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Exhibit 2.k.(iii)
S&C Draft of June 6, 1999
PURCHASE AGREEMENT
Between
AMDOCS INTERNATIONAL LIMITED,
As Seller
and
AMDOCS AUTOMATIC COMMON EXCHANGE SECURITY TRUST,
As Purchaser
Dated as of [Pricing Date]
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Table of Contents
Page
ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1. Defined Terms........................................... 2
Section 1.2. Interpretation.......................................... 8
ARTICLE II
SALE AND PURCHASE
Section 2.1. Sale and Purchase....................................... 8
Section 2.2. Purchase Price.......................................... 9
Section 2.3. Payment for and Delivery of Contract Shares............. 9
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of Seller................ 12
Section 3.2. Representations and Warranties of Purchaser............. 12
ARTICLE IV
CONDITIONS TO PURCHASER'S OBLIGATIONS
Section 4.1. Condition to Delivery of Firm Purchase Price............ 13
Section 4.2. Condition to Delivery of Additional Purchase Price...... 13
ARTICLE V
COVENANTS
Section 5.1. Covenants of Seller..................................... 13
Section 5.2. Further Assurances...................................... 14
ARTICLE VI
ADJUSTMENTS TO EXCHANGE RATE, APPRECIATION THRESHOLD PRICE,
INITIAL PRICE AND CLOSING PRICE
Section 6.1. Dilution Adjustments.................................... 14
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Page
Section 6.2. Adjustment for Consolidation, Merger or Other
Reorganization Event.................................... 18
Section 6.3. Spin-Off Distributions.................................. 19
Section 6.4. Adjustments with Respect to Marketable Securities....... 19
ARTICLE VII
ACCELERATION UPON AN EVENT OF DEFAULT
Section 7.1. Events of Default....................................... 20
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Adjustments of Exchange Rate; Selection of
Independent Investment Banking Firm..................... 20
Section 8.2. No Assumption of Liability.............................. 21
Section 8.3. Notices................................................. 21
Section 8.4. Governing Law; Severability............................. 21
Section 8.5. Entire Agreement........................................ 21
Section 8.6. Amendments; Waivers..................................... 21
Section 8.7. Non-Assignability....................................... 22
Section 8.8. No Third Party Rights; Successors and Assigns........... 22
Section 8.9. Counterparts............................................ 22
Exhibits
Exhibit A - Form of Certificate for Extension of Exchange Date
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PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of [Pricing Date], between Amdocs
International Limited, a corporation organized under the laws of the Island of
Guernsey ("Seller"), and Amdocs Automatic Common Exchange Security Trust, a
trust organized under the laws of the State of New York under and by virtue of
an Amended and Restated Trust Agreement, dated as of [Pricing Date] (such trust
and the trustees thereof acting in their capacity as such being referred to in
this Agreement as "Purchaser").
WITNESSETH:
WHEREAS, Seller owns ordinary shares, par value pound sterling 0.01 per
share (the "Ordinary Shares"), of Amdocs Limited, a corporation organized under
the laws of the Island of Guernsey (the "Company"); and
WHEREAS, Purchaser has filed with the Securities and Exchange
Commission a registration statement on Form N-2 contemplating the offering of up
to 11,500,000 $______ Trust Automatic Common Exchange Securities (the
"Securities"), the terms of which contemplate delivery by Purchaser to the
holders of such Securities of a number of Ordinary Shares (or, in certain
circumstances, cash in lieu of such shares) on the Exchange Date referred to
below; and
WHEREAS, Seller has agreed, pursuant to the Collateral Agreement, dated
as of [Pricing Date] (the "Collateral Agreement"), among Seller, as Pledgor, The
Chase Manhattan Bank, as collateral agent, and Purchaser to grant to the
Collateral Agent, for the benefit of Purchaser, a security interest in Ordinary
Shares and, in certain circumstances, certain other collateral to secure the
obligations of Seller under this Agreement; and
WHEREAS, Purchaser has agreed, pursuant to an underwriting agreement,
dated [Pricing Date] (the "Underwriting Agreement"), among Purchaser, Seller,
the Company, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., BT Alex. ▇▇▇▇▇ Incorporated and ▇▇▇▇▇▇
Brothers Inc., as representatives of the several underwriters named in such
agreement (the "Underwriters"), to issue and sell to the Underwriters an
aggregate of 10,000,000 Securities (the "Firm Securities") and, at the
Underwriters' option, up to 1,500,000 additional Securities (such additional
Securities as the Underwriters shall actually purchase pursuant to the
Underwriting Agreements, the "Optional Securities") to cover overallotments;
NOW, THEREFORE, the parties to this Agreement, intending to be bound,
agree as follows:
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ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1. Defined Terms. As used in this Agreement, the following
terms have the following meanings:
"Accelerated Portion" means, in relation to any Cash Merger,
the portion of the Merger Consideration, other than Marketable
Securities, that has a Value equal to the amount determined by
multiplying the Basic Reorganization Event Amount by a fraction, the
numerator of which is the Value of the portion of the Merger
Consideration delivered in exchange for a single Ordinary Share that
consists of assets other than Marketable Securities, and the
denominator of which is the aggregate Transaction Value of the Merger
Consideration received in exchange for a single Ordinary Share.
"Additional Purchase Price" has the meaning specified in
Section 2.2(b).
"Additional Share Base Amount" means a number equal to the
number of Optional Securities that the Underwriters elect to purchase
under the Underwriting Agreement.
"Additional Shares" has the meaning specified in Section
2.1(b).
"Additional Treasury Securities" means the U.S. Government
Securities purchased by Purchaser pursuant to section 2.3(b)(ii) of the
Trust Agreement for settlement at the Second Time of Delivery.
"Administrator" means The Chase Manhattan Bank, administrator
for Purchaser under the Administration Agreement, dated as of [Pricing
Date], between the Administrator and Purchaser, or its successor in
such capacity, or any other Administrator appointed pursuant to the
Trust Agreement.
"Agreement" means this Purchase Agreement.
"Appreciation Threshold Price" has the meaning specified in
Section 2.1(c).
"Average Market Price" per Ordinary Share or share of
Marketable Securities on any date means the average Closing Price of an
Ordinary Share or share of Marketable Securities for the Calculation
Period consisting of the 20 Trading Days immediately prior to but not
including such date; provided that if no Closing Price for the Ordinary
Shares or Marketable Securities is determined for one or more (but not
all) of such Trading Days, such Trading Days shall be disregarded in
the calculation of the Average Market Price (but no additional Trading
Days shall be added to the Calculation Period). If no Closing Price for
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the Ordinary Shares or Marketable Securities may be determined for any
of such Trading Days, the Average Market Price shall be the Closing
Price for the Ordinary Shares or Marketable Securities for the most
recent Trading Day prior to such 20 Trading Days for which a Closing
Price for the Ordinary Shares or Marketable Securities may be
determined pursuant to the definition of "Closing Price".
