MORGAN STANLEY
AND
THE BANK OF NEW YORK MELLON,
as Unit Agent, as Trustee and Paying
Agent under the Indenture referred to
herein, and as Warrant Agent under the
Warrant Agreement referred to herein
UNIT AGREEMENT
(For Units Without Holders’
Obligations)
Dated as of August 29, 2008
TABLE OF CONTENTS
PAGE
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ARTICLE 1
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Definitions and Other
Provisions of General Application
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|
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Section 1.01
. Definitions
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2
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ARTICLE 2
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Units
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Section 2.01 . Forms
Generally
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7
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Section 2.02 . Form of
Certificate of Authentication and Countersignature
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7
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Section 2.03 . Amount
Unlimited; Issuable in Series
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8
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Section 2.04
. Denominations
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9
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Section 2.05 . Rights
and Obligations Evidenced by the Units
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9
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Section 2.06
. Execution, Authentication, Delivery and
Dating
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9
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Section 2.07
. Temporary Unit Certificates
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10
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Section 2.08
. Registration of Transfer and Exchange; Global
Units
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10
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Section 2.09
. Mutilated, Destroyed, Lost and Stolen Unit
Certificates
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13
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Section 2.10 . Persons
Deemed Owners
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14
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Section 2.11
. Cancellation
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15
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Section 2.12 . Exchange
of Global Units and Definitive Units
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15
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ARTICLE 3
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Separation of
Units
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Section 3.01.
Separation of Units
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16
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ARTICLE 4
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Other Provisions
Relating to Rights of Holders of Units
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Section 4.01 . Holder
May Enforce Rights
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17
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ARTICLE 5
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The Agent
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Section 5.01 . Certain
Duties and Responsibilities
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17
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Section 5.02 . Certain
Rights of Agent
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18
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Section 5.03 . Not
Responsible for Recitals or Issuance of Units
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19
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Section 5.04 . May Hold
Units
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19
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Section 5.05 . Compensation and
Reimbursement
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19
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Section 5.06
. Corporate Agent Required;
Eligibility
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20
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Section 5.07
. Resignation and Removal; Appointment of
Successor
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21
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Section 5.08
. Acceptance of Appointment by
Successor
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22
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Section 5.09 . Merger,
Conversion, Consolidation or Succession to Business
|
22
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Section 5.10 . Tax
Compliance
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22
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ARTICLE 6
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Consolidation, Merger,
Sale or Conveyance
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Section 6.01 . Covenant
Not to Merge, Consolidate, Sell or Convey Property Except Under
Certain Conditions
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23
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Section 6.02 . Rights
and Duties of Successor Company
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24
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Section 6.03 . Opinion
of Counsel to Agent
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24
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ARTICLE 7
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Miscellaneous
Provisions
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Section 7.01
. Amendments
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24
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Section 7.02
. Incorporators, Stockholders, Officers and Directors
of the Company Immune from Liability
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26
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Section 7.03
. Compliance Certificates and Opinions
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27
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Section 7.04 . Form of
Documents Delivered to Agent
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27
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Section 7.05
. Maintenance of Office or Agency
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28
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Section 7.06 . Notices,
Etc.
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29
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Section 7.07 . Notices
to Holders; Waiver
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29
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Section 7.08 . Effect
of Headings and Table of Contents
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29
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Section 7.09
. Successors and Assigns
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29
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Section 7.10
. Separability Clause
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29
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Section 7.11 . Benefits
of Agreement
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30
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Section 7.12
. Governing Law; Waiver of Trial by
Jury
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30
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Section 7.13
. Counterparts
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30
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Section 7.14
. Inspection of Agreement
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30
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UNIT AGREEMENT, dated as of August 29, 2008, by
and among MORGAN STANLEY, a Delaware corporation (the “
Company ”) and THE BANK OF NEW YORK MELLON, a New York
banking corporation (“ The Bank of New York Mellon
”), acting solely as unit agent under this Agreement (in its
capacity as unit agent, the “ Agent ”, except to
the extent that this Agreement specifically states that the Agent
is acting in another capacity), The Bank of New York Mellon
(formerly known as The Bank of New York, as successor to JPMorgan
Chase Bank, N.A. (formerly known as JPMorgan Chase Bank)), as
trustee and paying agent under the Indenture described below (in
its capacity as trustee under the Indenture, the “
Trustee ” and, in its capacity as paying agent under
the Indenture, the “ Paying Agent ”), and The
Bank of New York Mellon (formerly known as The Bank of New York, as
successor to JPMorgan Chase Bank, N.A. (formerly known as JPMorgan
Chase Bank)), as Warrant Agent under the Warrant Agreement
described below (in its capacity as Warrant Agent under the Warrant
Agreement, the “ Warrant Agent ”).
