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EXHIBIT 4.12
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AMERUS LIFE HOLDINGS, INC.
AND
FIRST UNION NATIONAL BANK,
as Unit Agent
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MASTER UNIT AGREEMENT
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Dated as of [ ]
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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. Compliance Certificates and Opinions..................................................9
SECTION 103. Form of Documents Delivered to Unit Agent............................................10
SECTION 104. Acts of Holders; Record Dates........................................................10
SECTION 105. Notices, etc. to Unit Agent and the Company..........................................12
SECTION 106. Notice to Holders; Waiver............................................................12
SECTION 107. Effect of Headings and Table of Contents.............................................13
SECTION 108. Successors and Assigns...............................................................13
SECTION 109. Separability Clause..................................................................13
SECTION 110. Benefits of Agreement................................................................13
SECTION 111. Governing Law........................................................................13
SECTION 112. Legal Holidays.......................................................................13
SECTION 113. Counterparts.........................................................................14
SECTION 114. Inspection of Agreement..............................................................14
ARTICLE TWO
UNIT CERTIFICATE FORMS
SECTION 201. Forms of Unit Certificates Generally.................................................14
SECTION 202. Form of Unit Agent's Certificate of Authentication...................................15
ARTICLE THREE
THE UNITS
SECTION 301. Title and Terms; Denominations.......................................................15
SECTION 302. Rights and Obligations Evidenced by the Unit Certificates............................16
SECTION 303. Execution, Authentication, Delivery and Dating.......................................16
SECTION 304. Temporary Unit Certificates..........................................................17
SECTION 305. Registration; Registration of Transfer and Exchange..................................17
SECTION 306. Mutilated, Destroyed, Lost and Stolen Unit Certificates..............................20
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SECTION 307. Persons Deemed Owners................................................................21
SECTION 308. Cancellation.........................................................................21
SECTION 309. Substitution of Pledged Securities and Creation of Stripped Units;
Units Not Otherwise Separable....................................................22
SECTION 310. Payments on the Units................................................................24
ARTICLE FOUR
THE PLEDGED SECURITIES
SECTION 401. Payments on the Pledged Securities...................................................24
SECTION 402. Transfer of Pledged Securities Upon Occurrence of
Termination Event................................................................25
ARTICLE FIVE
THE PURCHASE CONTRACTS
SECTION 501. Purchase of Shares of Common Stock...................................................26
SECTION 502. Contract Fees........................................................................28
SECTION 503. Deferral of Payment Dates For Contract Fee...........................................28
SECTION 504. Payment of Purchase Price............................................................29
SECTION 505. Issuance of Shares of Common Stock...................................................31
SECTION 506. Adjustment of Settlement Rate........................................................32
SECTION 507. Notice of Adjustments and Certain Other Events.......................................37
SECTION 508. No Fractional Shares.................................................................38
SECTION 509. Charges and Taxes....................................................................38
SECTION 510. Termination Event; Notice............................................................39
ARTICLE SIX
REMEDIES
SECTION 601. Unconditional Rights of Holders......................................................39
SECTION 602. Restoration of Rights and Remedies...................................................39
SECTION 603. Rights and Remedies Cumulative.......................................................40
SECTION 604. Delay or Omission Not Waiver.........................................................40
SECTION 605. Undertaking for Costs................................................................40
SECTION 606. Waiver of Stay or Extension Laws.....................................................41
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ARTICLE SEVEN
THE UNIT AGENT
SECTION 701. Certain Duties and Responsibilities..................................................41
SECTION 702. Notice of Default....................................................................42
SECTION 703. Certain Rights of Unit Agent.........................................................42
SECTION 704. Not Responsible for Recitals or Issuance of Units....................................43
SECTION 705. May Hold Units.......................................................................43
SECTION 706. Money Held in Trust..................................................................43
SECTION 707. Compensation and Reimbursement.......................................................44
SECTION 708. Corporate Unit Agent Required; Eligibility...........................................44
SECTION 709. Resignation and Removal; Appointment of Successor....................................45
SECTION 710. Acceptance of Appointment by Successor...............................................46
SECTION 711. Merger, Conversion, Consolidation or Succession to Business..........................47
SECTION 712. Preservation of Information; Communications to Holders...............................47
SECTION 713. No Obligations of Unit Agent.........................................................47
SECTION 714. Tax Compliance.......................................................................48
ARTICLE EIGHT
SUPPLEMENTAL AGREEMENTS
SECTION 801. Supplemental Agreements Without Consent of Holders...................................48
SECTION 802. Supplemental Agreements with Consent of Holders......................................49
SECTION 803. Execution of Supplemental Agreements.................................................50
SECTION 804. Effect of Supplemental Agreements....................................................51
SECTION 805. Reference to Supplemental Agreements.................................................51
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 901. Covenant Not to Merge, Consolidate, Sell or Convey Property
Except Under Certain Conditions..................................................51
SECTION 902. Rights and Duties of Successor Corporation...........................................52
SECTION 903. Opinion of Counsel to Unit Agent.....................................................52
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ARTICLE TEN
COVENANTS
SECTION 1001. Performance Under Purchase Contracts................................................52
SECTION 1002. Maintenance of Office or Agency.....................................................53
SECTION 1003. Company to Reserve Common Stock.....................................................53
SECTION 1004. Covenants as to Common Stock........................................................53
SECTION 1005. Statements of Officers of the Company as to Default.................................54
TESTIMONIUM........................................................................................55
SIGNATURES.........................................................................................55
EXHIBIT A Form of Normal Unit Certificate
EXHIBIT B Form of Stripped Unit Certificate
EXHIBIT C Form of Call Option Agreement
EXHIBIT D Form of Pledge Agreement
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MASTER UNIT AGREEMENT, dated as of _____________, between AMERUS LIFE
HOLDINGS, INC, an Iowa corporation (the "Company"), and First Union National
Bank, a _____________ banking 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 104.