Notwithstanding the foregoing, for purposes of determining the payment
required upon cash settlement of this Agreement in connection with a
Rollover Offering, "Average Market Price" means the Closing Price per
Ordinary Share or share of Marketable Securities on the Trading Day
immediately preceding the date that the Rollover Offering is priced
(the "Pricing Date") or, if the Rollover Offering is priced after 4:00
P.M., New York City time, on the Pricing Date, the Closing Price per
share on the Pricing Date.
"Basic Reorganization Event Amount" has the meaning provided
in Section 6.2(a).
"Business Day" means a day on which the NYSE is open for
trading and that is not a day on which commercial banks in The City of
New York are authorized or obligated by law to close.
"Calculation Period" means any period of Trading Days for
which an average security price must be determined pursuant to this
Agreement.
"Cash Merger" has the meaning specified in Section 6.2(b).
"Cash Settlement Alternative" has the meaning provided in
Section 2.3(d).
"Closing Price" of any common equity security on any date of
determination means the closing sale price (or, if no closing sale
price is reported, the last reported sale price) of such common equity
security as reported on the NYSE Consolidated Tape on such date of
determination or, if such common equity security is not listed for
trading on the NYSE on such date, as reported in the composite
transactions for the principal United States national or regional
securities exchange on which such common equity security is so listed,
or if such common equity security is not so listed on a United States
national or regional securities exchange on such date, as reported by
the NASDAQ National Market or, if such common equity security is not so
reported on such date, the last quoted bid price for such common equity
security in the over-the-counter market as reported by the National
Quotation Bureau or any similar organization; provided that if any
event that results in an adjustment to the number of Ordinary Shares or
shares of Marketable Securities deliverable under this Agreement
pursuant to Article VI occurs during any Calculation Period, the
Closing Price as determined pursuant to the foregoing for each Trading
Day in the Calculation Period occurring prior to the day on which such
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adjustment is effected will be adjusted in accordance with Article VI
to reflect the occurrence of such event.
"Collateral Agent" means The Chase Manhattan Bank, in its
capacity as Collateral Agent under the Collateral Agreement, or its
successor in such capacity, or any other Collateral Agent appointed
pursuant to the Trust Agreement.
"Collateral Agreement" has the meaning specified in the
recitals to this Agreement.
"common equity security" means any security of any class of
capital stock (whether voting or non-voting) that has no preference in
respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
issuer of such capital stock and that is not subject to redemption by
the issuer of such capital stock.
"Company" has the meaning specified in the recitals to this
Agreement.
"Company Successor" has the meaning specified in Section 6.2.
"Contract Shares" has the meaning specified in Section 2.1(b).
"Custodian" means The Chase Manhattan Bank, as custodian for
Purchaser under the Custodian Agreement, dated as of [Pricing Date],
between the Custodian and Purchaser, or its successor in such capacity,
or any other Custodian appointed pursuant to the Trust Agreement.
"Dilution Adjustment" means any fraction or number by which
the Exchange Rate shall be multiplied pursuant to Section 6.1(a), (b),
(c) or (d).
"Event of Default" has the meaning specified in Section 7.1.
"Excess Purchase Payment" means the excess, if any, of (x) the
cash and the value (as determined by a nationally recognized
independent investment banking firm retained for this purpose by the
Administrator, whose determination shall be final) of all other
consideration paid by the Company with respect to one Ordinary Share
acquired in a tender offer or exchange offer by the Company, over (y)
the Then-Current Market Price of the Ordinary Shares.
"Exchange Date" means [THIRD ANNIVERSARY OF PRICING DATE],
subject to (i) extension by Seller pursuant to Section 2.3(e) and (ii)
subsequent acceleration by Seller pursuant to Section 2.3(f).
"Exchange Rate" has the meaning specified in Section 2.1(c).
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"Firm Purchase Price" has the meaning specified in Section
2.2(a).
"Firm Securities" has the meaning specified in the recitals to
this Agreement.
"Firm Share Base Amount" means 10,000,000 Ordinary Shares.
"Firm Shares" has the meaning specified in Section 2.1(a).
"First Time of Delivery" means the First Time of Delivery
specified pursuant to section 2 of the Underwriting Agreement.
"Initial Price" has the meaning specified in Section 2.1(c).
"Liens" means any lien, mortgage, security interest, pledge,
charge, encumbrance or adverse claim of any kind.
"Marketable Securities" means any common equity securities
listed on a U.S. national or regional securities exchange or reported
by the NASDAQ National Market.
"Merger Consideration" has the meaning specified in Section
6.2(a).
"NYSE" means the New York Stock Exchange, Inc.
"Optional Securities" has the meaning specified in the
recitals to this Agreement.
"Ordinary Shares" has the meaning specified in the recitals to
this Agreement.
"Permitted Dividend" means any quarterly cash dividend in
respect of the Ordinary Shares, except to the extent that the per share
amount of such dividend results in an annualized dividend yield on the
Ordinary Shares in excess of 12.5%.
"Pricing Date" has the meaning specified in the definition of
"Average Market Price".
"Purchaser" has the meaning specified in the preamble to this
Agreement.
"Reorganization Event" has the meaning specified in Section
6.2.
"Rollover Offering" means a reoffering or refinancing of
Securities effected not earlier than [INSERT EXCHANGE DATE] by means of
a completed
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public offering or offerings, or another similar offering (which may
include one or more exchange offers), by or on behalf of Seller.
"Second Time of Delivery" means the Second Time of Delivery
specified pursuant to Section 2 of the Underwriting Agreement.
"Securities" has the meaning specified in the recitals to this
Agreement.
"Seller" has the meaning specified in the preamble to this
Agreement.
"Spin-Off Distribution" means a distribution by the Company to
holders of Ordinary Shares of Marketable Securities issued by an issuer
other than the Company.
"Then-Current Market Price" of the Ordinary Shares means the
average Closing Price per Ordinary Share for the Calculation Period
consisting of 5 Trading Days immediately prior to the time such
adjustment is effected (or, in the case of an adjustment effected at
the opening of business on the Business Day next following a record
date as described in Section 6.1(f)(i), immediately prior to the
earlier of the time such adjustment is effected and the related
ex-date); provided that if no Closing Price for the Ordinary Shares is
determined for one or more (but not all) of such Trading Days, such
Trading Days shall be disregarded in the calculation of the
Then-Current Market Price (but no additional Trading Days shall be
added to the Calculation Period). If no Closing Price for the Ordinary
Shares may be determined for any of such Trading Days, the Then-Current
Market Price shall be the Closing Price for the Ordinary Shares for the
most recent Trading Day prior to such 5 Trading Days for which a
Closing Price for the Ordinary Shares may be determined pursuant to the
definition of "Closing Price". The "ex-date" with respect to any
dividend, distribution or issuance shall mean the first date on which
the Ordinary Shares trade regular way on their principal market without
the right to receive such dividend, distribution or issuance.
"Trading Day" in respect of any common equity security means a
day on which such common equity security (A) is not suspended from
trading on any United States 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 United States national or regional
securities exchange or association or over-the-counter market that is
the primary market for the trading of such security.
