\n ARTICLE X<\/p>\n COVENANTS<\/p>\n
Section 10.1 Performance Under Purchase Contracts……………………………………………. 60
\nSection 10.2 Maintenance of Office or Agency………………………………………………… 60
\nSection 10.3 Company to Reserve Common Stock………………………………………………… 61
\nSection 10.4 Covenants as to Common Stock…………………………………………………… 61
\nSection 10.5 Statements of Officer of the Company as to Default……………………………….. 61
\n<\/c><\/c><\/s><\/table>\n
EXHIBITS<\/p>\n
EXHIBIT A Form of Normal Units Certificate
\nEXHIBIT B Form of Stripped Units Certificate
\nEXHIBIT C Instruction from Purchase Contract Agent to Collateral Agent
\nEXHIBIT D Instruction to Purchase Contract Agent<\/p>\n
iv
\n 6
\n PURCHASE CONTRACT AGREEMENT, dated as of ___________, 2000, between
\nMetLife, Inc., a Delaware corporation (the “Company”), and Bank One Trust
\nCompany, N.A., a national banking association, acting as purchase contract agent
\nfor the Holders of Units from time to time (the “Agent”).<\/p>\n
RECITALS<\/p>\n
The Company has duly authorized the execution and delivery of this
\nAgreement and the Certificates evidencing the Units.<\/p>\n
All things necessary to make the Purchase Contracts, when the
\nCertificates are executed by the Company and authenticated, executed on behalf
\nof the Holders and delivered by the Agent, as provided in this Agreement, the
\nvalid obligations of the Company, and to constitute this Agreement a valid
\nagreement of the Company, in accordance with its terms, have been done.<\/p>\n
WITNESSETH:<\/p>\n
For and in consideration of the premises and the purchase of the
\nUnits by the Holders thereof, it is mutually agreed as follows:<\/p>\n
ARTICLE I<\/p>\n
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION<\/p>\n
Section 1.1 Definitions. For all purposes of this Agreement, except
\nas otherwise expressly provided or unless the context otherwise requires:<\/p>\n
(a) the terms defined in this Article have the meanings assigned to
\n them in this Article and include the plural as well as the singular; and
\n nouns and pronouns of the masculine gender include the feminine and neuter
\n genders;<\/p>\n
(b) all accounting terms not otherwise defined herein have the
\n meanings assigned to them in accordance with generally accepted accounting
\n principles in the United States;<\/p>\n
(c) the words “herein,” “hereof” and “hereunder” and other words of
\n similar import refer to this Agreement as a whole and not to any
\n particular Article, Section or other subdivision;
\n 7
\n (d) the following terms have the meanings given to them in the
\n Declaration: (i) Capital Securities Guarantee; (ii) Indenture and (iii)
\n Liquidation Distribution; and<\/p>\n
(e) the following terms have the meanings given to them in this
\n Section 1.1(e);<\/p>\n
“Act” when used with respect to any Holder, has the meaning
\n specified in Section 1.4.<\/p>\n
“Affiliate” has the same meaning as given to that term in Rule 405 of
\n the Securities Act or any successor rule thereunder.<\/p>\n
“Agent” means the Person named as the “Agent” in the first paragraph
\n of this instrument until a successor Agent shall have become such pursuant
\n to the applicable provisions of this Agreement, and thereafter “Agent”
\n shall mean such Person.<\/p>\n
“Agreement” means this instrument as originally executed or as it may
\n from time to time be supplemented or amended by one or more agreements
\n supplemental hereto entered into pursuant to the applicable provisions
\n hereof.<\/p>\n
“Applicable Market Value” has the meaning specified in Section 5.1.<\/p>\n
“Bankruptcy Code” means title 11 of the United States Code, or any
\n other law of the United States that from time to time provides a uniform
\n system of bankruptcy laws.<\/p>\n
“Beneficial Owner” means, with respect to a Book-Entry Interest, a
\n Person who is the beneficial owner of such Book-Entry Interest as
\n reflected on the books of the Clearing Agency or on the books of a Person
\n maintaining an account with such Clearing Agency (directly as a Clearing
\n Agency Participant or as an indirect participant, in each case in
\n accordance with the rules of such Clearing Agency).<\/p>\n
“Board of Directors” means either the Board of Directors of the
\n Company or the Executive Committee of such Board or any other committee of
\n such Board duly authorized to act generally or in any particular respect
\n for the Board hereunder.<\/p>\n
“Board Resolution” means (i) a copy of a resolution certified by the
\n Secretary or the Assistant Secretary of the Company to have been duly
\n adopted by the Board of Directors and to be in full force and effect on
\n the date of such certification, (ii) a copy of a unanimous written consent
\n of the Board of Directors or (iii) a certificate signed by the authorized
\n officer or officers to whom the Board of Directors has delegated its
\n authority, and in each case, delivered to the Agent.<\/p>\n
2
\n 8
\n “Book-Entry Interest” means a beneficial interest in a Global
\n Certificate, ownership and transfers of which shall be maintained and made
\n through book entries by a Clearing Agency as described in Section 3.6.<\/p>\n
“Business Day” means any day that is not a Saturday, Sunday or day on
\n which banking institutions and trust companies in The City of New York or
\n at a place of payment are authorized or required by law, regulation or
\n executive order to close.<\/p>\n
“Capital Securities” means the -% Capital Securities of the Trust,
\n each having a stated liquidation amount of $50, representing, together
\n with the Common Securities, undivided beneficial interests in the assets
\n of the Trust.<\/p>\n
“Cash Merger” has the meaning set forth in Section 5.9.<\/p>\n
“Certificate” means a Normal Units Certificate or a Stripped Units
\n Certificate.<\/p>\n
“Clearing Agency” means an organization registered as a “Clearing
\n Agency” pursuant to Section 17A of the Exchange Act that is acting as a
\n depositary for the Units and in whose name, or in the name of a nominee of
\n that organization, shall be registered a Global Certificate and which
\n shall undertake to effect book-entry transfers and pledges of the Units.<\/p>\n
“Clearing Agency Participant” means a broker, dealer, bank, other
\n financial institution or other Person for whom from time to time the
\n Clearing Agency effects book-entry transfers and pledges of securities
\n deposited with the Clearing Agency.<\/p>\n
“Closing Price” has the meaning specified in Section 5.1.<\/p>\n
“Collateral” has the meaning specified in Section 2.1 of the Pledge
\n Agreement.<\/p>\n
“Collateral Agent” means The Bank of New York, as Collateral Agent
\n under the Pledge Agreement until a successor Collateral Agent shall have
\n become such pursuant to the applicable provisions of the Pledge Agreement,
\n and thereafter “Collateral Agent” shall mean the Person who is then the
\n Collateral Agent thereunder.<\/p>\n
“Collateral Substitution” has the meaning specified in Section 3.13.<\/p>\n
“Common Securities” has the meaning specified in Section 7.1 of the
\n Declaration.<\/p>\n
“Common Stock” means the common stock, par value $0.01 per share, of
\n the Company.<\/p>\n
3
\n 9
\n “Company” means the Person named as the “Company” in the first
\n paragraph of this instrument until a successor shall have become such
\n pursuant to the applicable provision of this Agreement, and thereafter
\n “Company” shall mean such successor.<\/p>\n
“Constituent Person” has the meaning specified in Section 5.5(b).<\/p>\n
“Corporate Trust Office” means the principal corporate trust office
\n of the Agent at which, at any particular time, its corporate trust
\n business shall be administered, which office at the date hereof is located
\n at One North State Street, 9th Floor, Chicago, Illinois 60602, except that
\n for purposes of Section 10.2, such term shall mean the office or agency of
\n the Agent in the Borough of Manhattan, The City of New York, which office
\n at the date hereof is located at 14 Wall Street, 8th Floor, New York, New
\n York 10005.<\/p>\n
“Coupon Rate” means the percentage rate per annum at which each
\n Debenture will bear interest initially.<\/p>\n
“Current Market Price” has the meaning specified in Section
\n 5.4(a)(8).<\/p>\n
“Debentures” means the series of junior subordinated debt securities
\n of the Company designated the -% Debentures due 2005, to be issued under
\n the First Supplemental Indenture, dated as of the date hereof, between the
\n Company and The Bank of New York.<\/p>\n
“Declaration” means the Amended and Restated Declaration of Trust,
\n dated _______________, 2000, of MetLife Capital Trust I, among the
\n Company, as the sponsor, the trustees named therein and the holders from
\n time to time of individual beneficial interests in the assets of the
\n Trust.<\/p>\n
“Depositary” means, initially, DTC, until another Clearing Agency
\n becomes its successor.<\/p>\n
“DTC” means The Depository Trust Company, the initial Clearing
\n Agency.<\/p>\n
“Early Settlement” has the meaning specified in Section 5.7(a).<\/p>\n
“Early Settlement Amount” has the meaning specified in Section
\n 5.7(a).<\/p>\n
“Early Settlement Date” has the meaning specified in Section 5.7(a).<\/p>\n
“Early Settlement Rate” has the meaning specified in Section 5.7(b).<\/p>\n
4
\n 10
\n “Exchange Act” means the Securities Exchange Act of 1934 and any
\n statute successor thereto, in each case as amended from time to time, and
\n the rules and regulations promulgated thereunder.<\/p>\n
“Expiration Date” has the meaning specified in Section 1.4.<\/p>\n
“Expiration Time” has the meaning specified in Section 5.4(a)(6).<\/p>\n
“Failed Remarketing” has the meaning specified in Section 5.2.<\/p>\n
“First Supplemental Indenture” means the First Supplemental
\n Indenture, dated ___________, 2000, between the Company and The Bank of
\n New York, as trustee.<\/p>\n
“Global Certificate” means a Certificate that evidences all or part
\n of the Units and is registered in the name of a Depositary or a nominee
\n thereof.<\/p>\n
“Global Capital Security Certificate” means a certificate evidencing
\n the rights and obligations of a Holder in respect of the number of Capital
\n Securities specified on such certificate and which is registered in the
\n name of a Clearing Agency or a nominee thereof.<\/p>\n
“Holder,” when used with respect to a Unit, means the Person in whose
\n name the Unit evidenced by a Normal Units Certificate and\/or a Stripped
\n Units Certificate is registered in the related Normal Units Register
\n and\/or the Stripped Units Register, as the case may be.<\/p>\n
“Indenture” means the Indenture, dated __________, 2000, between the
\n Company and The Bank of New York, as trustee.<\/p>\n
“Indenture Trustee” means The Bank of New York, a New York banking
\n corporation, as trustee under the Indenture and the First Supplemental
\n Indenture, or any successor thereto.<\/p>\n
“Issuer Order” or “Issuer Request” means a written order or request
\n signed in the name of the Company by the Chief Executive Officer, the
\n Chief Financial Officer, the President, any Vice President, the Treasurer,
\n any Assistant Treasurer, the Secretary or any Assistant Secretary (or
\n other officer performing similar functions) of the Company and delivered
\n to the Agent.<\/p>\n
“Merger Early Settlement” has the meaning specified in Section 5.9.<\/p>\n
5
\n 11
\n “Merger Early Settlement Amount” has the meaning specified in
\n Section 5.9.<\/p>\n
“Merger Early Settlement Date” has the meaning specified in Section
\n 5.9.<\/p>\n
“NYSE” has the meaning specified in Section 5.1.<\/p>\n
“Non-Remarketed Securities Treasury Consideration” has meaning
\n specified in Section 5.2.<\/p>\n
“Normal Unit” means the collective rights and obligations of a
\n Holder of a Normal Units Certificate in respect of a Capital Security or
\n the appropriate Treasury Consideration, as the case may be, subject in
\n each case to the Pledge thereof, and the related Purchase Contract.<\/p>\n
“Normal Units Certificate” means a certificate evidencing the rights
\n and obligations of a Holder in respect of the number of Normal Units
\n specified on such certificate, substantially in the form of Exhibit A
\n hereto.<\/p>\n
“Normal Units Register” and “Normal Units Registrar” have the
\n respective meanings specified in Section 3.5.<\/p>\n
“Officer’s Certificate” means a certificate signed by the Chief
\n Executive Officer, the Chief Financial Officer, the President, any Vice
\n President, the Treasurer, any Assistant Treasurer, the Secretary or any
\n Assistant Secretary (or other officer performing similar functions) of the
\n Company and delivered to the Agent.<\/p>\n
“Opinion of Counsel” means an opinion in writing signed by legal
\n counsel, who may be an employee of or counsel to the Company or an
\n Affiliate and who shall be reasonably acceptable to the Agent.<\/p>\n
“Outstanding” or “Outstanding Securities” means, as of the date of
\n determination, all Normal Units or Stripped Units evidenced by
\n Certificates theretofore authenticated, executed and delivered under this
\n Agreement, except:<\/p>\n
(i) If a Termination Event has occurred, (A) Stripped Units
\n and (B) Normal Units for which the related Capital Security or the
\n appropriate Treasury Consideration, or a Liquidation Distribution in
\n respect of such Capital Security, as the case may be, has been
\n theretofore deposited with the Agent in trust for the Holders of
\n such Normal Units;<\/p>\n
6
\n 12
\n (ii) Normal Units and Stripped Units evidenced by Certificates
\n theretofore cancelled by the Agent or delivered to the Agent for
\n cancellation or deemed cancelled pursuant to the provisions of this
\n Agreement; and<\/p>\n
(iii) Normal Units and Stripped Units evidenced by
\n Certificates in exchange for or in lieu of which other Certificates
\n have been authenticated, executed on behalf of the Holder and
\n delivered pursuant to this Agreement, other than any such
\n Certificate in respect of which there shall have been presented to
\n the Agent proof satisfactory to it that such Certificate is held by
\n a bona fide purchaser in whose hands the Normal Units or Stripped
\n Units evidenced by such Certificate are valid obligations of the
\n Company;<\/p>\n
provided, however, that in determining whether the Holders of the
\n requisite number of the Normal Units or Stripped Units have given any
\n request, demand, authorization, direction, notice, consent or waiver
\n hereunder, Normal Units or Stripped Units owned by the Company or any
\n Affiliate of the Company shall be disregarded and deemed not to be
\n outstanding, except that, in determining whether the Agent shall be
\n protected in relying upon any such request, demand, authorization,
\n direction, notice, consent or waiver, only Normal Units or Stripped Units
\n which a Responsible Officer of the Agent knows to be so owned shall be so
\n disregarded. Normal Units or Stripped Units so owned which have been
\n pledged in good faith may be regarded as Outstanding Securities if the
\n pledgee establishes to the satisfaction of the Agent the pledgee’s right
\n so to act with respect to such Normal Units or Stripped Units and that the
\n pledgee is not the Company or any Affiliate of the Company.<\/p>\n
“Payment Date” means each ___________, ___________, __________ and
\n ___________, commencing ___________, 2000.<\/p>\n
“Person” means any individual, corporation, limited liability
\n company, partnership, joint venture, association, joint-stock company,
\n trust, unincorporated organization or government or any agency or
\n political subdivision thereof.<\/p>\n
“Pledge” means the pledge under the Pledge Agreement of the Capital
\n Securities, the Treasury Securities or the appropriate Treasury
\n Consideration, in each case constituting a part of the Units, property,
\n cash, securities, financial assets and security entitlements on the
\n Collateral Agreement (as defined in the Pledge Agreement), the Debentures
\n delivered to the Collateral Agent upon liquidation of the Trust, and any
\n proceeds of any of the foregoing.<\/p>\n
7
\n 13
\n “Pledge Agreement” means the Pledge Agreement, dated as of the date
\n hereof, by and among the Company, the Collateral Agent and the Agent, on
\n its own behalf and as attorney-in-fact for the Holders from time to time
\n of the Units.<\/p>\n
“Pledged Capital Securities” has the meaning set forth in the Pledge
\n Agreement.<\/p>\n
“Pledged Treasury Consideration” has the meaning set forth in the
\n Pledge Agreement.<\/p>\n
“Pledged Treasury Securities” has the meaning set forth in the
\n Pledge Agreement.<\/p>\n
“Predecessor Certificate” means a Predecessor Normal Units
\n Certificate or a Predecessor Stripped Units Certificate.<\/p>\n
“Predecessor Stripped Units Certificate” of any particular Stripped
\n Units Certificate means every previous Stripped Units Certificate
\n evidencing all or a portion of the rights and obligations of the Company
\n and the Holder under the Stripped Units evidenced thereby; and, for the
\n purposes of this definition, any Stripped Units Certificate authenticated
\n and delivered under Section 3.10 in exchange for or in lieu of a
\n mutilated, destroyed, lost or stolen Stripped Units Certificate shall be
\n deemed to evidence the same rights and obligations of the Company and the
\n Holder as the mutilated, destroyed, lost or stolen Stripped Units
\n Certificate.<\/p>\n
“Predecessor Normal Units Certificate” of any particular Normal
\n Units Certificate means every previous Normal Units Certificate evidencing
\n all or a portion of the rights and obligations of the Company and the
\n Holder under the Normal Units evidenced thereby; and, for the purposes of
\n this definition, any Normal Units Certificate authenticated and delivered
\n under Section 3.10 in exchange for or in lieu of a mutilated, destroyed,
\n lost or stolen Normal Units Certificate shall be deemed to evidence the
\n same rights and obligations of the Company and the Holder as the
\n mutilated, destroyed, lost or stolen Normal Units Certificate.<\/p>\n
“Property Trustee” means The Bank of New York, as property trustee
\n under the Declaration, or any successor thereto that is a financial
\n institution unaffiliated with the Company.<\/p>\n
“Purchase Contract,” when used with respect to any Unit, means the
\n contract forming a part of such Unit and obligating the Company to sell
\n and the Holder of such Unit to purchase Common Stock on the terms and
\n subject to the conditions set forth in Article Five.<\/p>\n
8
\n 14
\n “Purchase Contract Settlement Fund” has the meaning specified in
\n Section 5.3.<\/p>\n
“Purchase Price” has the meaning specified in Section 5.1.<\/p>\n
“Purchased Shares” has the meaning specified in Section 5.4(a)(6).<\/p>\n
“Quarterly Payment Date” means each ______, ______, ______ and ____
\n commencing __ 2000.<\/p>\n
“Record Date” for the distribution payable on any Payment Date
\n means, as to any Global Certificate, the Business Day next preceding such
\n Payment Date, and as to any other Certificate, a day selected by the
\n Company which shall be more than one Business Day but less than 60
\n Business Days prior to such Payment Date.<\/p>\n
“Register” means the Normal Units Register and the Stripped Units
\n Register.<\/p>\n
“Registrar” means the Normal Units Registrar and the Stripped Units
\n Registrar.<\/p>\n
“Remarketed Securities Treasury Consideration” has the meaning
\n specified in Section 5.2.<\/p>\n
“Remarketing Agent” has the meaning specified in Section 5.2.<\/p>\n
“Remarketing Agreement” means the Remarketing Agreement to be
\n entered into by and among the Company, the Trust, the Remarketing Agent
\n and the Agent.<\/p>\n
“Remarketing Date” means the third business day preceding
\n ___________, 2003.<\/p>\n
“Remarketing Fee” has the meaning specified in Section 5.2.<\/p>\n
“Remarketing Value” has the meaning specified in Section 5.2.<\/p>\n
“Reorganization Event” has the meaning specified in Section 5.4(b).<\/p>\n
“Responsible Officer” means, when used with respect to the Agent,
\n any officer within the corporate trust department of the Agent (or any
\n successor of the Agent), including any Vice President, any assistant Vice
\n President, any assistant secretary, the treasurer, any assistant
\n treasurer, any trust officer or any other officer of the Agent who
\n customarily performs functions similar to those performed by the Persons
\n who at the time shall be such officers, respectively, or to whom any
\n corporate trust matter is referred because of such person’s knowledge of
\n and familiarity with the particular<\/p>\n
9
\n 15
\n subject and who shall have direct responsibility for the administration of
\n this Agreement.<\/p>\n
“Securities Act” means the Securities Act of 1933, as amended.<\/p>\n
“Settlement Date” means any Early Settlement Date, Merger Early
\n Settlement Date or Stock Purchase Date.<\/p>\n
“Settlement Rate” has the meaning specified in Section 5.1.<\/p>\n
“Stated Amount” means, with respect to one Capital Security, Normal
\n Unit, Stripped Unit or Unit, $50.<\/p>\n
“Stock Purchase Date” means ____________, 2003.<\/p>\n
“Stripped Unit” means the collective rights and obligations of a
\n holder of a Stripped Units Certificate in respect of a 1\/20 undivided
\n beneficial interest in a Treasury Security, subject in each case to the
\n Pledge thereof, and the related Purchase Contract.<\/p>\n
“Stripped Units Certificate” means a certificate evidencing the
\n rights and obligations of a Holder in respect of the number of Stripped
\n Units specified on such certificate, substantially in the form of Exhibit
\n B hereto.<\/p>\n
“Stripped Units Register” and “Stripped Units Registrar” have the
\n respective meanings specified in Section 3.5.<\/p>\n
“Subsequent Remarketing Date” has the meaning specified in Section
\n 5.3.<\/p>\n
“Termination Date” means the date, if any, on which a Termination
\n Event occurs.<\/p>\n
“Termination Event” means the occurrence of any of the following
\n events: (i) at any time on or prior to the Stock Purchase Date, a
\n judgment, decree or court order shall have been entered granting relief
\n under the Bankruptcy Code or any other similar Federal or state law,
\n adjudicating the Company to be insolvent, or approving as properly filed a