"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
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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.
"Aggregate Consideration Deliverable on Exercise of the Call Options" has
the meaning set forth in the Call Option Agreement.
"Applicable Market Value" 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 that is not a Saturday, Sunday or a day on
which banking institutions in The City of New York are authorized or obligated
by law or executive order to be closed.
"Call Option" means an option entitling the Call Option Holder to acquire
the QUIPS or Junior Subordinated Debentures underlying the related Normal Unit
on the terms and subject to the conditions set forth in the Call Option
Agreement.
"Call Option Agreement" means the Call Option Agreement, dated as of the
date hereof, between the Call Option Holder named therein and the Unit Agent, in
its capacity as Unit Agent and as attorney-in-fact for the Holders from time to
time of the Normal Units, the form of which is attached hereto as Exhibit C, as
the same may be amended from time to time in accordance with the terms hereof
and thereof.
"Call Option Expiration Date" means _______ (or, if such date is not a
Business Day, the next succeeding Business Day).
"Call Option Holder" means the Person named as the Call Option Holder in
the Call Option Agreement.
"Call Settlement Date" means the date on which the Call Options are settled
pursuant to the Call Option Agreement.
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"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 Stock" means the Class A Common Stock, no par value per share, of
the Company.
"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
[to] [by] the Company [by] [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 ______%.
"Corporate Trust Office" means the principal office of the Unit Agent in
the Borough of Manhattan, The City of New York, at which at any particular time
its corporate trust business shall be administered, which office at the date
hereof is located at _________ ____________, New York, New York ______.
"Current Market Price" has the meaning specified in Section 506(a)(8).
"Declaration" means the Declaration of Trust, dated as of ___________ and
amended and restated as of the date hereof, executed by the Administrators, the
Sponsor and the Trustees of the Trust, as the same may be amended or
supplemented from time to time in accordance with the terms thereof.
"Deferral Rate" means ____% per annum plus, for the period after the Call
Option Expiration Date, the amount (if any) by which the interest rate on the
Junior Subordinated Debentures shall have been increased on the Call Option
Expiration Date in accordance with the terms of the Junior Subordinated
Debentures.
"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.
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"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 104.
"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.
"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 the date hereof, between the
Company and First Union National Bank, as Trustee, as the same may be amended or
supplemented from time to time 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, any Vice Chairman, its
President or a Vice President and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Unit Agent.
"Junior Subordinated Debenture Put Option" has the meaning specified for
the term "Put Option" in the Indenture.
"Junior Subordinated Debentures" means the _____% Junior Subordinated
Deferrable Interest Debentures due ___________ of the Company issued under the
Indenture.
"Normal Unit" means the rights to purchase Common Stock under a Purchase
Contract, together with ownership of the QUIPS or other Pledged Securities
pledged to secure the obligations referred to in (a) and (b) below, subject to
(a) the obligations owed to the Company under such Purchase Contract, (b) for so
long as any Call Options remain exercisable, the obligations owed to the Call
Option Holder under a Call Option and (c) the pledge arrangements securing the
foregoing obligations; provided, however, that the term "Normal Unit" will not
include any Stripped Unit.
"NYSE" has the meaning specified in Section 501.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, any Vice Chairman, the President or any Vice President and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company and delivered to the Unit Agent.
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"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
(b) Unit Certificates in exchange for or in lieu of which other Unit
Certificates have been authenticated, executed on behalf of the Holder 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.
"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 Call Option Holder, 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,
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the form of which is attached hereto as Exhibit D, as the same may be amended
from time to time in accordance with the terms hereof and thereof.
"Pledged Securities" means the securities pledged to the Collateral Agent
pursuant to the Pledge and constituting a part of the Units.
"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, the Pledge Agreement and the
Call Option Agreement.
"Purchase Contract" means a contract obligating the Company to sell and the
Holder of the related Unit to purchase Common Stock 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.
"Purchased Shares" has the meaning specified in Section 506(a)(6).
"Quarterly Payment Date" means each _________, _________, ________ and
__________, commencing _________.
"QUIPS"(sm)* means _____% Quarterly Income Preferred Securities of the
Trust issued under the Declaration, which term may refer to a single security or
more than one security as the context may require.
"Record Date", when used with respect to any payment date, means the
Business Day next preceding such payment date; provided, however, that if any
Units are no longer evidenced by a Global Unit Certificate, "Record Date", when
used with respect to any payment date for such Units, means the [first day of]
[fifteenth day of] [fifteenth day of the month preceding] the month in which
such payment date falls; and provided further, that if payments are in respect
of QUIPS or Junior Subordinated Debentures underlying Normal Units, "Record
Date", when used with respect to such payments, means the record date for such
payments determined as provided under the Declaration or the Indenture, as the
case may be.
_________________
* QUIPS is a servicemark of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
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"Reorganization Event" has the meaning specified in Section 506(b).
"Responsible Officer", when used with respect to the Unit Agent, means any
vice president, any assistant vice president, any assistant secretary, any
assistant treasurer, any trust officer or assistant trust officer, or any other
officer or assistant officer of the Unit Agent customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Settlement Rate" has the meaning specified in Section 501.
"Stated Amount" means $_____ per Unit.
"Stock Purchase Date" means ___________.
"Stripped Unit" means the rights to purchase Common Stock under a Purchase
Contract, together with ownership of the Treasury Securities pledged to secure
the obligations referred to in (a) below, subject to (a) the obligations owed to
the Company under such Purchase Contract and (b) the pledge arrangements
securing the foregoing obligations; provided, however, that the term "Stripped
Unit" will only include Units issued as a result of a Stripped Unit Creation as
contemplated by Section 309.
"Stripped Unit Creation" has the meaning specified in Section 309(a).