WHEREAS, the Company has entered into a Senior
Indenture dated as of November 1, 2004 between the Company and the
Trustee (as supplemented, the “ Indenture
”);
WHEREAS, the Company has duly authorized the
issuance, from time to time, pursuant to the Indenture of senior
debt securities (the “ Notes ”);
WHEREAS, the Company has entered into a Warrant
Agreement (the “ Warrant Agreement ”) dated as
of November 1, 2004 between the Company and the Warrant
Agent;
WHEREAS, the Company has duly authorized the
issuance, from time to time, pursuant to the Warrant Agreement of
warrants (“ Warrants ”) to purchase or sell (i)
securities issued by the Company or by an entity affiliated or not
affiliated with the Company, a basket of such securities, an index
or indices of such securities or any other property, (ii)
currencies, (iii) commodities or (iv) any combination thereof, in
each case on terms to be determined at the time of sale;
WHEREAS, the Company has duly authorized the
issuance, from time to time, of purchase contracts to be governed
by the Indenture and that require holders to satisfy their
obligations thereunder upon issuance of such purchase contracts
(the “ Pre-Paid Purchase Contracts
”);
WHEREAS, the Company desires to provide for the
issuance, from time to time, pursuant to this Agreement of units
(“ Units ”) consisting of Warrants, Pre-Paid
Purchase Contracts or Notes, or any combination thereof;
NOW, THEREFORE, in consideration of the premises
and the purchases of the Units by the holders thereof, the Company,
the Agent, the Warrant Agent and the Trustee and Paying Agent
mutually covenant and agree as follows:
ARTICLE 1
Definitions and Other
Provisions of General Application
Section 1.01 . Definitions.
For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires: (i)
the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the
singular; (ii) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles in the United States in effect at
the time of any computation; and (iii) 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.
“ Affiliate ” of any specified
Person means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such
specified Person. For the purposes of this definition, “
control ”, with respect to any specified Person, means
the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “
controlling ” and “ controlled ”
have meanings correlative to the foregoing.
“ Agent ” means the Person
named as the “ Agent ” in the first paragraph of
this Agreement until a successor Agent shall have become such
pursuant to the applicable provisions of this Agreement, and
thereafter “ Agent ” shall mean such successor
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.
“ Board of Directors ” means
the board of directors of the Company or any other committee duly
authorized to act on its behalf with respect to this
Agreement.
“ Board Resolution ” means one
or more resolutions, certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted or consented to
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
or Sunday, that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or
regulation to close in The City of New York.
“ Calculation Agent ” means
Morgan Stanley & Co. Incorporated, or any successor, unless
otherwise specified in accordance with Section 2.03.
“ Clearing System ” means DTC,
Clearstream Banking Société Anonyme, Luxembourg, and its
successors and assigns, Euroclear Bank, S.A./N.V., as
operator of the Euroclear System, and
its successors and assigns and any other Clearing System specified
in the relevant administrative procedures.
“ Corporate Trust Office ”
means the office of the Agent at which at any particular time its
corporate trust business shall be principally administered, which
office at the date hereof is located at 101 Barclay Street 8W, New
York, New York 10286.
“ Company ” means the Person
named as the “ Company ” in the first paragraph
of this Agreement until a successor Person shall have become such
pursuant to the applicable provisions of this Agreement, and
thereafter the “ Company ” shall mean such
successor Person.
“ Debt Security Register ”
with respect to any Notes or Pre-Paid Purchase Contracts
constituting a part of the Units of any series means the security
register of the Company maintained by the Trustee pursuant to the
Indenture.
“ Definitive Securities ”
means any Security in definitive form.
“ Definitive Unit ” means any
Unit comprised of Definitive Securities.
“ Depositary ” means DTC, or
any successor as the Holder of any Global Units.
“ DTC ” means The Depository
Trust Company or its nominee.