\n petition seeking reorganization or liquidation of the Company, and, unless
\n such judgment, decree or order shall have been entered within 60 days
\n prior to the Stock Purchase Date, such decree or order shall have
\n continued undischarged and unstayed for a period of 60 days; or (ii) a
\n judgment, decree or court order for the appointment of a receiver or
\n liquidator or trustee or assignee in bankruptcy or insolvency of the
\n Company or of its property, or for the winding up or liquidation of<\/p>\n
10
\n 16
\n its affairs, shall have been entered, and, unless such judgment, decree or
\n order shall have been entered within 60 days prior to the Stock Purchase
\n Date, such judgment, decree or order shall have continued undischarged and
\n unstayed for a period of 60 days, or (iii) at any time on or prior to the
\n Stock Purchase Date the Company shall file a petition for relief under the
\n Bankruptcy Code or any other similar federal or state law, or shall
\n consent to the filing of a bankruptcy proceeding against it, or shall file
\n a petition or answer or consent seeking reorganization or liquidation
\n under the Bankruptcy Code or any other similar federal or state law, or
\n shall consent to the filing of any such petition, or shall consent to the
\n appointment of a receiver or liquidator or trustee or assignee in
\n bankruptcy or insolvency of it or of its property, or shall make an
\n assignment for the benefit of creditors, or shall admit in writing its
\n inability to pay its debts generally as they become due.<\/p>\n
“Threshold Appreciation Price” has the meaning specified in Section
\n 5.1.<\/p>\n
“TIA” means the Trust Indenture Act of 1939, as amended.<\/p>\n
“Trading Day” has the meaning specified in section 5.1.<\/p>\n
“Treasury Consideration” means the Remarketed Securities Treasury
\n Consideration and the Non-Remarketed Treasury Consideration.<\/p>\n
“Treasury Security” means a zero coupon U.S. Treasury security
\n (CUSIP Number _____________) maturing on ____________, 2003 that will pay
\n $1,000 on such maturity date.<\/p>\n
“Trust” means MetLife Capital Trust I, a statutory business trust
\n formed under the laws of the State of Delaware, or any successor thereto
\n by merger or consolidation.<\/p>\n
“Underwriting Agreement” means the Underwriting Agreement dated
\n ______________, 2000 among the Company, Metropolitan Life Insurance
\n Company, the Trust and __________________ ______________, as
\n representatives of the underwriters.<\/p>\n
“Unit” means a Normal Unit or a Stripped Unit.<\/p>\n
“Vice President” means any vice president, whether or not designated
\n by a number or a word or words added before or after the title “vice
\n president.”<\/p>\n
11
\n 17
\n Section 1.2 Compliance Certificates and Opinions. Except as
\notherwise expressly provided by this Agreement, upon any application or request
\nby the Company to the Agent to take any action under any provision of this
\nAgreement, the Company shall furnish to the Agent an Officer’s Certificate
\nstating that all conditions precedent, if any, provided for in this Agreement
\nrelating to the proposed action have been complied with and, if requested by the
\nAgent, an Opinion of Counsel stating that, in the opinion of such counsel, all
\nsuch conditions precedent, if any, have been complied with, except that in the
\ncase of any such application or request as to which the furnishing of such
\ndocuments is specifically required by any provision of this Agreement relating
\nto such particular application or request, no additional certificate or opinion
\nneed be furnished.<\/p>\n
Every certificate or opinion with respect to compliance with a
\ncondition or covenant provided for in this Agreement shall include:<\/p>\n
(1) a statement that the individual signing such certificate or
\n opinion has read such covenant or condition and the definitions herein
\n relating thereto;<\/p>\n
(2) a brief statement as to the nature and scope of the examination
\n or investigation upon which the statements or opinions contained in such
\n certificate or opinion are based;<\/p>\n
(3) a statement that, in the opinion of such individual, he or she
\n has made such examination or investigation as is necessary to enable such
\n individual to express an informed opinion as to whether or not such
\n covenant or condition has been complied with; and<\/p>\n
(4) a statement as to whether, in the opinion of such individual,
\n such condition or covenant has been complied with.<\/p>\n
Section 1.3 Form of Documents Delivered to Agent. In any case where
\nseveral matters are required to be certified by, or covered by an opinion of,
\nany specified Person, it is not necessary that all such matters be certified by,
\nor covered by the opinion of, only one such Person, or that they be so certified
\nor covered by only one document, but one such Person may certify or give an
\nopinion with respect to some matters and one or more other such Persons as to
\nother matters, and any such Person may certify or give an opinion as to such
\nmatters in one or several documents.<\/p>\n
Any certificate or opinion of an officer of the Company may be
\nbased, insofar as it relates to legal matters, upon a certificate or opinion of,
\nor representations by, counsel, unless such officer knows, or in the exercise of
\nreasonable care should know, that the certificate or opinion or representations
\nwith respect to the matters upon which his<\/p>\n
12
\n 18
\ncertificate or opinion is based are erroneous. Any such certificate or Opinion
\nof Counsel may be based, insofar as it relates to factual matters, upon a
\ncertificate or opinion of, or representations by, an officer or officers of the
\nCompany stating that the information with respect to such factual matters is in
\nthe possession of the Company unless such counsel knows, or in the exercise of
\nreasonable care should know, that the certificate or opinion or representations
\nwith respect to such matters are erroneous.<\/p>\n
Where any Person is required to make, give or execute two or more
\napplications, requests, consents, certificates, statements, opinions or other
\ninstruments under this Agreement, they may, but need not, be consolidated and
\nform one instrument.<\/p>\n
Section 1.4 Acts of Holders; Record Dates. (a) Any request, demand,
\nauthorization, direction, notice, consent, waiver or other action provided by
\nthis Agreement to be given or taken by Holders may be embodied in and evidenced
\nby one or more instruments of substantially similar tenor signed by such Holders
\nin person or by agent duly appointed in writing; and, except as herein otherwise
\nexpressly provided, such action shall become effective when such instrument or
\ninstruments are delivered to the Agent and, where it is hereby expressly
\nrequired, to the Company. Such instrument or instruments (and the action
\nembodied therein and evidenced thereby) are herein sometimes referred to as the
\n“Act” of the Holders signing such instrument or instruments. Proof of execution
\nof any such instrument or of a writing appointing any such agent shall be
\nsufficient for any purpose of this Agreement and (subject to Section 7.1)
\nconclusive in favor of the Agent and the Company, if made in the manner provided
\nin this Section.<\/p>\n
(b) The fact and date of the execution by any Person of any such
\ninstrument or writing may be proved in any manner which the Agent deems
\nsufficient.<\/p>\n
(c) The ownership of Units shall be proved by the Normal Units
\nRegister or the Stripped Units Register, as the case may be.<\/p>\n
(d) Any request, demand, authorization, direction, notice, consent,
\nwaiver or other Act of the Holder of any Certificate shall bind every future
\nHolder of the same Certificate and the Holder of every Certificate issued upon
\nthe registration of transfer thereof or in exchange therefor or in lieu thereof
\nin respect of anything done, omitted or suffered to be done by the Agent or the
\nCompany in reliance thereon, whether or not notation of such action is made upon
\nsuch Certificate.<\/p>\n
(e) The Company may set any day as a record date for the purpose of
\ndetermining the Holders of Outstanding Securities entitled to give, make or take
\nany request, demand, authorization, direction, notice, consent, waiver or other
\naction provided or permitted by this Agreement to be given, made or taken by
\nHolders of Units. If any<\/p>\n
13
\n 19
\nrecord date is set pursuant to this paragraph, the Holders of the Outstanding
\nNormal Units and the Outstanding Stripped Units, as the case may be, on such
\nrecord date, and no other Holders, shall be entitled to take the relevant action
\nwith respect to the Normal Units or the Stripped Units, as the case may be,
\nwhether or not such Holders remain Holders after such record date; provided that
\nno such action shall be effective hereunder unless taken on or prior to the
\napplicable Expiration Date by Holders of the requisite number of Outstanding
\nSecurities on such record date. Nothing in this paragraph shall be construed to
\nprevent the Company from setting a new record date for any action for which a
\nrecord date has previously been set pursuant to this paragraph (whereupon the
\nrecord date previously set shall automatically and with no action by any Person
\nbe cancelled and of no effect), and nothing in this paragraph shall be construed
\nto render ineffective any action taken by Holders of the requisite number of
\nOutstanding Securities on the date such action is taken. Promptly after any
\nrecord date is set pursuant to this paragraph, the Company, at its own expense,
\nshall cause notice of such record date, the proposed action by Holders and the
\napplicable Expiration Date to be given to the Agent in writing and to each
\nHolder of Units in the manner set forth in Section 1.6.<\/p>\n
With respect to any record date set pursuant to this Section, the
\nCompany may designate any date as the “Expiration Date” and from time to time
\nmay change the Expiration Date to any earlier or later day; provided that no
\nsuch change shall be effective unless notice of the proposed new Expiration Date
\nis given to the Agent in writing, and to each Holder of Units in the manner set
\nforth in Section 1.6, on or prior to the existing Expiration Date. If an
\nExpiration Date is not designated with respect to any record date set pursuant
\nto this Section, the Company shall be deemed to have initially designated the
\n180th day after such record date as the Expiration Date with respect thereto,
\nsubject to its right to change the Expiration Date as provided in this
\nparagraph. Notwithstanding the foregoing, no Expiration Date shall be later than
\nthe 180th day after the applicable record date.<\/p>\n
Section 1.5 Notices. Any request, demand, authorization, direction,
\nnotice, consent, waiver or Act of Holders or other document provided or
\npermitted by this Agreement to be made upon, given or furnished to, or filed
\nwith:<\/p>\n
(1) the Agent by any Holder or by the Company shall be sufficient for
\n every purpose hereunder (unless otherwise herein expressly provided) if
\n made, given, furnished or filed in writing and personally delivered,
\n mailed, first-class postage prepaid, telecopied or delivered by overnight
\n air courier guaranteeing next day delivery, to the Agent at One North
\n State Street, 9th Floor, Chicago, Illinois 60602, Attn: Corporate Trust
\n Administration, telecopy: (312) 407-1708, or at any other address
\n furnished in writing by the Agent to the Holders and the Company; or<\/p>\n
14
\n 20
\n (2) the Company by the Agent or by any Holder shall be sufficient for
\n every purpose hereunder (unless otherwise herein expressly provided) if
\n made, given, furnished or filed in writing and personally delivered,
\n mailed, first-class postage prepaid, telecopied or delivered by overnight
\n air courier guaranteeing next day delivery, to the Company at MetLife,
\n Inc., One Madison Avenue, New York, New York 10010, telecopy: , Attention:
\n Treasurer, or at any other address furnished in writing to the Agent by
\n the Company; or<\/p>\n
(3) the Collateral Agent by the Agent, the Company or any Holder
\n shall be sufficient for every purpose hereunder (unless otherwise herein
\n expressly provided) if made, given, furnished or filed in writing and
\n personally delivered, mailed, first-class postage prepaid, telecopied or
\n delivered by overnight air courier guaranteeing next day delivery,
\n addressed to the Collateral Agent at ____________________, telecopy:
\n , or at any other address furnished in writing by the
\n Collateral Agent to the Agent, the Company and the Holders; or<\/p>\n
(4) the Property Trustee by the Company shall be sufficient for every
\n purpose hereunder (unless otherwise herein expressly provided) if made,
\n given, furnished or filed in writing and personally delivered, mailed,
\n first-class postage prepaid, telecopied or delivered by overnight air
\n courier guaranteeing next day delivery, addressed to the Property Trustee
\n at ______________________________, telecopy: or at any other address
\n furnished in writing by the Property Trustee to the Company; or<\/p>\n
(5) the Indenture Trustee by the Company shall be sufficient for
\n every purpose hereunder (unless otherwise herein expressly provided) if
\n made, given, furnished or filed in writing and personally delivered or
\n mailed, first-class postage prepaid, telecopied or delivered by overnight
\n air courier guaranteeing next day delivery, addressed to the Indenture
\n Trustee at _______________________________, telecopy: or at any
\n other address furnished in writing by the Indenture Trustee to the
\n Company.<\/p>\n
Section 1.6 Notice to Holders; Waiver. Where this Agreement provides
\nfor notice to Holders of any event, such notice shall be sufficiently given
\n(unless otherwise herein expressly provided) if in writing and mailed,
\nfirst-class postage prepaid, to each Holder affected by such event, at its
\naddress as it appears in the applicable Register, not later than the latest
\ndate, and not earlier than the earliest date, prescribed for the giving of such
\nnotice. In any case where notice to Holders is given by mail, neither the
\nfailure to mail such notice, nor any defect in any notice so mailed to any
\nparticular Holder shall affect the sufficiency of such notice with respect to
\nother Holders. Where this Agreement provides for notice in any manner, such
\nnotice may be waived in writing by the Person entitled to receive such notice,
\neither before or after the event, and such waiver shall be<\/p>\n
15
\n 21
\nthe equivalent of such notice. Waivers of notice by Holders shall be filed with
\nthe Agent, but such filing shall not be a condition precedent to the validity of
\nany action taken in reliance upon such waiver.<\/p>\n
In case by reason of the suspension of regular mail service or by
\nreason of any other cause it shall be impracticable to give such notice by mail,
\nthen such notification as shall be made with the approval of the Agent shall
\nconstitute a sufficient notification for every purpose hereunder.<\/p>\n
Section 1.7 Effect of Headings and Table of Contents. The Article and
\nSection headings herein and the Table of Contents are for convenience only and
\nshall not affect the construction hereof.<\/p>\n
Section 1.8 Successors and Assigns. All covenants and agreements in
\nthis Agreement by the Company shall bind its successors and assigns, whether so
\nexpressed or not.<\/p>\n
Section 1.9 Separability Clause. In case any provision in this
\nAgreement or in the securities shall be invalid, illegal or unenforceable, the
\nvalidity, legality and enforceability of the remaining provisions hereof and
\nthereof shall not in any way be affected or impaired thereby.<\/p>\n
Section 1.10 Benefits of Agreement. Nothing in this Agreement or in
\nthe Units, express or implied, shall give to any Person, other than the parties
\nhereto and their successors hereunder and, to the extent provided hereby, the
\nHolders, any benefits or any legal or equitable right, remedy or claim under
\nthis Agreement. The Holders from time to time shall be beneficiaries of this
\nAgreement and shall be bound by all of the terms and conditions hereof and of
\nthe Units evidenced by their Certificates by their acceptance of delivery of
\nsuch Certificates.<\/p>\n
Section 1.11 Governing Law. This Agreement and the Units shall be
\ngoverned by and construed in accordance with the laws of the State of New York,
\nwithout regard to its principles of conflicts of laws.<\/p>\n
Section 1.12 Legal Holidays. In any case where any Payment Date shall
\nnot be a Business Day, then (notwithstanding any other provision of this
\nAgreement or the Normal Units Certificates) payments on the Capital Securities
\nshall not be made on such date, but such payments shall be made on the next
\nsucceeding Business Day with the same force and effect as if made on such
\nPayment Date, provided that no interest shall accrue or be payable by the
\nCompany for the period from and after any such Payment Date, except that, if
\nsuch next succeeding Business Day is in the next succeeding calendar year, such<\/p>\n
16
\n 22
\npayment shall be made on the immediately preceding Business Day with the same
\nforce and effect as if made on such Payment Date.<\/p>\n
In any case where any Stock Purchase Date shall not be a Business
\nDay, then (notwithstanding any other provision of this Agreement or the
\nCertificates), the Purchase Contracts shall not be performed on such date, but
\nthe Purchase Contracts shall be performed on the immediately following Business
\nDay with the same force and effect as if performed on the Stock Purchase Date.<\/p>\n
Section 1.13 Counterparts. This Agreement may be executed in any
\nnumber of counterparts by the parties hereto, each of which, when so executed
\nand delivered, shall be deemed an original, but all such counterparts shall
\ntogether constitute one and the same instrument.<\/p>\n
Section 1.14 Inspection of Agreement. A copy of this Agreement shall
\nbe available at all reasonable times during normal business hours at the
\nCorporate Trust Office for inspection by any Holder.<\/p>\n
ARTICLE II<\/p>\n
CERTIFICATE FORMS<\/p>\n
Section 2.1 Forms of Certificates Generally. The Normal Units
\nCertificates (including the form of Purchase Contract forming part of the Normal
\nUnits evidenced thereby) shall be in substantially the form set forth in Exhibit
\nA hereto, with such letters, numbers or other marks of identification or
\ndesignation and such legends or endorsements printed, lithographed or engraved
\nthereon as may be required by the rules of any securities exchange on which the
\nNormal Units are listed or any depositary therefor, or as may, consistently
\nherewith, be determined by the officers of the Company executing such Normal
\nUnits Certificates, as evidenced by their execution of the Normal Units
\nCertificates.<\/p>\n
The definitive Normal Units Certificates shall be printed,
\nlithographed or engraved on steel engraved borders or may be produced in any
\nother manner, all as determined by the officers of the Company executing such
\nNormal Units Certificates, consistent with the provisions of this Agreement, as
\nevidenced by their execution thereof.<\/p>\n
The Stripped Units Certificates (including the form of Purchase
\nContracts forming part of the Stripped Units evidenced thereby) shall be in
\nsubstantially the form set forth in Exhibit B hereto, with such letters, numbers
\nor other marks of identification or designation and such legends or endorsements
\nprinted, lithographed or engraved thereon<\/p>\n
17
\n 23
\nas may be required by the rules of any securities exchange on which the Stripped
\nUnits may be listed or any depositary therefor, or as may, consistently
\nherewith, be determined by the officers of the Company executing such Stripped
\nUnits Certificates, as evidenced by their execution of the Stripped Units
\nCertificates.<\/p>\n
The definitive Stripped Units Certificates shall be printed,
\nlithographed or engraved on steel engraved borders or may be produced in any
\nother manner, all as determined by the officers of the Company executing such
\nStripped Units Certificates, consistent with the provisions of this Agreement,
\nas evidenced by their execution thereof.<\/p>\n
Every Global Certificate authenticated, executed on behalf of the
\nHolders and delivered hereunder shall bear a legend in substantially the
\nfollowing form:<\/p>\n
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
\n PURCHASE CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND IS
\n REGISTERED IN THE NAME OF THE CLEARING AGENCY OR A NOMINEE THEREOF.
\n THIS CERTIFICATE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
\n CERTIFICATE REGISTERED, AND NO TRANSFER OF THIS CERTIFICATE IN WHOLE
\n OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN
\n SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
\n CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.<\/p>\n
Section 2.2 Form of Agent’s Certificate of Authentication. The form
\nof the Agent’s certificate of authentication of the Normal Units shall be in
\nsubstantially the form set forth on the form of the Normal Units Certificates.<\/p>\n
The form of the Agent’s certificate of authentication of the Stripped
\nUnits shall be in substantially the form set forth on the form of the Stripped
\nUnits Certificates.<\/p>\n
ARTICLE III<\/p>\n
THE UNITS<\/p>\n
Section 3.1 Title and Terms; Denominations. The aggregate number of
\nNormal Units and Stripped Units, if any, evidenced by Certificates
\nauthenticated, executed on behalf of the Holders and delivered hereunder is
\nlimited to _______________ (______________ if the Underwriters’ over-allotment
\noption pursuant to the Underwriting Agreement is exercised in full), except for
\nCertificates authenticated, executed and<\/p>\n
18
\n 24
\ndelivered upon registration of transfer of, in exchange for, or in lieu of,
\nother Certificates pursuant to Section 3.4, 3.5, 3.10, 3.13, 3.14, 5.7 or 8.5.<\/p>\n
The Certificates shall be issuable only in registered form and only
\nin denominations of a single Unit and any integral multiple thereof.<\/p>\n
Section 3.2 Rights and Obligations Evidenced by the Certificates.