"Transaction Value" means, with respect to any Reorganization
Event, the sum of: (x) for any cash received in such Reorganization
Event, the amount of such cash received per Ordinary Share; (y) for any
property other than cash or Marketable Securities received in such
Reorganization Event, an amount equal to the market value on the date
such Reorganization Event is consummated of such property received per
Ordinary Share (as determined by a nationally
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recognized independent investment banking firm retained for this
purpose by the Administrator, whose determination shall be final); and
(z) for any Marketable Securities received in such Reorganization
Event, an amount equal to the average Closing Price per share of such
Marketable Securities for the Calculation Period consisting of 20
Trading Days immediately prior to the Exchange Date (or, in the case of
a Cash Merger, for the Calculation Period consisting of the 20 Trading
Days immediately prior to the date the Reorganization Event is
consummated), multiplied by the number of such Marketable Securities
received for each Ordinary Share; provided that if no Closing Price for
such Marketable Securities may be determined for one or more (but not
all) of such Trading Days, such Trading Days shall be disregarded in
the calculation of such average Closing Price (but no additional
Trading Days shall be added to the Calculation Period). If no Closing
Price for the Marketable Securities may be determined for any of such
Trading Days, the calculation in the preceding clause (z) shall be
based on the Closing Price for the Marketable Securities for the most
recent Trading Day prior to such 20 Trading Days for which a Closing
Price for the Marketable Securities may be determined pursuant to the
definition of "Closing Price".
"Transfer Restrictions" has the meaning provided in the
Collateral Agreement.
"Transferred Securities" has the meaning specified in Section
2.3(g).
"Trust Agreement" means the Amended and Restated Trust
Agreement, dated as of [Pricing Date], constituting Amdocs Automatic
Common Exchange Security Trust.
"Underwriters" has the meaning specified in the recitals to
this Agreement.
"Underwriting Agreement" has the meaning specified in the
recitals to this Agreement.
"U.S. Government Securities" means direct obligations of the
United States of America.
"Value" means (i) in respect of cash, the amount of such cash;
(ii) in respect of any property other than cash or Marketable
Securities, an amount equal to the market value on the date the
relevant Reorganization Event is consummated (as determined by a
nationally recognized independent investment banking firm retained for
this purpose by the Administrator, whose determination shall be final);
and (iii) in respect of any share of Marketable Securities, an amount
equal to the average Closing Price per share of such Marketable
Securities for the Calculation Period consisting of the 20 Trading Days
immediately prior to the date the relevant Reorganization Event is
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consummated; provided that if no Closing Price for such Marketable
Securities may be determined for one or more (but not all) of such
Trading Days, such Trading Days shall be disregarded in the calculation
of such average Closing Price (but no additional Trading Days shall be
added to the Calculation Period). If no Closing Price for the
Marketable Securities may be determined for any of such Trading Days,
the calculation in the preceding clause (iii) shall be based on the
Closing Price for the Marketable Securities for which a Closing Price
for the Marketable Securities may be determined pursuant to the
definition of "Closing Price".
Section 1.2. Interpretation.
(a) When a reference is made in this Agreement to Articles, Sections,
Exhibits or Schedules, such reference is to Articles or Sections of, or Exhibits
or Schedules to, this Agreement unless otherwise indicated.
(b) The table of contents and headings contained in this Agreement are
for reference purposes only and are not part of this Agreement, and shall not be
deemed to limit or otherwise affect any of the provisions of this Agreement.
(c) Whenever the words "include", "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation".
(d) Any reference to any statute, regulation or agreement is a
reference to such statute, regulation or agreement as supplemented or amended
from time to time.
ARTICLE II
SALE AND PURCHASE
Section 2.1. Sale and Purchase.
(a) Firm Shares. Upon the terms and subject to the conditions of this
Agreement, Seller agrees to sell to Purchaser on the Exchange Date, and
Purchaser agrees to purchase from Seller on the Exchange Date, the number of
Ordinary Shares (the "Firm Shares") equal to the product of the Firm Share Base
Amount and the Exchange Rate.
(b) Additional Shares. Upon the terms and subject to the conditions of
this Agreement, if the Underwriters exercise the option to purchase Optional
Securities pursuant to the Underwriting Agreement, Seller agrees to sell to
Purchaser on the Exchange Date, and Purchaser agrees to purchase from Seller on
the Exchange Date, the number of additional Ordinary Shares (the "Additional
Shares") equal to the product of the Additional Share Base Amount and the
Exchange Rate. If the Underwriters exercise their option to purchase Optional
Securities pursuant to the Underwriting Agreement, Purchaser shall notify Seller
in writing that Purchaser will purchase the
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Additional Shares on the Exchange Date, which notice shall specify the
Additional Share Base Amount and the Second Time of Delivery. The Firm Shares
and the Additional Shares (if any) are collectively referred to in this
Agreement as the "Contract Shares".
(c) Exchange Rate. The "Exchange Rate" shall be the rate determined in
accordance with the following formula, subject to adjustment as provided in
Article VI:
(i) if the Average Market Price is less than $_____ (the
"Appreciation Threshold Price") but equal to or greater than $_____
(the "Initial Price"), a fraction (rounded upward or downward to the
nearest 1/10,000th or, if there is not a nearest 1/10,000th, to the
next lower 1/10,000th) equal to the Initial Price divided by the
Average Market Price;
(ii) if the Average Market Price is equal to or greater than
the Appreciation Threshold Price, 0.____; and
(iii) if the Average Market Price is less than the Initial
Price, 1.
Section 2.2. Purchase Price.
(a) Firm Purchase Price. The purchase price for the Firm Shares (the
"Firm Purchase Price") shall be $_____________ in cash.
(b) Additional Purchase Price. The purchase price for the Additional
Shares (the "Additional Purchase Price") shall be an amount equal to the
difference between (i) the aggregate proceeds to Purchaser from the sale of the
Optional Securities and (ii) the aggregate cost to Purchaser, as notified by
Purchaser to Seller at the Second Time of Delivery, of the Additional Treasury
Securities.
Section 2.3. Payment for and Delivery of Contract Shares.
(a) First Time of Delivery. Upon the terms and subject to the
conditions of this Agreement, Purchaser shall deliver to Seller the Firm
Purchase Price at the First Time of Delivery, at the offices of [SPECIFY CLOSING
LOCATION], or at such other place as shall be agreed upon by Purchaser and
Seller, paid by wire transfer to an account designated by Seller, in Federal
(immediately available) funds.
(b) Second Time of Delivery. Upon the terms and subject to the
conditions of this Agreement, Purchaser shall deliver to Seller the Additional
Purchase Price at the Second Time of Delivery at the offices of [SPECIFY CLOSING
LOCATION], or at such other place as shall be agreed upon by Purchaser and
Seller, paid by wire transfer to an account designated by Seller, in Federal
(immediately available) funds.