“ Exchange Act ” means the
Securities Exchange Act of 1934, as amended.
“ Final Separation Date ”
means the last date on which a Unit may be separated into its
component parts.
“ Global Note ” means a global
Note in bearer or registered form originally issued as part of a
Global Unit of any series.
“ Global Pre-Paid Purchase Contract
” means a global Pre-Paid Purchase Contract issued under the
Indenture in bearer or registered form originally issued as part of
a Global Unit of any series.
“ Global Securities ” means
the Global Warrant, the Global Note, and/or the Global Pre-Paid
Purchase Contract, as applicable, constituting the Units of any
series.
“ Global Unit ” means any Unit
that comprises one or more Global Securities and is represented by
a Global Unit Certificate.
“ Global Unit Certificate ”
means a global Unit Certificate in bearer or registered
form.
“ Global Warrant ” means a
global Warrant in bearer or registered form originally issued as
part of a Global Unit of any series.
“ Holder ” means (i) in the
case of any Registered Security or Registered Unit, the Person in
whose name such Registered Security or the Registered Securities
constituting a part of such Registered Unit are registered on the
Security Register or Unit Register, as applicable, and (ii) in the
case of any Unregistered Security or Unregistered Unit, the bearer
of such Security or Unit.
“ Indenture ” has the meaning
specified in the first recital in this Agreement.
“ Initial Separation Eligibility
Date ” means the date on which a Unit may first be
separated into its component parts.
“ Issuer Order ” means a
written order or request signed in the name of the Company by the
Chairman of the Board, Chief Executive Officer, the President or a
Co-President, the Chief Financial Officer, any Executive
Vice-President, the Chief Administrative Officer, the Chief Legal
Officer, the Treasurer, any Assistant Treasurer or any other person
authorized by the Board of Directors and delivered to the
Agent.
“ Note ” has the meaning
stated in the second recital in this Agreement.
“ Officer’s Certificate
” means a certificate signed by the Chairman of the Board,
Chief Executive Officer, the President or a Co-President, the Chief
Financial Officer, any Executive Vice-President, the Chief
Administrative Officer, the Chief Legal Officer, the Treasurer, any
Assistant Treasurer of the Company or any other person authorized
by the Board of Directors 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 and who shall otherwise be
satisfactory to the Agent.
“ Optional Definitive Unit Request
” has the meaning set forth in Section 2.12.
“ Outstanding ”, with respect
to any Unit, Note, Pre-Paid Purchase Contract or Warrant means, as
of the date of determination, all Units, Notes, Pre-Paid Purchase
Contracts or Warrants, as the case may be, evidenced by Units
theretofore authenticated, countersigned, executed and delivered
under this Agreement, except:
(A) Units, Notes, Pre-Paid
Purchase Contracts and Warrants theretofore deemed cancelled,
cancelled by the Agent, Warrant Agent or Trustee, as the case may
be, or delivered to the Agent, Warrant Agent or Trustee, as the
case may be, for cancellation, in each case pursuant to
the
provisions of this Agreement, the
Warrant Agreement or the Indenture; and
(B) Units, Notes,
Pre-Paid Purchase Contracts and Warrants evidenced by Unit
Certificates in exchange for or in lieu of which other Unit
Certificates have been authenticated, countersigned, executed and
delivered pursuant to this Agreement, other than any such Units,
Notes, Pre-Paid Purchase Contracts or Warrants, as the case may be,
evidenced by a Unit Certificate in respect of which there shall
have been presented to the Agent proof satisfactory to it that such
Unit Certificate is held by a bona fide purchaser in whose hands
the Units, Notes, Pre-Paid Purchase Contracts and Warrants, as the
case may be, evidenced by such Unit Certificate are valid
obligations of the Company;
provided , however , that in determining whether
the Holders of the requisite number of Outstanding Units, Notes,
Pre-Paid Purchase Contracts and Warrants, as the case may be, have
given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Units, Notes, Pre-Paid Purchase
Contracts and Warrants owned by the Company or any Affiliate of the
Company shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Agent shall be protected in
relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Units, Notes, Pre-Paid Purchase
Contracts and Warrants which the Agent knows to be so owned shall
be so disregarded. Units, Notes, Pre-Paid Purchase
Contracts and Warrants that are so owned but that have been pledged
in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Agent the pledgee’s
right so to act with respect to such Units, Notes, Pre-Paid
Purchase Contracts or Warrants and that the pledgee is not the
Company or any Affiliate of the Company.