\nEach Normal Units Certificate shall evidence the number of Normal Units
\nspecified therein, with each such Normal Unit representing the ownership by the
\nHolder thereof of a beneficial interest in a Capital Security or the appropriate
\nTreasury Consideration, as the case may be, subject to the Pledge of such
\nCapital Security or such Treasury Consideration, as the case may be, by such
\nHolder pursuant to the Pledge Agreement, and the rights and obligations of the
\nHolder thereof and the Company under one Purchase Contract. The Agent as
\nattorney-in-fact for, and on behalf of, the Holder of each Normal Unit shall
\npledge, pursuant to the Pledge Agreement, the Capital Security or the
\nappropriate Treasury Consideration, as the case may be, forming a part of such
\nNormal Unit, to the Collateral Agent and grant to the Collateral Agent a
\nsecurity interest in the right, title, and interest of such Holder in such
\nCapital Security or such Treasury Consideration, as the case may be, for the
\nbenefit of the Company, to secure the obligation of the Holder under each
\nPurchase Contract to purchase the Common Stock of the Company. Prior to the
\npurchase of shares of Common Stock under each Purchase Contract, such Purchase
\nContracts shall not entitle the Holders of Normal Units Certificates to any of
\nthe rights of a holder of shares of Common Stock, including, without limitation,
\nthe right to vote or receive any dividends or other payments or to consent or to
\nreceive notice as stockholders in respect of the meetings of stockholders or for
\nthe election of directors of the Company or for any other matter, or any other
\nrights whatsoever as stockholders of the Company.<\/p>\n
Each Stripped Units Certificate shall evidence the number of Stripped
\nUnits specified therein, with each such Stripped Unit representing the ownership
\nby the Holder thereof of a 1\/20 undivided beneficial interest in a Treasury
\nSecurity, subject to the Pledge of such interest in such Treasury Security by
\nsuch Holder pursuant to the Pledge Agreement, and the rights and obligations of
\nthe Holder thereof and the Company under one Purchase Contract. Prior to the
\npurchase of shares of Common Stock under each Purchase Contract, such Purchase
\nContracts shall not entitle the Holders of Stripped Units Certificates to any of
\nthe rights of a holder of shares of Common Stock, including, without limitation,
\nthe right to vote or receive any dividends or other payments or to consent or to
\nreceive notice as stockholders in respect of the meetings of stockholders or for
\nthe election of directors of the Company or for any other matter, or any other
\nrights whatsoever as stockholders of the Company.<\/p>\n
19
\n 25
\n Section 3.3 Execution, Authentication, Delivery and Dating. Subject
\nto the provisions of Sections 3.13 and 3.14, upon the execution and delivery of
\nthis Agreement, and at any time and from time to time thereafter, the Company
\nmay deliver Certificates executed by the Company to the Agent for
\nauthentication, execution on behalf of the Holders and delivery, together with
\nits Issuer Order for authentication of such Certificates, and the Agent in
\naccordance with such Issuer Order shall authenticate, execute on behalf of the
\nHolders and deliver such Certificates.<\/p>\n
The Certificates shall be executed on behalf of the Company by the
\nChief Executive Officer, the Chief Financial Officer, the President, any Vice
\nPresident, the Treasurer, any Assistant Treasurer or any Assistant Secretary (or
\nother officer performing similar functions) of the Company and delivered to the
\nAgent. The signature of any of these officers on the Certificates may be manual
\nor facsimile.<\/p>\n
Certificates bearing the manual or facsimile signatures of
\nindividuals who were at any time the proper officers of the Company shall bind
\nthe Company, notwithstanding that such individuals or any of them have ceased to
\nhold such offices prior to the authentication and delivery of such Certificates
\nor did not hold such offices at the date of such Certificates.<\/p>\n
No Purchase Contract evidenced by a Certificate shall be valid until
\nsuch Certificate has been executed on behalf of the Holder by the manual
\nsignature of an authorized signatory of the Agent, as such Holder’s
\nattorney-in-fact. Such signature by an authorized signatory of the Agent shall
\nbe conclusive evidence that the Holder of such Certificate has entered into the
\nPurchase Contracts evidenced by such Certificate.<\/p>\n
Each Certificate shall be dated the date of its authentication.<\/p>\n
No Certificate shall be entitled to any benefit under this Agreement
\nor be valid or obligatory for any purpose unless there appears on such
\nCertificate a certificate of authentication substantially in the form provided
\nfor herein executed by an authorized signatory of the Agent by manual signature,
\nand such certificate upon any Certificate shall be conclusive evidence, and the
\nonly evidence, that such Certificate has been duly authenticated and delivered
\nhereunder.<\/p>\n
Section 3.4 Temporary Certificates. Pending the preparation of
\ndefinitive Certificates, the Company shall execute and deliver to the Agent, and
\nthe Agent shall authenticate, execute on behalf of the Holders, and deliver, in
\nlieu of such definitive Certificates, temporary Certificates which are in
\nsubstantially the form set forth in Exhibit A or Exhibit B hereto, as the case
\nmay be, with such letters, numbers or other marks of identification or
\ndesignation and such legends or endorsements printed, lithographed or<\/p>\n
20
\n 26
\nengraved thereon as may be required by the rules of any securities exchange on
\nwhich the Normal Units or Stripped Units, as the case may be, are listed, or as
\nmay, consistent herewith, be determined by the officers of the Company executing
\nsuch Certificates, as evidenced by their execution of the Certificates.<\/p>\n
If temporary Certificates are issued, the Company will cause
\ndefinitive Certificates to be prepared without unreasonable delay. After the
\npreparation of definitive Certificates, the temporary Certificates shall be
\nexchangeable for definitive Certificates upon surrender of the temporary
\nCertificates at the Corporate Trust Office, at the expense of the Company and
\nwithout charge to the Holder. Upon surrender for cancellation of any one or more
\ntemporary Certificates, the Company shall execute and deliver to the Agent, and
\nthe Agent shall authenticate, execute on behalf of the Holder, and deliver in
\nexchange therefor, one or more definitive Certificates of like tenor and
\ndenominations and evidencing a like number of Normal Units or Stripped Units, as
\nthe case may be, as the temporary Certificate or Certificates so surrendered.
\nUntil so exchanged, the temporary Certificates shall in all respects evidence
\nthe same benefits and the same obligations with respect to the Normal Units or
\nStripped Units, as the case may be, evidenced thereby as definitive
\nCertificates.<\/p>\n
Section 3.5 Registration; Registration of Transfer and Exchange. The
\nAgent shall keep at the Corporate Trust Office a register (the “Normal Units
\nRegister”) in which, subject to such reasonable regulations as it may prescribe,
\nthe Agent shall provide for the registration of Normal Units Certificates and of
\ntransfers of Normal Units Certificates (the Agent, in such capacity, the “Normal
\nUnits Registrar”) and a register (the “Stripped Units Register”) in which,
\nsubject to such reasonable regulations as it may prescribe, the Agent shall
\nprovide for the registration of the Stripped Units Certificates and transfers of
\nStripped Units Certificates (the Agent, in such capacity, the “Stripped Units
\nRegistrar”).<\/p>\n
Upon surrender for registration of transfer of any Certificate at the
\nCorporate Trust Office, the Company shall execute and deliver to the Agent, and
\nthe Agent shall authenticate, execute on behalf of the designated transferee or
\ntransferees, and deliver, in the name of the designated transferee or
\ntransferees, one or more new Certificates of like tenor and denominations, and
\nevidencing a like number of Normal Units or Stripped Units, as the case may be.<\/p>\n
At the option of the Holder, Certificates may be exchanged for other
\nCertificates, of like tenor and denominations and evidencing a like number of
\nNormal Units or Stripped Units, as the case may be, upon surrender of the
\nCertificates to be exchanged at the Corporate Trust Office. Whenever any
\nCertificates are so surrendered for exchange, the Company shall execute and
\ndeliver to the Agent, and the Agent shall authenticate, execute<\/p>\n
21
\n 27
\non behalf of the Holder, and deliver the Certificates which the Holder making
\nthe exchange is entitled to receive.<\/p>\n
All Certificates issued upon any registration of transfer or exchange
\nof a Certificate shall evidence the ownership of the same number of Normal Units
\nor Stripped Units, as the case may be, and be entitled to the same benefits and
\nsubject to the same obligations, under this Agreement as the Normal Units or
\nStripped Units, as the case may be, evidenced by the Certificate surrendered
\nupon such registration of transfer or exchange.<\/p>\n
Every Certificate presented or surrendered for registration of
\ntransfer or for exchange shall (if so required by the Agent) be duly endorsed,
\nor be accompanied by a written instrument of transfer in form satisfactory to
\nthe Company and the Agent duly executed, by the Holder thereof or its attorney
\nduly authorized in writing.<\/p>\n
No service charge shall be made for any registration of transfer or
\nexchange of a Certificate, but the Company and the Agent may require payment
\nfrom the Holder of a sum sufficient to cover any tax or other governmental
\ncharge that may be imposed in connection with any registration of transfer or
\nexchange of Certificates, other than any exchanges pursuant to Sections 3.6 and
\n8.5 not involving any transfer.<\/p>\n
Notwithstanding the foregoing, the Company shall not be obligated to
\nexecute and deliver to the Agent, and the Agent shall not be obligated to
\nauthenticate, execute on behalf of the Holder and deliver any Certificate
\npresented or surrendered for registration of transfer or for exchange on or
\nafter the Business Day immediately preceding the earlier of the Stock Purchase
\nDate or the Termination Date. In lieu of delivery of a new Certificate, upon
\nsatisfaction of the applicable conditions specified above in this Section and
\nreceipt of appropriate registration or transfer instructions from such Holder,
\nthe Agent shall (i) if the Stock Purchase Date has occurred, deliver the shares
\nof Common Stock issuable in respect of the Purchase Contracts forming a part of
\nthe Units evidenced by such Certificate, (ii) in the case of Normal Units, if a
\nTermination Event shall have occurred prior to the Stock Purchase Date, transfer
\nthe Capital Securities or the appropriate Treasury Consideration, as applicable
\nrelating to such Normal Units, or (iii) in the case of Stripped Units, if a
\nTermination Event shall have occurred prior to the Stock Purchase Date, transfer
\nthe Treasury Securities relating to such Stripped Units, in each case subject to
\nthe applicable conditions and in accordance with the applicable provisions of
\nArticle Five.<\/p>\n
Section 3.6 Book-Entry Interests. The Certificates, on original
\nissuance, will be issued in the form of one or more, fully registered Global
\nCertificates, to be delivered to the Depositary by, or on behalf of, the
\nCompany. Such Global Certificate shall initially be<\/p>\n
22
\n 28
\nregistered on the books and records of the Company in the name of Cede & Co.,
\nthe nominee of the Depositary, and no Beneficial Owner will receive a definitive
\nCertificate representing such Beneficial Owner’s interest in such Global
\nCertificate, except as provided in Section 3.9. The Agent shall enter into an
\nagreement with the Depositary if so requested by the Company. Unless and until
\ndefinitive, fully registered Certificates have been issued to Beneficial Owners
\npursuant to Section 3.9:<\/p>\n
(a) the provisions of this Section 3.6 shall be in full force and
\n effect;<\/p>\n
(b) the Company shall be entitled to deal with the Clearing Agency
\n for all purposes of this Agreement (including receiving approvals, votes
\n or consents hereunder) as the Holder of the Units and the sole holder of
\n the Global Certificate(s) and shall have no obligation to the Beneficial
\n Owners;<\/p>\n
(c) to the extent that the provisions of this Section 3.6 conflict
\n with any other provisions of this Agreement, the provisions of this
\n Section 3.6 shall control; and<\/p>\n
(d) the rights of the Beneficial owners shall be exercised only
\n through the Clearing Agency and shall be limited to those established by
\n law and agreements between such Beneficial owners and the Clearing Agency
\n and\/or the Clearing Agency Participants. The Clearing Agency will make
\n book-entry transfers among Clearing Agency Participants.<\/p>\n
Section 3.7 Notices to Holders. Whenever a notice or other
\ncommunication to the Holders is required to be given under this Agreement, the
\nCompany or the Company’s agent shall give such notices and communications to the
\nHolders and, with respect to any Units registered in the name of a Clearing
\nAgency or the nominee of a Clearing Agency, the Company or the Company’s agent
\nshall, except as set forth herein, have no obligations to the Beneficial owners.<\/p>\n
Section 3.8 Appointment of Successor Clearing Agency. If any Clearing
\nAgency elects to discontinue its services as securities depositary with respect
\nto the Units, the Company may, in its sole discretion, appoint a successor
\nClearing Agency with respect to the Units.<\/p>\n
Section 3.9 Definitive Certificates. If (i) a Clearing Agency elects
\nto discontinue its services as securities depositary with respect to the Units
\nand a successor Clearing Agency is not appointed within 90 days after such
\ndiscontinuance pursuant to Section 3.8, (ii) the Company elects to terminate the
\nbook-entry system through the Clearing Agency with respect to the Units, or
\n(iii) there shall have occurred and be continuing a default by the Company in
\nrespect of its obligations under one or more Purchase Contracts, then<\/p>\n
23
\n 29
\nupon surrender of the Global Certificates representing the Book-Entry Interests
\nwith respect to the Units by the Clearing Agency, accompanied by registration
\ninstructions, the Company shall cause definitive Certificates to be delivered to
\nBeneficial Owners in accordance with the instructions of the Clearing Agency.
\nThe Company shall not be liable for any delay in delivery of such instructions
\nand may conclusively rely on and shall be protected in relying on, such
\ninstructions.<\/p>\n
Section 3.10 Mutilated, Destroyed, Lost and Stolen Certificates. If
\nany mutilated Certificate is surrendered to the Agent, the Company shall execute
\nand deliver to the Agent, and the Agent shall authenticate, execute on behalf of
\nthe Holder, and deliver in exchange therefor, a new Certificate at the cost of
\nthe Holder, evidencing the same number of Normal Units or Stripped Units, as the
\ncase may be, and bearing a Certificate number not contemporaneously outstanding.<\/p>\n
If there shall be delivered to the Company and the Agent (i) evidence
\nto their satisfaction of the destruction, loss or theft of any Certificate, and
\n(ii) such security or indemnity at the cost of the Holder as may be required by
\nthem to hold each of them and any agent of any of them harmless, then, in the
\nabsence of notice to the Company or the Agent that such Certificate has been
\nacquired by a bona fide purchaser, the Company shall execute and deliver to the
\nAgent, and the Agent shall authenticate, execute on behalf of the Holder, and
\ndeliver to the Holder, in lieu of any such destroyed, lost or stolen
\nCertificate, a new Certificate, evidencing the same number of Normal Units or
\nStripped Units, as the case may be, and bearing a Certificate number not
\ncontemporaneously outstanding.<\/p>\n
Notwithstanding the foregoing, the Company shall not be obligated to
\nexecute and deliver to the Agent, and the Agent shall not be obligated to
\nauthenticate, execute on behalf of the Holder, and deliver to the Holder, a
\nCertificate on or after the Business Day immediately preceding the earlier of
\nthe Stock Purchase Date or the Termination Date. In lieu of delivery of a new
\nCertificate, upon satisfaction of the applicable conditions specified above in
\nthis Section and receipt of appropriate registration or transfer instructions
\nfrom such Holder, the Agent shall (i) if the Stock Purchase Date has occurred,
\ndeliver the shares of Common Stock issuable in respect of the Purchase Contracts
\nforming a part of the Units evidenced by such Certificate, or (ii) if a
\nTermination Event shall have occurred prior to the Stock Purchase Date, transfer
\nthe Capital Securities, the appropriate Treasury Consideration or the Treasury
\nSecurities, as the case may be, evidenced thereby, in each case subject to the
\napplicable conditions and in accordance with the applicable provisions of
\nArticle Five.<\/p>\n
Upon the issuance of any new Certificate under this Section, the
\nCompany and the Agent may require the payment by the Holder of a sum sufficient
\nto cover any tax or<\/p>\n
24
\n 30
\nother governmental charge that may be imposed in relation thereto and any other
\nexpenses (including the fees and expenses of the Agent) connected therewith.<\/p>\n
Every new Certificate issued pursuant to this Section in lieu of any
\ndestroyed, lost or stolen Certificate shall constitute an original additional
\ncontractual obligation of the Company and of the Holder in respect of the Unit
\nevidenced thereby, whether or not the destroyed, lost or stolen Certificate (and
\nthe Units evidenced thereby) shall be at any time enforceable by anyone, and
\nshall be entitled to all the benefits and be subject to all the obligations of
\nthis Agreement equally and proportionately with any and all other Certificates
\ndelivered hereunder.<\/p>\n
The provisions of this Section are exclusive and shall preclude (to
\nthe extent lawful) all other rights and remedies with respect to the replacement
\nor payment of mutilated, destroyed, lost or stolen Certificates.<\/p>\n
Section 3.11 Persons Deemed Owners. Prior to due presentment of a
\nCertificate for registration of transfer, the Company and the Agent, and any
\nagent of the Company or the Agent, may treat the Person in whose name such
\nCertificate is registered as the owner of the Units evidenced thereby, for the
\npurpose of receiving distributions on the Capital Securities, performance of the
\nPurchase Contracts and for all other purposes whatsoever, whether or not any
\nsuch distributions shall be overdue and notwithstanding any notice to the
\ncontrary, and neither the Company nor the Agent, nor any agent of the Company or
\nthe Agent, shall be affected by notice to the contrary.<\/p>\n
Notwithstanding the foregoing, with respect to any Global
\nCertificate, nothing herein shall prevent the Company, the Agent or any agent of
\nthe Company or the Agent, from giving effect to any written certification, proxy
\nor other authorization furnished by any Clearing Agency (or its nominee), as a
\nHolder, with respect to such Global Certificate or impair, as between such
\nClearing Agency and owners of beneficial interests in such Global Certificate,
\nthe operation of customary practices governing the exercise of rights of such
\nClearing Agency (or its nominee) as Holder of such Global Certificate.<\/p>\n
Section 3.12 Cancellation. All Certificates surrendered (a) for
\ndelivery of shares of Common Stock on or after any Settlement Date; (b) upon the
\ntransfer of Capital Securities, the appropriate Treasury Consideration or
\nTreasury Securities, as the case may be, after the occurrence of a Termination
\nEvent; (c) upon the registration of a transfer or exchange of a Unit shall, if
\nsurrendered to any Person other than the Agent, be delivered to the Agent and,
\nif not already cancelled, shall be promptly cancelled by it. The Company may at
\nany time deliver to the Agent for cancellation any Certificates previously
\nauthenticated, executed and delivered hereunder which the Company may have
\nacquired in any manner whatsoever, and all Certificates so delivered shall, upon
\nIssuer Order, be<\/p>\n
25
\n 31
\npromptly cancelled by the Agent. No Certificates shall be authenticated,
\nexecuted on behalf of the Holder and delivered in lieu of or in exchange for any
\nCertificates cancelled as provided in this Section, except as expressly
\npermitted by this Agreement. All cancelled Certificates held by the Agent shall
\nbe destroyed by the Agent unless otherwise directed by Issuer Order.<\/p>\n
If the Company or any Affiliate of the Company shall acquire any
\nCertificate, such acquisition shall not operate as a cancellation of such
\nCertificate unless and until such Certificate is delivered to the Agent
\ncancelled or for cancellation.<\/p>\n
Section 3.13 Establishment of Stripped Units. A Holder may separate
\nthe Pledged Capital Securities or Pledged Treasury Consideration, as applicable,
\nfrom the related Purchase Contracts in respect of the Normal Units held by such
\nHolder by substituting for such Pledged Capital Securities or Pledged Treasury
\nConsideration, as the case may be, Treasury Securities that will pay an amount
\nequal to the aggregate Stated Amount of such Normal Units (a “Collateral
\nSubstitution”), at any time from and after the date of this Agreement and on or
\nprior to the second Business Day immediately preceding the Stock Purchase Date,
\nby (a) depositing with the Collateral Agent Treasury Securities having an
\naggregate principal amount equal to the aggregate Stated Amount of such Normal
\nUnits, and (b) transferring the related Normal Units to the Agent accompanied by
\na notice to the Agent, substantially in the form of Exhibit D hereto, stating
\nthat the Holder has transferred the relevant amount of Treasury Securities to
\nthe Collateral Agent and requesting that the Agent instruct the Collateral Agent
\nto release the Pledged Capital Securities or Pledged Treasury Consideration, as
\nthe case may be, underlying such Normal Units, whereupon the Agent shall
\npromptly give such instruction to the Collateral Agent, substantially in the
\nform of Exhibit C hereto. Notwithstanding the foregoing, a Holder may not
\nseparate the Pledged Capital Securities or Pledged Treasury Consideration, as
\nthe case may be, from the related Purchase Contracts in respect of the Normal
\nUnits held by such Holder during the periods beginning on the fourth Business
\nDay prior to the Remarketing Date or any Subsequent Remarketing Date, as the
\ncase may be, and ending on the third business day following such dates. Upon
\nreceipt of the Treasury Securities described in clause (a) above and the
\ninstruction described in clause (b) above, in accordance with the terms of the
\nPledge Agreement, the Collateral Agent will release to the Agent, on behalf of
\nthe Holder, such Pledged Capital Securities or Pledged Treasury Consideration,
\nas the case may be, from the Pledge, free and clear of the Company’s security
\ninterest therein, and upon receipt thereof the Agent shall promptly:<\/p>\n
(i) cancel the related Normal Units;<\/p>\n
(ii) transfer the Pledged Capital Securities or Pledged Treasury
\n Consideration, as the case may be, to the Holder; and<\/p>\n
