Exhibit 4.2
AFFILIATED MANAGERS GROUP, INC.
AND
THE BANK OF NEW YORK,
as Purchase Contract Agent
PURCHASE CONTRACT AGREEMENT
Dated as of February 12, 2004
TABLE OF CONTENTS
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PURCHASE CONTRACT AGREEMENT, dated
as of February 12, 2004, between Affiliated Managers Group,
Inc., a company duly organized and existing under the laws of the
State of Delaware (the “Company”), and The Bank of New
York, a New York banking corporation, acting as purchase contract
agent for the Holders of Securities from time to time (the
“Agent” or “Purchase Contract
Agent”).
RECITALS
The Company has duly authorized the
execution and delivery of this Agreement and the Certificates
evidencing the Securities.
All things necessary to make the
Purchase Contracts, when the Certificates are executed by the
Company and authenticated, executed on behalf of the Holders and
delivered by the Agent, as provided in this Agreement, the valid
and legally binding obligations of the Company, and to constitute
this Agreement 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 Securities by the Holders thereof,
it is mutually agreed as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1.
Definitions.
For all purposes of this Agreement,
except as otherwise expressly provided or unless the context
otherwise requires:
(a)
the terms defined
in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular; and
nouns and pronouns of the masculine gender include the feminine and
neuter genders;
(b)
all accounting
terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles in
the United States;
(c)
the words
“herein,” “hereof” and
“hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular Article,
Section or other subdivision; and
(d)
the following
terms have the meanings given to them in this
Section 1.1(d).
“Act” when used with
respect to any Holder, has the meaning specified in
Section 1.4.
“Affiliate” has the same
meaning as given to that term in Rule 405 of the Securities Act of
1933, as amended, or any successor rule thereunder.
“Agent” or
“Purchase Contract Agent” means the Person named as the
“Agent” or “Purchase Contract Agent” in the
first paragraph of this instrument until a successor Agent or
Purchase Contract Agent shall have become such pursuant to the
applicable provisions of this Agreement, and thereafter
“Agent” or “Purchase Contract Agent” shall
mean such Person.
“Agreement” means this
instrument as originally executed or as it may from time to time be
supplemented or amended by one or more agreements supplemental
hereto entered into pursuant to the applicable provisions
hereof.
“Applicable Benchmark
Treasury” on a particular determination date shall mean
direct obligations of the United States (which may be obligations
traded on a when-issued basis only) having a maturity comparable to
the remaining term to maturity of the Senior Notes, after giving
effect to any extension of the maturity date of the Senior Notes on
the Reset Date, as applicable, as agreed upon by the Company and
the Reset Agent. The yield for the Applicable Benchmark
Treasury will be the bid side yield displayed at 10:00 A.M.,
New York City time, on the third Business Day immediately preceding
the Reset Date in the Telerate system (or if the Telerate system is
(a) no longer available on such Business Day or (b) in
the opinion of the Reset Agent (after consultation with the
Company) no longer an appropriate system from which to obtain such
yield, such other nationally recognized quotation system as, in the
opinion of the Reset Agent (after consultation with the Company),
is appropriate). If such yield is not so displayed, the yield
for the Applicable Benchmark Treasury shall be, as calculated by
the Reset Agent, the yield to maturity for the Applicable Benchmark
Treasury, expressed as a bond equivalent on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis, and
computed by taking the arithmetic mean of the secondary market bid
rates, as of 10:30 A.M., New York City time, on the third
Business Day immediately preceding the Reset Date of three leading
United States government securities dealers selected by the Reset
Agent (after consultation with the Company) (which may include the
Reset Agent or an affiliate thereof).
“Applicable Market
Value” has the meaning specified in
Section 5.1.
“Applicable Ownership
Interest” means, with respect to an Income PRIDES and the
Treasury Securities in the Treasury Portfolio, (A) an undivided
beneficial ownership interest in a $1,000 principal or interest
amount of a principal or interest strip in a Treasury Security
included in such Treasury Portfolio which matures on or prior to
February 17, 2008 and (B) for the originally scheduled
quarterly interest payment date on the Senior Notes that would have
occurred after a Successful Initial Remarketing or a Successful
Final Remarketing, or after the Tax Event Redemption Date and on or
before the Purchase Contract Settlement Date, in the case of a Tax
Event Redemption, an undivided beneficial ownership interest in a
$1,000 face amount of such Treasury Security which is a principal
or interest strip maturing on such interest payment
date.
“Applicable Principal
Amount” means (i) on any date prior to the Reset Date
or, if there is a Failed Final Remarketing, prior to the Purchase
Contract Settlement Date, the aggregate principal amount of Senior
Notes that are components of Income PRIDES on such date or
(ii) on any date on or after the Reset Date or, if there is a
Failed Final Remarketing, on or after the Purchase Contract
Settlement Date, the aggregate principal amount of the Senior Notes
outstanding on such date.
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“Authorized Newspaper”
means a daily newspaper, in the English language, customarily
published on each day that is a Business Day in The City of New
York, whether or not published on days that are legal holidays, and
of general circulation in The City of New York. The Authorized
Newspaper for the purposes of the Remarketing Announcement Date, is
currently anticipated to be The Wall Street Journal (NYC
edition).
“Authorized Officer”
means the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, the Chief Financial
Officer, the General Counsel, the Secretary or any Vice President,
or other officer of the Company performing similar functions and
authorized to act in respect of matters relating to this
Agreement.
“Bankruptcy Code” means
title 11 of the United States Code, or any other law of the United
States that from time to time provides a uniform system of
bankruptcy laws.
“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 Agent.
“Business Day” means any
day other than a Saturday, Sunday or any other day on which banking
institutions in the State of New York are authorized or obligated
by any law or executive order to be closed.
“Cash Merger” has the
meaning set forth in Section 5.12(a).
“Cash Settlement” has
the meaning set forth in Section 5.4(a)(i).
“Certificate” means an
Income PRIDES Certificate or a Growth PRIDES
Certificate.
“Closing Price” has the
meaning specified in Section 5.1.
“Collateral” has the
meaning specified in Section 2.1 of the Pledge
Agreement.
“Collateral Agent” means
The Bank of New York, a New York banking corporation, as Collateral
Agent under the Pledge Agreement until a successor Collateral Agent
shall have become such pursuant to the applicable provisions of the
Pledge Agreement, and thereafter “Collateral Agent”
shall mean the Person who is then the Collateral Agent
thereunder.
“Collateral
Substitution” has the meaning specified in
Section 3.11.
“Common Stock” means the
common stock, par value US$0.01, of the Company.
“Company” means the
Person named as the “Company” in the first paragraph of
this instrument until a successor shall have become such pursuant
to the applicable provision of this Agreement, and thereafter
“Company” shall mean such successor.
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“Contract Adjustment
Payments” means the amounts payable by the Company in respect
of each Purchase Contract issued in connection with the Income
PRIDES and the Growth PRIDES, which amounts shall be equal to
2.525% per annum of the Stated Amount; computed on the basis of a
360-day year of twelve 30-day months.
“Corporate Trust Office”
means the principal corporate trust office of the Agent at which,
at any particular time, its corporate trust business shall be
administered, which office at the date hereof is located at 101
Barclay Street, Floor 8W, New York, New York 10286,
Attn: Corporate Trust Administration (Fax No.
212-815-5707).
“Coupon Rate” means the
percentage rate per annum at which each Senior Note will bear
interest.
“Current Market Price”
has the meaning specified in Section 5.6(a)(10).
“Early Settlement” has
the meaning specified in Section 5.9(a).
“Early Settlement
Amount” has the meaning specified in
Section 5.9(a).
“Early Settlement Date”
has the meaning specified in Section 5.9(a).
“Early Settlement Rate”
has the meaning specified in Section 5.9(b).
“Exchange Act” means the
Securities Exchange Act of 1934 and any statute successor thereto,
in each case as amended from time to time, and the rules and
regulations promulgated thereunder.
“Expiration Date” has
the meaning specified in Section 1.4(e).
“Expiration Time” has
the meaning specified in Section 5.6(a)(7).
“Failed Final
Remarketing” has the meaning specified in
Section 5.4(b).
“Failed Initial
Remarketing” has the meaning specified in
Section 5.3.
“Final Remarketing” has
the meaning specified in Section 5.4(b).
“Final Remarketing Date”
means the third Business Day immediately preceding the Purchase
Contract Settlement Date.
“Growth PRIDES” means
the collective rights and obligations of a holder of a Growth
PRIDES Certificate in respect of an undivided beneficial interest
in a Treasury Security, subject in each case to the Pledge thereof,
and the related Purchase Contract.
“Growth PRIDES
Certificate” means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Growth PRIDES
specified on such certificate.
“Growth PRIDES Register”
and “Growth PRIDES Registrar” have the respective
meanings specified in Section 3.5.
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“Holder,” when used with
respect to a Security, means the Person in whose name the Security
evidenced by an Income PRIDES Certificate and/or a Growth PRIDES
Certificate is registered in the related Income PRIDES Register
and/or the Growth PRIDES Register, as the case may be.
“Income PRIDES” means
the collective rights and obligations of a Holder of an Income
PRIDES Certificate in respect of a Senior Note, subject to the
Pledge thereof, and the related Purchase Contract.
“Income PRIDES
Certificate” means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Income PRIDES
specified on such certificate.
“Income PRIDES Register”
and “Income PRIDES Registrar” have the respective
meanings specified in Section 3.5.
“Indenture” means the
Indenture, dated as of December 21, 2001, between the Company
and Wachovia Bank, National Association (as successor to First
Union National Bank), as trustee, as amended by a Replacement
Trustee Agreement, by and between The Bank of New York and the
Company, as supplemented by a second supplemental indenture, to be
dated February 12, 2004 between The Bank of New York, as
trustee, and the Company, establishing the Senior Notes.
“Initial Remarketing”
has the meaning specified in Section 5.3.