“ Paying Agent ” means any
Person authorized by the Company to pay any sums payable by the
Company; provided that such Person shall be a bank or trust
company organized and in good standing under the laws of the United
States, any State thereof or the District of Columbia, having
(together with its parent) capital, surplus and undivided profits
aggregating at least $50,000,000 or any foreign branch or office of
such a bank or trust company, and, subject to the foregoing, may be
an Affiliate of the Company.
“ Person ” means any
individual, corporation, partnership, limited liability company,
joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
“ Pre-Paid Purchase Contracts
” has the meaning stated in the fifth recital in this
Agreement and more particularly means any Pre-Paid Purchase
Contracts issued under the Indenture originally issued as part of a
Unit of any series.
“Registered Note”
means any Note issued under the
Indenture registered on the Debt Security Register.
“Registered Pre-Paid Purchase
Contracts” means any
Pre-Paid Purchase Contracts registered on the Debt Security
Register.
“ Registered Security ” means
any of a Registered Note, Registered Pre-Paid Purchase Contract or
Registered Warrant.
“ Registered Unit ” means any
Unit in registered form consisting of Registered Securities
registered on the Unit Register.
“ Registered Warrant ” means
any Warrant in registered form registered on the Warrant
Register.
“ Responsible Officer ” when
used with respect to the Agent, shall mean an officer of the Agent
in the Corporate Trust Office, having direct responsibility for the
administration of this Agreement, and also, with respect to a
particular matter, any other officer to whom such matter is
referred because of such officer’s knowledge of and
familiarity with the particular subject.
“ Security ” means any of a
Note, Pre-Paid Purchase Contract or Warrant.
“ Security Register ” means
either a Debt Security Register or a Warrant Register.
“Trading Day” means a day on which trading is generally
conducted on the New York Stock Exchange LLC, the American Stock
Exchange LLC, The NASDAQ Stock Market LLC, the Chicago Mercantile
Exchange and the Chicago Board of Options Exchange and in the
over-the-counter market for equity securities in the United
States.
“ Trustee ”, with respect to
Notes or Pre-Paid Purchase Contracts, means the Person acting as
Trustee under the Indenture until a successor Trustee shall have
become such pursuant to the applicable provisions of such
Indenture, and thereafter “ Trustee ” shall mean
such successor Trustee.
“ Unit ” has the meaning
stated in the sixth recital to this Agreement.
“ Unit Certificate ” means a
certificate evidencing the rights and obligations of the Company
and a Holder with respect to the number of Units specified on such
certificate.
“ Unregistered Security ”
means any Security in bearer form.
“ Unregistered Unit ” means
any Unit in bearer form consisting of Unregistered
Securities.
“ Unit Register ” has the
meaning specified in Section 2.08.
“ Warrants ” has the meaning
stated in the fourth recital of this Agreement, and in this
Agreement refers to any Warrants originally issued as part of a
Unit of any series.
“ Warrant Agreement ” has the
meaning stated in the third recital of this Agreement.
“ Warrant Register ” with
respect to any Warrants constituting a part of the Units means the
warrant register of the Company maintained by the Warrant Agent
pursuant to the Warrant Agreement.
ARTICLE 2
Units
Section 2.01 . Forms
Generally. (a) The Units of each series shall be
substantially in the form of, in the case of Registered Units,
Exhibit A, and in the case of temporary Unregistered Units,
permanent Unregistered Units and definitive Unregistered Units,
Exhibit B-1, Exhibit B-2 and Exhibit B-3 respectively, or in such
form (not inconsistent with this Agreement) as shall be established
by or pursuant to one or more Board Resolutions (as set forth in a
Board Resolution or, to the extent established pursuant to rather
than set forth in a Board Resolution, an Officer’s
Certificate detailing such establishment). The Unit
Certificates may have imprinted or otherwise reproduced thereon
such letters, numbers or other marks of identification or
designation and such legends or endorsements as the officers of the
Company executing the Securities constituting a part thereof may
approve (execution thereof to be conclusive evidence of such
approval) and that are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any
rule or regulation made pursuant thereto, or with any rule or
regulation of any self-regulatory organization on which the Units
of such series may be listed or quoted or of any securities
depository or to conform to general usage.