26
\n 32
\n (iii)authenticate, execute on behalf of such Holder and deliver a
\n Stripped Units Certificate executed by the Company in accordance with
\n Section 3.3 evidencing the same number of Purchase Contracts as were
\n evidenced by the cancelled Normal Units.<\/p>\n
Holders who elect to separate the Pledged Capital Securities or
\nPledged Treasury Consideration, as the case may be, from the related Purchase
\nContract and to substitute Treasury Securities for such Pledged Capital
\nSecurities or Pledged Treasury Consideration, as the case may be, shall be
\nresponsible for any fees or expenses payable to the Collateral Agent for its
\nservices as Collateral Agent in respect of the substitution, and the Company
\nshall not be responsible for any such fees or expenses.<\/p>\n
Holders may make Collateral Substitutions (i) if Treasury Securities
\nare being substituted for Pledged Capital Securities, only in integral multiples
\nof 20 Normal Units, or (ii) if the Collateral Substitutions occur after the
\nRemarketing Date or any Subsequent Remarketing Date, as the case may be, only in
\nintegral multiples of Normal Units such that the Treasury Securities to be
\ndeposited and the Treasury Consideration to be released are in integral
\nmultiples of $1,000.<\/p>\n
In the event a Holder making a Collateral Substitution pursuant to
\nthis Section 3.13 fails to effect a book-entry transfer of the Normal Units or
\nfails to deliver a Normal Units Certificate to the Agent after depositing
\nTreasury Securities with the Collateral Agent, the Pledged Capital Securities or
\nPledged Treasury Consideration, as the case may be, constituting a part of such
\nNormal Units, and any distributions on such Pledged Capital Securities or
\nPledged Treasury Consideration, as the case may be, shall be held in the name of
\nthe Agent or its nominee in trust for the benefit of such Holder, until such
\nNormal Units are so transferred or the Normal Units Certificate is so delivered,
\nas the case may be, or, with respect to a Normal Units Certificate, such Holder
\nprovides evidence satisfactory to the Company and the Agent that such Normal
\nUnits Certificate has been destroyed, lost or stolen, together with any
\nindemnity that may be required by the Agent and the Company.<\/p>\n
Except as described in this Section 3.13, for so long as the Purchase
\nContract underlying a Normal Unit remains in effect, such Normal Unit shall not
\nbe separable into its constituent parts, and the rights and obligations of the
\nHolder of such Normal Unit in respect of the Capital Security or the appropriate
\nTreasury Consideration, as the case may be, and the Purchase Contract comprising
\nsuch Normal Unit may be acquired, and may be transferred and exchanged, only as
\na Normal Unit.<\/p>\n
Section 3.14 Reestablishment of Normal Units. A Holder of Stripped
\nUnits may reestablish Normal Units at any time from and after the date of this
\nAgreement and on or<\/p>\n
27
\n 33
\nprior to the second Business Day immediately preceding the Stock Purchase Date,
\nby (a) depositing with the Collateral Agent the Capital Securities or the
\nappropriate Treasury Consideration, as the case may be, then comprising such
\nnumber of Normal Units as is equal to such Stripped Units and (b) transferring
\nsuch Stripped Units to the Agent accompanied by a notice to the Agent,
\nsubstantially in the form of Exhibit D hereto, stating that the Holder has
\ntransferred the relevant amount of Capital Securities or the appropriate
\nTreasury Consideration, as the case may be, to the Collateral Agent and
\nrequesting that the Agent instruct the Collateral Agent to release the Pledged
\nTreasury Securities underlying such Stripped Unit, whereupon the Agent shall
\npromptly give such instruction to the Collateral Agent, substantially in the
\nform of Exhibit C hereto. Notwithstanding the foregoing, a Holder may not
\nreestablish Normal Units during the periods beginning on the fourth Business Day
\nprior to the Remarketing Date or any Subsequent Remarketing Date, as the case
\nmay be, and ending on the third business day following such dates. Upon receipt
\nof the Capital Securities or the appropriate Treasury Consideration, as the case
\nmay be, described in clause (a) above and the instruction described in clause
\n(b) above, in accordance with the terms of the Pledge Agreement, the Collateral
\nAgent will release to the Agent, on behalf of the Holder, such Pledged Treasury
\nSecurities from the Pledge, free and clear of the Company’s security interest
\ntherein, and upon receipt thereof the Agent shall promptly:<\/p>\n
(i) cancel the related Stripped Units;<\/p>\n
(ii) transfer the Pledged Treasury Securities to the Holder; and<\/p>\n
(iii) authenticate, execute on behalf of such Holder and deliver a
\n Normal Units Certificate executed by the Company in accordance with
\n Section 3.3 evidencing the same number of Purchase Contracts as were
\n evidenced by the cancelled Stripped Units.<\/p>\n
Holders of Stripped Units may reestablish Normal Units (i) only in
\nintegral multiples of 20 Stripped Units for 20 Normal Units or (ii) if the
\nreestablishment occurs after the Remarketing Date or any Subsequent Remarketing
\nDate, only in integral multiples of Stripped Units such that the Treasury
\nConsideration to be deposited and the Treasury Securities to be released are in
\nintegral multiples of $1,000.<\/p>\n
Except as provided in this Section 3.14, for so long as the Purchase
\nContract underlying a Stripped Unit remains in effect, such Stripped Unit shall
\nnot be separable into its constituent parts, and the rights and obligations of
\nthe Holder of such Stripped Unit in respect of the Treasury Security and
\nPurchase Contract comprising such Stripped Unit may be acquired, and may be
\ntransferred and exchanged, only as a Stripped Unit.<\/p>\n
28
\n 34
\n Section 3.15 Transfer of Collateral upon Occurrence of Termination
\nEvent. Upon the occurrence of a Termination Event and the transfer to the Agent
\nof the Capital Securities, the appropriate Treasury Consideration or the
\nTreasury Securities, as the case may be, underlying the Normal Units and the
\nStripped Units pursuant to the terms of the Pledge Agreement, the Agent shall
\nrequest transfer instructions with respect to such Capital Securities or the
\nappropriate Treasury Consideration or Treasury Securities, as the case may be,
\nfrom each Holder by written request mailed to such Holder at its address as it
\nappears in the Normal Units Register or the Stripped Units Register, as the case
\nmay be. Upon book-entry transfer of the Normal Units or Stripped Units or
\ndelivery of a Normal Units Certificate or Stripped Units Certificate to the
\nAgent with such transfer instructions, the Agent shall transfer the Capital
\nSecurities, the appropriate Treasury Consideration or Treasury Securities, as
\nthe case may be, underlying such Normal Units or Stripped Units, as the case may
\nbe, to such Holder by book-entry transfer, or other appropriate procedures, in
\naccordance with such instructions. In the event a Holder of Normal Units or
\nStripped Units fails to effect such transfer or delivery, the Capital
\nSecurities, the appropriate Treasury Consideration or Treasury Securities, as
\nthe case may be, underlying such Normal Units or Stripped Units, as the case may
\nbe, and any distributions thereon, shall be held in the name of the Agent or its
\nnominee in trust for the benefit of such Holder, until such Normal Units or
\nStripped Units are transferred or the Normal Units Certificate or Stripped Units
\nCertificate is surrendered or such Holder provides satisfactory evidence that
\nsuch Normal Units Certificate or Stripped Units Certificate has been destroyed,
\nlost or stolen, together with any indemnity that may be required by the Agent
\nand the Company.<\/p>\n
Section 3.16 No Consent to Assumption. Each Holder of a Unit, by
\nacceptance thereof, shall be deemed expressly to have withheld any consent to
\nthe assumption under Section 365 of the Bankruptcy Code or otherwise, of the
\nPurchase Contract by the Company, receiver, liquidator or a person or entity
\nperforming similar functions, its trustee in the event that the Company becomes
\nthe debtor under the Bankruptcy Code or subject to other similar state or
\nfederal law providing for reorganization or liquidation.<\/p>\n
ARTICLE IV<\/p>\n
THE CAPITAL SECURITIES<\/p>\n
Section 4.1 Payment of Distribution; Rights to Distributions
\nPreserved; Notice. A distribution on any Capital Security or a payment on any
\nTreasury Consideration, as the case may be, which is paid on any Payment Date
\nshall, subject to receipt thereof by the Agent from the Collateral Agent as
\nprovided by the terms of the Pledge Agreement, be paid to the Person in whose
\nname the Normal Units Certificate (or one or more Predecessor Normal Units
\nCertificates) of which such Capital Security or the appropriate<\/p>\n
29
\n 35
\nTreasury Consideration, as the case may be, is a part is registered at the close
\nof business on the Record Date for such Payment Date.<\/p>\n
Each Normal Units Certificate evidencing Capital Securities delivered
\nunder this Agreement upon registration of transfer of or in exchange for or in
\nlieu of any other Normal Units Certificate shall carry the rights to
\ndistributions accumulated and unpaid, and to accumulate distributions, which
\nwere carried by the Capital Securities underlying such other Normal Units
\nCertificate.<\/p>\n
In the case of any Normal Unit with respect to which Early Settlement
\nof the underlying Purchase Contract is effected on an Early Settlement Date, or
\nwith respect to which Merger Early Settlement of the underlying Purchase
\nContract is effected on a Merger Early Settlement Date, or with respect to which
\na Collateral Substitution is effected, in each case on a date that is after any
\nRecord Date and on or prior to the next succeeding Payment Date, distributions
\non the Capital Security or on the appropriate Treasury Consideration, as the
\ncase may be, underlying such Normal Unit otherwise payable on such Payment Date
\nshall be payable on such Payment Date notwithstanding such Early Settlement,
\nMerger Early Settlement or Collateral Substitution, as the case may be, and such
\ndistributions shall, subject to receipt thereof by the Agent, be payable to the
\nPerson in whose name the Normal Units Certificate (or one or more Predecessor
\nNormal Unit Certificates) was registered at the close of business on the Record
\nDate. Except as otherwise expressly provided in the immediately preceding
\nsentence, in the case of any Normal Unit with respect to which Early Settlement
\nor Merger Early Settlement of the underlying Purchase Contract is effected, or
\nwith respect to which a Collateral Substitution has been effected, distributions
\non the related Capital Securities or on the appropriate Treasury Consideration,
\nas the case may be, that would otherwise be payable after the applicable
\nSettlement Date or after such Collateral Substitution, as the case may be, shall
\nnot be payable hereunder to the Holder of such Normal Unit; provided, however,
\nthat to the extent that such Holder continues to hold the separated Capital
\nSecurities that formerly comprised a part of such Holder’s Normal Units, such
\nHolder shall be entitled to receive the distributions on such separated Capital
\nSecurities.<\/p>\n
Section 4.2 Notice and Voting. Under the terms of the Pledge
\nAgreement, the Agent will be entitled to exercise the voting and any other
\nconsensual rights pertaining to the Pledged Capital Securities but only to the
\nextent instructed by the Holders as described below. Upon receipt of notice of
\nany meeting at which holders of Capital Securities are entitled to vote or upon
\nany solicitation of consents, waivers or proxies of holders of Capital
\nSecurities, the Agent shall, as soon as practicable thereafter, mail to the
\nHolders of Normal Units a notice (a) containing such information as is contained
\nin the notice or solicitation, (b) stating that each Holder on the record date
\nset by the Agent therefor (which, to the extent possible, shall be the same date
\nas the record date for determining<\/p>\n
30
\n 36
\nthe holders of Capital Securities entitled to vote) shall be entitled to
\ninstruct the Agent as to the exercise of the voting rights pertaining to the
\nPledged Capital Securities underlying their Normal Units and (c) stating the
\nmanner in which such instructions may be given. Upon the written request of the
\nHolders of Normal Units on such record date, the Agent shall endeavor insofar as
\npracticable to vote or cause to be voted, in accordance with the instructions
\nset forth in such requests, the maximum number of Pledged Capital Securities as
\nto which any particular voting instructions are received. In the absence of
\nspecific instructions from the Holder of a Normal Unit, the Agent shall abstain
\nfrom voting the Pledged Capital Security underlying such Normal Unit. The
\nCompany hereby agrees, if applicable, to solicit Holders of Normal Units to
\ntimely instruct the Agent in order to enable the Agent to vote such Pledged
\nCapital Securities and the Trust shall covenant to such effect in the
\nDeclaration.<\/p>\n
Section 4.3 Distribution of Debentures. Upon a voluntary or
\ninvoluntary dissolution of the Trust in accordance with the Declaration, the
\nLiquidation Distribution shall be delivered to the Collateral Agent in exchange
\nfor the Pledged Capital Securities. Thereafter, the Liquidation Distribution
\nwill be substituted for the Pledged Capital Securities, and will be held by the
\nCollateral Agent in accordance with the terms of the Pledge Agreement to secure
\nthe obligations of each Holder of Normal Units to purchase the Common Stock of
\nthe Company under the Purchase Contracts constituting a part of such Normal
\nUnits. Following a voluntary or involuntary dissolution of the Trust, the
\nHolders and the Collateral Agent shall have such security interests, rights and
\nobligations with respect to the Liquidation Distribution as the Holders and the
\nCollateral Agent had in respect of the Pledged Capital Securities as provided in
\nArticles II, III, IV, V and VI of the Pledge Agreement, and any reference herein
\nto the Capital Securities or Pledged Capital Securities shall be deemed to be a
\nreference to such Debentures. The Company may cause to be made in any Normal
\nUnits Certificates thereafter to be issued such change in phraseology and form
\n(but not in substance) as may be appropriate to reflect the liquidation of the
\nTrust and the substitution of Debentures for Capital Securities as Collateral.<\/p>\n
ARTICLE V<\/p>\n
THE PURCHASE CONTRACTS<\/p>\n
Section 5.1 Purchase of Shares of Common Stock. Each Purchase
\nContract shall, unless an Early Settlement has occurred in accordance with
\nSection 5.7, or a Merger Early Settlement has occurred in accordance with
\nSection 5.9, obligate the Holder of the related Unit to purchase, and the
\nCompany to sell, on the Stock Purchase Date at a price equal to $50 (the
\n“Purchase Price”), a number of newly issued shares of Common Stock equal to the
\nSettlement Rate unless, on or prior to the Stock Purchase Date, there shall<\/p>\n
31
\n 37
\nhave occurred a Termination Event with respect to the Unit of which such
\nPurchase Contract is a part. The “Settlement Rate” is equal to (a) if the
\nApplicable Market Value (as defined below) is equal to or greater than $- (the
\n“Threshold Appreciation Price”), – shares of Common Stock per Purchase Contract,
\n(b) if the Applicable Market Value is less than the Threshold Appreciation
\nPrice, but is greater than $-, the number of shares of Common Stock equal to the
\nStated Amount of the related Unit divided by the Applicable Market Value and (c)
\nif the Applicable Market Value is less than or equal to $-, – shares of Common
\nStock per Purchase Contract, in each case subject to adjustment as provided in
\nSection 5.4 (and in each case rounded upward or downward to the nearest
\n1\/10,000th of a share). As provided in Section 5.10, no fractional shares of
\nCommon Stock will be issued upon settlement of Purchase Contracts.<\/p>\n
The “Applicable Market Value” means the average of the Closing Price
\nper share of Common Stock on each of the 20 consecutive Trading Days ending on
\nthe third Trading Day immediately preceding the Stock Purchase Date. The
\n“Closing Price” of the Common Stock on any date of determination means the
\nclosing sale price (or, if no closing price is reported, the last reported sale
\nprice) of the Common Stock on the New York Stock Exchange (the “NYSE”) on such
\ndate or, if the Common Stock is not listed for trading on the NYSE on any such
\ndate, as reported in the composite transactions for the principal United States
\nsecurities exchange on which the Common Stock is so listed, or if the Common
\nStock is not so listed on a United States national or regional securities
\nexchange, as reported by The Nasdaq Stock Market, or, if the Common Stock is not
\nso reported, the last quoted bid price for the Common Stock in the
\nover-the-counter market as reported by the National Quotation Bureau or similar
\norganization, or, if such bid price is not available, the market value of the
\nCommon Stock on such date as determined by a nationally recognized independent
\ninvestment banking firm retained for this purpose by the Company. A “Trading
\nDay” means a day on which the Common Stock (A) is not suspended from trading on
\nany national or regional securities exchange or association or over-the-counter
\nmarket at the close of business and (B) has traded at least once on the national
\nor regional securities exchange or association or over-the-counter market that
\nis the primary market for the trading of the Common Stock.<\/p>\n
Each Holder of a Unit, by its acceptance thereof, irrevocably
\nauthorizes the Agent to enter into and perform the related Purchase Contract on
\nits behalf as its attorney-in-fact (including the execution of Certificates on
\nbehalf of such Holder), agrees to be bound by the terms and provisions thereof,
\ncovenants and agrees to perform its obligations under such Purchase Contracts,
\nand consents to the provisions hereof, irrevocably authorizes the Agent as its
\nattorney-in-fact to enter into and perform the Pledge Agreement on its behalf as
\nits attorney-in-fact, and consents to and agrees to be bound by the Pledge of
\nthe Capital Securities, the appropriate Treasury Consideration or the Treasury
\nSecurities pursuant to the Pledge Agreement; provided that upon a Termination<\/p>\n
32
\n 38
\nEvent, the rights of the Holder of such Unit under the Purchase Contract may be
\nenforced without regard to any other rights or obligations. Each Holder of a
\nUnit, by its acceptance thereof, further covenants and agrees, that, to the
\nextent and in the manner provided in Section 5.2 and the Pledge Agreement, but
\nsubject to the terms thereof, payments in respect of the Capital Securities, the
\nappropriate Treasury Consideration or the Treasury Securities to be paid upon
\nsettlement of such Holder’s obligations to purchase Common Stock under the
\nPurchase Contract, shall be paid on the Stock Purchase Date by the Collateral
\nAgent to the Company in satisfaction of such Holder’s obligations under such
\nPurchase Contract.<\/p>\n
Upon registration of transfer of a Certificate, the transferee shall
\nbe bound (without the necessity of any other action on the part of such
\ntransferee) under the terms of this Agreement, the Purchase Contracts underlying
\nsuch Certificate and the Pledge Agreement, and the transferor shall be released
\nfrom the obligations under this Agreement, the Purchase Contracts underlying the
\nCertificates so transferred and the Pledge Agreement. The Company covenants and
\nagrees, and each Holder of a Certificate, by its acceptance thereof, likewise
\ncovenants and agrees, to be bound by the provisions of this paragraph.<\/p>\n
Section 5.2 Payment of Purchase Price. (a) Unless a Termination Event
\nhas occurred or a Holder of a Unit has settled the underlying Purchase Contract
\nthrough an Early Settlement pursuant to Section 5.7 or a Merger Early Settlement
\npursuant to Section 5.9, then settlement of the Purchase Contract underlying a
\nUnit will be made in accordance with this Section 5.2.<\/p>\n
(b) (i) The Company shall engage a nationally recognized investment
\nbank (the “Remarketing Agent”) pursuant to the Remarketing Agreement to sell the
\nCapital Securities of Holders of Normal Units, other than Holders that have
\nelected not to participate in the remarketing pursuant to (iv), below. On the
\nseventh day prior to _________, 2003, the Agent shall give Holders of Normal
\nUnits notice of remarketing in a daily newspaper in the English language of
\ngeneral circulation in The City of New York, which is expected to be The Wall
\nStreet Journal, including the specific U.S. Treasury security or securities
\n(including the CUSIP number and\/or the principal terms of such Treasury security
\nor securities) that will constitute Treasury Consideration and that must be
\ndelivered by Holders that elect not to participate in the remarketing pursuant
\nto (iv), below, no later than 10:00 a.m. on the fourth Business Day immediately
\npreceding the Remarketing Date. The Agent shall notify, by 10:00 a.m., New York
\nCity time, on the third Business Day immediately preceding the Remarketing Date,
\nthe Remarketing Agent and the Collateral Agent of the aggregate number of
\nCapital Securities to be remarketed. On the first Business Day immediately
\npreceding the Remarketing Date, the Collateral Agent, pursuant to the terms of
\nthe Pledge Agreement, will deliver for remarketing such<\/p>\n
33
\n 39
\nCapital Securities to the Remarketing Agent. Upon receipt of such notice from
\nthe Agent and such Capital Securities from the Collateral Agent, the Remarketing
\nAgent will, on the third Business Day following the Remarketing Date, use its
\nreasonable best efforts to sell such Capital Securities on such date at a price
\nequal to 100.5% of the Remarketing Value. The Remarketing Agent will use the
\nproceeds from a successful remarketing to purchase the appropriate U.S. Treasury
\nsecurities (the “Remarketed Security Treasury Consideration”) with the CUSIP
\nnumbers, if any, selected by Remarketing Agent described in changes (i) and (ii)
\nof the definition of Remarketing Value related to the Capital Securities that
\nwere remarketed. On or prior to the third Business Day following the Remarketing
\nDate, the Remarketing Agent shall deliver such Treasury Consideration to the
\nAgent, which shall thereupon deliver such Treasury Consideration to the
\nCollateral Agent. The Collateral Agent, for the benefit of the Company, will
\nthereupon apply such Treasury Consideration, in accordance with the Pledge
\nAgreement, to secure such Holders’ obligations under the Purchase Contracts. The
\nRemarketing Agent will deduct as a remarketing fee an amount not exceeding 25
\nbasis points (.25%) of the total proceeds from the remarketing. The Remarketing
\nAgent will remit the remaining portion of the proceeds, if any, to the Agent for
\nthe benefit of the Holders of the Normal Units on or prior to the third Business
\nDay following the Remarketing Date. Holders of Normal Units whose Capital
\nSecurities are so remarketed will not otherwise be responsible for the payment
\nof any Remarketing Fee in connection therewith.<\/p>\n
The “Remarketing Value” means the sum of (i) the value at the
\nRemarketing Date or the Subsequent Remarketing Date, as the case may be, of U.S.