(c) Sale and Delivery of Contract Shares. Seller agrees to sell and
deliver the Contract Shares to Purchaser on the Exchange Date. Unless Seller
elects the Cash Settlement Alternative as provided in Section 2.3(d), sale and
delivery shall be effected
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by delivery by the Collateral Agent to the Custodian, for the account of
Purchaser, of Ordinary Shares then held by the Collateral Agent as collateral
under the Collateral Agreement, in an amount equal to the number of Contract
Shares, rounded down to the nearest whole number. Seller agrees to make a cash
payment in respect of any fractional shares included in the Contract Shares at
the Exchange Date, in an amount equal to the value of such fractional shares at
the Average Market Price. In addition, if the difference between (A) the
aggregate proceeds of any sale (net of any brokerage or related expenses) of any
Ordinary Shares [or Marketable Securities] sold by Purchaser pursuant to Section
2.4(g)(ii) of the Trust Agreement and (B) the product of the number of Ordinary
Shares [or Marketable Securities] so sold and the Average Market Price, is
negative, Seller shall pay such difference to Purchaser; if such difference is
positive, Purchaser shall pay the difference to Seller. Notwithstanding the
foregoing, if a Reorganization Event shall have occurred prior to the Exchange
Date then, in lieu of the foregoing, delivery shall be effected as follows: (i)
in the case of any cash required to be delivered on the Exchange Date as
provided in Section 6.2, by wire transfer to an account designated by Purchaser,
in Federal (immediately available) funds; (ii) in the case of any Marketable
Securities to be delivered in lieu of cash as provided in Section 6.2, by
delivery by the Collateral Agent to the Custodian, for the account of Purchaser,
of the applicable number of Marketable Securities then held as collateral under
the Collateral Agreement, as provided in Section 5.7 of the Collateral
Agreement; and (iii) in the case of any cash included in the Accelerated Portion
as provided in Section 6.2(b), by wire transfer as provided in clause (i) above
or in the case of any non-cash assets included in such Accelerated Portion, by
delivery of such assets to the Custodian, for the account of Purchaser.
(d) Cash Settlement Alternative. At its option, Seller may deliver to
Purchaser on the Exchange Date (whether or not extended pursuant to Section
2.3(e) or accelerated pursuant to Section 2.3(f)), in lieu of the Contract
Shares, an amount in cash equal to the Average Market Price of the Contract
Shares on the Exchange Date (the "Cash Settlement Alternative"), paid by wire
transfer to an account designated by Purchaser, in Federal (immediately
available) funds; provided that if Seller elects the Cash Settlement Alternative
in connection with a Rollover Offering, as provided below, and such Rollover
Offering has been consummated on or before the Exchange Date, such cash payment
shall be made not later than the fifth Trading Day after the Exchange Date.
Seller may elect the Cash Settlement Alternative in respect of all, but not less
than all, Contract Shares and may do so by notice to Purchaser, the Collateral
Agent and the Custodian not less than 35 days prior to the Exchange Date as then
in effect (specifying whether such cash settlement is being made in connection
with a Rollover Offering). If Seller elects the Cash Settlement Alternative,
Purchaser shall provide notice of such election (specifying whether such cash
settlement is being made in connection with a Rollover Offering) to the holders
of the Securities, not less than 30 nor more than 90 days prior to the Exchange
Date as then in effect.
(e) Extension of Exchange Date at Election of Purchaser. Seller may, at
its option, by notice to Purchaser not earlier than [INSERT DATE TWO MONTHS
PRIOR TO ORIGINAL EXCHANGE DATE], and not later than [INSERT DATE ONE MONTH
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PRIOR TO ORIGINAL EXCHANGE DATE], elect to extend the Exchange Date to [INSERT
DATE THREE MONTHS AFTER ORIGINAL EXCHANGE DATE], and the number of Contract
Shares and amount of cash to be delivered pursuant to Section 2.3(c) shall be
calculated as of such extended Exchange Date; provided that such extension shall
be effective only if, on or before the date of such notice, Seller shall have:
(i) delivered to the Custodian, for the account of and subject
to the exclusive control of Purchaser, free and clear of any Liens and
Transfer Restrictions, U.S. Government Securities that, through the
scheduled payment of principal and interest in accordance with their
terms, will provide, not later than one Business Day before [INSERT
DATE THREE MONTHS AFTER ORIGINAL EXCHANGE DATE], cash in an amount
equal to not less than the product of (1) $[INSERT REGULAR QUARTERLY
DIVIDEND PER SECURITY] and (2) the sum of the Firm Share Base Amount;
and the Additional Share Base Amount; and
(ii) delivered to Purchaser (1) a certificate of Seller
substantially in the form of Exhibit A and dated the date of such
delivery (A) identifying the U.S. Government Securities being
transferred, (B) certifying that with respect to such U.S. Government
Securities the representations and warranties contained in Exhibit A
are true and correct on and as of the date of such transfer, and (C)
certifying that such U.S. Government Securities satisfy the conditions
set forth in Section 2.3(e)(i); and (2) an opinion, dated the date of
such delivery, of counsel addressed to Purchaser confirming the
representations contained in the second sentence of paragraph 2(c) of
Exhibit A.
In addition, Seller hereby covenants and agrees to take all other actions
necessary to cause Purchaser to be a protected purchaser of such U.S. Government
Securities, within the meaning of Article 8 of the New York Uniform Commercial
Code.
If Seller elects to extend the Exchange Date, Purchaser shall provide
notice of such election to the holders of the Securities not later than [INSERT
ORIGINAL EXCHANGE DATE].
(f) Acceleration of Exchange Date at Election of Purchaser. At any time
after the Exchange Date has been extended pursuant to Section 2.3(e), Seller
may, at its option in connection with the consummation of a Rollover Offering,
accelerate the Exchange Date to any date on or after [INSERT ORIGINAL EXCHANGE
DATE], by notice to Purchaser not later than 10:00 a.m. on the date to which the
Exchange Date is accelerated, and the number of Contract Shares and amount of
cash to be delivered pursuant to Section 2.3(c) shall be calculated as of such
accelerated Exchange Date; provided that such acceleration shall be effective
only if, at or prior to 10:00 a.m. on such accelerated Exchange Date, Seller
shall have paid to Purchaser, by wire transfer to an account designated by the
Custodian, in Federal (immediately available) funds, an amount equal to the
product of (i) the aggregate accrued and unpaid quarterly
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distributions on each Security (computed on the basis of a quarterly
distribution of $[INSERT REGULAR QUARTERLY DIVIDEND PER SECURITY] and a 360-day
year comprised of twelve 30-day months) and (ii) the sum of the Firm Share Base
Amount and the Additional Share Base Amount. Upon receipt of such amount in
Federal (immediately available) funds, Purchaser shall promptly deliver to
Seller, free and clear of any Liens and Transfer Restrictions, the U.S.
Government Securities previously delivered by Seller to Purchaser pursuant to
Section 2.3(e)(i) (together with any payments received by Purchaser before the
date of such transfer in respect of such U.S. Government Securities).