(b) The Unit Certificates shall be
printed, lithographed or engraved on steel engraved borders or may
be produced in any other manner, all as determined by the officers
executing such Unit Certificates, as evidenced by their execution
of the Securities constituting a part of the Units evidenced by
such Unit Certificates.
Section 2.02 . Form of Certificate
of Authentication and Countersignature. The form of
the Trustee’s certificate of authentication of the Notes and
Pre-Paid Purchase Contracts and the form of the Warrant
Agent’s countersignature of the Warrants, each constituting a
part of the Units of any series, shall be substantially in such
form as set forth in the Indenture or the Warrant Agreement, as
applicable.
Section 2.03 . Amount Unlimited;
Issuable in Series. (a) The aggregate number of
Units that may be authenticated, countersigned and delivered under
this Agreement is unlimited.
The Units may be issued in one or more series.
There shall be established, upon the order of the Company
(contained in an Issuer Order) or pursuant to such procedures
acceptable to the Agent as may be specified from time to time by an
Issuer Order, prior to the initial issuance of Units of any
series:
(i) the designation
of the Units of the series, which shall distinguish the Units of
the series from the Units of all other series;
(ii) any limit upon the
aggregate number of Units of the series that may be authenticated
and delivered under this Agreement (disregarding any Units
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Units of the series pursuant to
Section 2.07, 2.08, 2.09 or 2.12);
(iii) the designation of the
Securities constituting a part of the Units of the
series;
(iv) whether, on what terms and
in accordance with what procedures any Securities constituting a
part of the Units of the series may be separated from the Units of
the series and the other Securities constituting a part of such
Units and, if separable, the designation of the Initial Separation
Eligibility Date and the Final Separation Date;
(v) whether the Units of
the series will be issuable as Registered Units (and if so, whether
such Units will be issuable in global form) or Unregistered Units
(and if so, whether such Units will be issuable in global form), or
any combination of the foregoing, any restrictions applicable to
the offer, sale or delivery of Unregistered Securities, the
procedures for exchanging temporary Unregistered Units for
permanent Unregistered Units and, if applicable, procedures for
exchanging permanent Unregistered Units for definitive Unregistered
Units and vice versa and, if other than as provided in Section
2.08, the terms upon which Unregistered Units of any series may be
exchanged for Registered Units of such series and vice
versa;
(vi) if the Units of such
series are to be issuable in definitive form (whether upon original
issue or upon exchange of a temporary Unit of such series) only
upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(vii) any trustees, depositaries,
authenticating or paying agents, transfer agents or registrars,
calculation agents, exchange agents or any other agents with
respect to the Units of such series;
(viii) any events of default or covenants
with respect to the Units of such series; and
(ix) any other terms
of the series (which terms shall not be inconsistent with the
provisions of this Agreement).
(b) All Units of any one series shall
be substantially identical, except as may otherwise be provided by
or pursuant to the Issuer Order or procedures referred to above.
All Units of any one series need not be issued at the same time and
may be issued from time to time, consistent with the terms of this
Agreement, if so provided by or pursuant to such Board Resolution
or such Issuer Order.
Notwithstanding Section 2.03(a)(ii) hereof and
unless otherwise expressly provided with respect to a series of
Securities, the aggregate number of Units of a series may be
increased and additional Units of such series may be issued up to a
maximum aggregate number authorized with respect to such series as
increased.
Section 2.04
. Denominations. Units of any series
shall be issuable only in denominations of a single Unit and any
integral multiple thereof.
Section 2.05 . Rights and
Obligations Evidenced by the Units. Units of any
series shall evidence the ownership by the Holder thereof
of (a) the principal amount of Notes, if any, specified on the
face of a Unit Certificate representing Definitive Units or in
Schedule A attached to any Unit Certificate representing Global
Units, (b) the number of Warrants, if any, specified on the
face of a Unit Certificate representing Definitive Units or in
Schedule A attached to any Unit Certificate representing Global
Units and (c) the number of Pre-Paid Purchase Contracts, if
any, specified on the face of a Unit Certificate representing
Definitive Units or in Schedule A attached to any Unit Certificate
representing Global Units or, in each case, otherwise determinable
from the face of the Unit Certificate or from Schedule A
thereto.