“Initial Remarketing
Date(s)” means, unless there has been a successful
remarketing of the Senior Notes prior to such date, one or more
Business Days selected by the Company as a date on which the
Remarketing Agent shall remarket the Senior Notes, provided that no
more than five Remarketing Dates shall occur between
August 12, 2007 and the fifth Business Day immediately
preceding the Purchase Contract Settlement Date.
“Interest Payment Date”
with respect to the Senior Notes, has the meaning set forth in the
Indenture.
“Issuer Order” or
“Issuer Request” means a written order or request
signed in the name of the Company by an Authorized Officer and
delivered to the Agent.
“Merger Early
Settlement” has the meaning set forth in
Section 5.12(a).
“Merger Early Settlement
Date” has the meaning set forth in
Section 5.12(a).
“NYSE” has the meaning
specified in Section 5.1.
“Officer’s
Certificate” means a certificate signed by an Authorized
Officer and delivered to the Agent.
“Opinion of Counsel”
means an opinion in writing signed by legal counsel, who may be an
employee of or counsel to the Company or an Affiliate of the
Company.
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“Outstanding
Securities,” with respect to any Income PRIDES or Growth
PRIDES, means, as of the date of determination, all Income PRIDES
or Growth PRIDES evidenced by Certificates theretofore
authenticated, executed and delivered under this Agreement,
except:
(i)
if a Termination Event has
occurred, (A) Growth PRIDES and (B) Income PRIDES for which the
Stated Amount of the related Senior Note has been theretofore
deposited with the Agent in trust for the Holders of such Income
PRIDES
(ii)
Income PRIDES and Growth PRIDES
evidenced by Certificates theretofore cancelled by the Agent or
delivered to the Agent for cancellation or deemed cancelled
pursuant to the provisions of this Agreement; and
(iii)
Income PRIDES and Growth PRIDES
evidenced by Certificates in exchange for or in lieu of which other
Certificates have been authenticated, executed on behalf of the
Holder and delivered pursuant to this Agreement, other than any
such Certificate in respect of which there shall have been
presented to the Agent proof satisfactory to it that such
Certificate is held by a bona fide purchaser in whose hands the
Income PRIDES or Growth PRIDES evidenced by such Certificate are
valid obligations of the Company;
provided, however, that in determining whether
the Holders of the requisite number of the Income PRIDES or Growth
PRIDES have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Income PRIDES or Growth PRIDES
owned by the Company or any Affiliate of the Company shall be
disregarded and deemed not to be Outstanding Securities, except
that, in determining whether the Agent shall be protected in
relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Income PRIDES or Growth PRIDES
which a Responsible Officer of the Agent actually knows to be so
owned shall be so disregarded. Income PRIDES or Growth PRIDES so
owned which have been pledged in good faith may be regarded as
Outstanding Securities if the pledgee establishes to the
satisfaction of the Agent the pledgee’s right so to act with
respect to such Income PRIDES or Growth PRIDES and that the pledgee
is not the Company or any Affiliate of the Company.
“Payment Date” means
each February 17, May 17, August 17 and November 17,
commencing May 17, 2004.
“Permitted Investments”
has the meaning set forth in Section 1.1 of the Pledge
Agreement.
“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 under the Pledge Agreement of the Senior Notes or the
appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, and of the Treasury Securities, in
each case constituting a part of the Securities.
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“Pledge Agreement” means
the Pledge Agreement, dated as of the date hereof, by and among the
Company, the Collateral Agent and the Agent, on its own behalf and
as attorney-in-fact for the Holders from time to time of the
Securities.
“Predecessor
Certificate” means a Predecessor Income PRIDES Certificate or
a Predecessor Growth PRIDES Certificate.
“Predecessor Growth PRIDES
Certificate” of any particular Growth PRIDES Certificate
means every previous Growth PRIDES Certificate evidencing all or a
portion of the rights and obligations of the Company and the Holder
under the Growth PRIDES evidenced thereby; and, for the purposes of
this definition, any Growth PRIDES Certificate authenticated and
delivered under Section 3.10 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Growth PRIDES Certificate
shall be deemed to evidence the same rights and obligations of the
Company and the Holder as the mutilated, destroyed, lost or stolen
Growth PRIDES Certificate.
“Predecessor Income PRIDES
Certificate” of any particular Income PRIDES Certificate
means every previous Income PRIDES Certificate evidencing all or a
portion of the rights and obligations of the Company and the Holder
under the Income PRIDES evidenced thereby; and, for the purposes of
this definition, any Income PRIDES Certificate authenticated and
delivered under Section 3.10 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Income PRIDES Certificate
shall be deemed to evidence the same rights and obligations of the
Company and the Holder as the mutilated, destroyed, lost or stolen
Income PRIDES Certificate.
“Primary Treasury
Dealer” means a primary U.S. government securities dealer in
New York City.
“Proceeds” has the
meaning set forth in Section 1.1 of the Pledge
Agreement.
“Purchase Contract” when
used with respect to any Security, means the contract forming a
part of such Security and obligating the Company (A) to sell
and the Holder of such Security to purchase Common Stock equal to
the applicable Settlement Rate, and (B) to pay the Holder
Contract Adjustment Payments on the terms and subject to the
conditions set forth in Article V hereof.
“Purchase Contract Settlement
Date” means February 17, 2008.
“Purchase Contract Settlement
Fund” has the meaning specified in
Section 5.5.
“Purchase Price” has the
meaning specified in Section 5.1.
“Purchased Shares” has
the meaning specified in Section 5.6(a)(7).
“Quotation Agent” means
(i) Merrill Lynch Government Securities, Inc. or its
successor, provided, however, that, if the foregoing shall cease to
be a Primary Treasury Dealer, the Company shall substitute therefor
another Primary Treasury Dealer, and (ii) any other Primary
Treasury Dealer selected by the Company.
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“Record Date” for the
distribution payable in respect of the Senior Notes or the
Applicable Ownership Percentage of the Treasury Portfolio and
Contract Adjustment Payments payable on any Payment Date means a
day selected by the Company which shall be at least one Business
Day but no more than 60 Business Days prior to such Payment
Date.
“Redemption Amount”
means (i) in the case of a Tax Event Redemption occurring
prior to the Reset Date or, if there is a Failed Initial
Remarketing, prior to the Purchase Contract Settlement Date, for
each Senior Note, the product of the principal amount of such
Senior Note and a fraction whose numerator is the Treasury
Portfolio Purchase Price and whose denominator is the aggregate
principal amount of Senior Notes that are components of Income
PRIDES, and (ii) in the case of a Tax Event Redemption
occurring on or after the Reset Date or, if there is a Failed
Initial Remarketing, on or after the Purchase Contract Settlement
Date, for each Senior Note, the product of the principal amount of
such Senior Note and a fraction whose numerator is the Treasury
Portfolio Purchase Price and whose denominator is the sum of the
aggregate principal amount of the Senior Notes outstanding on the
Tax Event Redemption Date.
“Redemption Price” means
the redemption price per Senior Note equal to the Redemption Amount
plus any accrued and unpaid interest on such Senior Note to the
date of redemption.
“Reference Price” has
the meaning specified in Section 5.1.
“Register” means the
Income PRIDES Register and the Growth PRIDES Register.
“Registrar” means the
Income PRIDES Registrar and the Growth PRIDES Registrar.
“Remarketing Agent” has
the meaning specified in Section 5.3.
“Remarketing Agreement”
means the Remarketing Agreement, dated as of the date hereof, by
and among the Company, the Remarketing Agent and the
Agent.
“Remarketing Announcement
Date” means the seventh Business Day immediately preceding
each proposed Reset Date.
“Remarketing Date” means
each of the Initial Remarketing Date and the Final Remarketing
Date.
“Remarketing Fee” means
25 basis points (0.25%) of the aggregate principal amount of the
remarketed Senior Notes if the maturity date of the remarketed
Senior Notes is on or prior to the Purchase Contract Settlement
Date, or, if the maturity date of the Senior Notes is extended on
the Reset Date to after February 17, 2010, such other amount
as agreed between the Company and the Remarketing Agent.
“Reorganization Event”
has the meaning specified in Section 5.6(b).
“Reset Agent” means a
nationally recognized investment banking firm chosen by the Company
to determine the Reset Rate.
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“Reset Date” means the
third Business Day immediately following the Initial
Remarketing Date on which the Senior Notes are successfully
remarketed or the Final Remarketing Date if the Senior Notes are
successfully remarketed on such date.
“Reset Rate” means the
Coupon Rate to be in effect for the Senior Notes on and after the
Reset Date and determined as provided in
Section 4.1.
“Reset Spread” means
(a) in the case of the Reset Rate to be determined on an
Initial Remarketing Date, a spread amount to be determined by the
Reset Agent on the applicable Remarketing Announcement Date as the
appropriate spread so that the Reset Rate will be the interest rate
that the Senior Notes should bear in order for the Applicable
Principal Amount of Senior Notes to have an approximate aggregate
market value of 100.25% of the Treasury Portfolio Purchase Price on
an Initial Remarketing Date and (b) in the case of the Reset
Rate to be determined on the Final Remarketing Date, a spread
amount determined by the Reset Agent on the applicable Remarketing
Announcement Date as the appropriate spread so that the Reset Rate
will be the interest rate that the Senior Notes should bear in
order for the Senior Notes to have an approximate aggregate market
value of 100.25% of their principal amount on the Final Remarketing
Date.
“Responsible Officer,”
when used with respect to the Agent, means any officer of the Agent
assigned by the Agent to administer its corporate trust
matters.
“Security” means an
Income PRIDES or a Growth PRIDES.
“Senior Indebtedness”
means indebtedness of any kind of the Company (including the Senior
Notes) unless the instrument under which such indebtedness is
incurred expressly provides that it is in parity or subordinate in
right of payment to the Contract Adjustment Payments.
“Senior Notes” means the
series of senior notes of the Company designated 4.125% Senior
Notes initially due 2010, to be issued under the Indenture as of
the date hereof.
“Settlement Rate” has
the meaning specified in Section 5.1.
“Significant Corporate
Action” has the meaning specified in
Section 5.6(a)(8).
