange offer, of
the consideration paid in respect of any other tender or exchange offer by the
Company or any of its subsidiaries for all or any portion of the Common Shares
expiring within the 12 months preceding the date of expiration of such tender or
exchange offer and in respect of which no adjustment pursuant to this paragraph
(6) has been made and (II) the aggregate amount of any distributions to all
holders of the Company's Common Shares made exclusively in cash within 12 months
preceding the date of expiration of such tender or exchange offer to the extent
such amount has not already been applied in a prior adjustment pursuant to
paragraph (5) of this Section, exceeds 15% of the product of the Current Market
Price per share of the Common Stock on the date of expiration of such tender or
exchange offer times the number of Common Shares outstanding (including any
tendered shares) at the close of business on the date of such expiration, 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 of such expiration by a fraction of which (i) the
numerator shall be (A) the product of (I) the Current Market Price per Common
Share on the date of such expiration and (II) the number of Common Shares
outstanding (including any tendered shares) at the close of business on the date
of such expiration less (B) the amount of cash plus the fair market value
(determined as aforesaid) of the aggregate consideration paid in respect of such
tender or exchange offer and (ii) the denominator shall be the product of (A)
the Current Market Price per share of the Common Stock on the date of such
expiration and (B) the number of Common Shares outstanding (including any
tendered shares) at the close of business on the date of such expiration less
the number of shares acquired pursuant to such tender or exchange, such
adjustment to become effective immediately prior to the opening of business on
the day following the date of such expiration.
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(7) The reclassification of Common Shares into securities including
securities other than Common Stock (other than any reclassification upon a
Reorganization Event to which Section 506(b) applies) shall be deemed to involve
(i) a distribution of such securities other than Common Stock to all holders of
Common Stock (and the effective date of such reclassification shall be deemed to
be "the date fixed for the determination of stockholders entitled to receive
such distribution" and the "date fixed for such determination" within the
meaning of paragraph (4) of this Section), and (ii) a subdivision or
combination, as the case may be, of the number of Common Shares outstanding
immediately prior to such reclassification into the number of Common Shares
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such subdivision
becomes effective" or "the day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (3) of this Section).
(8) The "Current Market Price" per Common Share on any day means the
average of the daily Closing Prices for the 5 consecutive Trading Days selected
by the Company commencing not more than 20 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 Shares
trade 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 Common Share (or, if there is not a nearest 1/10,000th
of a share, to the next lower 1/10,000th of a share). No adjustment in the
Settlement Rate shall be required unless such adjustment would require an
increase or decrease of at least one percent therein; provided, 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 506(a), an adjustment shall also
be made to the Average Trading Price solely to determine which of clauses (a),
(b) or (c) of the definition of Settlement Rate in Section 501 will apply on the
Stock Purchase Date. Such adjustment shall be made by multiplying the Average
Trading Price by a fraction of which the numerator shall be the Settlement Rate
immediately after such adjustment pursuant to paragraph (1), (2), (3), (4), (5),
(6), (7) or (10) of this Section 506(a) and the denominator shall be the
Settlement Rate immediately before such adjustment.
(10) The Company may make such increases in the Settlement Rate, in
addition to those required by this Section, as it considers to be advisable in
order to avoid or diminish
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any income tax to any holders of Common Shares resulting from any dividend or
distribution of stock or issuance of rights or warrants to purchase or subscribe
for stock or from any event treated as such for income tax purposes or for any
other reasons.
(b) Adjustment for Consolidation, Merger or Other Reorganization Event.
In the event of (i) any consolidation or merger of the Company with or into
another Person (other than a merger or consolidation in which the Company is the
continuing corporation and in which the Common Shares outstanding immediately
prior to the merger or consolidation is not exchanged for cash, securities or
other property of the Company or another corporation), (ii) any sale, transfer,
lease or conveyance to another Person of the property of the Company as an
entirety or substantially as an entirety, (iii) any statutory exchange of
securities of the Company with another Person (other than in connection with a
merger or acquisition) or (iv) any liquidation, dissolution or winding up of the
Company (any such event, a "Reorganization Event"), each Holder of Units will
thereafter be entitled to receive on the Stock Purchase 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 by
a Holder of the number of Common Shares issuable on account of such Purchase
Contract if the Stock Purchase Date had occurred immediately prior to such
Reorganization Event, assuming such Holder of Common Shares is not a Person with
which the Company consolidated or into which the Company merged or which merged
into the Company or to which such sale or transfer was made, as the case may be
("constituent Person"), or an Affiliate of a constituent Person, and failed to
exercise his rights of election, if any, as to the kind or amount of securities,
cash and other property receivable upon such Reorganization Event (provided that
if the kind or amount of securities, cash and other property receivable upon
such Reorganization Event is not the same for each Common Share held immediately
prior to such Reorganization Event by other than a constituent Person or an
Affiliate thereof and in respect of which such rights of election shall not have
been exercised ("non-electing share"), then for the purpose of this Section the
kind and amount of securities, cash and other property receivable upon such
Reorganization Event by each non-electing share shall be deemed to be the kind
and amount so receivable per share by a plurality of the non-electing shares).
In the event of such a Reorganization Event, the Person formed by such
consolidation, merger or exchange or the Person which acquires the assets of the
Company or, in the event of a liquidation or dissolution of the Company, the
Company or a liquidating trust created in connection therewith, shall execute
and deliver to the Unit Agent an agreement supplemental hereto providing that
the Holders of Outstanding Units shall have the rights provided by this Section
506. Such supplemental agreement shall provide for adjustments which, for events
subsequent to the effective date of such supplemental agreement, shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Section. The above provisions of this Section shall similarly apply to
successive Reorganization Events.