Section 2.06 . Execution,
Authentication, Delivery and Dating. Upon the execution and
delivery of this Agreement, and from time to time thereafter, the
Company may deliver, subject to any limitation on the aggregate
principal amount of Notes or the number of Warrants or Pre-Paid
Purchase Contracts, if any, represented thereby, an unlimited
number of Unit Certificates (including the Securities executed by
the Company constituting the Units evidenced by such Unit
Certificates) to the Trustee, Warrant Agent and/or the Agent for
authentication and countersignature, as the case may be, of the
Securities comprised by such Units, together with its Issuer Orders
for authentication and countersignature of such Securities, and the
Trustee in accordance with the Indenture and the Issuer Order of
the Company shall authenticate the Notes and Pre-Paid Purchase
Contracts, if any, constituting a part of the Units evidenced by
such Unit Certificates and the Warrant Agent in accordance with the
Warrant Agreement and the Issuer Order of the Company shall
countersign the Warrants
constituting a part of the Units
evidenced by such Unit Certificates and each shall deliver such
Unit Certificates upon the order of the Company.
Any Notes or Pre-Paid Purchase Contracts
constituting a part of the Units of any series shall be executed on
behalf of the Company in accordance with the terms of the
Indenture. Any Warrants constituting a part of the Units
of any series shall be executed on behalf of the Company in
accordance with the terms of the Warrant Agreement.
Section 2.07 . Temporary Unit
Certificates. Pending the preparation of Unit
Certificates for any series, the Company may execute and deliver to
the Trustee and/or the Warrant Agent, as appropriate, and the
Trustee and/or the Warrant Agent, as appropriate, shall
authenticate, countersign and deliver, as appropriate, in lieu of
such Unit Certificates, temporary Unit Certificates for such
series. Temporary Unit Certificates shall be in
substantially the form of the Unit Certificates of such series, but
with such omissions, insertions and variations as may be
appropriate for temporary Unit Certificates, all as may be
determined by the Company with the concurrence of the Trustee,
Warrant Agent and/or Agent, as appropriate, as evidenced by the
execution and authentication and/or countersignature of the
Securities constituting a part of the Units evidenced thereby, as
applicable.
If temporary Unit Certificates for any series are
issued, the Company will cause definitive Unit Certificates for
such series to be prepared without unreasonable delay. After the
preparation of such definitive Unit Certificates, the temporary
Unit Certificates shall be exchangeable therefor upon surrender of
temporary Registered Units of such series at the Corporate Trust
Office, at the expense of the Company and without charge to any
Holder and, in the case of Unregistered Units, at any agency
maintained for such purpose as specified pursuant to Section
2.03. Upon surrender for cancellation of any one or more
temporary Unit Certificates, the Company shall execute and deliver
to the Trustee, the Warrant Agent and/or the Agent, and the Trustee
and/or the Warrant Agent shall authenticate or countersign and
deliver, as appropriate, in exchange therefor definitive Unit
Certificates of the same series of like tenor, of authorized
denominations and evidencing a like number of Units as the
temporary Unit Certificate or Certificates so surrendered. Until so
exchanged, the temporary Unit Certificates of any series shall in
all respects evidence the same benefits and the same obligations
under any Notes or Pre-Paid Purchase Contracts or Warrants
constituting parts of such Units, the Indenture, the Warrant
Agreement and this Agreement as definitive Unit Certificates of
such series, unless otherwise specified pursuant to Section
2.03
Section 2.08 . Registration of
Transfer and Exchange; Global Units. The Agent
shall keep at its Corporate Trust Office for each series of
Registered Units a register (the register maintained in such office
being herein referred to as the “ Unit Register
”) in which, subject to such reasonable regulations as it may
prescribe, the Agent shall provide for the registration of the
Units of any series.