“Significant Corporate Action
Early Settlement” has the meaning specified in
Section 5.13.
“Significant Corporate Action
Early Settlement Date” has the meaning specified in
Section 5.13.
“Stated Amount” means
$1,000, which is equal to the stated amount of an Income PRIDES and
the stated amount of a Growth PRIDES, as the case may
be.
“Successful Initial
Remarketing” has the meaning specified in
Section 5.3.
“Successful Final
Remarketing” has the meaning specified in
Section 5.4(b).
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“Tax Event” means the
receipt by the Company of an opinion of nationally recognized tax
counsel experienced in such matters to the effect that there is
more than an insubstantial risk that interest payable by the
Company on the Senior Notes on the next Payment Date would not be
deductible, in whole or in part, by the Company for United States
federal income tax purposes as a result of (a) any amendment
to, change in, or announced proposed change in, the laws, or any
regulations thereunder, of the United States or any political
subdivision or taxing authority thereof or therein affecting
taxation, (b) any amendment to or change in an official
interpretation or application of any such law or regulations by any
legislative body, court, governmental agency or regulatory
authority or (c) any official interpretation or pronouncement
that provides for a position with respect to any such laws or
regulations that differs from the generally accepted position on
the date hereof, which amendment, change, or proposed change is
effective or which interpretation or pronouncement is announced on
or after the date hereof.
“Tax Event Redemption”
means, if a Tax Event shall occur and be continuing, the redemption
of the Senior Notes, at the option of the Company, in whole but not
in part, on not less than 30 days nor more than 60 days’
written notice.
“Tax Event Redemption
Date” means the date upon which a Tax Event Redemption is to
occur.
“Tax Event Redemption
Principal Amount” means either (i) if the Tax Event
Redemption Date occurs prior to the Reset Date or, in the event of
failed remarketing, prior to the Purchase Contract Settlement Date,
the aggregate principal amount of the Senior Notes which are
components of Income PRIDES on the Tax Event Redemption Date or
(ii) if the Tax Event Redemption Date occurs on or after the
Reset Date or, in the event of a failed remarketing, on or after
the Purchase Contract Settlement Date, the aggregate principal
amount of the Senior Notes outstanding on such Tax Event Redemption
Date.
“Tender or Exchange
Offer” has the meaning specified in
Section 5.6(a)(7).
“Termination Date” means
the date, if any, on which a Termination Event occurs.
“Termination Event”
means the occurrence of any of the following events: (i) at any
time on or prior to the Purchase Contract Settlement Date, a
judgment, decree or court order shall have been entered granting
relief under the Bankruptcy Code, adjudicating the Company to be
insolvent, or approving as properly filed a petition seeking
reorganization or liquidation of the Company under the Bankruptcy
Code or any other similar applicable Federal or state law, and,
unless such judgment, decree or order shall have been entered
within 60 days prior to the Purchase Contract Settlement Date, such
decree or order shall have continued undischarged and unstayed for
a period of 60 days; or (ii) a judgment, decree or court order
for the appointment of a receiver or liquidator or trustee or
assignee in bankruptcy or insolvency of the Company or of its
property, or for the winding up or liquidation of its affairs,
shall have been entered, and, unless such judgment, decree or order
shall have been entered within 60 days prior to the Purchase
Contract Settlement Date, such judgment, decree or order shall have
continued undischarged and unstayed for a period of 60 days; or
(iii) at any time on or prior to the Purchase Contract Settlement
Date, the Company shall file a petition for relief under the
Bankruptcy Code, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or
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answer or consent seeking reorganization or
liquidation under the Bankruptcy Code or any other similar
applicable Federal or state law, or shall consent to the filing of
any such petition, or shall consent to the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or
insolvency of it or of its property, or shall make an assignment
for the benefit of 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 5.1.
“TIA” means the Trust
Indenture Act of 1939, as amended, or any successor
statute.
“Trading Day” has the
meaning specified in Section 5.1.
“Treasury Portfolio”
means a portfolio of zero-coupon U.S. Treasury securities
consisting of (i) principal or interest strips of U.S. Treasury
securities that mature on or prior to February 15, 2008 in an
aggregate amount equal to the Applicable Principal Amount and (ii)
with respect to the originally scheduled Interest Payment Dates on
the Senior Notes that occur after a Successful Initial Remarketing
or a Successful Final Remarketing, or with respect to each
originally scheduled Interest Payment Dates on the Senior Notes
that occur after the Tax Event Redemption Date and on or before
February 17, 2008, in the case of a Tax Event Redemption,
interest or principal strips of U.S. Treasury securities that
mature on or prior to that Interest Payment Date in an aggregate
amount equal to the aggregate interest payment that would be due on
the aggregate principal amount of the Senior Notes if the Coupon
Rate was not reset pursuant to a Successful Initial Remarketing or
a Successful Final Remarketing.
“Treasury Portfolio Purchase
Price” means the lowest aggregate price quoted by a primary
U.S. government securities dealer in New York City to the Quotation
Agent on the third Business Day immediately preceding the Tax Event
Redemption Date for the purchase of the Treasury Portfolio for
settlement on the Tax Event Redemption Date.
“Treasury Security”
means a zero-coupon U.S. Treasury security with a principal amount
at maturity equal to $1,000 and maturing on February 15, 2008
(or, if the maturity date of the Senior Notes is extended to a
later date, on such later maturity date).
“Vice President” means
any vice president, whether or not designated by a number or a word
or words added before or after the title “vice
president.”
Section 1.2.
Compliance
Certificates and Opinions.
Except as otherwise expressly
provided by this Agreement, upon any application or request by the
Company to the Agent to take any action under any provision of this
Agreement, the Company shall furnish to the Agent an
Officer’s Certificate stating that all conditions precedent,
if any, provided for in this Agreement relating to the proposed
action have been complied with and, if requested by the Agent, an
Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by
any provision of this Agreement relating to such particular
application or request, no additional certificate or opinion need
be furnished.
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Every certificate or opinion with
respect to compliance with a condition or covenant provided for in
this Agreement shall include:
(1)
a statement that
each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating
thereto;
(2)
a brief statement
as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or
opinion are based;
(3)
a statement that,
in the opinion of each such individual, he or she has made such
examination or investigation as is necessary to enable such
individual to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4)
a statement as to
whether, in the opinion of each such individual, such condition or
covenant has been complied with.
Section 1.3.
Form of
Documents Delivered to Agent.
In any case where several matters
are required to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person,
or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an
officer of the Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by,
counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate
or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the
possession of the Company unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are
erroneous.
Where any Person is required to
make, give or execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments under this
Agreement, they may, but need not, be consolidated and form one
instrument.
Section 1.4.
Acts of
Holders; Record Dates.
(a)
Any request,
demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by Holders
may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by
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
12
Agent and, where it is
hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the “Act” of the
Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Agreement and (subject
to Section 7.1) conclusive in favor of the Agent and the
Company, if made in the manner provided in this
Section.
(b)
The fact and date
of the execution by any Person of any such instrument or writing
may be proved in any manner which the Agent deems
sufficient.
(c)
The ownership of
Securities shall be proved by the Income PRIDES Register or the
Growth PRIDES Register, as the case may be.
(d)
Any request,
demand, authorization, direction, notice, consent, waiver or other
Act of the Holder of any Certificate shall bind every future Holder
of the same Certificate and the Holder of every Certificate issued
upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or suffered
to be done by the Agent or the Company in reliance thereon, whether
or not notation of such action is made upon such
Certificate.
(e)
The Company may
set any day as a record date for the purpose of determining the
Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Agreement to
be given, made or taken by Holders of Securities. If any record
date is set pursuant to this paragraph, the Holders of the
Outstanding Securities, whether Income PRIDES or Growth PRIDES, as
the case may be, on such record date, and no other Holders, shall
be entitled to take the relevant action with respect to the Income
PRIDES or the Growth PRIDES, as the case may be, whether or not
such Holders remain Holders after such record date; provided that
no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite
number of Outstanding Securities on such record date. Nothing in
this paragraph shall be construed to prevent the Company from
setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action
by any Person be cancelled and 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 Securities on the
date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall
cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Agent in
writing and to each Holder of Securities in the manner set forth in
Section 1.6.
With respect to any record date set
pursuant to this Section, the Company may designate any date as the
“Expiration Date” and from time to time may change the
Expiration Date to any earlier or later day; provided that no such
change shall be effective unless notice of the proposed new
Expiration Date is given to the Agent in writing, and to each
Holder of Securities in the manner set forth in Section 1.6,
on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to
this Section, the Company shall be deemed to have initially
designated the 180th day after such record date as the
Expiration
13
Date with respect thereto, subject to its right
to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later
than the 180th day after the applicable record date.
Section 1.5.
Notices.
Any request, demand, authorization,
direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Agreement to be made upon,
given or furnished to, or filed with:
(1)
the 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 Agent at The Bank of
New York, 101 Barclay Street, Floor 8W, New York, New York 10286,
Attn: Corporate Trust Administration (Fax No. 212-815-5707),
or at any other address previously furnished in writing by the
Agent to the Holders and the Company; or
(2)
the Company by
the 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 Affiliated
Managers Group, Inc., 600 Hale Street, Prides Crossing, MA 01965,
Attention: Chief Financial Officer, or at any other address
previously furnished in writing to the Agent by the Company;
or
(3)
the Collateral
Agent by the Agent, the Company or 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,
addressed to the Collateral Agent at The Bank of New York, 101
Barclay Street, Floor 8W, New York, New York 10286,
Attn: Corporate Trust Administration (Fax No. 212-815-5707),
or at any other address previously furnished in writing by the
Collateral Agent to the Agent, the Company and the
Holders.
Section 1.6.
Notice to
Holders; Waiver.
Where this Agreement provides for
notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by
such event, at its address as it appears in the applicable
Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Agreement provides for notice
in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event,
and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the 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
14
made with the approval of the Agent shall
constitute a sufficient notification for every purpose
hereunder.
Section 1.7.
Effect of
Headings and Table of Contents.
The Article and
Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction
hereof.