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SECTION 507. Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate is adjusted as herein provided, the
Company shall:
(i) forthwith compute the adjusted Settlement Rate in
accordance with Section 506 and prepare and transmit to the Unit Agent
an Officers' Certificate setting forth the Settlement Rate, the method
of calculation thereof in reasonable detail, and the facts requiring
such adjustment and upon which such adjustment is based; and
(ii) within 10 Business Days following the occurrence of an
event that permits or requires an adjustment to the Settlement Rate
pursuant to Section 506 (or if the Company is not aware of such
occurrence, as soon as practicable after becoming so aware), provide a
written notice to the Holders of the Units of the occurrence of such
event and a statement in reasonable detail setting forth the method by
which the adjustment to the Settlement Rate was determined and setting
forth the adjusted Settlement Rate.
(b) The Unit Agent shall not at any time be under any duty or
responsibility to any holder of Units to determine whether any facts exist which
may require any adjustment of the Settlement Rate, or with respect to the nature
or extent or calculation of any such adjustment when made, or with respect to
the method employed in making the same. The Unit Agent shall not be accountable
with respect to the validity or value (or the kind or amount) of any Common
Shares, or of any securities or property, which may at the time be issued or
delivered with respect to any Purchase Contract; and the Unit Agent makes no
representation with respect thereto. The Unit Agent shall not be responsible for
any failure of the Company to issue, transfer or deliver any Common Shares
pursuant to a Purchase Contract or to comply with any of the duties,
responsibilities or covenants of the Company contained in this Article.
SECTION 508. No Fractional Shares.
No fractional shares or scrip representing fractional Common Shares
shall be issued or delivered upon settlement on the Stock Purchase Date. If Unit
Certificates evidencing more than one Purchase Contract shall be surrendered for
settlement at one time by the same Holder, the number of full Common Shares
which shall be delivered upon settlement shall be computed on the basis of the
aggregate number of Purchase Contracts evidenced by the Unit Certificates so
surrendered. Instead of any fractional Common Share which would otherwise be
deliverable upon settlement of any Purchase Contracts on the Stock Purchase
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Date, the Company, through the Unit Agent, shall make a cash payment in respect
of such fractional interest in an amount equal to such fraction times the
Average Trading Price. The Company shall provide the Unit Agent from time to
time with sufficient funds to permit the Unit Agent to make all cash payments
required by this Section 508 in a timely manner.
SECTION 509. Charges and Taxes.
The Company will pay all stock transfer and similar taxes attributable
to the initial issuance and delivery of the Common Shares pursuant to the
Purchase Contracts; 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 Unit Certificate evidencing a Purchase Contract or any
issuance of a Common Share in a name other than that of the registered Holder of
a Unit Certificate surrendered in respect of the Purchase Contracts evidenced
thereby, other than in the name of the Unit Agent, as custodian for such Holder,
and the Company shall not be required to issue or deliver such share
certificates or Unit Certificates unless or until the Person or Persons
requesting the transfer or issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.
SECTION 510. Termination Event; Notice.
The Purchase Contracts and the obligations and rights of the Company
and the Holders thereunder, including, without limitation, all obligations and
rights to pay or receive any accrued or deferred Contract Fees or to settle such
Purchase Contracts pursuant to this Article Five, shall immediately and
automatically terminate, without the necessity of any notice or action by any
Holder, the Unit Agent or the Company, if, on or prior to the Stock Purchase
Date, a Termination Event shall have occurred. Upon the occurrence of a
Termination Event, the Company shall give written notice to the Unit Agent and
the Collateral Agent, at their addresses as they appear in the Unit Registers.
Upon and after the occurrence of a Termination Event, the provisions of this
Article Five (other than this Section 510) shall automatically terminate and be
of no further force or effect, and the Unit Certificates shall thereafter
represent only the right to receive the Pledged Securities forming a part of the
Units theretofore evidenced thereby in accordance with the provisions of Section
402 and the Pledge Agreement.
SECTION 511. Early Settlement.
(a) In the event of a merger or consolidation of the Company of the
type described in clause (i) of Section 506(b) in which the Common Shares
outstanding immediately prior to such merger or consolidation are exchanged for
consideration
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consisting of at least 30% cash or cash equivalents (any such event a "Cash
Merger"), then the Company (or the successor to the Company hereunder) shall be
required to offer the Holder of each Unit the right to settle the Purchase
Contract underlying such Unit prior to the Stock Purchase Date ("Early
Settlement") as provided herein. On or before the fifth Business Day after the
consummation of a Cash Merger the Company or, at the request and expense of the
Company, the Unit Agent shall give all Holders notice, in the manner provided in
Section 105, of the occurrence of the Cash Merger and of the right of Early
Settlement arising as a result thereof. The Company shall also deliver a copy of
such notice to the Unit Agent and the Collateral Agent.