If Seller elects to accelerate the Exchange Date, Purchaser shall
provide notice of such election to the holders of the Securities not later than
the accelerated Exchange Date.
(g) Satisfaction of Obligations. Notwithstanding any other provision of
this Agreement, if on or prior to the Exchange Date as then in effect, Seller
transfers Securities to Purchaser, free and clear of any Liens and Transfer
Restrictions, for cancellation (any Securities so transferred being referred to
in this Agreement as the "Transferred Securities") then the number of Contract
Shares deliverable by Seller pursuant to this Agreement shall be reduced by a
number equal to the product of (i) the number of Contract Shares before giving
effect to any such transfers and (ii) a fraction, the numerator of which is the
number of Transferred Securities and the denominator of which is the sum of the
Firm Share Base Amount and the Additional Share Base Amount (rounded down to the
nearest whole share).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of Seller. Seller
represents and warrants to Purchaser that each representation and warranty made
by Seller pursuant to section 1(b) of the Underwriting Agreement is true and
correct on the date of this Agreement.
Section 3.2. Representations and Warranties of Purchaser. Purchaser
represents and warrants to Seller that each representation and warranty made by
Purchaser pursuant to section 1(a) of the Underwriting Agreement is true and
correct on the date of this Agreement.
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ARTICLE IV
CONDITIONS TO PURCHASER'S OBLIGATIONS
Section 4.1. Condition to Delivery of Firm Purchase Price. The
obligation of Purchaser to deliver the Firm Purchase Price at the First Time of
Delivery is subject to the condition that the purchase by the Underwriters of
the Firm Securities pursuant to the Underwriting Agreement shall have been
consummated as contemplated under the Underwriting Agreement.
Section 4.2. Condition to Delivery of Additional Purchase Price. The
obligation of Purchaser to deliver the Additional Purchase Price at the Second
Time of Delivery is subject to the condition that the purchase by the
Underwriters of the Optional Securities shall have been consummated as
contemplated under the Underwriting Agreement.
ARTICLE V
COVENANTS
Section 5.1. Covenants of Seller.
(a) Taxes. Seller shall pay any and all documentary, stamp, transfer or
similar taxes and charges that may be payable in respect of the execution of
this Agreement and the transfer and delivery of the Contract Shares (or any cash
or Marketable Securities in lieu of the Contract Shares) pursuant to this
Agreement.
(b) Forward Contract. Seller hereby agrees that: (i) it will not treat
this Agreement, any portion of this Agreement, or any obligation under this
Agreement as giving rise to any interest income or other inclusions of ordinary
income; (ii) it will not treat the delivery of any portion of the Contract
Shares, cash, Marketable Securities or other property to be delivered pursuant
to this Agreement as the payment of interest or ordinary income; (iii) it will
treat this Agreement in its entirety as a forward contract for the delivery of
such Contract Shares, cash, Marketable Securities or other property; and (iv) it
will not take any action (including filing any tax return or form or taking any
position in any tax proceeding) that is inconsistent with the obligations
contained in clauses (i) through (iii) of this Section 5.1(b). Notwithstanding
the preceding sentence, Seller may take any action or position required by law,
provided that Seller delivers to Purchaser an unqualified opinion of counsel,
nationally recognized as expert in Federal tax matters, to the effect that such
action or position is required by a statutory change, Treasury regulation, or
applicable court decision published after the date of this Agreement.
(c) Limitations on Trading During Certain Days. Seller hereby agrees
that it will not buy Ordinary Shares for its own account during the 60 days
prior to the Exchange Date.
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(d) Notices. Seller will cause to be delivered to Purchaser:
(i) Immediately upon the occurrence of any Event of Default,
or upon Seller's obtaining knowledge that any of the conditions or
events described in Section 7.1(a) or (b) shall have occurred with
respect to the Company, notice of such occurrence; and
(ii) If at any time prior to the Exchange Date Seller receives
notice, or otherwise obtains knowledge, that any event requiring an
adjustment to be effected pursuant to Article VI shall have occurred or
be pending, then Seller shall promptly cause to be delivered to
Purchaser a notice identifying such event and stating, if known to
Seller, the date on which such event occurred or is to occur and, if
applicable, the record date relating to such event. Seller shall cause
further notices to be delivered to Purchaser if Seller shall
subsequently receive notice, or otherwise obtain knowledge, of any
further or revised information regarding the terms or timing of such
event or any record date relating to such event.
Section 5.2. Further Assurances. From time to time on and after the
date of this Agreement through the Exchange Date, each of the parties to this
Agreement shall use its reasonable best efforts to take, or cause to be taken,
all action and to do, or cause to be done, all things necessary, proper or
advisable to consummate and make effective as promptly as practicable the
transactions contemplated by this Agreement in accordance with the terms and
conditions of this Agreement, including (i) using reasonable best efforts to
remove any legal impediment to the consummation of such transactions and (ii)
the execution and delivery of all such deeds, agreements, assignments and
further instruments of transfer and conveyance necessary, proper or advisable to
consummate and make effective the transactions contemplated by this Agreement in
accordance with the terms and conditions of this Agreement.
ARTICLE VI
ADJUSTMENTS TO EXCHANGE RATE, APPRECIATION THRESHOLD PRICE,
INITIAL PRICE AND CLOSING PRICE; REORGANIZATION EVENTS
Section 6.1. Dilution Adjustments. The Exchange Rate, Appreciation
Threshold Price and Initial Price shall be subject to adjustment from time to
time as follows:
(a) Stock Dividends, Splits, Reclassifications, Etc. If the Company
shall, after the date of this Agreement,
(i) pay a stock dividend or make a distribution with respect
to the Ordinary Shares in the form of Ordinary Shares;
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(ii) subdivide or split the outstanding Ordinary Shares into a
greater number of Ordinary Shares;
(iii) combine the outstanding Ordinary Shares into a smaller
number of shares; or
(iv) issue by reclassification of Ordinary Shares any other
ordinary shares of the Company;
then, in each such case, the Exchange Rate shall be multiplied by a Dilution
Adjustment equal to the number of Ordinary Shares (or in the case of a
reclassification referred to in clause (iv) above, the number of other ordinary
shares of the Company issued pursuant to such reclassification), or the fraction
of such shares, that a shareholder who held one Ordinary Share immediately prior
to such event would be entitled solely by reason of such event to hold
immediately after such event. The Appreciation Threshold Price and Initial Price
shall also be adjusted in the manner described in Section 6.1(e).