Section 1.8.
Successors and
Assigns.
All covenants and agreements in this
Agreement by the Company shall bind its successors and assigns,
whether so expressed or not.
Section 1.9.
Separability
Clause.
In case any provision in this
Agreement or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions hereof and thereof shall not in any way be
affected or impaired thereby.
Section 1.10.
Benefits of
Agreement.
Nothing in this Agreement or in the
Securities, express or implied, shall give to any Person, other
than the parties hereto and their successors hereunder and, to the
extent provided hereby, the Holders, any benefits or any legal or
equitable right, remedy or claim under this Agreement. The Holders
from time to time shall be beneficiaries of this Agreement and
shall be bound by all of the terms and conditions hereof and of the
Securities evidenced by their Certificates by their acceptance of
delivery of such Certificates.
Section 1.11.
Governing
Law.
This Agreement and the Securities
shall be governed by and construed in accordance with the laws of
the State of New York, without regard to conflicts of laws
principles thereof.
Section 1.12.
Legal
Holidays.
In any case where any Payment Date
shall not be a Business Day, then (notwithstanding any other
provision of this Agreement or the Income PRIDES Certificates or
the Growth PRIDES Certificates) payment of the Contract Adjustment
Payments, if any, shall not be made on such date, but such payments
shall be made on the next succeeding Business Day with the same
force and effect as if made on such Payment Date, and no interest
shall accrue or be payable by the Company or any Holder for the
period from and after any such Payment Date, except that, if such
next succeeding Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding
Business Day with the same force and effect as if made on such
Payment Date.
In any case where any Purchase
Contract Settlement Date shall not be a Business Day, then
(notwithstanding any other provision of this Agreement, the Income
PRIDES Certificates or the Growth PRIDES Certificates), the
Purchase Contracts shall not be performed on such date,
15
but the Purchase Contracts shall be performed on
the immediately following Business Day with the same force and
effect as if performed on the Purchase Contract Settlement
Date.
Section 1.13.
Counterparts.
This Agreement may be executed in
any number of counterparts by the parties hereto on separate
counterparts, each of which, when so executed and delivered, shall
be deemed an original, but all such counterparts shall together
constitute one and the same instrument.
Section 1.14.
Inspection of
Agreement.
A copy of this Agreement shall be
available at all reasonable times during normal business hours at
the Corporate Trust Office for inspection by any Holder.
Section 2.1.
Forms of
Certificates Generally.
The Income PRIDES Certificates
(including the form of Purchase Contract forming part of the Income
PRIDES evidenced thereby) shall be in substantially the form set
forth in Exhibit A hereto, with such letters, numbers or other
marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as may be
required by the rules of any securities exchange on which the
Income PRIDES are listed or any depositary therefor, or as may,
consistently herewith, be determined by the officers of the Company
executing such Income PRIDES Certificates, as evidenced by their
execution of the Income PRIDES Certificates.
The definitive Income PRIDES
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 such Income
PRIDES Certificates, consistent with the provisions of this
Agreement, as evidenced by their execution thereof.
The Growth PRIDES Certificates
(including the form of Purchase Contracts forming part of the
Growth PRIDES evidenced thereby) shall be in substantially the form
set forth in Exhibit B hereto, with such letters, numbers or other
marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as may be
required by the rules of any securities exchange on which the
Growth PRIDES may be listed or any depositary therefor, or as may,
consistently herewith, be determined by the officers of the Company
executing such Growth PRIDES Certificates, as evidenced by their
execution of the Growth PRIDES Certificates.
The definitive Growth PRIDES
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 such Growth
PRIDES Certificates, consistent with the provisions of this
Agreement, as evidenced by their execution thereof.
16
Section 2.2.
Form of
Agent’s Certificate of Authentication.
The form of the Agent’s
certificate of authentication of the Income PRIDES shall be in
substantially the form set forth on the form of the Income PRIDES
Certificates set forth as Exhibit A hereto.
The form of the Agent’s
certificate of authentication of the Growth PRIDES shall be in
substantially the form set forth on the form of the Growth PRIDES
Certificates set forth as Exhibit B hereto.
Section 3.1.
Title and
Terms; Denominations.
The aggregate number of Income
PRIDES evidenced by Certificates authenticated, executed on behalf
of the Holders and delivered hereunder will initially be 250,000,
except for Certificates authenticated, executed and delivered upon
registration of transfer of, in exchange for, or in lieu of, other
Certificates pursuant to Section 3.4, 3.5, 3.8, 3.11, 3.12,
5.9 or 8.5. Growth PRIDES will be issued only in the manner
described in Section 3.13 hereof. The Company may from
time to time authorize and issue additional PRIDES that will
constitute a single series with the PRIDES referred to in the prior
sentence without the consent of the Holders thereof.
The Certificates shall be issuable
only in registered form and only in denominations of a single
Income PRIDES or Growth PRIDES and any integral multiple
thereof.
Section 3.2.
Rights and
Obligations Evidenced by the Certificates.
Each Income PRIDES Certificate shall
evidence the number of Income PRIDES specified therein, with each
such Income PRIDES representing the ownership by the Holder thereof
of a beneficial interest in a Senior Note or the Applicable
Ownership Interest of the Treasury Portfolio, as the case may be,
subject to the Pledge of such Senior Note or the Applicable
Ownership Interest of the Treasury Portfolio, as the case may be,
by such Holder pursuant to the Pledge Agreement, and the rights and
obligations of the Holder thereof and the Company under one
Purchase Contract. The Agent as attorney-in-fact for, and on behalf
of, the Holder of each Income PRIDES shall pledge, pursuant to the
Pledge Agreement, the Senior Note or the Applicable Ownership
Interest of the Treasury Portfolio, as the case may be, forming a
part of such Income PRIDES, to the Collateral Agent and grant to
the Collateral Agent a security interest in the right, title, and
interest of such Holder in such Senior Note or the Applicable
Ownership Interest of the Treasury Portfolio, as the case may be,
for the benefit of the Company, to secure the obligation of the
Holder under each Purchase Contract to purchase the Common Stock of
the Company. Prior to the purchase of Common Stock under each
Purchase Contract, the Purchase Contracts shall not entitle the
Holders of Income PRIDES Certificates to any of the rights of a
holder of Common Stock, including, without limitation, the right to
vote or receive any dividends or other payments or to consent or to
receive notice as stockholders in respect of the meetings of
stockholders or for the election of directors of the Company or for
any other matter, or any other rights whatsoever as stockholders of
the Company.
17
Each Growth PRIDES Certificate shall
evidence the number of Growth PRIDES specified therein, with each
such Growth PRIDES representing the ownership by the Holder thereof
of an undivided beneficial ownership interest in a Treasury
Security, subject to the Pledge of such Treasury Security by such
Holder pursuant to the Pledge Agreement, and the rights and
obligations of the Holder thereof and the Company under one
Purchase Contract. The Agent as attorney-in-fact for, and on
behalf of, the Holder of each Growth PRIDES shall pledge, pursuant
to the Pledge Agreement, each Treasury Security forming a part of
such Growth PRIDES, to the Collateral Agent and grant to the
Collateral Agent a security interest in the right, title, and
interest of such Holder in such Treasury Security for the benefit
of the Company, to secure the obligation of the Holder under one
Purchase Contract to purchase the Common Stock of the
Company. Prior to the purchase of Common Stock under each
Purchase Contract, the Purchase Contracts shall not entitle the
Holders of Growth PRIDES Certificates to any of the rights of a
holder of Common Stock, including, without limitation, the right to
vote or receive any dividends or other payments or to consent or to
receive notice as stockholders in respect of the meetings of
stockholders or for the election of directors of the Company or for
any other matter, or any other rights whatsoever as stockholders of
the Company.
Section 3.3.
Execution,
Authentication, Delivery and Dating.
Subject to the provisions of
Sections 3.11 and 3.12 hereof, upon the execution and delivery of
this Agreement, and at any time and from time to time thereafter,
the Company may deliver Certificates executed by the Company to the
Agent for authentication, execution on behalf of the Holders and
delivery, together with its Issuer Order for authentication of such
Certificates, and the Agent in accordance with such Issuer Order
shall authenticate, execute on behalf of the Holders and deliver
such Certificates.
The Certificates shall be executed
on behalf of the Company by any Authorized Officer and delivered to
the Agent. The signature of any such officer on the Certificates
may be manual or facsimile.
Certificates bearing the manual or
facsimile signatures of individuals who were at any time an
Authorized Officer shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices
prior to the authentication and delivery of such Certificates or
did not hold such offices at the date of such
Certificates.
No Purchase Contract evidenced by a
Certificate shall be valid until such Certificate has been executed
on behalf of the Holder by the manual signature of an authorized
signatory of the Agent, as such Holder’s attorney-in-fact.
Such signature by an authorized signatory of the Agent shall be
conclusive evidence that the Holder of such Certificate has entered
into the Purchase Contracts evidenced by such
Certificate.
Each Certificate shall be dated the
date of its authentication.
No Certificate shall be entitled to
any benefit under this Agreement or be valid or obligatory for any
purpose unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein
executed by an authorized signatory of the Agent by
18
manual signature, and such certificate upon any
Certificate shall be conclusive evidence, and the only evidence,
that such Certificate has been duly authenticated and delivered
hereunder.
Section 3.4.
Temporary
Certificates.
Pending the preparation of
definitive Certificates, the Company shall execute and deliver to
the Agent, and the Agent shall authenticate, execute on behalf of
the Holders, and deliver, in lieu of such definitive Certificates,
temporary Certificates which are in substantially the forms set
forth in Exhibit A and Exhibit B hereto, as the case may be, with
such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed
or engraved thereon as may be required by the rules of any
securities exchange on which the Income PRIDES or Growth PRIDES are
listed, or as may, consistently herewith, be determined by the
officers of the Company executing such Certificates, as evidenced
by their execution of the Certificates.