Each such notice shall contain:
(i) the date, which shall be not less than 20 nor more than 30
days after the date of such notice, on which the Early Settlement will
be effected (the "Early Settlement Date");
(ii) the date, which shall be three Business Days prior to the
Early Settlement Date, by which the Early Settlement right must be
exercised;
(iii) the Settlement Rate in effect as a result of such Cash
Merger and the kind and amount of securities, cash and other property
receivable by the Holder upon settlement of each Purchase Contract
pursuant to Section 506(b);
(iv) a statement to the effect that all or a portion of the
Stated Amount payable by the Holder to settle the Purchase Contract
will be offset against the amount of cash so receivable upon exercise
of Early Settlement, as applicable;
(v) the instructions a Holder must follow to exercise the
Early Settlement right; and
(vi) a statement to the effect that accrued and unpaid
Contract Fees in respect of the Purchase Contracts for which Early
Settlement shall have been effected shall be payable on the Early
Settlement Date and that upon such payment Contract Fees on such
Purchase Contracts shall cease to accrue.
(b) To exercise an Early Settlement right, a Holder shall deliver to
the Unit Agent on or before 5:00 p.m., New York City time on the date specified
in the notice the Unit Certificate(s) with respect to which the Early Settlement
right is being exercised with the form of "Election to Settle Early" on the
reverse thereof duly completed accompanied by payment of the purchase price for
the property to be purchased pursuant to the Purchase
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Contracts underlying such Units, which payment shall be made in lawful money of
the United States by certified or cashier's check payable to the order of the
Company in immediately available funds in an amount equal to the aggregate
Stated Amount of the Units in respect of which the Early Settlement is being
effected less the amount of cash that otherwise would be deliverable by the
Company or its successor upon settlement of the Purchase Contract in lieu of
Common Shares pursuant to Section 506(b) and as described in the notice to
Holders.
(c) In the event an Early Settlement right shall be exercised by a
Holder in accordance with the terms hereof, (i) on the Early Settlement Date the
Company shall deliver or cause to be delivered by the Unit Agent to each such
exercising Holder the net cash, securities and other property to be received, as
provided herein, by such exercising Holder in respect of the number of Purchase
Contracts for which such Early Settlement right was exercised, together with all
accrued and unpaid Contract Fees to the Early Settlement Date payable on such
Purchase Contracts, in accordance with the settlement instructions provided by
such Holder and (ii) all references herein to Stock Purchase Date shall be
deemed to refer to such Early Settlement Date and all references to the form of
Settlement Instruction shall be deemed to refer to the form of Election to
Settle Early, as applicable.
(d) In the event that Early Settlement is effected with respect to less
than all of the Purchase Contracts underlying the Units evidenced by a Unit
Certificate, upon such Early Settlement the Company shall execute and the Unit
Agent shall authenticate, execute on behalf of the Holders and deliver to the
Holder thereof, at the expense of the Company, a Unit Certificate evidencing the
Units as to which Early Settlement was not effected.
ARTICLE SIX
REMEDIES
SECTION 601. Unconditional Rights of Holders.
Notwithstanding any other provision in this Agreement, the Holder of
any Unit shall have the right, which is absolute and unconditional but which is
subject to Section 510, to purchase Common Shares pursuant to the Purchase
Contract underlying such Unit and to receive payment of Contract Fees payable by
the Company to such Holder with respect to such Purchase Contract and, in each
such case, to institute suit for the enforcement of any such right, and such
rights shall not be impaired without the consent of such Holder.
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SECTION 602. Restoration of Rights and Remedies.
If any Holder of Units 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 603. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement of
mutilated, destroyed, lost or stolen Unit Certificates in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Holders
of Units is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 604. Delay or Omission Not Waiver.
No delay or omission of any Holder to exercise any right or remedy
shall impair any such right or remedy or constitute a waiver of any such right.
Every right and remedy given by this Article or by law to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by such
Holders.
SECTION 605. Undertaking for Costs.
All parties to this Agreement agree, and each Holder of any Unit by his
acceptance of the Unit Certificate evidencing such Unit shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Agreement, or in any suit against
the Unit Agent for any action taken, suffered or omitted by it as Unit Agent,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; provided that the provisions of this Section shall not
apply to any suit instituted by the Company, to any suit instituted by the Unit
Agent, to any suit instituted by any Holder of Units, or group of Holders,
holding in the aggregate more than 10% of the number of Outstanding Units, or
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to any suit instituted by any Holder of Units for the enforcement of payments
due in respect of Pledged Securities or Contract Fees on Purchase Contracts
underlying such Units on or after the respective due dates therefor, or for
enforcement of the right to purchase Common Shares under the Purchase Contracts
constituting a part of such Units.
SECTION 606. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Agreement; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Unit Agent or the Holders, but will suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE SEVEN
THE UNIT AGENT
SECTION 701. Certain Duties and Responsibilities.
(a)(i) The Unit Agent undertakes to perform, with respect to
the Units, such duties and only such duties as are specifically set
forth in this Agreement, and no implied covenants or obligations shall
be read into this Agreement against the Unit Agent; and
(ii) in the absence of bad faith or negligence on its part,
the Unit Agent may, with respect to the Units, conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Unit
Agent and conforming to the requirements of this Agreement, but in the
case of any certificates or opinions which by any provision hereof are
specifically required to be furnished to the Unit Agent, the Unit Agent
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Agreement but shall have no
duty to confirm or investigate the accuracy or mathematical
calculations or other facts stated therein.
(b) No provision of this Agreement shall be construed to relieve the
Unit Agent from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
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(i) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(ii) the Unit 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 Unit Agent was negligent in ascertaining the
pertinent facts; and
(iii) no provision of this Agreement shall require the Unit
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 repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(c) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Unit Agent shall be subject to the provisions of
this Section.
SECTION 702. Notice of Default.