\nTreasury securities that will pay, on or prior to the Quarterly Payment Date
\nfalling on the Stock Purchase Date, an amount of cash equal to the aggregate
\ndistributions that are scheduled to be payable on that Quarterly Payment Date,
\non the Capital Securities which are included in Normal Units and which are
\nparticipating in the remarketing, assuming for that purpose that (x) no
\ndistribution payment on the Capital Securities will then have been deferred and
\n(y) the distribution rate on the Capital Securities is equal to the Coupon Rate,
\n(ii) the value at the Remarketing Date or the Subsequent Remarketing Date, as
\nthe case may be, of U.S. Treasury securities that will pay, on or prior to the
\nStock Purchase Date, an amount of cash equal to the Stated Amount of such
\nCapital Securities that are included in Normal Units and which are participating
\nin the remarketing, and (iii) if distribution payments on the Capital Securities
\nare then being deferred, the amount equal to the aggregate unpaid distribution
\npayments on the Capital Securities that are included in Normal Units and which
\nare participating in the remarketing accrued to the third business day following
\nthe Remarketing Date or the Subsequent Remarketing Date, as the case may be;
\nprovided that for purposes of clauses (i), above, the Remarketing Value shall be
\ncalculated on the assumptions that (x) the U.S. Treasury securities are highly
\nliquid and mature on or within 35 days prior to the Stock Purchase Date, as
\ndetermined in good faith by the Remarketing Agent in a manner intended to
\nminimize the Remarketing Value, and<\/p>\n
34
\n 40
\n(y) the U.S. Treasury securities are valued based on the ask-side price of the
\nTreasury securities at a time between 9:00 a.m. and 11:00 a.m., New York City
\ntime, selected by the Remarketing Agent, on the Remarketing Date or Subsequent
\nRemarketing Date, as the case may be, as determined on a third-day settlement
\nbasis by a reasonably and customary means selected in good faith by the
\nRemarketing Agent, plus accrued interest to that date.<\/p>\n
(ii) If, in spite of using its reasonable best efforts, the
\nRemarketing Agent cannot remarket the related Capital Securities of such Holders
\nof Normal Units at a price equal to 100.5% of the Remarketing Value, the
\nremarketing will be deemed to have failed (a “Failed Remarketing”). If a Failed
\nRemarketing occurs, within three Business Days following the Remarketing Date,
\nthe Remarketing Agent shall return any Capital Securities delivered to it to the
\nCollateral Agent. The Remarketing Agent may make one or more attempts to
\nremarket the Capital Securities in accordance with the procedures set forth in
\nthis Section 5.2(b) and the Remarketing Agreement between the Remarketing Date
\nand __ Business Days before the Stock Purchase Date. If by the Stock Purchase
\nDate the Remarketing Agent has failed to remarket the Capital Securities at
\n100.5% of the Remarketing Value, in accordance with the terms of the Pledge
\nAgreement the Collateral Agent, for the benefit of the Company, may exercise its
\nrights as a secured party with respect to such Capital Securities, including
\nthose actions specified in (b) (iii) below; provided, that if upon a Failed
\nRemarketing, the Collateral Agent exercises such rights for the benefit of the
\nCompany with respect to such Capital Securities, any accumulated and unpaid
\ndistributions on such Capital Securities will become payable by the Company to
\nthe Agent for payment to the Holder of the Normal Units to which such Capital
\nSecurities relates. Such payment will be made by the Company on or prior to 11
\na.m., New York City time, on the Stock Purchase Date in lawful money of the
\nUnited States by certified or cashiers’ check or wire transfer in immediately
\navailable funds payable to or upon the order of the Agent. The Company will
\ncause a notice of any Failed Remarketing to be published on the second Business
\nDay following the Remarketing Date and any Subsequent Remarketing Date, as the
\ncase may be, in a daily newspaper in the English language of general circulation
\nin The City of New York, which is expected to be The Wall Street Journal.<\/p>\n
(iii) With respect to any Capital Securities which are subject to a
\nFailed Remarketing, the Collateral Agent for the benefit of the Company reserves
\nall of its rights as a secured party with respect thereto and, subject to
\napplicable law and paragraph (e) below, may, among other things, (x) retain the
\nCapital Securities in full satisfaction of the Holders obligations under the
\nPurchase Contracts or (y) sell the Capital Securities in one or more public or
\nprivate sales.<\/p>\n
35
\n 41
\n (iv) A Holder of Normal Units may elect not to participate in the
\nremarketing and retain the Capital Securities underlying such Units by notifying
\nthe Agent of such election and delivering the specific U.S. Treasury security or
\nsecurities (the “Non-Remarketed Treasury Consideration”) (including the CUSIP
\nnumber and\/or the principal terms of such security or securities) identified by
\nthe Agent that constitute the U.S. Treasury securities described in clauses (i)
\nand (ii) of the definition of Remarketing Value relating to the retained Capital
\nSecurities (as if such Capital Securities were being remarketed) to the Agent
\nnot later than 10:00 a.m. on the fourth Business Day prior to the Remarketing
\nDate (or, in the case of a Failed Remarketing, not later than 10:00 a.m. on the
\nBusiness Day immediately prior to the Subsequent Remarketing Date). Upon receipt
\nthereof by the Agent, the Agent shall deliver such Treasury Consideration to the
\nCollateral Agent, which will, for the benefit of the Company, thereupon apply
\nsuch Treasury Consideration to secure such Holder’s obligations under the
\nPurchase Contracts. On the first Business Day immediately preceding the
\nRemarketing Date, the Collateral Agent, pursuant to the terms of the Pledge
\nAgreement, will deliver the Pledged Capital Securities of such Holder to the
\nAgent. Within three Business Days following the Remarketing Date, (i) if the
\nremarketing was successful, the Agent shall distribute such Capital Securities
\nto the Holders thereof, and (ii) if there was a Failed Remarketing on such date,
\nthe Agent will deliver such Capital Securities to the Collateral Agent, which
\nwill, for the benefit of the Company, thereupon apply such Capital Securities to
\nsecure such Holders’ obligations under the Purchase Contracts. A Holder that
\ndoes not so deliver the appropriate Treasury Consideration pursuant to this
\nclause (iv) shall be deemed to have elected to participate in the remarketing.<\/p>\n
(c) Upon the maturity of the Pledged Treasury Securities underlying
\nthe Stripped Units and the Pledged Treasury Consideration underlying the Normal
\nUnits, on the Stock Purchase Date, the Collateral Agent shall remit to the
\nCompany an amount equal to the aggregate Purchase Price applicable to such Units
\nas payment for the Common Stock issuable upon settlement thereof without
\nreceiving any instructions from the Holders of such Units. In the event the
\npayments in respect of the Pledged Treasury Securities or the Pledged Treasury
\nConsideration, underlying a Unit is in excess of the Purchase Price of the
\nPurchase Contract being settled thereby, the Collateral Agent will distribute
\nsuch excess to the Agent for the benefit of the Holder of such Unit when
\nreceived.<\/p>\n
(d) Any distribution to Holders of excess funds and interest
\ndescribed above shall be payable at the office of the Agent in The City of New
\nYork maintained for that purpose or, at the option of the Holder, by check
\nmailed to the address of the Person entitled thereto at such address as it
\nappears on the Register or by wire transfer to an account specified by the
\nHolder.<\/p>\n
36
\n 42
\n (e) The obligations of each Holder to pay the Purchase Price are
\nnon-recourse obligations and except to the extent paid by Early Settlement or
\nMerger Early Settlement, are payable solely out of the proceeds of any
\nCollateral pledged to secure the obligations of the Holders and in no event will
\nHolders be liable for any deficiency between such payments and the Purchase
\nPrice.<\/p>\n
(f) Notwithstanding anything to the contrary herein, the Company
\nshall not be obligated to issue any Common Stock in respect of a Purchase
\nContract or deliver any certificates therefor to the Holder of the related Unit
\nunless the Company shall have received payment in full of the aggregate Purchase
\nPrice for the shares of Common Stock to be purchased thereunder by such Holder
\nin the manner herein set forth.<\/p>\n
Section 5.3 Issuance of Shares of Common Stock. Unless a Termination
\nEvent shall have occurred on or prior to the Stock Purchase Date or an Early
\nSettlement or a Merger Early Settlement shall have occurred, on the Stock
\nPurchase Date, upon its receipt of payment in full of the Purchase Price for the
\nshares of Common Stock purchased by the Holders pursuant to the foregoing
\nprovisions of this Article and subject to Section 5.4(b), the Company shall
\nissue and deposit with the Agent, for the benefit of the Holders of the
\nOutstanding Securities, one or more certificates representing the newly issued
\nshares of Common Stock registered in the name of the Agent (or its nominee) as
\ncustodian for the Holders (such certificates for shares of Common Stock,
\ntogether with any dividends or distributions for which a record date and payment
\ndate for such dividend or distribution has occurred after the Stock Purchase
\nDate, being hereinafter referred to as the “Purchase Contract Settlement Fund”)
\nto which the Holders are entitled hereunder. Subject to the foregoing, upon
\nsurrender of a Certificate to the Agent on or after the Stock Purchase Date,
\ntogether with settlement instructions thereon duly completed and executed, the
\nHolder of such Certificate shall be entitled to receive in exchange therefor a
\ncertificate representing that number of whole shares of Common Stock which such
\nHolder is entitled to receive pursuant to the provisions of this Article V
\n(after taking into account all Units then held by such Holder) together with
\ncash in lieu of fractional shares as provided in Section 5.10 and any dividends
\nor distributions with respect to such shares constituting part of the Purchase
\nContract Settlement Fund, but without any interest thereon, and the Certificate
\nso surrendered shall forthwith be cancelled. Such shares shall be registered in
\nthe name of the Holder or the Holder’s designee as specified in the settlement
\ninstructions provided by the Holder to the Agent. If any shares of Common Stock
\nissued in respect of a Purchase Contract are to be registered to a Person other
\nthan the Person in whose name the Certificate evidencing such Purchase Contract
\nis registered, no such registration shall be made unless the Person requesting
\nsuch registration has paid any transfer and other taxes required by reason of
\nsuch registration in a name other than that of the registered Holder of such
\nCertificate or has established to the satisfaction of the Company that such tax
\neither has been paid or is not payable.<\/p>\n
37
\n 43
\n Section 5.4 Adjustment of Settlement Rate. (a) Adjustments for
\nDividends, Distributions, Stock Splits, Etc. (1) In case the Company shall pay
\nor make a dividend or other distribution on the Common Stock in Common Stock,
\nthe Settlement Rate, as in effect at the opening of business on the day
\nfollowing the date fixed for the determination of stockholders entitled to
\nreceive such dividend or other distribution shall be increased by dividing such
\nSettlement Rate by a fraction of which the numerator shall be the number of
\nshares of Common Stock outstanding at the close of business on the date fixed
\nfor such determination and the denominator shall be the sum of such number of
\nshares and the total number of shares constituting such dividend or other
\ndistribution, such increase to become effective immediately after the opening of
\nbusiness on the day following the date fixed for such determination. For the
\npurposes of this paragraph (1), the number of shares of Common Stock at the time
\noutstanding shall not include shares held in the treasury of the Company but
\nshall include any shares issuable in respect of any scrip certificates issued in
\nlieu of fractions of shares of Common Stock. The Company will not pay any
\ndividend or make any distribution on shares of Common Stock held in the treasury
\nof the Company.<\/p>\n
(2) In case the Company shall issue rights, options or warrants to
\nall holders of its Common Stock (not being available on an equivalent basis to
\nHolders of the Units upon settlement of the Purchase Contracts underlying such
\nUnits) entitling them, for a period expiring within 45 days after the record
\ndate for the determination of stockholders entitled to receive such rights,
\noptions or warrants, to subscribe for or purchase shares of Common Stock at a
\nprice per share less than the Current Market Price per share of the Common Stock
\non the date fixed for the determination of stockholders entitled to receive such
\nrights, options or warrants (other than pursuant to a dividend reinvestment
\nplan), the Settlement Rate in effect at the opening of business on the day
\nfollowing the date fixed for such determination shall be increased by dividing
\nsuch Settlement Rate by a fraction, the numerator of which shall be the number
\nof shares of Common Stock outstanding at the close of business on the date fixed
\nfor such determination plus the number of shares of Common Stock which the
\naggregate of the offering price of the total number of shares of Common Stock so
\noffered for subscription or purchase would purchase at such Current Market Price
\nand the denominator of which shall be the number of shares of Common Stock
\noutstanding at the close of business on the date fixed for such determination
\nplus the number of shares of Common Stock so offered for subscription or
\npurchase, such increase to become effective immediately after the opening of
\nbusiness on the day following the date fixed for such determination. For the
\npurposes of this paragraph (2), the number of shares of Common Stock at any time
\noutstanding shall not include shares held in the treasury of the Company but
\nshall include any shares issuable in respect of any scrip certificates issued in
\nlieu of fractions of shares of Common Stock. The Company shall not issue any
\nsuch rights, options or warrants in respect of shares of Common Stock held in
\nthe treasury of the Company.<\/p>\n
38
\n 44
\n (3) In case outstanding shares of Common Stock shall be subdivided or
\nsplit into a greater number of shares of Common Stock, the Settlement Rate in
\neffect at the opening of business on the day following the day upon which such
\nsubdivision or split becomes effective shall be proportionately increased, and,
\nconversely, in case outstanding shares of Common Stock shall each be combined
\ninto a smaller number of shares of Common Stock, the Settlement Rate in effect
\nat the opening of business on the day following the day upon which such
\ncombination becomes effective shall be proportionately reduced, such increase or
\nreduction, as the case may be, to become effective immediately after the opening
\nof business on the day following the day upon which such subdivision, split or
\ncombination becomes effective.<\/p>\n
(4) In case the Company shall, by dividend or otherwise, distribute
\nto all holders of its Common Stock evidences of its indebtedness or assets
\n(including securities, but excluding any rights or warrants referred to in
\nparagraph (2) of this Section, any dividend or distribution paid exclusively in
\ncash and any dividend or distribution referred to in paragraph (1) of this
\nSection), the Settlement Rate shall be adjusted so that the same shall equal the
\nrate determined by dividing the Settlement Rate in effect immediately prior to
\nthe close of business on the date fixed for the determination of stockholders
\nentitled to receive such distribution by a fraction, the numerator of which
\nshall be the Current Market Price per share of the Common Stock on the date
\nfixed for such determination less the then fair market value (as determined by
\nthe Board of Directors, whose determination shall be conclusive and described in
\na Board Resolution filed with the Agent) of the portion of the assets or
\nevidences of indebtedness so distributed applicable to one share of Common Stock
\nand the denominator of which shall be such Current Market Price per share of the
\nCommon Stock, such adjustment to become effective immediately prior to the
\nopening of business on the day following the date fixed for the determination of
\nstockholders entitled to receive such distribution. In any case in which this
\nparagraph (4) is applicable, paragraph (2) of this Section shall not be
\napplicable.<\/p>\n
(5) In case the Company shall, (i) by dividend or otherwise,
\ndistribute to all holders of its Common Stock cash (excluding any cash that is
\ndistributed in a Reorganization Event to which Section 5.4(b) applies or as
\npart of a distribution referred to in paragraph (4) of this Section) in an
\naggregate amount that, combined together with (ii) the aggregate amount of any
\nother distributions to all holders of its Common Stock made exclusively in cash
\nwithin the 12 months preceding the date of payment of such distribution and in
\nrespect of which no adjustment pursuant to this paragraph (5) or paragraph (6)
\nof this Section has been made and (iii) the aggregate of any cash plus the fair
\nmarket value (as determined by the Board of Directors, whose determination shall
\nbe conclusive and described in a Board Resolution) of consideration payable in
\nrespect of any tender or exchange offer by the Company or any of its
\nsubsidiaries for all or any portion of the Common Stock concluded within the 12
\nmonths preceding the date of payment of the<\/p>\n
39
\n 45
\ndistribution described in clause (i) above and in respect of which no adjustment
\npursuant to this paragraph (5) or paragraph (6) of this Section has been made,
\nexceeds 15% of the product of the Current Market Price per share of the Common
\nStock on the date for the determination of holders of shares of Common Stock
\nentitled to receive such distribution times the number of shares of Common Stock
\noutstanding on such date, then, and in each such case, immediately after the
\nclose of business on such date for determination, the Settlement Rate shall be
\nincreased so that the same shall equal the rate determined by dividing the
\nSettlement Rate in effect immediately prior to the close of business on the date
\nfixed for determination of the stockholders entitled to receive such
\ndistribution by a fraction (i) the numerator of which shall be equal to the
\nCurrent Market Price per share of the Common Stock on the date fixed for such
\ndetermination less an amount equal to the quotient of (x) the combined amount
\ndistributed or payable in the transactions described in clauses (i), (ii) and
\n(iii) above and (y) the number of shares of Common Stock outstanding on such
\ndate for determination and (ii) the denominator of which shall be equal to the
\nCurrent Market Price per share of the Common Stock on such date for
\ndetermination.<\/p>\n
(6) In case (i) a tender or exchange offer made by the Company or any
\nsubsidiary of the Company for all or any portion of the Common Stock shall
\nexpire and such tender or exchange offer (as amended upon the expiration
\nthereof) shall require the payment to stockholders (based on the acceptance (up
\nto any maximum specified in the terms of the tender or exchange offer) of
\nPurchased Shares) of an aggregate consideration having a fair market value (as
\ndetermined by the Board of Directors, whose determination shall be conclusive
\nand described in a Board Resolution) that combined together with (ii) the
\naggregate of the cash plus the fair market value (as determined by the Board of
\nDirectors, whose determination shall be conclusive and described in a Board
\nResolution), as of the expiration of such tender or exchange offer, of
\nconsideration payable in respect of any other tender or exchange offer, by the
\nCompany or any subsidiary of the Company for all or any portion of the Common
\nStock expiring within the 12 months preceding the expiration of such tender or
\nexchange offer and in respect of which no adjustment pursuant to paragraph (5)
\nof this Section or this paragraph (6) has been made and (iii) the aggregate
\namount of any distributions to all holders of the Company’s Common Stock made
\nexclusively in cash within the 12 months preceding the expiration of such tender
\nor exchange offer and in respect of which no adjustment pursuant to paragraph
\n(5) of this Section or this paragraph (6) has been made, exceeds 15% of the
\nproduct of the Current Market Price per share of the Common Stock as of the last
\ntime (the “Expiration Time”) tenders could have been made pursuant to such
\ntender or exchange offer (as it may be amended) times the number of shares of
\nCommon Stock outstanding (including any tendered shares) on the Expiration Time,
\nthen, and in each such case, immediately prior to the opening of business on the
\nday after the date of the Expiration Time, the Settlement Rate shall be adjusted
\nso that the same shall equal the rate determined by dividing the Settlement Rate
\nimmediately prior to the close of business on the date of the Expiration<\/p>\n
40
\n 46
\nTime by a fraction (i) the numerator of which shall be equal to (A) the product
\nof (i) the Current Market Price per share of the Common Stock on the date of the
\nExpiration Time and (ii) the number of shares of Common Stock outstanding
\n(including any tendered shares) on the Expiration Time less (B) the amount of
\ncash plus the fair market value (determined as aforesaid) of the aggregate
\nconsideration payable to stockholders based on the transactions described in
\nclauses (I), (II) and (III) above (assuming in the case of clause (i) the
\nacceptance, up to any maximum specified in the terms of the tender or exchange
\noffer, of Purchased Shares), and (ii) the denominator of which shall be equal to
\nthe product of (A) the Current Market Price per share of the Common Stock as of
\nthe Expiration Time and (B) the number of shares of Common Stock outstanding
\n(including any tendered shares) as of the Expiration Time less the number of all