If temporary Certificates are
issued, the Company will cause definitive Certificates to be
prepared without unreasonable delay. After the preparation of
definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the
temporary Certificates at the Corporate Trust Office, at the
expense of the Company and without charge to the Holder. Upon
surrender for cancellation of any one or more temporary
Certificates, the Company shall execute and deliver to the Agent,
and the Agent shall authenticate, execute on behalf of the Holder,
and deliver in exchange therefor, one or more definitive
Certificates of like tenor and denominations and evidencing a like
number of Income PRIDES or Growth PRIDES, as the case may be, as
the temporary Certificate or Certificates so surrendered. Until so
exchanged, the temporary Certificates shall in all respects
evidence the same benefits and the same obligations with respect to
the Income PRIDES or Growth PRIDES, as the case may be, evidenced
thereby as definitive Certificates.
Section 3.5.
Registration;
Registration of Transfer and Exchange.
The Agent shall keep at the
Corporate Trust Office a register (the “Income PRIDES
Register”) in which, subject to such reasonable regulations
as it may prescribe, the Agent shall provide for the registration
of Income PRIDES Certificates and of transfers of Income PRIDES
Certificates (the Agent, in such capacity, the “Income PRIDES
Registrar”) and a register (the “Growth PRIDES
Register”) in which, subject to such reasonable regulations
as it may prescribe, the Agent shall provide for the registration
of the Growth PRIDES Certificates and of transfers of Growth PRIDES
Certificates (the Agent, in such capacity, the “Growth PRIDES
Registrar”).
Upon surrender for registration of
transfer of any Certificate at the Corporate Trust Office, the
Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the designated transferee or
transferees, and deliver, in the name of the designated transferee
or transferees, one or more new Certificates of any authorized
denominations, like tenor, and evidencing a like number of Income
PRIDES or Growth PRIDES, as the case may be.
At the option of the Holder,
Certificates may be exchanged for other Certificates, of any
authorized denominations and evidencing a like number of Income
PRIDES or Growth PRIDES,
19
as the case may be, upon surrender of the
Certificates to be exchanged at the Corporate Trust Office.
Whenever any Certificates are so surrendered for exchange, the
Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver the
Certificates which the Holder making the exchange is entitled to
receive.
All Certificates issued upon any
registration of transfer or exchange of a Certificate shall
evidence the ownership of the same number of Income PRIDES or
Growth PRIDES, as the case may be, and be entitled to the same
benefits and subject to the same obligations, under this Agreement
as the Income PRIDES or Growth PRIDES, as the case may be,
evidenced by the Certificate surrendered upon such registration of
transfer or exchange.
Every Certificate presented or
surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Agent) be duly endorsed, or be
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Agent duly executed, by the
Holder thereof or its attorney duly authorized in
writing.
No service charge shall be made for
any registration of transfer or exchange of a Certificate, but the
Company and the Agent may require payment from the Holder of a sum
sufficient to cover any tax or other governmental charge that may
be imposed in connection with any registration of transfer or
exchange of Certificates, other than any exchanges pursuant to
Sections 3.6 and 8.5 not involving any transfer.
Notwithstanding the foregoing, the
Company shall not be obligated to execute and deliver to the Agent,
and the Agent shall not be obligated to authenticate, execute on
behalf of the Holder and deliver any Certificate presented or
surrendered for registration of transfer or for exchange on or
after the Business Day immediately preceding the earlier of the
Purchase Contract Settlement Date or the Termination Date. In lieu
of delivery of a new Certificate, upon satisfaction of the
applicable conditions specified above in this Section and
receipt of appropriate registration or transfer instructions from
such Holder, the Agent shall (i) if the Purchase Contract
Settlement Date has occurred, deliver the number of shares of
Common Stock issuable in respect of the Purchase Contracts forming
a part of the Securities evidenced by such Certificate, (ii) in the
case of Income PRIDES, if a Termination Event shall have occurred
prior to the Purchase Contract Settlement Date, transfer the
aggregate Stated Amount of the Senior Notes evidenced thereby or
the appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, or (iii) in the case of Growth
PRIDES, if a Termination Event shall have occurred prior to the
Purchase Contract Settlement Date, transfer the Treasury Securities
evidenced thereby, in each case subject to the applicable
conditions and in accordance with the applicable provisions of
Article V hereof.
Section 3.6.
Certificated
PRIDES.
The Certificates, on original
issuance, will be issued in the form of fully registered definitive
Certificates to be delivered to the Holders of such
Certificates.
20
Section 3.7.
Notices to
Holders.
Whenever a notice or other
communication to the Holders is required to be given under this
Agreement, the Company or the Company’s agent shall give such
notices and communications to the Holders.
Section 3.8.
Mutilated,
Destroyed, Lost and Stolen Certificates.
If any mutilated Certificate is
surrendered to the Agent, the Company shall execute and deliver to
the Agent, and the Agent shall authenticate, execute on behalf of
the Holder, and deliver in exchange therefor, a new Certificate at
the cost of the Holder, evidencing the same number of Income PRIDES
or Growth PRIDES, as the case may be, and bearing a Certificate
number not contemporaneously outstanding.
If there shall be delivered to the
Company and the Agent (i) evidence to their satisfaction of the
destruction, loss or theft of any Certificate, and (ii) such
security or indemnity at the cost of the Holder as may be required
by them to hold each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the
Agent that such Certificate has been acquired by a bona fide
purchaser, the Company shall execute and deliver to the Agent, and
the Agent shall authenticate, execute on behalf of the Holder, and
deliver to the Holder, in lieu of any such destroyed, lost or
stolen Certificate, a new Certificate, evidencing the same number
of Income PRIDES or Growth PRIDES, as the case may be, and bearing
a Certificate number not contemporaneously outstanding.
Notwithstanding the foregoing, the
Company shall not be obligated to execute and deliver to the Agent,
and the Agent shall not be obligated to authenticate, execute on
behalf of the Holder, and deliver to the Holder, a Certificate on
or after the Business Day immediately preceding the earlier of the
Purchase Contract Settlement Date or the Termination Date. In lieu
of delivery of a new Certificate, upon satisfaction of the
applicable conditions specified above in this Section and
receipt of appropriate registration or transfer instructions from
such Holder, the Agent shall (i) if the Purchase Contract
Settlement Date has occurred, deliver the number of shares of
Common Stock issuable in respect of the Purchase Contracts forming
a part of the Securities evidenced by such Certificate, or (ii) if
a Termination Event shall have occurred prior to the Purchase
Contract Settlement Date, transfer the Senior Notes, or the
Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, or the Treasury Securities, as the case may be,
evidenced thereby, in each case subject to the applicable
conditions and in accordance with the applicable provisions of
Article V hereof.
Upon the issuance of any new
Certificate under this Section, the Company and the Agent may
require payment from 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 Agent) connected therewith.
Every new Certificate issued
pursuant to this Section in lieu of any destroyed, lost or
stolen Certificate shall constitute an original additional
contractual obligation of the Company and of the Holder in respect
of the Security evidenced thereby, whether or not the destroyed,
lost or stolen Certificate (and the Securities evidenced thereby)
shall be at any time enforceable by
21
anyone, and shall be entitled to all the
benefits and be subject to all the obligations of this Agreement
equally and proportionately with any and all other Certificates
delivered hereunder.
The provisions of this
Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Certificates.
Section 3.9.
Persons Deemed
Owners.
Prior to due presentment of a
Certificate for registration of transfer, the Company and the
Agent, and any agent of the Company or the Agent, may treat the
Person in whose name such Certificate is registered as the owner of
the Income PRIDES or Growth PRIDES evidenced thereby, for the
purpose of receiving interest on the Senior Notes or distributions
on the maturing interest strips of the Treasury Portfolio, as
applicable, receiving payments of Contract Adjustment Payments,
performance of the Purchase Contracts and for all other purposes
whatsoever, whether or not any interest on the Senior Notes or the
Contract Adjustment Payments payable in respect of the Purchase
Contracts constituting a part of the Income PRIDES or Growth PRIDES
evidenced thereby shall be overdue and notwithstanding any notice
to the contrary, and neither the Company nor the Agent, nor any
agent of the Company or the Agent, shall be affected by notice to
the contrary.
Section 3.10.
Cancellation.
All Certificates surrendered for
delivery of Common Stock on or after the Purchase Contract
Settlement Date, upon the transfer of Senior Notes or the
Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, or Treasury Securities, as the case may be, after the
occurrence of a Termination Event or pursuant to an Early
Settlement, or upon the registration of a transfer or exchange of a
Security, or a Collateral Substitution or the re-establishment of
an Income PRIDES shall, if surrendered to any Person other than the
Agent, be delivered to the Agent and, if not already cancelled,
shall be promptly cancelled by it. The Company may at any time
deliver to the Agent for cancellation any Certificates previously
authenticated, executed and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Certificates so
delivered shall, upon Issuer Order, be promptly cancelled by the
Agent. No Certificates shall be authenticated, executed on behalf
of the Holder and delivered in lieu of or in exchange for any
Certificates cancelled as provided in this Section, except as
expressly permitted by this Agreement. All cancelled Certificates
held by the Agent shall be disposed of by the Agent in accordance
with its customary practices or upon written request be returned to
the Company.
If the Company or any Affiliate of
the Company shall acquire any Certificate, such acquisition shall
not operate as a cancellation of such Certificate unless and until
such Certificate is delivered to the Agent cancelled or for
cancellation.
Section 3.11.
Establishment
of Growth PRIDES.