Within 90 days after the occurrence of any default by the Company
hereunder, of which a Responsible Officer of the Unit Agent has actual
knowledge, the Unit Agent shall transmit by mail to all Holders of Units, as
their names and addresses appear in the Unit Registers, notice of such default
hereunder, unless such default shall have been cured or waived.
SECTION 703. Certain Rights of Unit Agent.
Subject to the provisions of Section 701:
(a) the Unit Agent may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by an Officers' Certificate, Issuer
Order or Issuer Request, and any resolution of the Board of Directors
of the Company may be sufficiently evidenced by a Board Resolution;
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(c) whenever in the administration of this Agreement the Unit
Agent shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Unit
Agent (unless other evidence be herein specifically prescribed) may, in
the absence of bad faith on its part, rely upon an Officers'
Certificate of the Company;
(d) the Unit Agent may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Unit 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 Unit Agent, in its
discretion, may make reasonable further inquiry or investigation into
such facts or matters related to the issuance of the Units and the
execution, delivery and performance of the Purchase Contracts as it may
see fit, and, if the Unit Agent shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney; and
(f) the Unit Agent may execute any of its powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Unit Agent shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
SECTION 704. Not Responsible for Recitals or Issuance of Units.
The recitals contained herein and in the Unit Certificates shall be
taken as the statements of the Company and the Unit Agent assumes no
responsibility for their correctness. The Unit Agent makes no representations as
to the validity or sufficiency of this Agreement or of the Units. The Unit Agent
shall not be accountable for the use or application by the Company of the
proceeds in respect of the Notes or Purchase Contracts.
SECTION 705. May Hold Units.
Any Unit Registrar or any other agent of the Company, or the Unit
Agent, in its individual or any other capacity, may become the owner or pledgee
of Units and may
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otherwise deal with the Company with the same rights it would have if it were
not Unit Registrar or such other agent, or the Unit Agent.
SECTION 706. Money Held in Trust.
Money held by the Unit Agent hereunder need not be segregated from
other funds except to the extent required by law. The Unit Agent shall be under
no obligation to invest or pay interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 707. Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Unit Agent from time to time reasonable
compensation for all services rendered by it hereunder as the Company
and the Unit Agent shall from time to time agree in writing;
(b) except as otherwise expressly provided herein, to
reimburse the Unit Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Unit Agent in
accordance with any provision of this Agreement (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(c) to indemnify the Unit Agent and any predecessor Unit Agent
and their agents for, and to hold each of them harmless against, any
and all loss, damage, claim, liability or expense, including taxes
(other than taxes based upon, measured by or determined by the income
of the Unit Agent), 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 provision of this Section 707 shall survive the termination of this
Agreement and the resignation or removal of the Unit Agent.
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SECTION 708. Unit Agent Required; Eligibility.
There shall at all times be an Unit Agent hereunder which shall be a
corporation or banking association 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 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 qualified and eligible under
this Article and willing to act on reasonable terms. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Unit Agent shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 709. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Unit Agent and no appointment of a
successor Unit Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Unit Agent in accordance with the
applicable requirements of Section 710.
(b) The Unit 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 Unit Agent required by Section
710 shall not have been delivered to the Unit Agent within 30 days after the
giving of such notice of resignation, the resigning Unit Agent may petition any
court of competent jurisdiction for the appointment of a successor Unit Agent.
(c) The Unit Agent may be removed at any time by Act of the Holders of
a majority in number of the Outstanding Units delivered to the Unit Agent and
the Company.
(d) If at any time
(i) the Unit Agent fails to comply with Section 310(b) of the
TIA, as if the Unit Agent were an indenture trustee under an indenture
qualified under the TIA, after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Unit for at least
six months, or
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(ii) the Unit Agent shall cease to be eligible under Section
708 and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(iii) the Unit Agent shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Unit Agent or
of its property shall be appointed or any public officer shall take
charge or control of the Unit Agent or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (x) the Company by a Board Resolution may remove the
Unit Agent, or (y) any Holder who has been a bona fide Holder of a Unit for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Unit Agent
and the appointment of a successor Unit Agent.
(e) If the Unit Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Unit Agent for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Unit
Agent and shall comply with the applicable requirements of Section 710. If no
successor Unit Agent shall have been so appointed by the Company and accepted
appointment in the manner required by Section 710, any Holder who has been a
bona fide Holder of a Unit for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Unit Agent.
(f) The Company shall give, or shall cause such successor Unit Agent to
give, notice of each resignation and each removal of the Unit Agent and each
appointment of a successor Unit Agent by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Units as their names and
addresses appear in the Unit Registers. Each notice shall include the name of
the successor Unit Agent and the address of its Corporate Trust Office.
SECTION 710. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Unit Agent,
every such successor Unit Agent so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Unit Agent an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring Unit
Agent shall become effective and such successor Unit Agent, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
agencies and duties of the retiring Unit Agent; but, on the request of the
Company or the successor Unit Agent, such retiring Unit Agent shall, upon
payment of its
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charges, execute and deliver an instrument transferring to such successor Unit
Agent all the rights, powers and trusts of the retiring Unit Agent and shall
duly assign, transfer and deliver to such successor Unit Agent all property and
money held by such retiring Unit Agent hereunder.
(b) Upon request of any such successor Unit Agent, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Unit Agent all such rights, powers and agencies
referred to in paragraph (a) of this Section.
(c) No successor Unit Agent shall accept its appointment unless at the
time of such acceptance such successor Unit Agent shall be qualified and
eligible under this Article.