(b) Right or Warrant Issuances. If the Company shall, after the date of
this Agreement, issue, or declare a record date in respect of an issuance of,
rights or warrants to all holders of Ordinary Shares entitling them to subscribe
for or purchase Ordinary Shares at a price per share less than the Then-Current
Market Price of the Ordinary Shares (other than rights to purchase Ordinary
Shares pursuant to a plan for the reinvestment of dividends or interest), then,
in each such case, the Exchange Rate shall be multiplied by a Dilution
Adjustment equal to a fraction, (i) the numerator of which shall be the number
of Ordinary Shares outstanding immediately prior to the time the adjustment
resulting from the issuance of such rights or warrants is effected, plus the
number of additional Ordinary Shares offered for subscription or purchase
pursuant to such rights or warrants, and (ii) the denominator of which shall be
the number of Ordinary Shares outstanding immediately prior to the time such
adjustment is effected plus the number of additional Ordinary Shares that the
aggregate offering price of the total number of Ordinary Shares so offered for
subscription or purchase pursuant to such rights or warrants would purchase at
the Then-Current Market Price of the Ordinary Shares, which shall be determined
by multiplying the total number of shares so offered for subscription or
purchase by the exercise price of such rights or warrants and dividing the
product so obtained by such Then-Current Market Price. To the extent that, after
the expiration of such rights or warrants, any of the Ordinary Shares offered
thereby shall not have been delivered, the Exchange Rate shall be further
adjusted to equal the Exchange Rate which would have been in effect had such
adjustment for the issuance of such rights or warrants been made upon the basis
of delivery of only the number of Ordinary Shares actually delivered. The
Appreciation Threshold Price and Initial Price shall also be adjusted in the
manner described in Section 6.1(e).
(c) Distributions of Other Assets. If the Company shall, after the date
of this Agreement, declare or pay a dividend or make a distribution to all
holders of Ordinary Shares, in either case, of evidences of its indebtedness or
other non-cash assets (excluding (A) any dividends or distributions referred to
in Section 6.1(a) and (B) any
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Spin-Off Distributions) or shall issue to all holders of Ordinary Shares rights
or warrants to subscribe for or purchase any of its securities (other than
rights or warrants referred to in Section 6.1(b)), then, in each such case, the
Exchange Rate shall be multiplied by a Dilution Adjustment equal to a fraction,
the numerator of which shall be the Then-Current Market Price per Ordinary
Share, and the denominator of which shall be such Then-Current Market Price per
share less the fair market value (as determined by a nationally recognized
independent investment banking firm retained for this purpose by the
Administrator, whose determination shall be final) as of the time the adjustment
is effected of the portion of the evidences of indebtedness or assets so
distributed or of such subscription rights or warrants so issued applicable to
one Ordinary Share. The Appreciation Threshold Price and Initial Price shall
also be adjusted in the manner described in Section 6.1(e).
(d) Cash Dividends; Excess Purchase Payments. If the Company shall,
after the date of this Agreement, declare a record date in respect of a
distribution of cash (other than any Permitted Dividend, any cash distributed in
consideration of fractional Ordinary Shares and any cash distributed in a
Reorganization Event), by dividend or otherwise, to all holders of Ordinary
Shares, or make an Excess Purchase Payment, then the Exchange Rate will be
multiplied by a Dilution Adjustment equal to a fraction, the numerator of which
shall be the Then-Current Market Price of the Ordinary Shares on such record
date, and the denominator of which shall be such Then-Current Market Price less
the amount of such distribution applicable to one Ordinary Share which would not
be a Permitted Dividend or, in the case of an Excess Purchase Payment, less the
aggregate amount of such Excess Purchase Payment for which adjustment is being
made at such time divided by the number of Ordinary Shares outstanding on such
record date. The Appreciation Threshold Price and Initial Price shall also be
adjusted in the manner described in Section 6.1(e).
(e) Corresponding Adjustments to Initial Price, Appreciation Threshold
Price and Closing Price.
(i) If any adjustment is made to the Exchange Rate pursuant to
Section 6.1(a), (b), (c) or (d), the Appreciation Threshold Price and
the Initial Price shall also be adjusted by dividing each of the
Appreciation Threshold Price and the Initial Price by the applicable
Dilution Adjustment.
(ii) If, during any Calculation Period used in calculating the
Average Market Price, the Then-Current Market Price or the Transaction
Value, there shall occur any event requiring an adjustment to be
effected pursuant to this Section 6.1, then the Closing Price for each
Trading Day in the Calculation Period occurring prior to the day on
which such adjustment is effected shall be adjusted by being divided by
the relevant Dilution Adjustment.
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(f) Timing of Dilution Adjustments. Each Dilution Adjustment shall be
effected:
(i) in the case of any dividend, distribution or issuance, as
of the opening of business on the Business Day next following the
record date for determination of holders of Ordinary Shares entitled to
receive such dividend, distribution or issuance or, if the announcement
of any such dividend, distribution or issuance is after such record
date, at the time such dividend, distribution or issuance is announced
by the Company;
(ii) in the case of any subdivision, split, combination or
reclassification, on the effective date of such transaction;
(iii) in the case of any Excess Purchase Payment for which the
Company shall announce, at or prior to the time it commences the
relevant share repurchase, the repurchase price per share for shares
proposed to be repurchased, on the date of such announcement; and
(iv) in the case of any other Excess Purchase Payment, on the
date that the holders of the repurchased shares become entitled to
payment of such Excess Purchase Payment.
(g) General; Failure of Dilution Event to Occur. All Dilution
Adjustments shall be rounded upward or downward to the nearest 1/10,000th or, if
there is not a nearest 1/10,000th, to the next lower 1/10,000th. No adjustment
in the Exchange Rate shall be required unless such adjustment would require an
increase or decrease of at least one percent in the Exchange Rate; provided,
however, that any adjustments that by reason of this sentence are not required
to be made shall be carried forward and taken into account in any subsequent
adjustment. If any announcement or declaration of a record date in respect of a
dividend, distribution, issuance or repurchase requiring an adjustment pursuant
to this Section 6.1 shall subsequently be canceled by the Company or shall fail
to occur for any other reason, then, upon such cancellation or failure to occur,
the Exchange Rate shall be further adjusted to the Exchange Rate that would then
have been in effect had adjustment for such event not been made. If, after an
announcement of a share repurchase requiring an adjustment pursuant to this
Section 6.1, the Company reduces the repurchase price or repurchases fewer
shares than announced, then upon completion of such share repurchase the
Exchange Rate shall be further adjusted to equal the Exchange Rate that would
have been in effect had the adjustment for such repurchase been based on the
actual price and amount repurchased. If a Reorganization Event shall occur after
the occurrence of one or more events requiring an adjustment pursuant to this
Section 6.1, the Dilution Adjustments previously applied to the Exchange Rate in
respect of such events shall not be rescinded but shall be applied to the new
Exchange Rate provided for under Section 6.2.
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Section 6.2. Adjustment for Consolidation, Merger or Other
Reorganization Event.