A Holder may separate the Senior
Notes or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as applicable, from the related Purchase
Contracts in respect of an Income PRIDES by substituting for such
Senior Notes or the appropriate Applicable
22
Ownership Interest of the Treasury Portfolio, as
the case may be, Treasury Securities in an aggregate principal
amount of such Senior Notes or the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definition of such
term) of the Treasury Portfolio, as applicable (a “Collateral
Substitution”), at any time from and after the date of this
Agreement and on or prior to the fifth Business Day immediately
preceding the Purchase Contract Settlement Date in the case of the
Senior Notes and on or prior to the second Business Day immediately
preceding the Purchase Contract Settlement Date in the case of the
appropriate Applicable Ownership Interest of the Treasury
Portfolio, in each case by (a) depositing with the Collateral Agent
Treasury Securities having an aggregate principal amount at
maturity equal to the aggregate principal amount of the Senior
Notes comprising part of such Income PRIDES or the appropriate
Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio comprising part
of such Income PRIDES, as the case may be, and (b) transferring the
related Income PRIDES to the Agent accompanied by a notice to the
Agent, substantially in the form of Exhibit D hereto, stating that
the Holder has transferred the relevant amount of Treasury
Securities to the Collateral Agent and requesting that the Agent
instruct the Collateral Agent to release the Senior Notes or the
appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, underlying such Income PRIDES,
whereupon the Agent shall promptly give such instruction to the
Collateral Agent, substantially in the form of Exhibit C hereto.
Upon receipt of the Treasury Securities described in clause (a)
above and the instruction described in clause (b) above, in
accordance with the terms of the Pledge Agreement, the Collateral
Agent will release to the Agent, on behalf of the Holder, Senior
Notes or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, having the appropriate
aggregate principal amount in the case of such Senior Notes or the
appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, from the Pledge, free and clear of
the Company’s security interest therein, and upon receipt
thereof the Agent shall promptly:
(i)
cancel the related Income
PRIDES;
(ii)
transfer the Senior Notes or the
appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, to the Holder; and
(iii)
authenticate, execute on behalf of
such Holder and deliver a Growth PRIDES Certificate executed by the
Company in accordance with Section 3.3 evidencing the same
number of Purchase Contracts as were evidenced by the cancelled
Income PRIDES.
Holders who elect to separate the
Senior Notes or the appropriate Applicable Ownership Interest of
the Treasury Portfolio, as the case may be, from the related
Purchase Contract and to substitute Treasury Securities for such
Senior Notes or the appropriate Applicable Ownership Interest of
the Treasury Portfolio, as the case may be, shall be responsible
for any fees or expenses payable to the Collateral Agent for its
services as Collateral Agent in respect of the substitution, and
the Company shall not be responsible for any such fees or
expenses.
In the event a Holder making a
Collateral Substitution pursuant to this Section 3.11 fails to
deliver an Income PRIDES Certificate(s) to the Agent after
depositing Treasury Securities with the Collateral Agent, the
Senior Notes or the appropriate Applicable Ownership Interest
of
23
the Treasury Portfolio, as the case may be,
constituting a part of such Income PRIDES, and any interest on such
Senior Note or the Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, shall be held in the name of the
Agent or its nominee in trust for the benefit of such Holder, until
such Income PRIDES are so transferred or the Income PRIDES
Certificate is so delivered, as the case may be, or, with respect
to an Income PRIDES Certificate, such Holder provides evidence
satisfactory to the Company and the Agent that such Income PRIDES
Certificate has been destroyed, lost or stolen, together with any
indemnity that may be required by the Agent and the
Company.
Except as provided in this
Section 3.11, for so long as the Purchase Contract underlying
an Income PRIDES remains in effect, such Income PRIDES shall not be
separable into its constituent parts, and the rights and
obligations of the Holder in respect of the Senior Notes or the
appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, and Purchase Contract comprising
such Income PRIDES may be acquired, and may be transferred and
exchanged, only as an Income PRIDES.
Section 3.12.
Reestablishment of Income
PRIDES.
A Holder of a Growth PRIDES may
create or recreate Income PRIDES at any time (i) on or prior to the
fifth Business Day immediately preceding the Purchase Contract
Settlement Date, if a Tax Event Redemption or a Successful Initial
Remarketing has not occurred, and (ii) on or prior to the second
Business Day immediately preceding the Purchase Contract Settlement
Date, if a Tax Event Redemption or a Successful Initial Remarketing
has occurred and an Applicable Ownership Interest in the Treasury
Portfolio has become a component of the Income PRIDES, in each case
by (a) depositing with the Collateral Agent Senior Notes or the
appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, having an aggregate principal amount
in the case of the Senior Notes, or an appropriate Applicable
Ownership Interest (as defined in clause (A) of the definition of
such term) of the Treasury Portfolio, as the case may be, equal to
the aggregate principal amount of the Treasury Securities
comprising part of the Growth PRIDES and (b) transferring the
related Growth PRIDES to the Agent accompanied by a notice to the
Agent, substantially in the form of Exhibit D hereto, stating that
the Holder has transferred the relevant amount of Senior Notes or
the appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, to the Collateral Agent and
requesting that the Agent instruct the Collateral Agent to release
the Treasury Securities underlying such Growth PRIDES, whereupon
the Agent shall promptly give such instruction to the Collateral
Agent, substantially in the form of Exhibit C hereto. Upon receipt
of the Senior Notes or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be, described
in clause (a) above and the instruction described in clause (b)
above, in accordance with the terms of the Pledge Agreement, the
Collateral Agent will release to the Agent, on behalf of the
Holder, the Treasury Securities having a corresponding aggregate
principal amount from the Pledge, free and clear of the
Company’s security interest therein, and upon receipt thereof
the Agent shall promptly:
(i)
cancel the related Growth
PRIDES;
(ii)
transfer the Treasury Securities
to the Holder; and
24
(iii)
authenticate, execute on behalf of
such Holder and deliver an Income PRIDES Certificate executed by
the Company in accordance with Section 3.3 evidencing the same
number of Purchase Contracts as were evidenced by the cancelled
Growth PRIDES.
In the event a Holder
re-establishing Income PRIDES pursuant to this Section 3.12
fails to deliver a Growth PRIDES Certificate(s) to the Agent after
depositing Senior Notes or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be, with the
Collateral Agent, the Treasury Securities constituting a part of
such Growth PRIDES shall be held in the name of the Agent or its
nominee in trust for the benefit of such Holder, until such Growth
PRIDES are so transferred or the Growth PRIDES Certificate is so
delivered, as the case may be, or, with respect to a Growth PRIDES
Certificate, such Holder provides evidence satisfactory to the
Company and the Agent that such Growth PRIDES Certificate has been
destroyed, lost or stolen, together with any indemnity that may be
required by the Agent and the Company.
Except as provided in this
Section 3.12, for so long as the Purchase Contract underlying
a Growth PRIDES remains in effect, such Growth PRIDES shall not be
separable into its constituent parts and the rights and obligations
of the Holder of such Growth PRIDES in respect of the Treasury
Security and Purchase Contract comprising such Growth PRIDES may be
acquired, and may be transferred and exchanged, only as a Growth
PRIDES.
Section 3.13.
Transfer of
Collateral upon Occurrence of Termination Event.
Upon the occurrence of a Termination
Event and the transfer to the Agent of the Senior Notes, the
appropriate Applicable Ownership Interest of the Treasury Portfolio
or the Treasury Securities, as the case may be, underlying the
Income PRIDES and the Growth PRIDES pursuant to the terms of the
Pledge Agreement, the Agent shall request transfer instructions
with respect to such Senior Notes or the appropriate Applicable
Ownership Interest of the Treasury Portfolio or Treasury
Securities, as the case may be, from each Holder by written request
mailed to such Holder at its address as it appears in the Income
PRIDES Register or the Growth PRIDES Register, as the case may be.
Upon delivery of an Income PRIDES Certificate or a Growth PRIDES
Certificate to the Agent with such transfer instructions, the Agent
shall transfer the Senior Notes, the Applicable Ownership Interest
of the Treasury Portfolio or Treasury Securities, as the case may
be, underlying such Income PRIDES or Growth PRIDES, as the case may
be, to such Holder by book-entry transfer, or other appropriate
procedures, in accordance with such instructions; provided,
however, that, to the extent that a Holder of Income PRIDES or
Growth PRIDES would otherwise be entitled to receive less than
$1,000 principal amount at maturity of the Treasury Portfolio or
the Treasury Securities, the Agent shall dispose of such securities
for cash, and transfer the appropriate amount of such cash to such
Holder in accordance with such Holder’s instructions. In the
event a Holder of Income PRIDES or Growth PRIDES fails to effect
such transfer or delivery, the Senior Notes, the appropriate
Applicable Ownership Interest of the Treasury Portfolio or Treasury
Securities, as the case may be, underlying such Income PRIDES or
Growth PRIDES, as the case may be, and any distributions thereon,
shall be held in the name of the Agent or its nominee in trust for
the benefit of such Holder, until such Income PRIDES or Growth
PRIDES are transferred or the Income PRIDES Certificate or Growth
PRIDES Certificate is surrendered or such Holder provides
satisfactory evidence that such Income
25
PRIDES Certificate or Growth PRIDES Certificate
has been destroyed, lost or stolen, together with any indemnity
that may be required by the Agent and the Company.
Section 3.14.
CUSIP
Numbers.
The Company in issuing the
Securities may use CUSIP numbers (if then generally in use), and,
if so, the Agent shall use CUSIP numbers in notices as a
convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only on the
other identification numbers printed on the Securities, and any
such redemption shall not be affected by any defect in or omission
of such numbers. The Company will promptly notify the Agent of any
change in the CUSIP numbers.
Section 4.1.
Interest and
Other Payments; Rights to Payments Preserved; Interest Rate Reset;
Notice.
A payment of interest on the Senior
Notes or distribution with respect to the appropriate Applicable
Ownership Interest in the Treasury Portfolio, as the case may be,
which is paid on any Payment Date shall, subject to receipt thereof
by the Agent from the Collateral Agent as provided by the terms of
the Pledge Agreement, be paid to the Person in whose name the
Income PRIDES Certificate (or one or more Predecessor Income PRIDES
Certificates) of which such Senior Note or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, is a part, is registered at the close of business on
the Record Date for such Payment Date.
Each Income PRIDES Certificate
evidencing Senior Notes delivered under this Agreement upon
registration of transfer of or in exchange for or in lieu of any
other Income PRIDES Certificate shall carry the rights to accrued
and unpaid interest, and other amounts that are to accrue, which
were or will be carried by the Senior Notes underlying such other
Income PRIDES Certificate.