SECTION 711. Merger, Conversion, Consolidation or Succession to Business.
Any corporation or banking association into which the Unit Agent may be
merged or converted or with which it may be consolidated, or any corporation or
banking association resulting from any merger, conversion or consolidation to
which the Unit Agent shall be a party, or any corporation or banking association
succeeding to all or substantially all the corporate trust business of the Unit
Agent, shall be the successor of the Unit Agent hereunder, provided such
corporation or banking association shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Unit Certificates
shall have been authenticated and executed on behalf of the Holders, but not
delivered, by the Unit Agent then in office, any successor by merger, conversion
or consolidation to such Unit Agent may adopt such authentication and execution
and deliver the Unit Certificates so authenticated and executed with the same
effect as if such successor Unit Agent had itself authenticated and executed
such Units.
SECTION 712. Preservation of Information; Communications to Holders.
(a) The Unit Agent shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders received by the Unit
Agent in its capacity as Unit Registrar.
(b) If three or more Holders (herein referred to as "applicants") apply
in writing to the Unit Agent, and furnish to the Unit Agent reasonable proof
that each such applicant has owned a Unit 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 Units and is accompanied by a copy
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of the form of proxy or other communication which such applicants propose to
transmit, then the Unit Agent shall, within five Business Days after the receipt
of such application, afford such applicants access to the information preserved
at the time by the Unit Agent in accordance with Section 712(a).
(c) Every Holder of Units, by receiving and holding the Unit
Certificates evidencing the same, agrees with the Company and the Unit Agent
that none of the Company, the Unit Agent nor any agent of any of them shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders in accordance with Section 712(b), regardless
of the source from which such information was derived.
SECTION 713. No Obligations of Unit Agent.
Except to the extent otherwise provided in this Agreement, the Unit
Agent assumes no obligations and shall not be subject to any liability under
this Agreement or any Purchase Contract in respect of the obligations of the
Holder of any Unit thereunder. The Company agrees, and each Holder of a Unit
Certificate, by his acceptance thereof, shall be deemed to have agreed, that the
Unit Agent's execution of the Unit Certificates on behalf of the Holders shall
be solely as agent and attorney-in-fact for the Holders, and that the Unit Agent
shall have no obligation to perform such Purchase Contracts on behalf of the
Holders, except to the extent expressly provided in Article Five hereof.
SECTION 714. Tax Compliance.
(a) The Unit Agent, on its own behalf and on behalf of the Company,
will comply with all applicable certification, information reporting and
withholding (including "backup" withholding) requirements imposed by applicable
tax laws, regulations or administrative practice with respect to (i) any
payments made with respect to the Units or (ii) the issuance, delivery, holding,
transfer, redemption or exercise of rights under the Units. Such compliance
shall include, without limitation, the preparation and timely filing of required
returns and the timely payment of all amounts required to be withheld to the
appropriate taxing authority or its designated agent.
(b) The Unit Agent shall comply with any direction received from the
Company with respect to the application of such requirements to particular
payments or Holders or in other particular circumstances, and may for purposes
of this Agreement rely on any such direction in accordance with the provisions
of Section 701(a)(ii) hereof.
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(c) The Unit Agent shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available, on
written request, to the Company or to its authorized representative within a
reasonable period of time after receipt of such request.
ARTICLE EIGHT
SUPPLEMENTAL AGREEMENTS
SECTION 801. Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the parties to either Principal
Agreement, at any time and from time to time, may enter into one or more
agreements supplemental hereto or thereto, in form satisfactory to such parties,
for any of the following purposes:
(1) to evidence the succession of another Person to any such
party, and the assumption by any such successor of the covenants of
such party herein or therein and under the Units; or
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
(3) to evidence and provide for the acceptance of appointment
hereunder by a successor Unit Agent; or
(4) to make provision with respect to the rights of Holders
pursuant to the requirements of Section 506(b); or
(5) to cure any ambiguity, to correct or supplement any
provisions herein or therein which may be inconsistent with any other
provisions herein or therein, or to make any other provisions with
respect to such matters or questions arising under such Principal
Agreement, provided such action shall not adversely affect the
interests of the Holders.
SECTION 802. Supplemental Agreements with Consent of Holders.
With the consent of the Holders of not less than a majority of the
Outstanding Units, by Act of said Holders delivered to the parties to either
Principal Agreement, such parties (when authorized, in the case of the Company,
by a Board Resolution) may enter into an agreement or agreements supplemental to
such Principal Agreement for the purpose of
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modifying in any manner the terms of the Units, or the provisions of such
Principal Agreement or the rights of the Holders in respect of the Units;
provided, however, that no such supplemental agreement shall, without the
consent of the Holder of each Outstanding Unit affected thereby,
(1) change any payment date;
(2) change the amount or type of Pledged Securities required
to be pledged to secure obligations under the Units, impair the right
of the Holder of any Unit to receive distributions or interest payments
on the underlying Pledged Securities or otherwise adversely affect the
Holder's rights in or to such Pledged Securities;
(3) reduce the Contract Fees or other amounts receivable by
Holders in respect of Units or increase other amounts payable by
Holders in respect of Units or change any place where, or the coin or
currency in which, any Contract Fees or other amounts receivable or
payable in respect of Units are payable;
(4) impair the right to institute suit for the enforcement of
any Purchase Contract;
(5) reduce the number of Common Shares to be purchased
pursuant to any Purchase Contract, increase the price to purchase
Common Shares upon settlement of any Purchase Contract, change the
Stock Purchase Date or otherwise adversely affect the Holder's rights
under any Purchase Contract; or
(6) reduce the percentage of the Outstanding Units the consent
of whose Holders is required for any such supplemental agreement.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it shall
be sufficient if such Act shall approve the substance thereof.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any supplemental
agreement to any Principal Agreement. If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and only such Persons, shall
be entitled to consent to such supplemental agreement, whether or not such
Holders remain Holders after such record date; provided, that unless such
consent shall have become effective by virtue of the requisite percentage having
been obtained prior to the date which is 90 days after such record date, any
such consent
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previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
SECTION 803. Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by, any
supplemental agreement permitted by this Article or the modifications thereby of
the agencies created by the Principal Agreements, the Unit Agent shall be
entitled to receive and (subject to Section 701) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental agreement is authorized or permitted by this Agreement. The Unit
Agent may, but shall not be obligated to, enter into any such supplemental
agreement which affects the Unit Agent's own rights, duties or immunities under
this Agreement or otherwise.