\nshares validly tendered and not withdrawn as of the Expiration Time (the shares
\ndeemed so accepted, up to any such maximum, being referred to as the “Purchased
\nShares”).<\/p>\n
(7) The reclassification of Common Stock into securities including
\nsecurities other than Common Stock (other than any reclassification upon a
\nReorganization Event to which Section 5.4(b) applies) shall be deemed to involve
\n(a) a distribution of such securities other than Common Stock to all holders of
\nCommon Stock (and the effective date of such reclassification shall be deemed to
\nbe “the date fixed for the determination of stockholders entitled to receive
\nsuch distribution” and the “date fixed for such determination” within the
\nmeaning of paragraph (4) of this Section), and (b) a subdivision, split or
\ncombination, as the case may be, of the number of shares of Common Stock
\noutstanding immediately prior to such reclassification into the number of shares
\nof Common Stock outstanding immediately thereafter (and the effective date of
\nsuch reclassification shall be deemed to be “the day upon which such subdivision
\nor split becomes effective” or “the day upon which such combination becomes
\neffective,” as the case may be, and “the day upon which such subdivision, split
\nor combination becomes effective” within the meaning of paragraph (3) of this
\nSection).<\/p>\n
(8) The “Current Market Price” per share of Common Stock on any day
\nmeans the average of the daily Closing Prices for the 5 consecutive Trading Days
\nselected by the Company commencing not more than 30 Trading Days before, and
\nending not later than, the earlier of the day in question and the day before the
\n“ex date” with respect to the issuance or distribution requiring such
\ncomputation. For purposes of this paragraph, the term “ex date,” when used with
\nrespect to any issuance or distribution, shall mean the first date on which the
\nCommon Stock trades regular way on such exchange or in such market without the
\nright to receive such issuance or distribution.<\/p>\n
(9) All adjustments to the Settlement Rate shall be calculated to the
\nnearest 1\/10,000th of a share of Common Stock (or if there is not a nearest
\n1\/10,000th of a share to the next lower 1\/10,000th of a share). No adjustment in
\nthe Settlement Rate shall be<\/p>\n
41
\n 47
\nrequired unless such adjustment would require an increase or decrease of at
\nleast one percent therein; provided, however, that any adjustments which by
\nreason of this subparagraph are not required to be made shall be carried forward
\nand taken into account in any subsequent adjustment. If an adjustment is made to
\nthe Settlement Rate pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or
\n(10) of this Section 5.4(a), an adjustment shall also be made to the Applicable
\nMarket Value solely to determine which of clauses (a), (b) or (c) of the
\ndefinition of Settlement Rate in Section 5.1 will apply on the Stock Purchase
\nDate. Such adjustment shall be made by multiplying the Applicable Market Value
\nby a fraction, the numerator of which shall be the Settlement Rate immediately
\nafter such adjustment pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or
\n(10) of this Section 5.4(a) and the denominator of which shall be the Settlement
\nRate immediately before such adjustment; provided, however, that if such
\nadjustment to the Settlement Rate is required to be made pursuant to the
\noccurrence of any of the events contemplated by paragraph (1), (2), (3), (4),
\n(5), (7) or (10) of this Section 5.4(a) during the period taken into
\nconsideration for determining the Applicable Market Value, appropriate and
\ncustomary adjustments shall be made to the Settlement Rate.<\/p>\n
(10) The Company may make such increases in the Settlement Rate, in
\naddition to those required by this Section, as it considers to be advisable in
\norder to avoid or diminish any income tax to any holders of shares of Common
\nStock resulting from any dividend or distribution of stock or issuance of rights
\nor warrants to purchase or subscribe for stock or from any event treated as such
\nfor income tax purposes or for any other reasons.<\/p>\n
(b) Adjustment for Consolidation, Merger or Other Reorganization
\nEvent. In the event of (i) any consolidation or merger of the Company with or
\ninto another Person (other than a merger or consolidation in which the Company
\nis the continuing corporation and in which the Common Stock outstanding
\nimmediately prior to the merger or consolidation is not exchanged for cash,
\nsecurities or other property of the Company or another corporation), (ii) any
\nsale, transfer, lease or conveyance to another Person of the property of the
\nCompany as an entirety or substantially as an entirety, (iii) any statutory
\nexchange of securities of the Company with another Person (other than in
\nconnection with a merger or acquisition) or (iv) any liquidation, dissolution or
\nwinding up of the Company other than as a result of or after the occurrence of a
\nTermination Event (any such event, a “Reorganization Event”), the Settlement
\nRate will be adjusted to provide that each Holder of Units will receive on the
\nStock Purchase Date with respect to each Purchase Contract forming a part
\nthereof, the kind and amount of securities, cash and other property receivable
\nupon such Reorganization Event (without any interest thereon, and without any
\nright to dividends or distribution thereon which have a record date that is
\nprior to the Stock Purchase Date) by a Holder of the number of shares of Common
\nStock issuable on account of each Purchase Contract if the Stock Purchase Date
\nhad occurred immediately<\/p>\n
42
\n 48
\nprior to such Reorganization Event assuming such Holder of Common Stock is not a
\nPerson with which the Company consolidated or into which the Company merged or
\nwhich merged into the Company or to which such sale or transfer was made, as the
\ncase may be (any such Person, a “Constituent Person”), or an Affiliate of a
\nConstituent Person to the extent such Reorganization Event provides for
\ndifferent treatment of Common Stock held by Affiliates of the Company and
\nnon-Affiliates and such Holder failed to exercise his rights of election, if
\nany, as to the kind or amount of securities, cash and other property receivable
\nupon such Reorganization Event (provided that if the kind or amount of
\nsecurities, cash and other property receivable upon such Reorganization Event is
\nnot the same for each share of Common Stock held immediately prior to such
\nReorganization Event by other than a Constituent Person or an Affiliate thereof
\nand in respect of which such rights of election shall not have been exercised
\n(“non-electing share”), then for the purpose of this Section the kind and amount
\nof securities, cash and other property receivable upon such Reorganization Event
\nby each non-electing share shall be deemed to be the kind and amount so
\nreceivable per share by a plurality of the non-electing shares). In the event of
\nsuch a Reorganization Event, the Person formed by such consolidation, merger or
\nexchange or the Person which acquires the assets of the Company or, in the event
\nof a liquidation or dissolution of the Company, the Company or a liquidating
\ntrust created in connection therewith, shall execute and deliver to the Agent an
\nagreement supplemental hereto providing that the Holder of each Outstanding
\nSecurity shall have the rights provided by this Section 5.4. Such supplemental
\nagreement shall provide for adjustments which, for events subsequent to the
\neffective date of such supplemental agreement, shall be as nearly equivalent as
\nmay be practicable to the adjustments provided for in this Section. The above
\nprovisions of this Section shall similarly apply to successive Reorganization
\nEvents.<\/p>\n
Section 5.5 Notice of Adjustments and Certain Other Events. (a)
\nWhenever the Settlement Rate is adjusted as herein provided, the Company shall:<\/p>\n
(i) forthwith compute the Settlement Rate in accordance with Section
\n 5.4 and prepare and transmit to the Agent an Officer’s Certificate setting
\n forth the Settlement Rate, the method of calculation thereof in reasonable
\n detail, and the facts requiring such adjustment and upon which such
\n adjustment is based; and<\/p>\n
(ii) within 10 Business Days following the occurrence of an event
\n that requires an adjustment to the Settlement Rate pursuant to Section 5.4
\n (or if the Company is not aware of such occurrence, as soon as practicable
\n after becoming so aware), provide a written notice to the Holders of the
\n Units of the occurrence of such event and a statement in reasonable detail
\n setting forth the method by which the adjustment to the Settlement Rate
\n was determined and setting forth the adjusted Settlement Rate.<\/p>\n
43
\n 49
\n (b) The Agent shall not at any time be under any duty or
\nresponsibility to any Holder of Units to determine whether any facts exist which
\nmay require any adjustment of the Settlement Rate, or with respect to the nature
\nor extent or calculation of any such adjustment when made, or with respect to
\nthe method employed in making the same. The Agent shall not be accountable with
\nrespect to the validity or value (or the kind or amount) of any shares of Common
\nStock, or of any securities or property, which may at the time be issued or
\ndelivered with respect to any Purchase Contract; and the Agent makes no
\nrepresentation with respect thereto. The Agent shall not be responsible for any
\nfailure of the Company to issue, transfer or deliver any shares of Common Stock
\npursuant to a Purchase Contract or to comply with any of the duties,
\nresponsibilities or covenants of the Company contained in this Article.<\/p>\n
Section 5.6 Termination Event; Notice. The Purchase Contracts and all
\nobligations and rights of the Company and the Holders thereunder, including the
\nrights and obligations of Holders to purchase Common Stock, shall immediately
\nand automatically terminate, without the necessity of any notice or action by
\nany Holder, the Agent or the Company, if, on or prior to the Stock Purchase
\nDate, a Termination Event shall have occurred. Upon and after the occurrence of
\na Termination Event, the Normal Units shall thereafter represent the right to
\nreceive the Capital Securities or the appropriate Treasury Consideration, as the
\ncase may be, forming a part of such Normal Units, and the Stripped Units shall
\nthereafter represent the right to receive the Treasury Securities forming a part
\nof such Stripped Units, in each case in accordance with the provisions of
\nSection 4.3 of the Pledge Agreement. Upon the occurrence of a Termination Event,
\nthe Company shall promptly but in no event later than two Business Days
\nthereafter give written notice to the Agent, the Collateral Agent and to the
\nHolders, at their addresses as they appear in the Register.<\/p>\n
Section 5.7 Early Settlement. (a) Subject to and upon compliance with
\nthe provisions of this Section 5.7, Purchase Contracts underlying Units having
\nan aggregate Stated Amount equal to $1,000 or an integral multiple thereof, may,
\nat the option of the Holder thereof, be settled early (“Early Settlement”) on or
\nprior to the seventh Business Day immediately preceding the Remarketing Date or
\nany Subsequent Remarketing Date. In order to exercise the right to effect Early
\nSettlement with respect to any Purchase Contracts, the Holder of the Certificate
\nevidencing the related Units shall deliver such Certificate to the Agent at the
\nCorporate Trust office duly endorsed for transfer to the Company or in blank
\nwith the form of Election to Settle Early on the reverse thereof duly completed
\nand accompanied by payment (payable to the Company in immediately available
\nfunds in an amount (the “Early Settlement Amount”) equal to the product of (A)
\nthe Stated Amount of such Units times (B) the number of Purchase Contracts with
\nrespect to which the Holder has elected to effect Early Settlement. No payment
\nor adjustment shall be made upon Early Settlement of any Purchase Contract on
\naccount of any dividends on<\/p>\n
44
\n 50
\nthe Common Stock issued upon such Early Settlement. If the foregoing
\nrequirements are first satisfied with respect to Purchase Contracts underlying
\nany Unit at or prior to 5:00 p.m., New York City time, on a Business Day, such
\nday shall be the “Early Settlement Date” with respect to such Unit and if such
\nrequirements are first satisfied after 5:00 p.m., New York City time, on a
\nBusiness Day or on a day that is not a Business Day, the “Early Settlement Date”
\nwith respect to such Units shall be the next succeeding Business Day.<\/p>\n
(b) Upon Early Settlement of any Purchase Contract by the Holder of
\nthe related Units, the Company shall issue, and the Holder shall be entitled to
\nreceive, – shares of Common Stock on account of such Purchase Contract (the
\n“Early Settlement Rate”). The Early Settlement Rate shall be adjusted in the
\nsame manner and at the same time as the Settlement Rate is adjusted. As promptly
\nas practicable after Early Settlement of Purchase Contracts in accordance with
\nthe provisions of this Section 5.7, the Company shall issue and shall deliver to
\nthe Agent at the Corporate Trust Office a certificate or certificates for the
\nfull number of shares of Common Stock issuable upon such Early Settlement
\ntogether with payment in lieu of any fraction of a share, as provided in Section
\n5.10.<\/p>\n
(c) No later than the third Business Day after the applicable Early
\nSettlement Date the Company shall cause (i) the shares of Common Stock issuable
\nupon Early Settlement of Purchase Contracts to be issued and delivered, and (ii)
\nthe related Pledged Capital Securities or Pledged Treasury Consideration, in the
\ncase of Normal Units, or the related Pledged Treasury Securities, in the case of
\nStripped Units, to be released from the Pledge by the Collateral Agent and
\ntransferred, in each case, to the Agent for delivery to the Holder thereof or
\nthe Holder’s designee.<\/p>\n
(d) Upon Early Settlement of any Purchase Contracts, and subject to
\nreceipt of shares of Common Stock from the Company and the Pledged Capital
\nSecurities, Pledged Treasury Consideration or Pledged Treasury Securities, as
\nthe case may be, from the Collateral Agent, as applicable, the Agent shall, in
\naccordance with the instructions provided by the Holder thereof on the
\napplicable form of Election to Settle Early on the reverse of the Certificate
\nevidencing the related Units, (i) transfer to the Holder the Pledged Capital
\nSecurities, Pledged Treasury Consideration or Pledged Treasury Securities, as
\nthe case may be, forming a part of such Units, and (ii) deliver to the Holder a
\ncertificate or certificates for the full number of shares of Common Stock
\nissuable upon such Early Settlement together with payment in lieu of any
\nfraction of a share, as provided in Section 5.10.<\/p>\n
(e) In the event that Early Settlement is effected with respect to
\nPurchase Contracts underlying less than all the Units evidenced by a
\nCertificate, upon such Early Settlement the Company shall execute and the Agent
\nshall authenticate, countersign and<\/p>\n
45
\n 51
\ndeliver to the Holder thereof, at the expense of the Company, a Certificate
\nevidencing the Units as to which Early Settlement was not effected.<\/p>\n
Section 5.8 Early Settlement Upon Merger. (a) In the event of a
\nmerger or consolidation of the Company of the type described in clause (i) of
\nSection 5.4(b) in which the Common Stock outstanding immediately prior to such
\nmerger or consolidation is exchanged for consideration consisting of at least
\n30% cash or cash equivalents (any such event a “Cash Merger”), then the Company
\n(or the successor to the Company hereunder) shall be required to offer the
\nHolder of each Unit the right to settle the Purchase Contract underlying such
\nUnit prior to the Stock Purchase Date (“Merger Early Settlement”) as provided
\nherein. On or before the fifth Business Day after the consummation of a Cash
\nMerger, the Company or, at the request and expense of the Company, the Agent,
\nshall give all Holders notice of the occurrence of the Cash Merger and of the
\nright of Merger Early Settlement arising as a result thereof. The Company shall
\nalso deliver a copy of such notice to the Agent and the Collateral Agent.<\/p>\n
Each such notice shall contain:<\/p>\n
(i) the date, which shall be not less than 20 nor more
\n than 30 calendar days after the date of such notice, on which the
\n Merger Early Settlement will be effected (the “Merger Early
\n Settlement Date”);<\/p>\n
(ii) the date, which shall be three Business Days prior to
\n the Merger Early Settlement Date, by which the Merger Early
\n Settlement right must be exercised;<\/p>\n
(iii) the Settlement Rate in effect as a result of such
\n Cash Merger and the kind and amount of securities, cash and other
\n property receivable by the Holder upon settlement of each Purchase
\n Contract pursuant to Section 5.4(b);<\/p>\n
(iv) a statement to the effect that all or a portion of
\n the Purchase Price payable by the Holder to settle the Purchase
\n Contract will be offset against the amount of cash so receivable upon
\n exercise of Merger Early Settlement, as applicable; and<\/p>\n
(v) the instructions a Holder must follow to exercise the
\n Merger Early Settlement right.<\/p>\n
(b) To exercise a Merger Early Settlement right, a Holder shall
\ndeliver to the Agent at the Corporate Trust Office on or before 5:00 p.m., New
\nYork City time on the date specified in the notice the Certificate(s) evidencing
\nthe Units with respect to which<\/p>\n
46
\n 52
\nthe Merger Early Settlement right is being exercised duly endorsed for transfer
\nto the Company or in blank with the form of Election to Settle Early on the
\nreverse thereof duly completed and accompanied by payment (payable to the
\nCompany in immediately available funds in an amount equal to the Early
\nSettlement Amount less the amount of cash that otherwise would be deliverable by
\nthe Company or its successor upon settlement of the Purchase Contract in lieu of
\nCommon Stock pursuant to Section 5.4(b) and as described in the notice to
\nHolders (the “Merger Early Settlement Amount”).<\/p>\n
(c) On the Merger Early Settlement Date the Company shall deliver or
\ncause to be delivered (i) the net cash, securities and other property to be
\nreceived by such exercising Holder, equal to the Settlement Rate as adjusted
\npursuant to Section 5.4, in respect of the number of Purchase Contracts for
\nwhich such Merger Early Settlement right was exercised, and (ii) the related
\nPledged Capital Securities or Pledged Treasury Consideration, in the case of
\nNormal Units, or Pledged Treasury Securities, in the case of Stripped Units, to
\nbe released from the Pledge by the Collateral Agent and transferred, in each
\ncase, to the Agent for delivery to the Holder thereof or its designee. In the
\nevent a Merger Early Settlement right shall be exercised by a Holder in
\naccordance with the terms hereof, all references herein to Stock Purchase Date
\nshall be deemed to refer to such Merger Early Settlement Date.<\/p>\n
(d) Upon Merger Early Settlement of any Purchase Contracts, and
\nsubject to receipt of such net cash, securities or other property from the
\nCompany and the Pledged Capital Securities, Pledged Treasury Consideration or
\nPledged Treasury Securities, as the case may be, from the Collateral Agent, as
\napplicable, the Agent shall, in accordance with the instructions provided by the
\nHolder thereof on the applicable form of Election to Settle Early on the reverse
\nof the Certificate evidencing the related Units, (i) transfer to the Holder the
\nPledged Capital Securities, Pledged Treasury Consideration or Pledged Treasury
\nSecurities, as the case may be, forming a part of such Units, and (ii) deliver
\nto the Holder such net cash, securities or other property issuable upon such
\nMerger Early Settlement together with payment in lieu of any fraction of a
\nshare, as provided in Section 5.10.<\/p>\n
(e) In the event that Merger Early Settlement is effected with
\nrespect to Purchase Contracts underlying less than all the Units evidenced by a
\nCertificate, upon such Merger Early Settlement the Company (or the successor to
\nthe Company hereunder) shall execute and the Agent shall authenticate,
\ncountersign and deliver to the Holder thereof, at the expense of the Company, a
\nCertificate evidencing the Units as to which Merger Early Settlement was not
\neffected.<\/p>\n
Section 5.9 Charges and Taxes. The Company will pay all stock
\ntransfer and similar taxes attributable to the initial issuance and delivery of
\nthe shares of Common<\/p>\n
47
\n 53
\nStock pursuant to the Purchase Contracts; provided, however, that the Company
\nshall not be required to pay any such tax or taxes which may be payable in
\nrespect of any exchange of or substitution for a Certificate evidencing a Unit
\nor any issuance of a share of Common Stock in a name other than that of the
\nregistered Holder of a Certificate surrendered in respect of the Units evidenced
\nthereby, other than in the name of the Agent, as custodian for such Holder, and
\nthe Company shall not be required to issue or deliver such share certificates or
\nCertificates unless and until the Person or Persons requesting the transfer or
\nissuance thereof shall have paid to the Company the amount of such tax or shall
\nhave established to the satisfaction of the Company that such tax has been paid.<\/p>\n
Section 5.10 No Fractional Shares. No fractional shares or scrip
\nrepresenting fractional shares of Common Stock shall be issued or delivered upon
\nsettlement on the Stock Purchase Date or upon Early Settlement or Merger Early
\nSettlement of any Purchase Contracts. If Certificates evidencing more than one
\nPurchase Contract shall be surrendered for settlement at one time by the same
\nHolder, the number of full shares of Common Stock which shall be delivered upon
\nsettlement shall be computed on the basis of the aggregate number of Purchase
\nContracts evidenced by the Certificates so surrendered. Instead of any
\nfractional share of Common Stock which would otherwise be deliverable upon
\nsettlement of any Purchase Contracts on the applicable Settlement Date or upon
\nEarly Settlement or Merger Early Settlement, the Company, through the Agent,
\nshall make a cash payment in respect of such fractional shares in an amount
\nequal to the value of such fractional shares times the Applicable Market Value.