"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) a decree or order of a
court having jurisdiction in the premises shall have been entered adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization of the Company under the United States Bankruptcy Code or
any other similar applicable Federal or State law, and, unless such decree or
order shall have been entered within 60 days prior to the Stock Purchase Date,
such decree or order shall have continued undischarged and unstayed for a period
of 60 days, or (b) a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver or liquidator or trustee or assignee
in bankruptcy or insolvency of the Company or of its property, or for the
winding up or liquidation of its affairs, shall have been entered, and, unless
such decree or order shall have been entered within 60 days prior to the Stock
Purchase Date, such decree or order shall have continued undischarged and
unstayed for a period of 60 days, or (c) the Company shall institute proceedings
to be adjudicated a bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent seeking
reorganization under the United States Bankruptcy Code or any other similar
applicable Federal or State law, or shall consent to the
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filing of any such petition, or shall consent to the appointment of a receiver
or liquidator or trustee or assignee in bankruptcy or insolvency of it or of its
property, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due.
"Threshold Appreciation Price" has the meaning specified in Section 501.
"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.
"Trust" means AmerUs Capital II, a statutory business trust created under
the laws of the State of Delaware.
"Underwriting Agreement" means the Underwriting Agreement dated __________
among the Company, the Trust and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. [and [list other
Underwriters]], as the Underwriters named therein.
"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 Normal Units or Stripped
Units, as the case may be, specified on such certificate.
"Unit Register" and "Unit Registrar" have the respective meanings specified
in Section 305.
"Units" means the Normal Units and, if any are issued, the Stripped Units.
The Purchase Contracts, Call Options 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.
"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".
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SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon any
application or request by the Company to the Unit Agent to take any action under
any provision of this Agreement, the Company shall furnish to the Unit Agent at
the Unit Agent's request (i) an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with and/or (ii) an Opinion of Counsel
stating that, in the opinion of such counsel, all such conditions precedent, if
any, have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required by
any provision of this Agreement relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Agreement shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. 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
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opinion or representations with respect to the matters upon which his
certificate or opinion is based are erro neous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
SECTION 104. 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
exe cution 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
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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.
(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 106.
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 106, 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 105. 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
____________________________________
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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 ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: General Counsel, or
at any other address previously furnished in writing by the Company to the
Unit Agent and the Holders.
SECTION 106. 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 107. 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 108. 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 109. 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 110. 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 111. 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 112. 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 113. 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 114. 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 and Unit Certificates evidencing the Stripped
Units shall be in substantially the form of Exhibit B hereto, in each case 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 PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF,
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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
__________ [(subject to increase up to a maximum of ___________ to the extent
the over-allotment option of the underwriters under the Underwriting Agreement
is exercised)], 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.
All of the Unit Certificates authenticated, executed and delivered
hereunder shall be Normal Units except for any Unit Certificates evidencing
Stripped Units issued in connection with a Stripped Unit Creation pursuant to
Section 309 and Unit Certificates authenticated, executed and delivered upon
registration of transfer of, in exchange for, or in lieu of, other Unit
Certificates evidencing Stripped Units 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 shares of Common Stock under the Purchase
Contracts, the Units shall not entitle the Holders to any of the rights or
privileges of a holder of shares of Common Stock 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.
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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 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 Vice Chairman of the Board, its President 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 or Call Option underlying a Unit 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 and Call Options
underlying the Units 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
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Certificates, temporary Unit Certificates which are in substantially the form
set forth in Exhibit A or Exhibit B hereto, with such letters, numbers or other
marks of identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the 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.
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 Normal
Units or Stripped 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 Normal Units and the Stripped Units and of transfers
of Unit Certificates evidencing the Normal Units and the Stripped Units (the
Unit Agent, in such capacity, the "Unit Registrar"). Upon request from any
Trustee or Administrator of the Trust, the Unit Agent shall furnish to such
requesting party a copy of the Unit Register for the Unit Certificates
evidencing the Normal 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 Normal Units or Stripped Units, as the case may be.
At the option of the Holder, Unit Certificates may be exchanged for
other Unit Certificates evidencing a like number of Normal Units or Stripped
Units, as the case may be, upon surrender of the Unit Certificates to be
exchanged at the Corporate Trust Office.
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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.
All Unit Certificates issued upon any registration of transfer or
exchange of a Unit Certificate shall evidence the ownership of the same number
of Normal Units or Stripped Units, as the case may be, and be entitled to the
same benefits and subject to the same obligations, under the Principal
Agreements as the Normal Units or Stripped Units, as the case may be, 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
Stripped Unit Creation or 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
shares of Common Stock 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.
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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 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 Normal Units or Stripped
Units, as the case may be, and bearing a number not contemporaneously
outstanding.
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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
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 Normal
Units or Stripped Units, as the case may be, 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 shares of Common Stock
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.
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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 underlying
Purchase Contracts and Call Options 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 shares of Common
Stock 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.
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SECTION 309. Substitution of Pledged Securities and Creation of Stripped Units;
Units Not Otherwise Separable.