SECTION 804. Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this Article,
the relevant Principal Agreement shall be modified in accordance therewith, and
such supplemental agreement shall form a part of such Principal Agreement for
all purposes; and every Holder of Unit Certificates theretofore or thereafter
authenticated, executed on behalf of the Holder and delivered hereunder shall be
bound thereby.
SECTION 805. Reference to Supplemental Agreements.
Unit 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 Unit Agent, bear a notation in form
approved by the Unit Agent as to any matter provided for in such supplemental
agreement. If the Company shall so determine, new Unit Certificates so modified
as to conform, in the opinion of the Unit 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 Unit Agent
in exchange for Outstanding Unit Certificates evidencing the same number of
Units.
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ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 901. Covenant Not to Merge, Consolidate, Sell or Convey Property
Except Under Certain Conditions.
The Company covenants that it will not merge or consolidate with any
other Person or sell, assign, transfer, lease or convey all or substantially all
of its assets to any Person, unless (a) 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 Canada or the United States of America
or a Province or State thereof and such corporation shall assume the obligations
of the Company under the Purchase Contracts and the Pledge Agreement by one or
more supplemental agreements in form satisfactory to the Unit Agent and, in the
case of the Pledge Agreement, the Collateral Agent, executed and delivered to
the Unit Agent, and, in the case of the Pledge Agreement, the Collateral Agent
by such corporation, and (b) the Company or such successor corporation, as the
case may be, shall not, immediately after such merger or consolidation, or such
sale, assignment, transfer, lease or conveyance, be in default in the
performance of any covenant or condition under any Principal Agreement or under
any of the Units.
SECTION 902. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale, assignment, transfer,
lease or conveyance and upon any such assumption by the successor corporation,
such successor corporation shall succeed to and be substituted for the Company
with the same effect as if it had been named in the Principal Agreements 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 The Seagram Company Ltd., any or
all of the Unit Certificates evidencing Units issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the Unit
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 Unit Agent shall authenticate and execute on behalf of
the Holders and deliver any Unit Certificates which previously shall have been
signed and delivered by the officers of the Company to the Unit Agent for
authentication and execution, and any Unit Certificate evidencing Units which
such successor corporation thereafter shall cause to be signed and delivered to
the Unit Agent for that purpose. All the Unit Certificates so issued shall in
all respects have the same legal rank and benefit under this Agreement as the
Unit Certificates theretofore or thereafter issued in accordance with the terms
of this Agreement as though all of such Unit Certificates had been issued at the
date of the execution hereof.
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In case of any such consolidation, merger, sale or conveyance such
change in phraseology and form (but not in substance) may be made in the Unit
Certificates evidencing Units thereafter to be issued as may be appropriate.
SECTION 903. Opinion of Counsel to Unit Agent.
The Unit Agent, subject to Sections 701 and 703, shall be provided an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, assignment, transfer, lease or conveyance, and any such assumption,
complies with the provisions of this Article.
ARTICLE TEN
COVENANTS
SECTION 1001. Performance Under Purchase Contracts.
The Company covenants and agrees for the benefit of the Holders from
time to time of the Units that it will duly and punctually perform its
obligations under the Purchase Contracts in accordance with the terms of the
Purchase Contracts and this Agreement.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New
York an office or agency where Unit Certificates may be presented or surrendered
for acquisition of Common Shares upon settlement and for transfer of Pledged
Securities upon occurrence of a Termination Event, where Unit Certificates may
be surrendered for registration of transfer or exchange, where payment of
Contract Fees payable by the Company to the Holders may be made and where
notices and demands to or upon the Company in respect of the Units and this
Agreement may be served. The Company will give prompt written notice to the Unit
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 Unit 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 Unit 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 Unit 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
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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 Unit Agent
of any such designation or rescission and of any change in the location of any
such other office or agency. The Company hereby designates as the place of
payment for the Units the Corporate Trust Office and appoints the Unit Agent at
its Corporate Trust Office as paying agent in such city.
SECTION 1003. Company to Reserve Common Shares.
The Company shall at all times prior to the Stock Purchase Date reserve
and keep available, free from preemptive rights, out of its authorized but
unissued Common Shares the full number of Common Shares issuable against tender
of payment in respect of all Purchase Contracts underlying the Units.
SECTION 1004. Covenants as to Common Shares.