At the option of the Holder thereof, Registered
Units of any series (other than a registered Global Unit, except as
set forth below) may be transferred or exchanged for a Registered
Unit or Registered Units of such series having authorized
denominations evidencing the number of Units transferred or
exchanged, upon surrender of such Registered Units to be so
transferred or exchanged at the Corporate Trust Office of the Agent
upon payment, if the Company shall so require, of the charges
hereinafter provided. If the Units of any series are issued in both
registered and unregistered form, except as otherwise specified
pursuant to Section 2.03, at the option of the Holder thereof,
Unregistered Units of such series may be exchanged for Registered
Units of such series having authorized denominations and evidencing
the number of Units transferred or exchanged, upon surrender of
such Unregistered Units to be so transferred or exchanged at the
Corporate Trust Office of the Agent and upon payment, if the
Company shall so require, of the charges hereinafter
provided. At the option of the Holder thereof, if
Unregistered Units of any series are issued in more than one
authorized denomination, except as otherwise specified pursuant to
Section 2.03, such Unregistered Units may be exchanged for
Unregistered Units of such series having authorized denominations
evidencing the number of Units exchanged, upon surrender of such
Unregistered Units to be so exchanged at the Corporate Trust Office
of the Agent or as specified pursuant to Section 2.03, and upon
payment, if the Company shall so require, of the charges
hereinafter provided. Unless otherwise specified pursuant to
Section 2.03, Registered Units of any series may not be exchanged
for Unregistered Units of such series. Whenever any Units are so
surrendered for transfer or exchange, the Company shall execute,
and the Trustee and/or Warrant Agent, as appropriate, shall
authenticate and/or countersign, as the case may be, and deliver
the Units which the Holder making the transfer or exchange is
entitled to receive. All Units (including the Securities
constituting part of such Units) surrendered upon any exchange or
transfer provided for in this Agreement shall be promptly cancelled
and disposed of by the Agent and the Agent will deliver a
certificate of disposition thereof to the Company and to the
Trustee and the Warrant Agent, as applicable.
Unregistered Units shall be transferable by
delivery.
Subject to Section 2.12, if the Company shall
establish pursuant to Section 2.03 that the Units of a series are
to be evidenced by one or more Global Units, then the Company shall
execute and the Warrant Agent and Trustee shall, in accordance with
this Section and Section 2.06, countersign and authenticate, as
appropriate, and deliver one or more Global Unit Certificates that
(i) shall evidence all or a portion of the Units of such series
issued in such form and not yet cancelled, (ii) in the case of
Registered Units, shall be registered in the name of the Depositary
for such Units or the nominee of such Depositary, (iii) shall be
delivered by the Agent to the Depositary for such Units or pursuant
to such Depositary’s instructions and (iv) in the case of
Registered Units, shall bear a legend substantially to the
following effect: “Unless and until it is exchanged in whole
or in part for Units in definitive registered form, this Unit
Certificate may
not be transferred except as a whole
by the Depositary to the nominee of the Depositary or by a nominee
of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary.”
Whenever Global Units of any series are exchanged for Definitive
Units of such series or whenever Definitive Units of any series are
exchanged for Global Units of such series, the Agent shall cause,
as applicable: (i) Schedule A of the Global Note, if any, to be
endorsed to reflect any increase or decrease, as the case may be,
in the principal amount of the Note, if any, that are comprised by
Global Units as a result of such exchange, (ii) Schedule A of the
Global Pre-Paid Purchase Contract, if any, be endorsed to reflect
any increase or decrease, as the case may be, in the number of
Pre-Paid Purchase Contracts, if any, that are comprised by the
Global Units as a result of such Exchange and (iii) Schedule A of
the Global Warrant, if any, to be endorsed to reflect any increase
or decrease, as the case may be, in the number of Warrants, if any,
that are comprised by the Global Units as a result of such
exchange.
All Unit Certificates authenticated,
countersigned and executed upon any registration of transfer or
exchange of a Unit Certificate shall evidence the ownership of the
principal amount of Note, if any, specified therein or on the face
thereof or otherwise evidenced thereby, the number of Pre-Paid
Purchase Contracts, if any, specified therein or on the face
thereof or otherwise evidenced thereby and the number of Warrants,
if any, specified therein or on the face thereof or otherwise
evidenced thereby and shall be entitled to the same benefits, and
be subject to the same obligations, under the Indenture, the
Warrant Agreement and this Agreement as the Units evidenced by the
Unit Certificate surrendered upon such registration of transfer or
exchange.
Every Unit Certificate presented or surrendered
for registration of transfer or for exchange shall (if so required
by the 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 his
attorney duly authorized in writing. Except as otherwise provided
herein with respect to the Units, the Agent shall register the
transfer or exchange of any outstanding Unit Certificate upon the
Unit Register at its Corporate Trust Office.