\nThe Company shall provide the Agent from time to time with sufficient funds to
\npermit the Agent to make all cash payments required by this Section 5.10 in a
\ntimely manner.<\/p>\n
ARTICLE VI<\/p>\n
REMEDIES<\/p>\n
Section 6.1 Unconditional Right of Holders to Purchase Common Stock.
\nThe Holder of any Unit shall have the right, which is absolute and
\nunconditional, to purchase Common Stock pursuant to the Purchase Contract
\nconstituting a part of such Unit and to institute suit for the enforcement of
\nany such right to purchase Common Stock, and such rights shall not be impaired
\nwithout the consent of such Holder.<\/p>\n
Section 6.2 Restoration of Rights and Remedies. If any Holder has
\ninstituted any proceeding to enforce any right or remedy under this Agreement
\nand such proceeding has been discontinued or abandoned for any reason, or has
\nbeen determined adversely to such Holder, then and in every such case, subject
\nto any determination in such proceeding, the Company and such Holder shall be
\nrestored severally and respectively to their former<\/p>\n
48
\n 54
\npositions hereunder and thereafter all rights and remedies of such Holder shall
\ncontinue as though no such proceeding had been instituted.<\/p>\n
Section 6.3 Rights and Remedies Cumulative. Except as otherwise
\nprovided with respect to the replacement or payment of mutilated, destroyed,
\nlost or stolen Certificates in the last paragraph of Section 3.10, no right or
\nremedy herein conferred upon or reserved to the Holders is intended to be
\nexclusive of any other right or remedy, and every right and remedy shall, to the
\nextent permitted by law, be cumulative and in addition to every other right and
\nremedy given hereunder or now or hereafter existing at law or in equity or
\notherwise. The assertion or employment of any right or remedy hereunder, or
\notherwise, shall not prevent the concurrent assertion or employment of any other
\nappropriate right or remedy.<\/p>\n
Section 6.4 Delay or Omission Not Waiver. No delay or omission of any
\nHolder to exercise any right or remedy upon a default shall impair any such
\nright or remedy or constitute a waiver of any such right. Every right and remedy
\ngiven by this Article or by law to the Holders may be exercised from time to
\ntime, and as often as may be deemed expedient, by such Holders.<\/p>\n
Section 6.5 Undertaking for Costs. All parties to this Agreement
\nagree, and each Holder of a Unit, by its acceptance of such Unit shall be deemed
\nto have agreed, that any court may in its discretion require, in any suit for
\nthe enforcement of any right or remedy under this Agreement, or in any suit
\nagainst the Agent for any action taken, suffered or omitted by it as Agent, the
\nfiling by any party litigant in such suit of an undertaking to pay the costs of
\nsuch suit, and that such court may in its discretion assess reasonable costs,
\nincluding reasonable attorneys’ fees, against any party litigant in such suit,
\nhaving due regard to the merits and good faith of the claims or defenses made by
\nsuch party litigant; provided that the provisions of this Section shall not
\napply to any suit instituted by the Company, to any suit instituted by the
\nAgent, to any suit instituted by any Holder, or group of Holders, holding in the
\naggregate more than 10% of the Outstanding Securities, or to any suit instituted
\nby any Holder for the enforcement of distributions on any Capital Securities on
\nany Purchase Contract on or after the respective Payment Date therefor in
\nrespect of any Unit held by such Holder, or for enforcement of the right to
\npurchase shares of Common Stock under the Purchase Contract constituting part of
\nany Unit held by such Holder.<\/p>\n
Section 6.6 Waiver of Stay or Extension Laws. The Company covenants
\n(to the extent that it may lawfully do so) that it will not at any time insist
\nupon, or plead, or in any manner whatsoever claim or take the benefit or
\nadvantage of, any stay or extension law wherever enacted, now or at any time
\nhereafter in force, which may affect the covenants or the performance of this
\nAgreement; and the Company (to the extent that it may lawfully<\/p>\n
49
\n 55
\ndo so) hereby expressly waives all benefit or advantage of any such law and
\ncovenants that it will not hinder, delay or impede the execution of any power
\nherein granted to the Agent or the Holders, but will suffer and permit the
\nexecution of every such power as though no such law had been enacted.<\/p>\n
ARTICLE VII<\/p>\n
THE AGENT<\/p>\n
Section 7.1 Certain Duties and Responsibilities. (a)(1) The Agent
\nundertakes to perform, with respect to the Units, such duties and only such
\nduties as are specifically set forth in this Agreement and the Pledge Agreement,
\nand no implied covenants or obligations shall be read into this Agreement
\nagainst the Agent; and<\/p>\n
(2) in the absence of bad faith, willful misconduct or negligence on
\nits part, the Agent may, with respect to the Units, conclusively rely, as to the
\ntruth of the statements and the correctness of the opinions expressed therein,
\nupon certificates or opinions furnished to the Agent and conforming to the
\nrequirements of this Agreement, but in the case of any certificates or opinions
\nwhich by any provision hereof are specifically required to be furnished to the
\nAgent, the Agent shall be under a duty to examine the same to determine whether
\nor not they conform to the requirements of this Agreement.<\/p>\n
(b) No provision of this Agreement shall be construed to relieve the
\nAgent from liability for its own negligent action, its own negligent failure to
\nact, its own bad faith, or its own willful misconduct, except that:<\/p>\n
(1) this paragraph shall not be construed to limit the effect of
\n paragraph (a) of this Section;<\/p>\n
(2) the Agent shall not be liable for any error of judgment made in
\n good faith by a Responsible Officer, unless it shall be proved that the
\n Agent was negligent in ascertaining the pertinent facts; and<\/p>\n
(3) no provision of this Agreement shall require the Agent to expend
\n or risk its own funds or otherwise incur any financial liability in the
\n performance of any of its duties hereunder, or in the exercise of any of
\n its rights or powers, if adequate indemnity is not provided to it.<\/p>\n
(c) Whether or not therein expressly so provided, every provision of
\nthis Agreement relating to the conduct or affecting the liability of or
\naffording protection to the Agent shall be subject to the provisions of this
\nSection.<\/p>\n
50
\n 56
\n (d) The Agent is authorized to execute and deliver the Pledge
\nAgreement in its capacity as Agent.<\/p>\n
Section 7.2 Notice of Default. Within 30 days after the occurrence of
\nany default by the Company hereunder of which a Responsible Officer of the Agent
\nhas actual knowledge, the Agent shall transmit by mail to the Company and the
\nHolders of Units, as their names and addresses appear in the Register, notice of
\nsuch default hereunder, unless such default shall have been cured or waived.<\/p>\n
Section 7.3 Certain Rights of Agent. Subject to the provisions of
\nSection 7.1:<\/p>\n
(a) the Agent may, in absence of bad faith, conclusively rely and
\n shall be fully protected in acting or refraining from acting upon any
\n resolution, certificate, statement, instrument, opinion, report, notice,
\n request, direction, consent, order, bond, debenture, note, other evidence
\n of indebtedness or other paper or document reasonably believed by it to be
\n genuine (and with respect to certificates, reports, statements and
\n opinions, believed by it to be true and accurate) and to have been signed
\n or presented by the proper party or parties;<\/p>\n
(b) any request or direction of the Company mentioned herein shall be
\n sufficiently evidenced by an Officer’s Certificate, Issuer Order or Issuer
\n Request, and any resolution of the Board of Directors of the Company may
\n be sufficiently evidenced by a Board Resolution;<\/p>\n
(c) whenever in the administration of this Agreement the Agent shall
\n deem it desirable that a matter be proved or established prior to taking,
\n suffering or omitting any action hereunder, the Agent (unless other
\n evidence be herein specifically prescribed) may, in the absence of bad
\n faith on its part, rely upon an Officer’s Certificate of the Company;<\/p>\n
(d) the Agent may consult with counsel and the written advice of such
\n counsel or any Opinion of Counsel shall be full and complete authorization
\n and protection in respect of any action taken, suffered or omitted by it
\n hereunder in good faith and in reliance thereon;<\/p>\n
(e) the Agent shall not be bound to make any investigation into the
\n facts or matters stated in any resolution, certificate, statement,
\n instrument, opinion, report, notice, request, direction, consent, order,
\n bond, debenture, note, other evidence of indebtedness or other paper or
\n document, but the Agent, in its discretion, may make reasonable further
\n inquiry or investigation into such facts or matters related to the
\n execution, delivery and performance of the Purchase Contracts as it may
\n see fit, and,<\/p>\n
51
\n 57
\n if the Agent shall determine to make such further inquiry or
\n investigation, it shall be given a reasonable opportunity to examine the
\n books, records and premises of the Company, personally or by agent or
\n attorney; and<\/p>\n
(f) the Agent may execute any of the powers hereunder or perform any
\n duties hereunder either directly or by or through agents or attorneys or
\n an Affiliate and the Agent shall not be responsible for any misconduct or
\n negligence on the part of any agent or attorney or an Affiliate appointed
\n with due care by it hereunder.<\/p>\n
Section 7.4 Not Responsible for Recitals or Issuance of Units. The
\nrecitals contained herein and in the Certificates shall be taken as the
\nstatements of the Company and the Agent assumes no responsibility for their
\naccuracy. The Agent makes no representations as to the validity or sufficiency
\nof either this Agreement or of the Units, or of the Pledge Agreement or the
\nPledge. The Agent shall not be accountable for the use or application by the
\nCompany of the proceeds in respect of the Purchase Contracts.<\/p>\n
Section 7.5 May Hold Units. Any Registrar or any other agent of the
\nCompany, or the Agent and its Affiliates, in their individual or any other
\ncapacity, may become the owner or pledgee of Units and may otherwise deal with
\nthe Company, the Collateral Agent or any other Person with the same rights it
\nwould have if it were not Registrar or such other agent, or the Agent.<\/p>\n
Section 7.6 Money Held in Custody. Money held by the Agent in custody
\nhereunder need not be segregated from the Agent’s other funds except to the
\nextent required by law or provided herein. The Agent shall be under no
\nobligation to invest or pay interest on any money received by it hereunder
\nexcept as otherwise agreed in writing with the Company.<\/p>\n
Section 7.7 Compensation and Reimbursement. The Company agrees:<\/p>\n
(1) to pay to the Agent from time to time reasonable compensation for
\n all services rendered by it hereunder;<\/p>\n
(2) except as otherwise expressly provided herein, to reimburse the
\n Agent upon its request for all reasonable expenses, disbursements and
\n advances incurred or made by the Agent in accordance with any provision of
\n this Agreement (including the reasonable compensation and the reasonable
\n expenses and disbursements of its agents and counsel), except any such
\n expense, disbursement or advance as may be attributable to its negligence,
\n willful misconduct or bad faith; and<\/p>\n
52
\n 58
\n (3) to indemnify the Agent and any predecessor Agent for, and to hold
\n it harmless against, any loss, liability or expense incurred without
\n negligence, willful misconduct or bad faith on its part, arising out of or
\n in connection with the acceptance or administration of its duties
\n hereunder, including the costs and expenses of defending itself against
\n any claim or liability in connection with the exercise or performance of
\n any of its powers or duties hereunder.<\/p>\n
The provisions of this Section 7.7 shall survive the termination of
\nthis Agreement.<\/p>\n
Section 7.8 Corporate Agent Required; Eligibility. There shall at all
\ntimes be an Agent hereunder which shall be a corporation organized and doing
\nbusiness under the laws of the United States of America, any State thereof or
\nthe District of Columbia, authorized under such laws to exercise corporate trust
\npowers, having (or being a member of a bank holding company having) a combined
\ncapital and surplus of at least $50,000,000, subject to supervision or
\nexamination by federal or state authority and having a Corporate Trust Office in
\nthe Borough of Manhattan, The City of New York, if there be such a corporation,
\nqualified and eligible under this Article and willing to act on reasonable
\nterms. If such corporation publishes reports of condition at least annually,
\npursuant to law or to the requirements of said supervising or examining
\nauthority, then for the purposes of this Section, the combined capital and
\nsurplus of such corporation shall be deemed to be its combined capital and
\nsurplus as set forth in its most recent report of condition so published. If at
\nany time the Agent shall cease to be eligible in accordance with the provisions
\nof this Section, it shall resign immediately in the manner and with the effect
\nhereinafter specified in this Article.<\/p>\n
Section 7.9 Resignation and Removal; Appointment of Successor. (a) No
\nresignation or removal of the Agent and no appointment of a successor Agent
\npursuant to this Article shall become effective until the acceptance of
\nappointment by the successor Agent in accordance with the applicable
\nrequirements of Section 7.10.<\/p>\n
(b) The Agent may resign at any time by giving written notice thereof
\nto the Company 60 days prior to the effective date of such resignation. If the
\ninstrument of acceptance by a successor Agent required by Section 7.10 shall not
\nhave been delivered to the Agent within 30 days after the giving of such notice
\nof resignation, the resigning Agent may petition any court of competent
\njurisdiction for the appointment of a successor Agent.<\/p>\n
(c) The Agent may be removed at any time by Act of the Holders of a
\nmajority in number of the Outstanding Securities delivered to the Agent and the
\nCompany.<\/p>\n
53
\n 59
\n (d) If at any time<\/p>\n
(1) the Agent fails to comply with Section 310(b) of the TIA, as if
\n the Agent were an indenture trustee under an indenture qualified under the
\n TIA, after written request therefor by the Company or by any Holder who
\n has been a bona fide Holder of a Unit for at least six months, or<\/p>\n
(2) the Agent shall cease to be eligible under Section 7.8 and shall
\n fail to resign after written request therefor by the Company or by any
\n such Holder, or<\/p>\n
(3) the Agent shall become incapable of acting or shall be adjudged a
\n bankrupt or insolvent or a receiver of the Agent or of its property shall
\n be appointed or any public officer shall take charge or control of the
\n Agent or of its property or affairs for the purpose of rehabilitation,
\n conservation or liquidation;<\/p>\n
then, in any such case, (x) the Company by a Board Resolution may remove the
\nAgent, or (y) any Holder who has been a bona fide Holder of a Unit for at least
\nsix months may, on behalf of himself and all others similarly situated, petition
\nany court of competent jurisdiction for the removal of the Agent and the
\nappointment of a successor Agent.<\/p>\n
(e) If the Agent shall resign, be removed or become incapable of
\nacting, or if a vacancy shall occur in the office of Agent for any cause, the
\nCompany, by a Board Resolution, shall promptly appoint a successor Agent and
\nshall comply with the applicable requirements of Section 7.10. If no successor
\nAgent shall have been so appointed by the Company and accepted appointment in
\nthe manner required by Section 7.10, any Holder who has been a bona fide Holder
\nof a Unit for at least six months may, on behalf of himself and all others
\nsimilarly situated, petition any court of competent jurisdiction for the
\nappointment of a successor Agent.<\/p>\n
(f) The Company shall give, or shall cause such successor Agent to
\ngive, notice of each resignation and each removal of the Agent and each
\nappointment of a successor Agent by mailing written notice of such event by
\nfirst-class mail, postage prepaid, to all Holders as their names and addresses
\nappear in the applicable Register. Each notice shall include the name of the
\nsuccessor Agent and the address of its Corporate Trust Office.<\/p>\n
Section 7.10 Acceptance of Appointment by Successor. (a) In case of
\nthe appointment hereunder of a successor Agent, every such successor Agent so
\nappointed shall execute, acknowledge and deliver to the Company and to the
\nretiring Agent an instrument accepting such appointment, and thereupon the
\nresignation or removal of the retiring Agent shall become effective and such
\nsuccessor Agent, without any further act, deed or conveyance, shall become
\nvested with all the rights, powers, agencies and duties<\/p>\n
54
\n 60
\nof the retiring Agent; but, on the request of the Company or the successor
\nAgent, such retiring Agent shall, upon payment of its charges, execute and
\ndeliver an instrument transferring to such successor Agent all the rights,
\npowers and trusts of the retiring Agent and shall duly assign, transfer and
\ndeliver to such successor Agent all property and money held by such retiring
\nAgent hereunder.<\/p>\n
(b) Upon request of any such successor Agent, the Company shall
\nexecute any and all instruments for more fully and certainly vesting in and
\nconfirming to such successor Agent all such rights, powers and agencies referred
\nto in paragraph (a) of this Section.<\/p>\n
(c) No successor Agent shall accept its appointment unless at the
\ntime of such acceptance such successor Agent shall be qualified and eligible
\nunder this Article.<\/p>\n
Section 7.11 Merger, Conversion, Consolidation or Succession to
\nBusiness. Any corporation into which the Agent may be merged or converted or
\nwith which it may be consolidated, or any corporation resulting from any merger,
\nconversion or consolidation to which the Agent shall be a party, or any
\ncorporation succeeding to all or substantially all the corporate trust business
\nof the Agent, shall be the successor of the Agent hereunder, provided such
\ncorporation shall be otherwise qualified and eligible under this Article,
\nwithout the execution or filing of any paper or any further act on the part of
\nany of the parties hereto. In case any Certificates shall have been
\nauthenticated and executed on behalf of the Holders, but not delivered, by the
\nAgent then in office, any successor by merger, conversion or consolidation to
\nsuch Agent shall adopt such authentication and execution and deliver the
\nCertificates so authenticated and executed with the same effect as if such
\nsuccessor Agent had itself authenticated and executed such Units.<\/p>\n
Section 7.12 Preservation of Information; Communications to Holders.
\n(a) The Agent shall preserve, in as current a form as is reasonably practicable,
\nthe names and addresses of Holders received by the Agent in its capacity as
\nRegistrar.<\/p>\n
(b) If three or more Holders (herein referred to as “applicants”)
\napply in writing to the Agent, and furnish to the Agent reasonable proof that
\neach such applicant has owned a Unit for a period of at least six months
\npreceding the date of such application, and such application states that the
\napplicants desire to communicate with other Holders with respect to their rights
\nunder this Agreement or under the Units and is accompanied by a copy of the form
\nof proxy or other communication which such applicants propose to transmit, then
\nthe Agent shall mail to all the Holders copies of the form of proxy or other
\ncommunication which is specified in such request, with reasonable promptness
\nafter a tender to the Agent of the materials to be mailed and of payment, or
\nprovision, in the<\/p>\n
55
\n 61
\nabsence of bad faith, satisfactory to the Agent for the payment, of the
\nreasonable expenses of such mailing.<\/p>\n
Section 7.13 No Obligations of Agent. Except to the extent otherwise
\nprovided in this Agreement, the Agent assumes no obligation and shall not be
\nsubject to any liability under this Agreement, the Pledge Agreement or any
\nPurchase Contract in respect of the obligations of the Holder of any Unit
\nthereunder. The Company agrees, and each Holder of a Certificate, by his
\nacceptance thereof, shall be deemed to have agreed, that the Agent’s execution
\nof the Certificates on behalf of the Holders shall be solely as agent and
\nattorney-in-fact for the Holders, and that the Agent shall have no obligation to
\nperform such Purchase Contracts on behalf of the Holders, except to the extent
\nexpressly provided in Article Five.<\/p>\n
Section 7.14 Tax Compliance. (a) The Agent, on its own behalf and on
\nbehalf of the Company, will comply with all applicable certification,
\ninformation reporting and withholding (including “backup” withholding)
\nrequirements imposed by applicable tax laws, regulations or administrative
\npractice with respect to (i) any payments made with respect to the Units or (ii)
\nthe issuance, delivery, holding, transfer, redemption or exercise of rights
\nunder the Units. Such compliance shall include, without limitation, the
\npreparation and timely filing of required returns and the timely payment of all
\namounts required to be withheld to the appropriate taxing authority or its
\ndesignated agent.<\/p>\n
(b) The Agent shall comply with any reasonable written direction
\ntimely received from the Company with respect to the application of such
\nrequirements to particular payments or Holders or in other particular
\ncircumstances, and may for purposes of this Agreement rely on any such direction
\nin accordance with the provisions of Section 7.1(a)(2).<\/p>\n
(c) The Agent shall maintain all appropriate records documenting
\ncompliance with such requirements, and shall make such records available, on
\nwritten request, to the Company or its authorized representative within a
\nreasonable period of time after receipt of such request.<\/p>\n
ARTICLE VIII<\/p>\n
SUPPLEMENTAL AGREEMENTS<\/p>\n
Section 8.1 Supplemental Agreements Without Consent of Holders.