(a) A Holder of Normal Units may obtain the release from the Pledge of
such Holder's Pledged Securities underlying such Normal Units, free and clear of
the Company's and the Call Option Holder's security interests therein, and
convert such Normal Units into Stripped Units (collectively, a "Stripped Unit
Creation") at any time after the original issuance of such Normal Units and on
or prior to the second Business Day immediately preceding the Stock Purchase
Date by:
(i) delivering to the Collateral Agent: (w) Treasury Securities
that through their scheduled payments will generate not later than the
Stock Purchase Date an amount of cash that is at least equal to the
aggregate Stated Amount of such Normal Units, (x) if any Contract Fees
are or will be payable by the Holders to the Company, Treasury
Securities that through their scheduled payments will generate not
later than each Quarterly Payment Date falling after the date on which
the requirements for such Stripped Unit Creation contained in this
Section 309(a) are satisfied and on or before the Stock Purchase Date
an amount of cash that is at least equal to the aggregate Contract Fees
that are scheduled to be payable in respect of the Purchase Contracts
underlying such Normal Units on such Quarterly Payment Date (assuming
for this purpose that no Contract Fees will then have been deferred
under Section 503); (y) if there are any deferred Contract Fees payable
by such Holder to the Company on the date on which the requirements for
such Stripped Unit Creation contained in this Section 309(a) are
satisfied, an amount of cash equal to (1) the aggregate unpaid amount
of such Contract Fees accrued to such date, if such date is a Quarterly
Payment Date, and (2) the aggregate unpaid amount of such Contract Fees
accrued to the Quarterly Payment Date immediately preceding such date
plus interest thereon at a rate per annum equal to the Deferral Rate
for the period from and including such Quarterly Payment Date to but
excluding such date (calculated on the basis of a 360-day year of
twelve 30-day months), if such date is not a Quarterly Payment Date;
and (z) if the Call Options underlying such Normal Units remain
exercisable on the date on which the requirements contained in this
Section 309(a) for such Stripped Unit Creation are satisfied, an
instrument from the Call Option Holder releasing its security interest
in the Pledged Securities securing such Call Options and agreeing that
such Call Options no longer underlie such Normal Units (or the Stripped
Units they become); and
(ii) surrendering the Unit Certificate evidencing such Normal
Units, with the form of Request to Create Stripped Units thereon duly
completed and executed, to the Unit Agent, whereupon the Unit Agent
shall promptly request the Collateral Agent to release the Pledged
Securities underlying such Normal Units;
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provided, however, that if Treasury Securities are the Pledged Securities
underlying such Normal Units, a Stripped Unit Creation may only be effected with
respect to a number of Normal Units that will result in the release from the
Pledge of Treasury Securities in denominations of $1,000 and integral multiples
thereof.
(b) Upon receipt of the items described in clause (i) of Section 309(a)
above and the request from the Unit Agent described in clause (ii) of Section
309(a) above, the Collateral Agent will, in accordance with the terms of the
Pledge Agreement, release to the Unit Agent, on behalf of the Holder, from the
Pledge, free and clear of the Company's and the Call Option Holders's security
interests therein, the securities that theretofore had been the Pledged
Securities underlying such Normal Units, and upon receipt thereof the Unit Agent
shall promptly:
(i) cancel the Unit Certificate for such Normal Units;
(ii) transfer such released Pledged Securities to the Holder or,
subject to Section 305, the Holder's designee;
(iii) authenticate, execute on behalf of such Holder and deliver
to the Holder or, subject to Section 305, the Holder's designee a Unit
Certificate executed by the Company in accordance with Section 303
evidencing a number of Stripped Units equal to the number of such
Normal Units.
Concurrently with the release of the securities that theretofore had been the
Pledged Securities underlying such Normal Units as contemplated by the preceding
sentence, the Treasury Securities delivered to the Collateral Agent as
contemplated by clause (i) of Section 309(a) above shall thereupon be
substituted for such securities as Pledged Securities underlying the Stripped
Units created from such Normal Units.
(c) Except for a Stripped Unit Creation effected in compliance with
this Section 309, for so long as the Purchase Contract underlying a Normal Unit
remains in effect such Normal Unit shall not be separable into its constituent
parts, and the rights and obligations of the Holder of such Normal Unit in
respect of the Pledged Securities, Purchase Contract and Call Option underlying
such Normal Unit may be acquired, and may be transferred and exchanged, only as
an integrated Normal Unit. For so long as the Purchase Contract underlying a
Stripped Unit remains in effect such Stripped Unit shall not be separable into
its constituent parts, and the rights and obligations of the Holder of such
Stripped Unit in respect of the Pledged Securities and Purchase Contract
underlying such Stripped Unit may be acquired, and may be transferred and
exchanged, only as an integrated Stripped Unit. Other 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.
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SECTION 310. Payments on the Units.
Contract Fees (if any) 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 (i) shall, on behalf of such Holder, pay to the Company the
Contract Fees, if any, then payable by such Holder to the Company and (ii)
shall, subject to Section 504(b), remit to the Unit Agent the amount of such
payments remaining after the payment referred to in clause (i) and (b) the Unit
Agent shall pay the amount referred to in clause (a)(ii) 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.
In addition, in the event that (a) the Call Options are exercised and
the Aggregate Consideration Deliverable on Exercise of the Call Options includes
a cash amount in respect of deferred distributions on the QUIPS or deferred
interest payments on the Junior Subordinated Debentures and (b) the Call
Settlement Date is not a Quarterly Payment Date, pursuant to the Pledge
Agreement the Collateral Agent shall, on behalf of the Holders of the Normal
Units, pay to the Company on the Call Settlement Date an amount equal to the
deferred Contract Fees, if any, then payable by such Holders to the Company.
Payments on the Pledged Securities on the Stock Purchase Date are
discussed at 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. 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 Shares of Common Stock.
Each Purchase Contract underlying a Unit 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
Applicable Market Value (as defined below) is greater than or equal to
$_____ (the "Threshold Appreciation Price"), ________ of a share of Common Stock
per Purchase Contract, (b) if the Applicable Market Value is less than the
Threshold Appreciation Price but is greater than the Stated Amount, a fractional
share of Common Stock per Purchase Contract equal to the Stated Amount divided
by the Applicable Market Value (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 Applicable Market Value is
less than or equal to the Stated Amount, one share of Common Stock per Purchase
Contract, in each case subject to adjustment as provided in Section 506. As
provided in Section 509, no fractional shares of Common Stock will be issued
upon settlement of Purchase Contracts.