(a) In the event of (i) any consolidation or merger of the Company, or
any surviving entity or subsequent surviving entity of the Company (a "Company
Successor"), with or into another entity (other than a merger or consolidation
in which the Company is the continuing corporation and in which the Ordinary
Shares outstanding immediately prior to the merger or consolidation are not
exchanged for cash, securities or other property of the Company or another
corporation), (ii) any sale, transfer, lease or conveyance to another
corporation of the property of the Company or any Company Successor as an
entirety or substantially as an entirety, (iii)(x) any statutory exchange of
securities of the Company or any Company Successor with another corporation or
(y) any sale of all or substantially all of the outstanding equity securities of
the Company or any Successor Company, including pursuant to any plan of
arrangement or similar scheme with the Company's shareholders under any
applicable law, rule or regulation or order of any court or governmental
authority (in the case of each of the preceding clauses (x) and (y), other than
in connection with a merger or consolidation referred to in clause (i)
immediately above), or (iv) any liquidation, dissolution or winding up of the
Company or any Company Successor (any such event described in clause (i), (ii),
(iii) or (iv), a "Reorganization Event"), Seller shall deliver on the Exchange
Date, in lieu of the Contract Shares, cash in an amount (the "Basic
Reorganization Event Amount") equal to the Dilution Adjustment (or successive
Dilution Adjustments), if any, that have been applied to the Exchange Rate
pursuant to Section 6.1 at or prior to the time of such Reorganization Event,
multiplied by the product of (x) the Firm Share Base Amount plus the Additional
Share Base Amount and (y)(i) if the Transaction Value is less than the
Appreciation Threshold Price but equal to or greater than the Initial Price, the
Initial Price, (ii) if the Transaction Value is equal to or greater than the
Appreciation Threshold Price, 0.____ multiplied by the Transaction Value, and
(iii) if the Transaction Value is less than the Initial Price, the Transaction
Value. Notwithstanding the foregoing, if the consideration received by the
holders of the Ordinary Shares in the Reorganization Event (the "Merger
Consideration") includes any Marketable Securities, Seller may, at its option,
in lieu of delivering cash as described above, deliver an equivalent amount
(based on the value determined in accordance with clause (z) of the definition
of Transaction Value) of such Marketable Securities, but not exceeding, as a
percentage of the total consideration required to be delivered, the percentage
of the total Transaction Value attributable to such Marketable Securities.
(b) Notwithstanding Section 6.2(a), if at least 30% of the Merger
Consideration in any Reorganization Event consists of cash or cash equivalents
(a "Cash Merger"), then Seller shall be required (i) within five Business Days
after Seller receives the Merger Consideration, to deliver the Accelerated
Portion to Purchaser, provided that to the extent the Accelerated Portion
consists of property other than cash or cash equivalents, Seller may, at its
option, deliver, in lieu of such other property, cash in an amount equal to the
Value of such other property; and (ii) on the Exchange Date, to deliver to
Purchaser the number of Marketable Securities equal to the product of (x) the
sum of the Firm Share Base Amount and the Additional Share Base Amount and (y)
the
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Exchange Rate, adjusted as described in the next sentence, and the provisions of
Section 2.3(c) shall apply mutatis mutandis to such Marketable Securities,
provided that Seller may exercise the Cash Settlement Alternative in respect of
such Marketable Securities, in which case Section 2.3(d) shall apply mutatis
mutandis to such Marketable Securities. For purposes of calculating such
Exchange Rate, (A) the Initial Price and Appreciation Threshold Price shall each
be adjusted by multiplying the Initial Price or Appreciation Threshold Price, as
applicable, as then in effect, by a fraction, the numerator of which is the
Value of a share of the Marketable Securities included in the Merger
Consideration on the date the Cash Merger is closed, and the denominator of
which shall be the Transaction Value; and (B) the Exchange Rate shall be
adjusted by multiplying the Exchange Rate (computed on the basis of the adjusted
Initial Price and Appreciation Threshold Price and the Average Market Price of
the Marketable Securities) by a fraction, the numerator of which is the
aggregate Value of the Marketable Securities included in the Merger
Consideration received in exchange for a single Ordinary Share, and the
denominator of which is the Value of a share of the Marketable Securities
included in the Merger Consideration on the date the Cash Merger is closed.
Section 6.3. Spin-Off Distributions. If the Company shall, after the
date of this Agreement, effect a Spin-Off Distribution, then for all purposes of
this Agreement, from and after the record date in respect of such Spin-Off
Distribution, (i) the Contract Shares shall be deemed to include both (A) that
number of Ordinary Shares equal to the product of (x) the sum of the Firm Share
Base Amount and the Additional Share Base Amount and (y) the Exchange Rate, and
(B) that number of Marketable Securities of the class distributed in respect of
the Contract Shares in such Spin-Off Distribution equal to the product of (x)
the sum of the Firm Share Base Amount and the Additional Share Base Amount, (y)
the Exchange Rate, and (z) the number of shares of such Marketable Securities
distributed per Ordinary Share in the Spin-Off Distribution; (ii) Seller's
obligations under Section 2.3 shall include delivery of such Marketable
Securities together with the Ordinary Shares comprising the Contract Shares and
the provisions of Section 2.3(c) shall apply mutatis mutandis to such Marketable
Securities; and (iii) the "Closing Price" of the Ordinary Shares shall
thereafter be deemed to be equal to the sum of (A) the Closing Price per
Ordinary Share and (B) the product of (x) the Closing Price per share of the
spun-off Marketable Securities and (y) the number of shares of such Marketable
Securities distributed per Ordinary Share in the Spin-Off Distribution.
Section 6.4. Adjustments with Respect to Marketable Securities. The
number of shares of any Marketable Securities included in any calculation
pursuant to this Agreement shall be subject to adjustment if any event that
would, had it occurred with respect to the Ordinary Shares or the Company, have
required an adjustment pursuant to Section 6.1 or Section 6.2, shall occur with
respect to such Marketable Securities or the issuer of such Marketable
Securities between the time of the Spin-Off Distribution or Reorganization Event
(or, in the case of any adjustment occurring during a Calculation Period, the
first day of such Calculation Period) and the Exchange Date. Adjustment for such
subsequent events shall be as nearly equivalent as practicable to the
adjustments provided for in Section 6.1 or Section 6.2.
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ARTICLE VII
ACCELERATION UPON AN EVENT OF DEFAULT
Section 7.1. Events of Default. If one or more of the following events
(each an "Event of Default") shall occur:
(a) Seller shall commence a voluntary case or other proceeding
seeking a liquidation, reorganization or other relief with respect to
Seller or Seller's debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of
Seller or any substantial part of Seller's property, or shall consent
to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced
against Seller, or shall make a general assignment for the benefit of
creditors, or shall take any action to authorize any of the foregoing;
or
(b) an involuntary case or other proceeding shall be commenced
against Seller seeking liquidation, reorganization or other relief with
respect to Seller or Seller's debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar official
of Seller or any substantial part of Seller's property, and such
involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be
entered against Seller under the federal bankruptcy laws as now or
hereafter in effect; or
(c) a Collateral Event of Default within the meaning of the
Collateral Agreement shall occur;
then, upon the occurrence of any such event, Seller shall become obligated to
deliver the Contract Shares (or the Marketable Securities or cash or combination
of Marketable Securities and cash deliverable in respect of such Contract
Shares), or any U.S. Government Securities then pledged under the Collateral
Agreement in respect such Contract Shares. Purchaser and Seller agree that such
amount is a reasonable preestimate of loss and not a penalty. Such amount is
payable for the loss of bargain and Purchaser will not be entitled to recover
additional damages as a consequence of any loss resulting from an Event of
Default.