The Company covenants that all Common Shares which may be issued
against tender of payment in respect of the Purchase Contracts underlying the
Units will, upon issuance, be newly issued (i.e., not issued out of treasury
shares) and be duly authorized, validly issued, fully paid and nonassessable.
SECTION 1005. Statements of Officers of the Company as to Default.
The Company will deliver to the Unit Agent, on or before - in each year
(beginning the first - after the date of the original issuance of the Units
hereunder) a brief certificate from the principal executive, financial or
accounting officer of the Company stating that in the course of the performance
by the signer of his or her duties as an officer of the Company he or she would
normally have knowledge of any default or non-compliance by the Company in the
performance of any covenants or conditions contained in this Agreement, stating
whether or not he or she has knowledge of any such default or non-compliance
and, if so, specifying each such default or non-compliance of which the signer
has knowledge and the nature thereof. For purposes of this Section 1005,
non-compliance or default shall be determined without regard to any grace period
or requirement of notice.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
THE SEAGRAM COMPANY LTD
By:
-------------------------------
THE BANK OF NEW YORK,
as Unit Agent
By:
-------------------------------
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EXHIBIT A
FORM OF UNIT CERTIFICATE
THE SEAGRAM COMPANY LTD.
-% ADJUSTABLE CONVERSION-RATE EQUITY SECURITY UNITS
(STATED AMOUNT $- PER UNIT)
CUSIP No. -
No. ____ ____________ Units
This Unit Certificate certifies that Cede & Co. is the
registered Holder of the number of Units set forth above. Each Unit represents
the right to purchase Common Shares under a Purchase Contract with The Seagram
Company Ltd., a Canadian corporation (the "Company"), together with ownership of
the Subordinated Deferrable Notes of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & Sons, Inc. (the
"Notes") or other Pledged Securities pledged to secure the obligations owed to
the Company under such Purchase Contract, subject to the pledge arrangements
securing the foregoing obligations.
Each Purchase Contract evidenced hereby is governed by and set
forth in a Master Unit Agreement, dated as of May __, 1999 (the "Master Unit
Agreement"), between the Company and The Bank of New York, as unit agent (herein
called the "Unit Agent"). All terms used herein which are not defined herein and
which are defined in the Master Unit Agreement have the meanings set forth
therein. The Pledge evidenced hereby is governed by the Pledge Agreement.
Reference is hereby made to the Master Unit Agreement and the Pledge Agreement,
and any supplemental agreements thereto, for a description of the respective
rights, limitations of rights, obligations, duties and immunities thereunder of
the Unit Agent, the Company, the Collateral Agent and the Holders. The summary
contained herein is qualified in its entirety by the provisions of the Principal
Agreements, and the Principal Agreements shall govern the rights of the parties
to the extent that there is any conflict between such summary and such
provisions.
Each Purchase Contract evidenced hereby obligates the Holder
of this Unit Certificate to purchase, and the Company to sell, on -, 2002 (the
"Stock Purchase Date"), at a price equal to $- per unit (the "Stated Amount"), a
number of Common Shares, having such terms as set forth in the Company's
Articles of Amalgamation, as amended from time to time ("Common Shares"), of the
Company equal to the Settlement Rate, unless on or prior to the Stock Purchase
Date there shall have occurred a Termination Event. The "Settlement
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Rate" is equal to (a) if the Average Trading Price (as defined in the Master
Unit Agreement) is greater than or equal to $- (the "Threshold Appreciation
Price"), - of a Common Share per Purchase Contract, (b) if the Average Trading
Price is less than the Threshold Appreciation Price but is greater than the
Stated Amount, a fractional Common Share per Purchase Contract equal to the
Stated Amount divided by the Average Trading Price (rounded to the nearest
1/10,000th of a share or, if there is no nearest 1/10,000th of a share, rounded
downward to the nearest 1/10,000th of a share) and (c) if the Average Trading
Price is less than or equal to the Stated Amount, one Common Share per Purchase
Contract, in each case subject to adjustment as provided in the Master Unit
Agreement. No fractional Common Shares will be issued upon settlement of
Purchase Contracts, but instead of issuing any fractional interest the Company
shall make a cash payment as provided in the Master Unit Agreement. The purchase
price for the Common Shares to be purchased pursuant to each Purchase Contract
evidenced hereby, if not paid by 10:00 a.m., New York City time, on the Stock
Purchase Date, shall be paid by application of payments received by the Company
on the Stock Purchase Date from the Collateral Agent pursuant to the Pledge
Agreement in respect of the Pledged Securities pledged to secure such Holder's
obligations under such Purchase Contract.
The Purchase Contracts and the obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights
and obligations to receive and pay accrued or deferred Contract Fees, shall
immediately and automatically terminate, without the necessity of any notice or
action by any Holder, the Unit Agent or the Company, if, on or prior to the
Stock Purchase Date, a Termination Event shall have occurred. Upon and after the
occurrence of a Termination Event, the Collateral Agent shall release the
Pledged Securities from the Pledge. The Units shall thereafter represent the
right to receive the Pledged Securities forming a part of such Units in
accordance with the provisions of the Master Unit Agreement and the Pledge
Agreement.
The Company shall pay, on each -, -, - and -, commencing -,
1999 (each, a "Quarterly Payment Date"), in respect of each Purchase Contract
evidenced hereby, a fee (the "Contract Fee") accruing on the Stated Amount of
such Unit from and including the date of first issuance of any Units at a rate
per annum equal to -% (the "Contract Fee Rate") (computed on the basis of a
360-day year of twelve 30-day months and subject to deferral as described in the
Master Unit Agreement), plus any additional fees accrued thereon pursuant to
Section 503 of the Master Unit Agreement. The Company's obligations with respect
to Contract Fees shall be, to the extent provided in the Master Unit Agreement,
subordinate and subject in right of payment to all Senior Indebtedness.