The "Applicable Market Value" means the average of the Closing Prices
per share of Common Stock 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 Stock 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 Stock on the New York Stock Exchange (the "NYSE") on such
date or, if the Common Stock is 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 Stock is so listed, or if the Common
Stock is not so listed on a United States national or regional securities
exchange, as reported by The NASDAQ Stock Market, or, if the Common Stock is not
so reported, the last quoted bid price for the Common Stock 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 Stock 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 Stock (A) is not suspended from trading on any national
or regional securities exchange or association or over-the-counter market at the
close of business and (B) has traded at least once on the national or regional
securities exchange or association or over-the-counter market that is the
primary market for the trading of the Common Stock.
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Each Holder of a Unit Certificate evidencing Normal Units, by his
acceptance thereof, irrevocably authorizes the Unit Agent to enter into and
perform the underlying Purchase Contracts and Call Options 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
and Call Options, consents to the provisions of the Principal Agreements,
irrevocably authorizes the Unit Agent to enter into and perform the Call Option
Agreement and 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 Normal Units pursuant to the Pledge Agreement. Each Holder of a
Unit Certificate evidencing Stripped 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 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
Stripped 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 and any Call Options
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 para graph.
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 [subordination language
from indenture to be inserted].]
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Subject to Section 503, if any Contract Fees are or will be payable by
the Holders to the Company, the Collateral Agent, on behalf of the Holders,
shall pay, on each Quarterly Payment Date to and including the Stock Purchase
Date, the Contract Fees payable in respect of each Purchase Contract to the
Company. Such payment will be funded out of payments received by the Collateral
Agent in respect of Pledged Securities.
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, if any, 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 (if any) payable by it, then, until all deferred Contract Fees
(including additional Contract Fees 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 Contract
Fees or (c) make any guarantee payments with respect to any guarantee by the
Company of any securities of any subsidiary of the Company if such guarantee
ranks pari passu or junior in right of payment to the Contract Fees (other than,
in the case of clauses (a), (b) and (c), (i) dividends or distributions in
shares of, or options, warrants or rights to subscribe for or purchase shares
of, common stock 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
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under any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto, (iii) payments under the Company's guarantee of the
QUIPS, (iv) 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 of the Company's
capital stock for another class or series of the Company's capital stock, (v)
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 (vi) purchases of common stock in
connection with the satisfaction by the Company of its obligations under any of
the Company's benefit plans for its and its subsidiaries' directors, officers or
employees or any of the company's dividend reinvestment plans).
If any Contract Fees are payable by a Holder to the Company and
payments made in respect of Pledged Securities underlying such Holder's Units
are insufficient to cover such Holder's obligation to pay such Contract Fees,
such obligation shall be deferred until the earlier of the date sufficient cash
is available and the Stock Purchase Date. Any such 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.
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, plus, if there are unpaid
Contract Fees accrued and payable by such Holder to the Company on the Stock
Purchase Date and the cash received by the Collateral Agent on such date in
respect of the Pledged Securities underlying such Units is less than the amount
of such unpaid Contract Fees, an amount sufficient to cover such shortfall.
By 11:00 a.m., 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 and the number
of Stripped Units, respectively, with respect to which payment has been received
as aforesaid (such Units being collectively referred to as "Paid Units") and the
number of Normal Units and the number of Stripped Units, respectively, 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
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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 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) (x) if QUIPS underlie such Unpaid Units, the Collateral Agent,
on behalf of such Holder, shall exercise such Holder's right under the
Declaration to require the Trust to distribute Junior Subordinated
Debentures having an aggregate principal amount equal to the aggregate
liquidation amount of such QUIPS, in exchange for such QUIPS, and, upon
receiving such Junior Subordinated Debentures, shall thereupon, as Put
Agent, exercise the Junior Subordinated Debenture Put Option with
respect thereto and (y) if Junior Subordinated Debentures underlie such
Unpaid Units, the Collateral Agent, on behalf of such Holder, shall, as
Put Agent, exercise the Junior Subordinated Debenture Put Option with
respect thereto;
(ii) the Collateral Agent shall deliver to the Company, out of the
proceeds from the exercise of such Junior Subordinated Debenture Put
Option or, if Treasury Securities underlie such Unpaid Units, the
proceeds from the payment of such Treasury Securities at maturity, 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
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(iii) 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 (iii) 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 the shares of Common Stock to be
purchased thereunder in the manner herein set forth (either directly or by
operation of set-off as contemplated by the preceding sentence).
SECTION 505. Issuance of Shares of Common Stock.
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 shares of Common Stock 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 shares of Common Stock registered in the name
of the Unit Agent (or its nominee) as custodian for the Holders (such
certificates for shares of Common Stock, 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 shares of Common Stock 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.
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If any shares of Common Stock issued in respect of a Purchase Contract
are to be registered to a Person other than the Person in whose name the 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 Stock, 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 shares of
Common Stock outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of shares and
the total number of shares constituting such dividend or other distribution,
such increase to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the purposes of
this paragraph (1), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company will not pay any dividend or make any
distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to all
holders of its Common Stock (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 shares of Common Stock at a
price per share less than the Current Market Price per share of the Common Stock
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
shares of Common Stock outstanding at the close of business on the date fixed
for such determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of Common Stock so
offered for
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subscription or purchase would purchase at such Current Market Price and the
denominator shall be the number of shares of Common Stock outstanding at the
close of business on the date fixed for such determination plus the number of
shares of Common Stock so offered for subscription or purchase, such increase to
become effective immediately after the opening of business on the day following
the date fixed for such determination. For the purposes of this paragraph (2),
the number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of Common
Stock. The Company shall not issue any such rights, options or warrants in
respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into
a greater number of shares of Common Stock, the Settlement Rate in effect at the
opening of business on the day following the day upon which such subdivision
becomes effective shall be proportionately increased, and, conversely, in case
outstanding shares of Common Stock shall each be combined into a smaller number
of shares of Common Stock, the Settlement Rate in effect at the opening of
business on the day following the day upon which such combination becomes
effective shall be proportionately reduced, such increase or reduction, as the
case may be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination becomes
effective.