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ARTICLE VIII
MISCELLANEOUS
Section 8.1. Adjustments of Exchange Rate; Selection of Independent
Investment Banking Firm. Purchaser shall be responsible for the effectuation and
calculation of any adjustment pursuant to Article VI and shall furnish Seller
notice of any such adjustment and shall provide Seller reasonable opportunity to
review the calculations pertaining to any such adjustment. If, pursuant to the
terms and conditions of this Agreement, the Administrator shall be required to
retain a nationally recognized independent investment banking firm for any
purpose provided in this Agreement, such nationally recognized independent
investment banking firm shall be selected and retained by the Administrator only
after consultation with Seller.
Section 8.2. No Assumption of Liability. By executing this Agreement,
none of the Trustees assumes any personal liability under this Agreement.
Section 8.3. Notices.
(a) All notices and other communications provided for in this
Agreement, unless otherwise specified, shall be in writing and shall be given at
the addresses set forth in the following sentence or at such other addresses as
may be designated by notice duly given in accordance with this Section 8.3 to
each other party to this Agreement. Until such notice is given, (i) notices to
Purchaser shall be directed to it in care of the Administrator, The Chase
Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopier No.
(▇▇▇) ▇▇▇-▇▇▇▇, Attention: Collateral Management Services; and (ii) notices to
Seller shall be directed to it at [INSERT ADDRESS OF SELLER].
(b) Each notice given pursuant to Section 8.3(a) shall be effective (i)
if sent by certified mail (return receipt requested), 72 hours after being
deposited in the United States mail, postage prepaid or five days after being
deposited in the mail of another country, postage prepaid; (ii) if given by
telex or telecopier, when such telex or telecopied notice is transmitted; or
(iii) if given by any other means, when delivered at the address specified in
this Section 8.3.
Section 8.4. Governing Law; Severability. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
To the extent permitted by law, the unenforceability or invalidity of any
provision or provisions of this Agreement shall not render any other provision
or provisions contained in this Agreement unenforceable or invalid.
Section 8.5. Entire Agreement. Except as expressly set forth in this
Agreement, this Agreement constitutes the entire agreement among the parties
with respect to the subject matter of this Agreement and supersedes all prior
agreements, understandings and negotiations, both written and oral, among the
parties with respect to the subject matter of this Agreement.
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Section 8.6. Amendments; Waivers. Any provision of this Agreement may
be amended or waived (either generally or in a particular instance and either
retrospectively or prospectively) if, and only if, such amendment or waiver is
in writing and signed, in the case of an amendment, by Purchaser and Seller or,
in the case of a waiver, by the party against whom the waiver is to be
effective. Purchaser agrees that it will not, without Seller's written consent,
agree to amend or waive any provision of the Trust Agreement in any manner that
materially and adversely affects the rights or obligations of Seller hereunder.
No failure or delay by either party in exercising any right, power or privilege
under this Agreement shall operate as a waiver of such right, power or privilege
nor shall any single or partial exercise of any such right, power or privilege
preclude any other or further exercise of such right, power or privilege or the
exercise of any other right, power or privilege. The rights and remedies
provided in this Agreement shall be cumulative and not exclusive of any rights
or remedies provided by law.
Section 8.7. Non-Assignability. This Agreement and the rights and
obligations of the parties under this Agreement may not be assigned or delegated
by either party without the prior written consent of the other party, and any
purported assignment without such consent shall be void.
Section 8.8. No Third Party Rights; Successors and Assigns. This
Agreement is not intended and shall not be construed to create any rights in any
person other than Seller and Purchaser and their respective successors and
assigns and no person shall assert any rights as third party beneficiary under
this Agreement. Whenever any of the parties to this Agreement is referred to,
such reference shall be deemed to include the successors and assigns of such
party. All the covenants and agreements contained in this Agreement by or on
behalf of Seller and Purchaser shall bind and be enforceable by, and inure to
the benefit of, their respective successors and assigns whether so expressed or
not, and shall be enforceable by and inure to the benefit of Purchaser and its
successors and assigns.
Section 8.9. Counterparts. This Agreement may be executed, acknowledged
and delivered in any number of counterparts, each of which shall be an original,
but all of which shall constitute a single agreement, with the same effect as if
the signatures on each such counterpart were upon the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Purchase Agreement to
be duly executed and delivered as of the first date set forth above.
SELLER:
AMDOCS INTERNATIONAL LIMITED
By:
Name:
Title:
PURCHASER:
AMDOCS AUTOMATIC COMMON EXCHANGE
SECURITY TRUST
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
as Trustee
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III,
as Trustee
By:
▇▇▇▇▇ ▇. ▇'▇▇▇▇▇,
as Trustee
27
Exhibit A
to
Purchase Agreement
CERTIFICATE FOR EXTENSION OF EXCHANGE DATE
The undersigned, Amdocs International Limited ("Seller"), hereby
certifies, pursuant to Section 2.3(e) of the Purchase Agreement, dated as of
[Pricing Date] (the "Contract"), between Seller and Amdocs Automatic Common
Exchange Security Trust, that:
1. Seller is transferring the following U.S. Government Securities to
Purchaser:
[INSERT LIST OF TRANSFERRED U.S. GOVERNMENT SECURITIES]
2. Seller hereby represents and warrants to Purchaser that:
(a) Consents to Transfer. No Transfer Restrictions exist with respect
to or otherwise apply to the transfer by Seller of such U.S. Government
Securities to Purchaser.
(b) Delivery. Seller has delivered to the Custodian, for the account of
and subject to the exclusive control of Purchaser, free and clear of any Liens
and Transfer Restrictions, U.S. Government Securities that, through the
scheduled payment of principal and interest in accordance with their terms, will
provide, not later than one Business Day before [INSERT DATE THREE MONTHS AFTER
ORIGINAL EXCHANGE DATE], cash in an amount equal to not less than the product of
(1) $[INSERT REGULAR QUARTERLY DIVIDEND PER SECURITY] and (2) the sum of the
Firm Share Base Amount and the Additional Share Base Amount.
(c) Title. Seller has good and marketable title to such U.S. Government
Securities, free and clear of all Liens and Transfer Restrictions. Upon delivery
of such U.S. Government Securities to Purchaser, Purchaser will obtain good and
marketable title to such U.S. Government Securities free and clear of all Liens
and Transfer Restrictions.
3. Such U.S. Government Securities satisfy the conditions set forth in
Section 2.3(e)(i) of the Contract.
Capitalized terms defined in the Contract are used in this Certificate
as defined in the Contract.
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IN WITNESS WHEREOF, the undersigned has executed this certificate this
____ day of ____________, _____.
AMDOCS INTERNATIONAL LIMITED
By:_____________________________
Name:
Title:
A-2