In the case of any Income PRIDES
with respect to which Cash Settlement of the underlying Purchase
Contract is effected on the Business Day immediately preceding the
Purchase Contract Settlement Date pursuant to prior notice, or with
respect to which Early Settlement of the underlying Purchase
Contract is effected on an Early Settlement Date, or with respect
to which a Collateral Substitution is effected, in each case on a
date that is after any Record Date and on or prior to the next
succeeding Payment Date, interest on the Senior Notes or
distributions on the appropriate Applicable Ownership Interest of
the Treasury Portfolio, as the case may be, underlying such Income
PRIDES otherwise payable on such Payment Date shall be payable on
such Payment Date notwithstanding such Cash Settlement or Early
Settlement or Collateral Substitution, and such distributions
shall, subject to receipt thereof by the Agent, be payable to the
Person in whose name the Income PRIDES Certificate (or one or more
Predecessor Income PRIDES Certificates) was registered at the close
of business on the Record Date. Except as otherwise expressly
provided in the immediately preceding sentence, in the
case
26
of any Income PRIDES with respect to which Cash
Settlement or Early Settlement of the underlying Purchase Contract
is effected on the Business Day immediately preceding the Purchase
Contract Settlement Date or an Early Settlement Date, as the case
may be, or with respect to which a Collateral Substitution has been
effected, payments of interest on the related Senior Notes or
distributions with respect to the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be, that would
otherwise be payable after the Purchase Contract Settlement Date or
Early Settlement Date shall not be payable hereunder to the Holder
of such Income PRIDES; provided, however, that to the extent that
such Holder continues to hold the separated Senior Notes that
formerly comprised a part of such Holder’s Income PRIDES,
such Holder shall be entitled to receive any payments made on such
separated Senior Note.
The Senior Notes shall bear interest
at the Reset Rate from the Reset Date. The Reset Rate shall
equal the sum of (i) the Reset Spread and (ii) the yield
on the Applicable Benchmark Treasury in effect on the third
Business Day immediately preceding the Reset Date and shall be
determined by the Reset Agent; provided that the Reset Rate will in
no event exceed the maximum rate permitted by applicable law.
On each Remarketing Announcement Date, the Reset Agent will
establish the Reset Spread to be added to the yield on the
Applicable Benchmark Treasury expected to be in effect on the
Remarketing Date. On the Business Day immediately following
the Remarketing Announcement Date, the Company will cause a notice
of (a) the Reset Spread and the Applicable Benchmark Treasury,
(b) any change in the scheduled Interest Payment Dates and
maturity date of the Senior Notes that will become effective on the
Reset Date upon a successful remarketing and (c) if
applicable, the percentage of the undivided beneficial ownership
interest, to be published in an Authorized Newspaper. In the
event of a Failed Final Remarketing, the Coupon Rate will not be
reset and the Senior Notes will continue to bear interest at the
Coupon Rate effective at the time the Senior Notes were initially
issued.
Section 4.2.
Notice and
Voting.
Under and subject to the terms of
the Pledge Agreement, the Agent will be entitled to exercise the
voting and any other consensual rights pertaining to the Senior
Notes pledged with the Collateral Agent but only to the extent
instructed by the Holders as described below. Upon receipt of
notice of any meeting at which holders of Senior Notes are entitled
to vote or upon any solicitation of consents, waivers or proxies of
holders of Senior Notes, the Agent shall, as soon as practicable
thereafter, mail to the Holders of Income PRIDES a notice (a)
containing such information as is contained in the notice or
solicitation, (b) stating that each Holder on the record date set
by the Agent therefor (which, to the extent possible, shall be the
same date as the record date for determining the holders of Senior
Notes entitled to vote) shall be entitled to instruct the Agent as
to the exercise of the voting rights pertaining to the Senior Notes
underlying their Income PRIDES and (c) stating the manner in which
such instructions may be given. Upon the written request of the
Holders of Income PRIDES on such record date, the Agent shall
endeavor insofar as practicable to vote or cause to be voted, in
accordance with the instructions set forth in such requests, the
maximum number of Senior Notes as to which any particular voting
instructions are received. In the absence of specific instructions
from the Holder of an Income PRIDES, the Agent shall abstain from
voting the Senior Note constituting a part of such Holder’s
Income PRIDES. The Company hereby agrees, if applicable, to solicit
Holders of Income PRIDES to timely instruct the Agent in order to
enable the Agent to vote such Senior Notes.
27
Section 4.3.
Tax Event
Redemption.
Upon the occurrence of a Tax Event
Redemption prior to the Reset Date, or in the event of a Failed
Initial Remarketing, prior to the Purchase Contract Settlement
Date, pursuant to the terms of the Pledge Agreement, the Collateral
Agent will apply, out of the aggregate Redemption Price for the
Senior Notes that are components of Income PRIDES, an amount equal
to the aggregate Redemption Amount for the Senior Notes that are
components of Income PRIDES to purchase on behalf of the Holders of
Income PRIDES the Treasury Portfolio and promptly remit the
remaining portion of such Redemption Price to the Agent for payment
to the Holders of such Income PRIDES. The Treasury Portfolio will
be substituted for the pledged Senior Notes, and will be held by
the Collateral Agent in accordance with the terms of the Pledge
Agreement to secure the obligation of each Holder of an Income
PRIDES to purchase the Common Stock of the Company under the
Purchase Contract constituting a part of such Income PRIDES.
Following the occurrence of a Tax Event Redemption prior to the
Reset Date, or, in the event of a Failed Initial Remarketing, prior
to the Purchase Contract Settlement Date, the Holders of Income
PRIDES and the Collateral Agent shall have such security interests,
rights and obligations with respect to the Treasury Portfolio as
the Holder of Income PRIDES and the Collateral Agent had in respect
of the Senior Notes, as the case may be, subject to the Pledge
thereof as provided in the Pledge Agreement, and any reference
herein or in the Certificates to the Senior Note shall be deemed to
be a reference to such Treasury Portfolio and any reference herein
or in the Certificates to interest on the Senior Notes shall be
deemed to be a reference to corresponding distributions on the
Treasury Portfolio. The Company may cause to be made in any Income
PRIDES Certificates thereafter to be issued such change in
phraseology and form (but not in substance) as may be appropriate
to reflect the substitution of the Treasury Portfolio for Senior
Notes as collateral.
Section 4.4.
Consent to
Treatment for Tax Purposes.
Each Holder and beneficial owner of
the Securities, by its acceptance thereof, covenants and agrees to
treat itself as the owner, for federal, state and local income and
franchise tax purposes of (i) the related Senior Notes or the
appropriate Applicable Ownership Interest of the Treasury
Portfolio, in the case of the Income PRIDES, or (ii) the Treasury
Securities, in the case of the Growth PRIDES. The
Company, and by purchasing and accepting the Securities or the
Senior Notes, each Holder and beneficial owner of the Securities or
a holder or beneficial owner of the Senior Notes, as the case may
be, will be deemed to have agreed to treat for all United States
federal income tax purposes the Senior Notes as “contingent
payment debt instruments” as the term is used in Treasury
regulation section 1.1275-4. The Company covenants and
agrees and each Holder and beneficial owner of the Income PRIDES,
by its acceptance thereof, further covenants and agrees (i) to
treat the Senior Notes as indebtedness of the Company for federal,
state and local income and franchise tax purposes and (ii) to
allocate $1,000.00 of the issue price of an Income PRIDES to the
Senior Note and $0.00 of the issue price to the Purchase
Contract.
28
ARTICLE V
THE PURCHASE CONTRACTS
Section 5.1.
Purchase of
Common Stock.
Each Purchase Contract shall, unless
an Early Settlement has occurred in accordance with
Section 5.9 hereof, obligate the Holder of the related
Security to purchase, and the Company to sell, on the Purchase
Contract Settlement Date at a price equal to the Stated Amount (the
“Purchase Price”), a number of newly issued shares of
Common Stock equal to the Settlement Rate unless, on or prior to
the Purchase Contract Settlement Date, there shall have occurred a
Termination Event with respect to the Security of which such
Purchase Contract is a part. The “Settlement Rate” is
the number of shares of Common Stock per Purchase Contract equal to
(a) if the Applicable Market Value (as defined below) is equal to
or greater than $127.28 (the “Threshold Appreciation
Price”), the difference of the two following fractions: (i)
the Stated Amount divided by $83.19 (the “Reference
Price”) and (ii) $530 divided by the Applicable Market Value,
(b) if the Applicable Market Value is less than the Threshold
Appreciation Price, but is greater than the Reference Price, the
Stated Amount divided by the Applicable Market Value and (c) if the
Applicable Market Value is less than or equal to the Reference
Price, 12.0207 shares of Common Stock per Purchase Contract, which
is equal to the Stated Amount divided by the Reference Price, in
each case subject to adjustment as provided in Section 5.6
(and in each case rounded upward or downward to the nearest
1/10,000th of a share). As provided in Section 5.10, no
fractional shares of Common Stock will be issued upon settlement of
Purchase Contracts.
The “Applicable Market
Value” means the average of the Closing Price per share of
Common Stock on each of the 20 consecutive Trading Days ending on
the third Trading Day immediately preceding the Purchase Contract
Settlement 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 national or
regional 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, the last closing sale
price on and 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 Closing Price means the market value of
the Common Stock on such date determined by a nationally recognized
independent 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.