(4) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock 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 Stock on the date fixed for
such determination less the then fair market value (as determined by the Board
of Directors, whose determination shall be conclusive and described in a Board
Resolution filed with the Unit Agent) of the portion of the assets or evidences
of indebtedness so distributed applicable to one share of Common Stock and the
denominator shall all be such Current Market Price per share of the Common
Stock, such adjustment to become effective immediately prior to the opening of
business on the day following the date fixed for the determination of
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 Stock 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 Stock 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
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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 12.5% of the product of the Current Market Price per share of
the Common Stock on the date fixed for the determination of stockholders
entitled to receive such distribution times the number of shares of Common Stock
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 of stockholders entitled to receive such distribution by a
fraction of which (i) the numerator shall be the Current Market Price per share
of the Common Stock on the date fixed for such determination less an amount
equal to (x) such Excess Amount divided by (y) the number of shares of Common
Stock outstanding at the close of business on the date fixed for such
determination and (ii) the denominator shall be the Current Market Price per
share of the Common Stock 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 Stock
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 Stock
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 Stock 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 12.5% 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 shares of Common Stock 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
share of the Common Stock on the date of such expiration and (II) the number of
shares of Common Stock 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
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Stock on the date of such expiration and (B) the number of shares of Common
Stock 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.
(7) The reclassification of Common Stock into securities including
securities other than Common Stock (other than any reclassification upon a
Reorganization Event to which Section 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 shares of Common Stock
outstanding immediately prior to such reclassification into the number of shares
of Common Stock outstanding immediately thereafter (and the effective date of
such reclassification shall be deemed to be "the day upon which such subdivision
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 share of Common Stock 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 Stock trades regular way on such exchange or in such market without
the right to receive such issuance or distribution.
(9) All adjustments to the Settlement Rate shall be calculated to the
nearest 1/10,000th of a share of Common Stock (or, if there is not a nearest
1/10,000th of a share, to the next lower 1/10,000th of a share). No adjustment
in the Settlement Rate shall be required unless such adjustment would require an
increase or decrease of at least one percent 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 Applicable Market Value solely to determine which of clauses (a),
(b) or (c) of the definition
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of Settlement Rate in Section 501 will apply on the Stock Purchase Date. Such
adjustment shall be made by multiplying the Applicable Market Value by a
fraction of which the numerator shall be the Settlement Rate immediately after
such adjustment pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or (10)
of this Section 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 any income tax to any holders of shares of Common
Stock 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 Stock 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"), the Settlement Rate will be
adjusted to provide that each Holder of Units will 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 shares of Common Stock
issuable on account of each Purchase Contract if the Stock Purchase Date had
occurred immediately prior to such Reorganization Event, assuming such Holder of
Common Stock is not a Person with which the Company consolidated or into which
the Company merged or which merged into the Company or to which such sale or
transfer was made, as the case may be ("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 share of Common Stock held immediately prior to such
Reorganization Event by other than a constituent Person or an Affiliate thereof
and in respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this Section the kind and amount
of securities, cash and other property receivable upon such Reorganization Event
by each non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). In the event of
such a Reorganization Event, the Person formed by such consolidation, merger or
exchange or the Person which acquires the assets of the Company or, in the event
of a liquidation 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
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providing that the Holders of each Outstanding Unit 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.
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 shares of
Common Stock, or of any securities or property, which may at the time be issued
or delivered with respect to any Purchase Contract; and the 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 shares of Common
Stock pursuant to a Purchase Contract or to comply with any of the duties,
responsibilities or covenants of the Company contained in this Article.
SECTION 508. No Fractional Shares.
No fractional shares or scrip representing fractional shares of Common
Stock 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
shares of Common Stock which shall be delivered
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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 share of Common Stock which would otherwise be deliverable upon
settlement of any Purchase Contracts on the Stock Purchase 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 Applicable Market Value.
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 shares of Common Stock pursuant to
the Purchase Contracts; provided, however, that the Company shall not be
required to pay any such tax or taxes which may be payable in respect of any
exchange of or substitution for a Unit Certificate evidencing a Purchase
Contract or any issuance of a share of Common Stock 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, the
Collateral Agent and the Holders, 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.
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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 Stock pursuant to the Purchase
Contract underlying such Unit and to receive payment of Contract Fees, if any,
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.
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.
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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 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 shares of Common Stock 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
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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.
(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
(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
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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;
(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 promises 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 QUIPS or Purchase Contracts.
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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 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 in trust 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.
SECTION 708. Corporate Unit Agent Required; Eligibility.
There shall at all times be an Unit Agent hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust
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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 its
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
(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
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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
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.
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(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 into which the Unit Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Unit Agent shall be a party, or any
corporation 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 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 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.
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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 or Call Option 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 or
Call Options 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.
(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 any 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:
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(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 evidence the succession of another Person to the rights of the
Call Option Holder under the Call Options, in connection with a transfer of
such rights by the Call Option Holder to such Person; or
(5) to make provision with respect to the rights of Holders pursuant
to the requirements of Section 506(b); or
(6) 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 (or, with respect to modifications that adversely affect only
the Holders of Normal Units or only the Holders of Stripped Units, with the
consent of the Holders of not less than a majority of the Outstanding Units that
comprise Normal Units or Stripped Units, as the case may be), by Act of said
Holders delivered to the parties to any 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 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 underlying a
Unit, 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
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in or to such Pledged Securities (including the rights of Holders of Normal
Units to effect a Stripped Unit Creation);
(3) reduce the Contract Fees, if any, or other amounts receivable by
Holders in respect of Units or increase the Contract Fees, if any, or 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 shares of Common Stock to be purchased
pursuant to any Purchase Contract, increase the price to purchase shares of
Common Stock upon settlement of any Purchase Contract, change the Stock
Purchase Date or otherwise adversely affect the Holder's rights under any
Purchase Contract; or
(6) reduce the amount payable on exercise of any Call Option, extend
the Call Option Expiration Date (as defined in the Call Option Agreement)
or otherwise adversely affect any Holder's rights under any Call Option; or
(7) 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 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
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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
Normal Units or Stripped Units, as the case may be.