No service charge shall be made for any transfer
or exchange of a Unit, 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 Units, other than any
exchanges pursuant to Section 2.09 not involving any
transfer.
Notwithstanding the foregoing, and subject to
Section 2.08 of the Indenture, the Company shall not be obligated
to execute and deliver to the Trustee, the Warrant Agent or the
Agent, and none of the Trustee, under the terms of the Indenture,
or the Warrant Agent, under the terms of the Warrant Agreement,
shall be obligated to authenticate or countersign any Unit
Certificate presented or
surrendered for registration of
transfer or for exchange of any Note, Pre-Paid Purchase Contract or
Warrant evidenced thereby or any Unit Certificate evidencing a
Definitive Unit to be issued in exchange for interests in Global
Units or to reflect any increase or decrease in a Global Unit,
Global Note, Pre-Paid Purchase Contract or Global Warrant (i)
during the period beginning any time on or after the opening of
business 15 days before the day of mailing of a notice of
redemption or of any other exercise of any right held by the
Company with respect to the Unit (or any Security constituting a
part of the Units of such series) and ending at the close of
business on the day of the giving of such notice, (ii) that
evidences or would evidence any such Unit or Security selected or
called for redemption or with respect to which such right has been
exercised or (iii) at any other date specified pursuant to Section
2.03.
Section 2.09 . Mutilated,
Destroyed, Lost and Stolen Unit Certificates. If
any mutilated Unit Certificate is surrendered to the Agent, the
Company shall execute and deliver to the Trustee and the Warrant
Agent, as appropriate, and the Trustee and the Warrant Agent shall
authenticate, countersign and deliver, as appropriate, in exchange
therefor new Securities comprised by Units of the same series, of
like tenor and evidenced by a new Unit Certificate evidencing the
same number of Units and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and
the Trustee and the Warrant Agent and/or the Agent, as appropriate,
(i) evidence to their satisfaction of the destruction, loss or
theft of any Unit Certificate and (ii) such security or indemnity
as may be required by them to hold each of them and any agent of
any of them harmless, then, in the absence of notice to the Company
and the Trustee and the Warrant Agent as appropriate, that such
Unit Certificate has been acquired by a bona fide purchaser, the
Company shall execute and deliver to the Trustee and the Warrant
Agent and/or the Agent, as appropriate, and the Trustee (in
accordance with the provisions of the Indenture) and the Warrant
Agent (in accordance with the provisions of the Warrant Agreement)
shall authenticate and countersign and the Agent shall deliver to
the Holder, as appropriate, in lieu of any such destroyed, lost or
stolen Unit Certificate, new Securities comprised by Units of the
same series, of like tenor and evidenced by a new Unit Certificate
evidencing the same number of Units and bearing a number not
contemporaneously outstanding.
Unless otherwise specified pursuant to Section
2.03, notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Trustee, the Warrant Agent
or the Agent, and none of the Trustee (under the Indenture), the
Warrant Agent (under the Warrant Agreement), or the Agent shall be
obligated to authenticate, countersign or deliver to the Holder, a
new Unit Certificate (or any Security constituting a part of such
Unit) under this Section 2.09 (i) during the period beginning any
time on or after the opening of business 15 days before the day of
mailing of a notice of redemption or of any other exercise of any
right held by the Company with respect to the Unit (or any Security
constituting a part of such Unit) and ending at the close of
business on the day of the giving of such notice, (a) that
evidences any Unit or Security
selected or called for redemption or
with respect to which such right has been exercised, or (b) at any
other date specified pursuant to Section 2.03. In lieu
of delivery of a new Unit Certificate, upon satisfaction of the
applicable conditions specified in clauses (i) and (ii) of the
preceding paragraph, the Agent shall deliver or cause to be
delivered on the applicable redemption date, exercise date or
settlement date for Pre-Paid Purchase Contracts, (i) in respect of
Notes, Warrants or Pre-Paid Purchase Contracts constituting a part
of the Units evidenced by such Unit Certificate that are selected
or called for redemption, the redemption price of such Notes,
Warrants or Pre-Paid Purchase Contracts or (ii) in respect of
Warrants constituting a part of the Units evidenced by such
Unit