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Payments due to the Holder in respect of the Units evidenced
hereby will be payable to the Person in whose name this Unit Certificate is
registered at the close of business on the Record Date next preceding the
relevant payment date.
The transfer of any Unit Certificate will be registered and
Unit Certificates may be exchanged as provided in the Master Unit Agreement. The
Unit Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents permitted by the Master Unit Agreement. No
service charge shall be required for any such registration of transfer or
exchange, but the Company and the Unit Agent may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. For so long as the Purchase Contract underlying a Unit remains in
effect, such Unit shall not be separable into its constituent parts, and the
rights and obligations of the Holder of such Unit in respect of the Pledged
Securities and Purchase Contract constituting such Unit may be transferred and
exchanged only as an integrated Unit.
Upon registration of transfer of this Unit Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee) by the terms of the Purchase Contracts evidenced hereby and
by the Pledge Agreement, and the transferor shall be released from such
obligations. The Company covenants and agrees, and the Holder, by his acceptance
hereof, likewise covenants and agrees, to be bound by the provisions of this
paragraph.
The Holder of this Unit Certificate, by his acceptance hereof,
irrevocably authorizes the Unit Agent to enter into and perform the related
Purchase Contracts evidenced hereby on his behalf as his attorney-in-fact,
agrees to be bound by the terms and provisions thereof, covenants and agrees to
perform his obligations under such Purchase Contracts, consents to the
provisions of the Principal Agreements, irrevocably authorizes the Unit Agent to
enter into and perform the Pledge Agreement on his behalf as his
attorney-in-fact, and consents to and agrees to be bound by the Pledge evidenced
hereby pursuant to the Pledge Agreement.
Subject to certain exceptions, the provisions of the Principal
Agreements may be amended with the consent of the Holders of at least a majority
of the Outstanding Units.
THE PURCHASE CONTRACTS SHALL FOR ALL PURPOSES BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
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The Company, the Unit Agent and any agent of the Company or
the Unit Agent may treat the Person in whose name this Unit Certificate is
registered as the owner of the Units evidenced hereby for the purpose of
receiving payments of distributions or interest on the Pledged Securities,
receiving the rights and performing the obligations under 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 Unit 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 COMMON SHARES.
Copies of the Principal Agreements are available for
inspection at the offices of the Unit Agent.
Unless the certificate of authentication hereon has been
executed by the Unit Agent by manual signature, this Unit Certificate shall not
be entitled to any benefit under the Principal Agreements or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company and the Holder hereby agree to
their respective obligations under the Purchase Contracts evidenced by this
instrument, and the Holder hereby acknowledges that the Pledged Securities
evidenced by this instrument are subject to the Pledge under the Pledge
Agreement.
THE SEAGRAM COMPANY LTD.
By:_________________________________
Attest: ______________________
HOLDER SPECIFIED ABOVE
By: THE BANK OF NEW YORK,
as Attorney-in-Fact of such Holder
By: ________________________________
Dated:
Unit Agent's Certificate of Authentication
This is one of the Unit Certificates referred to in the within
mentioned Master Unit Agreement.
THE BANK OF NEW YORK
as Unit Agent
By: ________________________________
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SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for Common
Shares deliverable upon settlement on or after the Stock Purchase Date of the
Purchase Contracts underlying the number of Units evidenced by this 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*
If shares are to be registered in the REGISTERED HOLDER
name of and delivered to a Person
other than the Holder, please print Please print name and address of
such Person's name and address: Registered Holder:
Name Name
Address Address
Social Security or other Taxpayer
Identification Number, if any
* Signature must be guaranteed by an eligible Guarantor Institution
(banks, stockbrokers, savings and loan associations and credit unions)
with membership in an approved signature medallion program pursuant to
Securities and Exchange Commission Rule 17Ad-15 if Common Shares are to
be delivered other than to, and in the name of, the registered Holder.
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If shares are to be registered in the name REGISTERED HOLDER
of and delivered to a Person other than the
Holder, please print such Person's name and Please print name and address
address: of Registered Holder:
Name Name
Address Address
Social Security or other Taxpayer
Identification Number, if any
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ELECTION TO SETTLE EARLY
The undersigned Holder directs that a certificate for Common
Shares deliverable upon settlement on or after the Early Settlement Date of the
Purchase Contracts underlying the number of Units evidenced by this Unit
Certificate be registered in the name of, and delivered to the undersigned at
the address indicated below unless a different name and address have been
indicated below. If shares are to be registered in the name of a Person other
than the undersigned, the undersigned will pay any transfer tax payable incident
thereto.
Dated: ________________________ ____________________________________
Signature*
If shares are to be registered in the REGISTERED HOLDER
name of and delivered to a Person
other than the Holder, please print Please print name and address of
such Person's name and address: Registered Holder:
Name Name
Address Address
Social Security or other Taxpayer
Identification Number, if any
* Signature must be guaranteed by an eligible Guarantor Institution
(banks, stockbrokers, savings and loan associations and credit unions)
with membership in an approved signature medallion program pursuant to
Securities and Exchange Commission Rule 17Ad-15 if Common Shares are to
be delivered other than to, and in the name of, the registered Holder.
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