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 or convey all or substantially all of its assets to any Person,
except that the Company may merge or consolidate with, or sell or convey all or
substantially all of its assets to, any other Person, provided that (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 the
United States of America or a 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
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(b) the Company or such successor corporation, as the case may be, shall not,
immediately after such merger or consolidation, or such sale 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 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 AmerUs Life Holdings, Inc., 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.
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, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance, and any such assumption, complies with the provisions of this
Article.
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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 shares of Common Stock 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 or for
effecting Stripped Unit Creations, where payment of Contract Fees, if any,
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 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 Stock.
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 Stock the full number of shares of Common Stock issuable against tender
of payment in respect of all Purchase Contracts underlying the Units.
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SECTION 1004. Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which may be issued
against tender of payment in respect of 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, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions hereof, and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they may
have knowledge.
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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.
AMERUS LIFE HOLDINGS, INC.
By:_______________________________
FIRST UNION NATIONAL BANK, as Unit Agent
By: ______________________________
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EXHIBIT A
FORM OF NORMAL UNIT CERTIFICATE
AMERUS LIFE HOLDINGS, INC.
_____% ADJUSTABLE CONVERSION-RATE EQUITY SECURITY UNITS
(STATED AMOUNT $____ PER NORMAL UNIT)
CUSIP No. ______
No. _____ ________Normal Units
This Unit Certificate certifies that ____________ is the registered Holder
of the number of Normal Units set forth above. Each Normal Unit represents the
right to purchase Common Stock under a Purchase Contract with AmerUs Life
Holdings, Inc., an Iowa corporation (the "Company"), together with ownership of
the QUIPS(SM)(*) or other Pledged Securities pledged to secure the obligations
referred to in (a) and (b) below, subject to (a) the obligations owed to the
Company under such Purchase Contract, (b) for so long as any Call Options
remain exercisable, the obligations owed to the Call Option Holder under a Call
Option and (c) the pledge arrangements securing the foregoing obligations.
Each Purchase Contract evidenced hereby is governed by a Master Unit
Agreement, dated as of __________ (the "Master Unit Agreement"), between the
Company and First Union National Bank, as unit agent (herein called the "Unit
Agent"). All terms used herein which are defined in the Master Unit Agreement
have the meanings set forth therein. Each Call Option evidenced hereby is
governed by the Call Option Agreement. The Pledge of the Pledged Securities
evidenced hereby is governed by the Pledge Agreement. Reference is hereby made
to the Master Unit Agreement, the Call Option 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 Call Option Holder, 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 ___________ (the "Stock
Purchase Date"), at a price equal to $____ (the "Stated Amount"), a number of
shares of Class A Common Stock,
----------------
* QUIPS is a servicemark of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
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no par value per share ("Common Stock"), 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 Rate" is equal to (a) if the Applicable
Market Value (as defined in the Master Unit Agreement) is greater than or equal
to $_____ (the "Threshold Appreciation Price"), _________ of a share of Common
Stock per Purchase Contract, (b) if the Applicable Market Value is less than the
Threshold Appreciation Price but is greater than the Stated Amount, a fractional
share of Common Stock per Purchase Contract equal to the Stated Amount divided
by the Applicable Market Value (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 Applicable Market Amount is less than or
equal to the Stated Amount, one share of Common Stock per Purchase Contract, in
each case subject to adjustment as provided in the Master Unit Agreement. No
fractional shares of Common Stock 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 shares of Common Stock 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 Normal Units shall thereafter represent
the right to receive the Pledged Securities forming a part of such Normal Units
in accordance with the provisions of the Master Unit Agreement and the Pledge
Agreement.
The Call Options evidenced hereby entitle the Call Option Holder to acquire
the QUIPS (or Junior Subordinated Debentures substituted therefor) evidenced
hereby on or before ______________, unless prior to the exercise thereof there
shall have occurred a Termination Event. The Call Option Holder may exercise
such Call Options only in whole together with the Call Options underlying the
other Normal Units, by delivering to the Unit Agent a notice of exercise and
delivering to the Collateral Agent the Aggregate Consideration Deliverable Upon
Exercise of Call Options, whereupon the QUIPS or Junior Subordinated Debentures
underlying the Normal Units will be released from the Pledge and the Treasury
Securities constituting all or part of the Aggregate Consideration Deliverable
Upon Exercise of Call Options delivered to the Collateral Agent will be
substituted as the Pledged Securities underlying the Normal Units.
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The [Company] [Holder] shall pay, on each ________, ________, __________
and ___________, commencing ___________ (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.] [Such payment will be funded out
of payments made in respect of the Pledged Securities evidenced hereby.]
Payments due to the Holder in respect of the Normal Units evidenced hereby
will be payable to the Person in whose name this Unit Certificate (or a
Predecessor 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. Except as provided in the Master Unit Agreement in connection with a
Stripped Unit Creation, for so long as the Purchase Contract underlying a Normal
Unit remains in effect, such Normal Unit shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such Normal
Unit in respect of the Pledged Securities and Purchase Contract constituting
such Normal Unit may be transferred and exchanged only as an integrated Normal
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 and Call Options 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 and Call Options 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
and Call Options, consents to the provisions of the Principal Agreements,
irrevocably authorizes the Unit Agent to enter into and perform the Call Option
Agreement
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and 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
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 or, if the amendment affects only the Holders of the Normal
Units or only the Holders of the Stripped Units, at least a majority of the
Outstanding Units comprising Normal Units or Stripped Units, as the case may be.