29
Each Holder of an Income PRIDES or a
Growth PRIDES, by its acceptance thereof, irrevocably authorizes
the Agent to enter into and perform the related Purchase Contract
on its behalf as its attorney-in-fact (including the execution of
Certificates on behalf of such Holder), agrees to be bound by the
terms and provisions thereof, covenants and agrees to perform its
obligations under such Purchase Contracts, and consents to the
provisions hereof, irrevocably authorizes the Agent as its
attorney-in-fact to enter into and perform the Pledge Agreement on
its behalf as its attorney-in-fact, and consents to and agrees to
be bound by the Pledge of the Senior Notes or the Treasury
Securities pursuant to the Pledge Agreement; provided that upon a
Termination Event, the rights of the Holder of such Security under
the Purchase Contract may be enforced without regard to any other
rights or obligations. Each Holder of an Income PRIDES or a
Growth PRIDES, by its acceptance thereof, further covenants and
agrees, that, to the extent and in the manner provided in the
Pledge Agreement, but subject to the terms thereof, payments in
respect of the Stated Amount of the Senior Notes or the Proceeds of
the Treasury Securities, the Senior Notes or the Treasury
Portfolio, as applicable, on the Purchase Contract Settlement 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
Certificate, the transferee shall be bound (without the necessity
of any other action on the part of such transferee, except as may
be required by the Agent pursuant hereto), under the terms of this
Agreement, the Purchase Contracts underlying such Certificate and
the Pledge Agreement and the transferor shall be released from the
obligations under this Agreement, the Purchase Contracts underlying
the Certificates so transferred and the Pledge Agreement. The
Company covenants and agrees, and each Holder of a Certificate, by
its acceptance thereof, likewise covenants and agrees, to be bound
by the provisions of this paragraph.
The Agent shall have no
responsibility whatsoever for calculating or determining any
amounts under this Section or elsewhere in this Agreement, and
shall have no liability whatsoever for any errors with respect to
such calculations or amounts.
Section 5.2.
Contract
Adjustment Payments.
The Company shall pay, on each
Payment Date, the Contract Adjustment Payments payable in respect
of each Purchase Contract to the Person in whose name a Certificate
(or one or more predecessor Certificates) is registered on the
Register at the close of business on the Record Date next preceding
such Payment Date. The Contract Adjustment Payments will be
payable at the Corporate Trust Office or, at the option of the
Company, by check mailed to the address of the Person entitled
thereto at such Person’s address as it appears on the Income
PRIDES Register or Growth PRIDES Register or by wire transfer to an
account appropriately designated in writing by the Person entitled
to payment.
Payments of the Contract Adjustment
Payments shall be made net of any amounts that the Company or the
Agent, in their sole discretion, reasonably determine should be
withheld therefrom and paid to any taxing authority. For all
purposes of this Agreement and any other agreement related to the
PRIDES, any such amounts so withheld shall be treated as paid to
the Holder of Securities.
30
Upon the occurrence of a Termination
Event, the Company’s obligation to pay Contract Adjustment
Payments (including any accrued Contract Adjustment Payments) shall
cease.
Each Certificate delivered under
this Agreement upon registration of transfer of or in exchange for
or in lieu of any other Certificate (including as a result of a
Collateral Substitution or the reestablishment of an Income PRIDES)
shall carry the rights to Contract Adjustment Payments accrued and
unpaid, and to accrue Contract Adjustment Payments, which were
carried by the Purchase Contracts which were represented by such
other Certificates.
Subject to Section 5.9, in the
case of any Security with respect to which Early Settlement of the
underlying Purchase Contract is effected on an Early Settlement
Date that is after any Record Date and on or prior to the next
succeeding Payment Date, Contract Adjustment Payments, if any,
otherwise payable on such Payment Date shall be payable on such
Payment Date notwithstanding such early settlement, and such
Contract Adjustment Payments shall, subject to receipt thereof by
the Agent, be payable to the Person in whose name the Certificate
evidencing such Security (or one or more predecessor Certificates)
was registered at the close of business on such Record Date.
Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Security with respect to which Early
Settlement of the underlying Purchase Contract is effected on an
Early Settlement Date, Contract Adjustment Payments that would
otherwise be payable after the Early Settlement Date with respect
to such Purchase Contract shall not be payable.
The Company’s obligations with
respect to Contract Adjustment Payments (including any accrued
Contract Adjustment Payments), will be subordinated and junior in
right of payment to the Company’s obligations under any
Senior Indebtedness. Upon any payment or distribution of the
Company’s assets to its creditors upon any dissolution,
winding up, liquidation or reorganization, whether voluntary or
involuntary, or in bankruptcy, insolvency, receivership or other
similar proceedings, the holders of all Senior Indebtedness shall
first be entitled to receive payment in full of all amounts due or
to become due thereon, or payment of such amounts shall have been
provided for, before the holders of the Securities shall be
entitled to receive any Contract Adjustment Payments.
No payment of Contract Adjustment
Payments may be made if (i) any payment default on any Senior
Indebtedness has occurred and is continuing beyond any applicable
grace period; or (ii) any default other than a payment default with
respect to Senior Indebtedness occurs and is continuing that
permits the acceleration of the maturity thereof and the Agent
receives a written notice of such default from the Company or the
holders of such Senior Indebtedness.
Section 5.3.
Initial
Remarketing.
Unless a Tax Event Redemption has
occurred, the Company shall engage a nationally recognized
investment bank (the “Remarketing Agent”) pursuant to
the Remarketing Agreement to sell the Senior Notes on an Initial
Remarketing Date selected by the Company (the “Initial
Remarketing”). In order to facilitate the remarketing, the
Agent shall notify, by 10:00 a.m., New York City time, on the
Business Day immediately preceding an Initial Remarketing Date, the
Remarketing Agent of the aggregate principal amount of Senior Notes
to be remarketed. Concurrently, the Collateral Agent, pursuant to
the terms of the Pledge Agreement, will present
31
for remarketing such Senior Notes to the
Remarketing Agent. Upon receipt of such notice from the Agent and
such Senior Notes from the Collateral Agent, the Remarketing Agent
will, on an Initial Remarketing Date, use its reasonable efforts to
remarket such Senior Notes on such date at a price of approximately
100.25% (but not less than 100%) of the Treasury Portfolio Purchase
Price plus a remarketing fee (“Remarketing Fee”) which
shall be (i) an amount equal to 25 basis points (0.25%) of the
aggregate principal amount of the remarketed Senior Notes if the
remarketed Senior Notes mature on or prior to February 17,
2010 or (ii) such other amount as agreed between the Company and
the Remarketing Agent if the maturity date of the Senior Notes is
otherwise extended on the Reset Date to a date after
February 17, 2010. If the Remarketing Agent is able to
remarket the Senior Notes at a price equal to or greater than 100%
of the Treasury Portfolio Purchase Price (a “Successful
Initial Remarketing”), the portion of the proceeds from such
Successful Initial Remarketing equal to the Treasury Portfolio
Purchase Price will be applied to purchase the Treasury
Portfolio. Any proceeds in excess of those required to pay
the Treasury Portfolio Purchase Price and the Remarketing Fee will
be remitted to the Agent for payment to the Holders of the related
Income PRIDES. Income PRIDES Holders whose Senior Notes are so
remarketed will not otherwise be responsible for the payment of any
Remarketing Fee in connection therewith. The Treasury Portfolio
will be substituted for the Senior Notes of Holders of Income
PRIDES and will be pledged to the Collateral Agent to secure the
Income PRIDES Holders’ obligation to pay the Purchase Price
for the Common Stock under the related Purchase Contracts on the
Purchase Contract Settlement Date. Following the occurrence of a
Successful Initial Remarketing, the Holders of Income PRIDES and
the Collateral Agent shall have such security interests, rights and
obligations with respect to the Treasury Portfolio as the Holder of
Income PRIDES and the Collateral Agent had in respect of the Senior
Notes, as the case may be, subject to the Pledge thereof as
provided in the Pledge Agreement, and any reference herein or in
the Certificates to the Senior Notes shall be deemed to be a
reference to such Treasury Portfolio and any reference herein or in
the Certificates to interest on the Senior Notes shall be deemed to
be a reference to corresponding distributions on the Treasury
Portfolio. The Company may cause to be made in any Income PRIDES
Certificates thereafter to be issued such change in phraseology and
form (but not in substance) as may be appropriate to reflect the
substitution of the Treasury Portfolio for Senior Notes as
collateral.
If, (1) in spite of using its
reasonable efforts, the Remarketing Agent cannot remarket the
related Senior Notes (other than to the Company) of such Holders of
Income PRIDES at a price not less than 100% of the Treasury
Portfolio Purchase Price or (2) a remarketing has not occurred
because a condition precedent to the remarketing has not been
fulfilled, in each case, the remarketing will be deemed to have
failed, the Senior Notes will continue to be a component of the
Income PRIDES and another Initial Remarketing may be attempted
according to the procedures set forth in this
Section 5.3. If the Remarketing Agent has failed to
remarket the Senior Notes on up to five separate dates prior to the
fifth Business Day preceding the Purchase Contract Settlement Date,
this shall be referred to as a “Failed Initial
Remarketing”. The Company will cause a notice of a
Failed Initial Remarketing to be published in an Authorized
Newspaper.
Section 5.4.
Payment of
Purchase Price.
(a)
(i) Unless a Tax
Event Redemption has occurred or a Holder settles the underlying
Purchase Contract through the early delivery of cash to the Agent
in the manner
32
described in
Section 5.9, each Holder of an Income PRIDES must notify the
Agent by use of a notice in substantially the form of Exhibit E
hereto of its intention to pay in cash (“Cash
Settlement”) the Purchase Price for the Common Stock to be
purchased pursuant to a Purchase Contract. Such notice shall be
made on or prior to 5:00 p.m., New York City time, on the seventh
Business Day immediately preceding the Purchase Contract Settlement
Date. The Agent shall promptly notify the Collateral Agent of the
receipt of such a notice from a Holder intending to make a Cash
Settlement.
(ii)
A Holder of an Income PRIDES who
has so notified the Agent of its intention to make a Cash
Settlement in accordance with paragraph (a)(i) above is required to
pay the Purchase Price to the Collateral Agent prior to 11:00 a.m.,
New York City time, on the Business Day immediately preceding the
Purchase Contract Settlement Date in lawful money of the United
States by certified or cashiers’ check or wire transfer, in
each case in immediately available funds payable to or upon the
order of the Company. Any cash received by the Collateral Agent
will be invested promptly by the Collateral Agent in Permitted
Investments and paid to the Company on the Purchase Contract
Settlement Date in settlement of the Purchase Contract in
accordance with the terms of this Agreement and the Pledge
Agreement. Any funds receive