THE PURCHASE CONTRACTS AND CALL OPTIONS 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.
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 Normal 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 shares of Common Stock.
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.
AMERUS LIFE HOLDINGS, INC.
By:_________________________________
Attest: _______________________
HOLDER SPECIFIED ABOVE
By: First Union National Bank,
as Attorney-in-Fact of such Holder
By:_________________________________
IN WITNESS WHEREOF, the Holder hereby agrees, for the benefit of the Call Option
Holder, to its obligations under any Call Options evidenced by this instrument,
and the Holder hereby acknowledges, for the benefit of the Call Option Holder,
that the Pledged Securities evidenced by this instrument are subject to the
Pledge under the Pledge Agreement.
HOLDER SPECIFIED ABOVE
By: First Union National Bank,
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.
First Union National Bank,
as Unit Agent
By: __________________________
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SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Stock Purchase Date of the
Purchase Contracts underlying the number of Normal 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 Stock is to be delivered other than to, and
in the name of, the registered Holder.
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REQUEST TO CREATE STRIPPED UNITS
The undersigned Holder directs that (a) the Pledged Securities
underlying the number of Normal Units indicated below (which number does not
exceed the number of Normal Units evidenced by this Unit Certificate) be
released from the Pledge and 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 and (b) a corresponding number of Stripped Units 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 the released Pledged Securities or the Stripped Units are to be registered in
the name of a Person other than the undersigned, the undersigned will pay any
transfer tax payable incident thereto.
The undersigned confirms that the requisite Treasury Securities, any
required cash and the instrument from the Call Option Holder have been delivered
to the Collateral Agent.
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
___________________________________
If Stripped Units are to be registered in
the name of and delivered to a Person
other than the Holder, please print
such Person's name and address:
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________________________________
Name
________________________________
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 Pledged Securities or Stripped Units are to be
delivered other than to, and in the name of, the registered Holder.
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EXHIBIT B
FORM OF STRIPPED UNIT CERTIFICATE
AMERUS LIFE HOLDINGS, INC.
_____% ADJUSTABLE CONVERSION-RATE EQUITY SECURITY UNITS
(STATED AMOUNT $____ PER UNIT)
CUSIP No. _______
No. _____ _____ Stripped Units
This Unit Certificate certifies that ____________ is the registered Holder
of the number of Stripped Units set forth above. Each Stripped Unit represents
the right to purchase Common Stock under a Purchase Contract with AmerUs Life
Holdings, Inc., an Iowa corporation (the "Company"), together with ownership of
the Treasury Securities pledged to secure the obligations referred to in (a)
below, subject to (a) the obligations owed to the Company under such Purchase
Contract and (b) the pledge arrangements securing the foregoing obligations.
Each Purchase Contract evidenced hereby is governed by a Master Unit
Agreement, dated as of __________ (the "Master Unit Agreement"), between the
Company and First Union National Bank, as unit agent (herein called the "Unit
Agent"). All terms used herein which are defined in the Master Unit Agreement
have the meanings set forth therein. The Pledge of the Pledged Securities
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 __________ (the "Stock
Purchase Date"), at a price equal to $_____ (the "Stated Amount"), a number of
shares of Class A Common Stock, no par value per share ("Common Stock"), 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 Rate" is
equal to (a) if the Applicable Market Value (as defined in the Master Unit
Agreement) is greater than or equal to $______ (the "Threshold Appreciation
Price"), ___________ of a share of Common Stock per Purchase Contract, (b) if
the Applicable Market Value is less than the Threshold Appreciation Price but is
greater than the Stated
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Amount, a fractional share of Common Stock per Purchase Contract equal to the
Stated Amount divided by the Applicable Market Value (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 Applicable Market
Amount is less than or equal to the Stated Amount, one share of Common Stock per
Purchase Contract, in each case subject to adjustment as provided in the Master
Unit Agreement. No fractional shares of Common Stock will be issued upon
settlement of Purchase Contracts, but instead of any fractional interest the
Company shall make a cash payment as provided in the Master Unit Agreement. The
purchase price for the shares of Common Stock 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 Stripped Units shall thereafter
represent the right to receive the Pledged Securities forming a part of such
Stripped Units in accordance with the provisions of the Master Unit Agreement
and the Pledge Agreement.
The [Company][Holder] shall pay, on each ________, ________, _______ and
__________, commencing ______________ (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, subordinated and subject in
right of payment to all Senior Indebtedness.] [Such payment will be funded out
of payments made in respect of the Pledged Securities evidenced hereby.]
Payments due to the Holder in respect of the Stripped Units evidenced
hereby will be payable to the Person in whose name this Unit Certificate (or a
Predecessor Unit Certificate) is registered at the close of business on the
Record Date next preceding the relevant payment date.
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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 Stripped Unit
remains in effect, such Stripped Unit shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such Stripped
Unit in respect of the Pledged Securities and Purchase Contract constituting
such Stripped Unit may be transferred and exchanged only as an integrated
Stripped 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 of the Pledged Securities 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 or, if the amendment affects only the Holders of the Normal
Units or only the Holders of the Stripped Units, at least a majority of the
Outstanding Units comprising Normal Units or Stripped Units, as the case may be.
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
CONFLICT OF LAWS PRINCIPLES THEREOF.
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 Stripped 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
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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 SHARES OF COMMON STOCK, WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
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.
AMERUS LIFE HOLDINGS, INC.
By:_________________________________
Attest: _______________________
HOLDER SPECIFIED ABOVE
By: First Union National Bank,
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.
First Union National Bank,
as Unit Agent
By: __________________________
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SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Stock Purchase Date of the
Purchase Contracts underlying the number of Stripped 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 Stock is to be delivered other than to, and in
the name of, the registered Holder.
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