\nWithout the consent of any Holders, the Company and the Agent, at any time and
\nfrom time to time, may enter into one or more agreements supplemental hereto, in
\nform satisfactory to the Company and the Agent, for any of the following
\npurposes:<\/p>\n
56
\n 62
\n (1) to evidence the succession of another Person to the Company, and
\n the assumption by any such successor of the covenants of the Company
\n herein and in the Certificates; or<\/p>\n
(2) to add to the covenants of the Company for the benefit of the
\n Holders, or to surrender any right or power herein conferred upon the
\n Company; or<\/p>\n
(3) to evidence and provide for the acceptance of appointment
\n hereunder by a successor Agent; or<\/p>\n
(4) to make provision with respect to the rights of Holders pursuant
\n to the requirements of Section 5.4(b) or 5.9; or<\/p>\n
(5) to cure any ambiguity, to correct or supplement any provisions
\n herein which may be inconsistent with any other provisions herein, or to
\n make any other provisions with respect to such matters or questions
\n arising under this Agreement, provided such action shall not adversely
\n affect the interests of the Holders.<\/p>\n
Section 8.2 Supplemental Agreements with Consent of Holders. With the
\nconsent of the Holders of not less than a majority of the outstanding Purchase
\nContracts voting together as one class, by Act of said Holders delivered to the
\nCompany and the Agent, the Company, when authorized by a Board Resolution, and
\nthe Agent may enter into an agreement or agreements supplemental hereto for the
\npurpose of modifying in any manner the terms of the Purchase Contracts, or the
\nprovisions of this Agreement or the rights of the Holders in respect of the
\nUnits; provided, however, that, except as contemplated herein, no such
\nsupplemental agreement shall, without the consent of the Holder of each
\nOutstanding Security affected thereby:<\/p>\n
(1) change any Payment Date;<\/p>\n
(2) change the amount or the type of Collateral required to be
\n Pledged to secure a Holder’s Obligations under the Purchase Contract,
\n impair the right of the Holder of any Purchase Contract to receive
\n distributions on the related Collateral (except for the rights of Holders
\n of Normal Units to substitute the Treasury Securities for the Pledged
\n Capital Securities or Pledged Treasury Consideration or the rights of
\n holders of Stripped Units to substitute Capital Securities or appropriate
\n Treasury Consideration for the Pledged Treasury Securities) or otherwise
\n adversely affect the Holder’s rights in or to such Collateral or
\n materially adversely alter the rights in or to such Collateral;<\/p>\n
57
\n 63
\n (3) impair the right to institute suit for the enforcement of any
\n Purchase Contract;<\/p>\n
(4) reduce the number of shares of Common Stock to be purchased
\n pursuant to any Purchase Contract, increase the price to purchase shares
\n of Common Stock upon settlement of any Purchase Contract, change the Stock
\n Purchase Date or otherwise materially adversely affect the Holder’s rights
\n under any Purchase Contract; or<\/p>\n
(5) reduce the percentage of the outstanding Purchase Contracts the
\n consent of whose Holders is required for any such supplemental agreement;<\/p>\n
provided, that if any amendment or proposal referred to above would adversely
\naffect only the Normal Units or the Stripped Units, then only the affected class
\nof Holder as of the record date for the Holders entitled to vote thereon will be
\nentitled to vote on such amendment or proposal, and such amendment or proposal
\nshall not be effective except with the consent of Holders of not less than a
\nmajority of such class.<\/p>\n
It shall not be necessary for any Act of Holders under this Section
\nto approve the particular form of any proposed supplemental agreement, but it
\nshall be sufficient if such Act shall approve the substance thereof.<\/p>\n
Section 8.3 Execution of Supplemental Agreements. In executing, or
\naccepting the additional agencies created by, any supplemental agreement
\npermitted by this Article or the modifications thereby of the agencies created
\nby this Agreement, the Agent shall be entitled to receive at its request and
\n(subject to Section 7.1) shall be fully protected in relying upon, an Opinion of
\nCounsel stating that the execution of such supplemental agreement is authorized
\nor permitted by this Agreement. The Agent may, but shall not be obligated to,
\nenter into any such supplemental agreement which affects the Agent’s own rights,
\nduties or immunities under this Agreement or otherwise.<\/p>\n
Section 8.4 Effect of Supplemental Agreements. Upon the execution of
\nany supplemental agreement under this Article, this Agreement shall be modified
\nin accordance therewith, and such supplemental agreement shall form a part of
\nthis Agreement for all purposes; and every Holder of Certificates theretofore or
\nthereafter authenticated, executed on behalf of the Holders and delivered
\nhereunder shall be bound thereby.<\/p>\n
Section 8.5 Reference to Supplemental Agreements. Certificates
\nauthenticated, executed on behalf of the Holders and delivered after the
\nexecution of any supplemental agreement pursuant to this Article may, and shall
\nif required by the Agent, bear a notation in form approved by the Agent as to
\nany matter provided for in such supplemental agreement. If the Company shall so
\ndetermine, new Certificates so modified as to<\/p>\n
58
\n 64
\nconform, in the opinion of the Agent and the Company, to any such supplemental
\nagreement may be prepared and executed by the Company and authenticated,
\nexecuted on behalf of the Holders and delivered by the Agent in exchange for
\nOutstanding Certificates.<\/p>\n
ARTICLE IX<\/p>\n
CONSOLIDATION, MERGER, SALE OR CONVEYANCE<\/p>\n
Section 9.1 Covenant Not to Merge, Consolidate, Sell or Convey
\nProperty Except Under Certain Conditions. The Company covenants that it will not
\n(a) merge or consolidate with any other Person or (b) sell, assign, transfer,
\nlease or convey all or substantially all of its properties and assets to any
\nPerson or group of affiliated Persons in one transaction or a series of related
\ntransactions other than, with respect to clause (b), a direct or indirect
\nwholly-owned subsidiary of the Company, unless (i) either the Company shall be
\nthe continuing corporation, or the successor (if other than the Company) shall
\nbe a corporation organized and existing under the laws of the United States of
\nAmerica or a State thereof or the District of Columbia and such corporation
\nshall expressly assume all the obligations of the Company under the Purchase
\nContracts, the Debentures, the Capital Securities Guarantee, this Agreement and
\nthe Pledge Agreement by one or more supplemental agreements in form reasonably
\nsatisfactory to the Agent and the Collateral Agent, executed and delivered to
\nthe Agent and the Collateral Agent by such corporation, and (ii) the Company or
\nsuch successor corporation, as the case may be, shall not, immediately after
\nsuch merger or consolidation, or such sale, assignment, transfer, lease or
\nconveyance, be in default in the performance of any covenant or condition
\nhereunder, under any of the Units or under the Pledge Agreement.<\/p>\n
Section 9.2 Rights and Duties of Successor Corporation. In case of
\nany such consolidation, merger, sale, assignment, transfer, lease or conveyance
\nand upon any such assumption by a successor corporation in accordance with
\nSection 9.1, such successor corporation shall succeed to and be substituted for
\nthe Company with the same effect as if it had been named herein as the Company.
\nSuch successor corporation thereupon may cause to be signed, and may issue
\neither in its own name or in the name of the Company, any or all of the
\nCertificates evidencing Units issuable hereunder which theretofore shall not
\nhave been signed by the Company and delivered to the Agent; and, upon the order
\nof such successor corporation, instead of the Company, and subject to all the
\nterms, conditions and limitations in this Agreement prescribed, the Agent shall
\nauthenticate and execute on behalf of the Holders and deliver any Certificates
\nwhich previously shall have been signed and delivered by the officers of the
\nCompany to the Agent for authentication and execution, and any Certificate
\nevidencing Units which such successor corporation thereafter shall cause to be
\nsigned and delivered to the Agent for that purpose. All the Certificates so
\nissued shall in all respects have the same legal rank and benefit under this<\/p>\n
59
\n 65
\nAgreement as the Certificates theretofore or thereafter issued in accordance
\nwith the terms of this Agreement as though all of such Certificates had been
\nissued at the date of the execution hereof.<\/p>\n
In case of any such consolidation, merger, sale, assignment,
\ntransfer, lease or conveyance such change in phraseology and form (but not in
\nsubstance) may be made in the Certificates evidencing Units thereafter to be
\nissued as may be appropriate.<\/p>\n
Section 9.3 Opinion of Counsel Given to Agent. The Agent, subject to
\nSections 7.1 and 7.3, shall receive an Opinion of Counsel as conclusive evidence
\nthat any such consolidation, merger, sale, assignment, transfer, lease or
\nconveyance, and any such assumption, complies with the provisions of this
\nArticle and that all conditions precedent to the consummation of any such
\nconsolidation, merger, sale, assignment, transfer, lease or conveyance have been
\nmet.<\/p>\n
ARTICLE X<\/p>\n
COVENANTS<\/p>\n
Section 10.1 Performance Under Purchase Contracts. The Company
\ncovenants and agrees for the benefit of the Holders from time to time of the
\nUnits that it will duly and punctually perform its obligations under the
\nPurchase Contracts in accordance with the terms of the Purchase Contracts and
\nthis Agreement.<\/p>\n
Section 10.2 Maintenance of Office or Agency. The Company will
\nmaintain in the Borough of Manhattan, The City of New York an office or agency
\nwhere Certificates may be presented or surrendered for acquisition of shares of
\nCommon Stock upon settlement of the Purchase Contracts on any Settlement Date
\nand for transfer of Collateral upon occurrence of a Termination Event, where
\nCertificates may be surrendered for registration of transfer or exchange, for a
\nCollateral Substitution or reestablishment of Normal Units and where notices and
\ndemands to or upon the Company in respect of the Units and this Agreement may be
\nserved. The Company will give prompt written notice to the Agent of the
\nlocation, and any change in the location, of such office or agency. If at any
\ntime the Company shall fail to maintain any such required office or agency or
\nshall fail to furnish the Agent with the address thereof, such presentations,
\nsurrenders, notices and demands may be made or served at the Corporate Trust
\nOffice, and the Company hereby appoints the Agent as its agent to receive all
\nsuch presentations, surrenders, notices and demands.<\/p>\n
The Company may also from time to time designate one or more other
\noffices or agencies where Certificates may be presented or surrendered for any
\nor all such purposes and may from time to time rescind such designations;
\nprovided, however, that no such<\/p>\n
60
\n 66
\ndesignation or rescission shall in any manner relieve the Company of its
\nobligation to maintain an office or agency in the Borough of Manhattan, The City
\nof New York for such purposes. The Company will give prompt written notice to
\nthe Agent of any such designation or rescission and of any change in the
\nlocation of any such other office or agency. The Company hereby designates as
\nthe place of payment for the Units the Corporate Trust Office and appoints the
\nAgent at its Corporate Trust Office as paying agent in such city.<\/p>\n
Section 10.3 Company to Reserve Common Stock. The Company shall at
\nall times prior to the Stock Purchase Date reserve and keep available, free from
\npreemptive rights, out of its authorized but unissued Common Stock the full
\nnumber of shares of Common Stock issuable against tender of payment in respect
\nof all Purchase Contracts constituting a part of the Units evidenced by
\nOutstanding Certificates.<\/p>\n
Section 10.4 Covenants as to Common Stock. The Company covenants that
\nall shares of Common Stock which may be issued against tender of payment in
\nrespect of any Purchase Contract constituting a part of the Outstanding
\nSecurities will, upon issuance, be duly authorized, validly issued, fully paid
\nand nonassessable.<\/p>\n
Section 10.5 Statements of Officer of the Company as to Default. The
\nCompany will deliver to the Agent, within 120 days after the end of each fiscal
\nyear of the Company ending after the date hereof, an Officer’s Certificate,
\nstating whether or not to the best knowledge of the signer thereof the Company
\nis in default in the performance and observance of any of the terms, provisions
\nand conditions hereof, and if the Company shall be in default, specifying all
\nsuch defaults and the nature and status thereof of which such Officer may have
\nknowledge.<\/p>\n
61
\n 67
\n IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
\nbe duly executed as of the day and year first above written.<\/p>\n
METLIFE, INC.<\/p>\n
By:__________________________
\n Name:
\n Title:<\/p>\n
BANK ONE TRUST COMPANY, N.A.
\n as Purchase Contract Agent<\/p>\n
By:__________________________
\n Name:
\n Title:<\/p>\n
62
\n 68
\n EXHIBIT A<\/p>\n
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
\nPURCHASE CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND IS REGISTERED IN THE
\nNAME OF THE CLEARING AGENCY OR A NOMINEE THEREOF. THIS CERTIFICATE MAY NOT BE
\nEXCHANGED IN WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND NO TRANSFER OF
\nTHIS CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
\nPERSON OTHER THAN SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN THE
\nLIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.<\/p>\n
Unless this Certificate is presented by an authorized representative
\nof The Depository Trust Company (55 Water Street, New York, New York) to the
\nCompany or its agent for registration of transfer, exchange or payment, and any
\nCertificate issued is registered in the name of Cede & Co., or such other name
\nas requested by an authorized representative of The Depository Trust Company,
\nand any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
\nHEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
\nhereof, Cede & Co., has an interest herein.<\/p>\n
No. Cusip No. _____________
\nNumber of Normal Units<\/p>\n
Form of Face of Normal Units Certificate<\/p>\n
This Normal Units Certificate certifies that Cede & Co. is the
\nregistered Holder of the number of Normal Units set forth above. Each Normal
\nUnit represents (i) either (a) beneficial ownership by the Holder of one -%
\nCapital Security (the “Capital Security”) of MetLife Capital Trust I, a Delaware
\nstatutory business trust (the “Trust”), having a stated liquidation amount of
\n$50, subject to the Pledge of such Capital Security by such Holder pursuant to
\nthe Pledge Agreement, or (b) if the Capital Security has been remarketed by the
\nRemarketing Agent (or if the Holder has elected not to have the Capital Security
\nremarketed by delivering the appropriate Treasury Consideration specified by the
\nRemarketing Agent), the appropriate Treasury Consideration, subject to the
\nPledge of such Treasury Consideration by such Holder pursuant to the Pledge
\nAgreement, and (ii) the rights and obligations of the Holder under one Purchase
\nContract with MetLife, Inc., a Delaware corporation (the “Company”). All
\ncapitalized terms used herein which are defined in the Purchase Contract
\nAgreement have the meaning set forth therein.<\/p>\n
63
\n 69
\n Pursuant to the Pledge Agreement, the Capital Security or the
\nappropriate Treasury Consideration, as the case may be, constituting part of
\neach Normal Unit evidenced hereby has been pledged to the Collateral Agent, for
\nthe benefit of the Company, to secure the obligations of the Holder under the
\nPurchase Contract comprising a part of such Normal Unit.<\/p>\n
The Pledge Agreement provides that all payments in respect of the
\nPledged Capital Securities or Pledged Treasury Consideration received by the
\nCollateral Agent shall be paid by the Collateral Agent by wire transfer in same
\nday funds (i) in the case of (A) quarterly cash distributions on Normal Units
\nwhich include Pledged Capital Securities or Pledged Treasury Consideration and
\n(B) any payments of the Capital Securities or Treasury Consideration, as the
\ncase may be, that have been released from the Pledge pursuant to the Pledge
\nAgreement, to the Agent to the account designated by the Agent, no later than
\n2:00 p.m., New York City time, on the Business Day such payment is received by
\nthe Collateral Agent (provided that in the event such payment is received by the
\nCollateral Agent on a day that is not a Business Day or after 12:30 p.m., New
\nYork City time, on a Business Day, then such payment shall be made no later than
\n10:30 a.m., New York City time, on the next succeeding Business Day) and (ii) in
\nthe case of payments in respect of any Pledged Capital Securities or Pledged
\nTreasury Consideration, as the case may be, to be paid upon settlement of such
\nHolder’s obligations to purchase Common Stock under the Purchase Contract, to
\nthe Company on the Stock Purchase Date (as defined herein) in accordance with
\nthe terms of the Pledge Agreement, in full satisfaction of the respective
\nobligations of the Holders of the Normal Units of which such Pledged Capital
\nSecurities or Pledged Treasury Consideration, as the case may be, are a part
\nunder the Purchase Contracts forming a part of such Normal Units. Quarterly
\ndistributions on Normal Units which include Pledged Capital Securities or
\nPledged Treasury Consideration, as the case may be, which are payable quarterly
\nin arrears on ____________, ____________, ___________ and ________ each year,
\ncommencing ____________, 2000 (a “Payment Date”), shall, subject to receipt
\nthereof by the Agent from the Collateral Agent, be paid to the Person in whose
\nname this Normal Units Certificate (or a Predecessor Normal Units Certificate)
\nis registered at the close of business on the Record Date for such Payment Date.<\/p>\n
Each Purchase Contract evidenced hereby obligates the Holder of this
\nNormal Units Certificate to purchase, and the Company to sell, on ___________,
\n2003 (the “Stock Purchase Date”), at a price equal to $50 (the “Stated Amount”),
\na number of shares of common stock, $0.01 par value per share (“Common Stock”),
\nof the Company, equal to the Settlement Rate, unless on or prior to the Stock
\nPurchase Date there shall have occurred a Termination Event or an Early
\nSettlement or Merger Early Settlement with respect to the Normal Units of which
\nsuch Purchase Contract is a part, all as provided in the Purchase Contract
\nAgreement and more fully described on the reverse<\/p>\n
A-2
\n 70
\nhereof. The Purchase Price (as defined herein) for the shares of Common Stock
\npurchased pursuant to each Purchase Contract evidenced hereby, if not paid
\nearlier, shall be paid on the Stock Purchase Date by application of payments
\nreceived in respect of the Pledged Capital Securities or the Pledged Treasury
\nConsideration, as the case may be, pledged to secure the obligations under such
\nPurchase Contract of the Holder.<\/p>\n
Distributions on the Capital Securities or the appropriate Treasury
\nConsideration (as specified in clause (i) of the definition of such term), as
\nthe case may be, will be payable at the office of the Agent in The City of New
\nYork or, at the option of the Company, by check mailed to the address of the
\nPerson entitled thereto as such address appears on the Normal Units Register or
\nby wire transfer to an account specified by the Company.<\/p>\n
Reference is hereby made to the further provisions set forth on the
\nreverse hereof, which further provisions shall for all purposes have the same
\neffect as if set forth at this place.<\/p>\n
Unless the certificate of authentication hereon has been executed by
\nthe Agent by manual signature, this Normal Units Certificate shall not be
\nentitled to any benefit under the Pledge Agreement or the Purchase Contract
\nAgreement or be valid or obligatory for any purpose.<\/p>\n
A-3
\n 71
\n IN WITNESS WHEREOF, the Company has caused this instrument to be duly
\nexecuted.<\/p>\n
METLIFE, INC.<\/p>\n
By:____________________________________________
\n Name:
\n Title:<\/p>\n
By:____________________________________________
\n Name:
\n Title:<\/p>\n
HOLDER SPECIFIED ABOVE (as to
\n obligations of such Holder under the Purchase
\n Contracts evidenced hereby)<\/p>\n
By:____________________________________________
\n not individually but solely as Attorney-in-
\n Fact of such Holder<\/p>\n
By:____________________________________________
\n Name:
\n Title:<\/p>\n
Dated:<\/p>\n
A-4
\n 72
\n AGENT’S CERTIFICATE OF AUTHENTICATION<\/p>\n
This is one of the Normal Units Certificates referred to in the
\nwithin mentioned Purchase Contract Agreement.<\/p>\n
By: BANK ONE TRUST COMPANY, N.A.,
\n as Purchase Contract Agent<\/p>\n
By:
\n Authorized officer<\/p>\n
A-5
\n 73
\n (Form of Reverse of Normal Units Certificate)<\/p>\n
Each Purchase Contract evidenced hereby is governed by a Purchase
\nContract Agreement, dated as of ____________, 2000 (as may be supplemented from
\ntime to time, the “Purchase Contract Agreement”), between the Company and
\n___________________, as Purchase Contract Agent (including its successors
\nthereunder, herein called the “Agent”), to which Purchase Contract Agreement and
\nsupplemental agreements thereto reference is hereby made for a description of
\nthe respective rights, limitations of rights, obligations, duties and immunities
\nthereunder of the Agent, the Company, and the Holders and of the terms upon
\nwhich the Normal Units Certificates are, and are to be, executed and delivered.<\/p>\n
Each Purchase Contract evidenced hereby obligates the Holder of this
\nNormal Units Certificate to purchase, and the Company to sell, on the Stock
\nPurchase Date at a price equal to $50 (the “Purchase Price”), a number of shares
\nof Common Stock of the Company equal to the Settlement Rate, unless, on or prior
\nto the Stock Purchase Date, there shall have occurred a Termination Event or an
\nEarly Settlement or Merger Early Settlement with respect to the Unit of which
\nsuch Purchase Contract is a part. The “Settlement Rate” is equal to (a) if the
\nApplicable Market Value (as defined below) is equal to or greater than $- (the
\n“Threshold Appreciation Price”), – shares of Common Stock per Purchase Contract,
\n(b) if the Applicable Market Value is less than the Threshold Appreciation Price
\nbut is greater than $-, the number of shares of Common Stock per Purchase
\nContract equal to the Stated Amount divided by the Applicable Market Value and
\n(c) if the Applicable Market Value is less than or equal to $-, – shares of
\nCommon Stock per Purchase Contract, in each case subject to adjustment as
\nprovided in the Purchase Contract Agreement. No fractional shares of Common
\nStock will be issued upon settlement of Purchase Contracts, as provided in the
\nPurchase Contract Agreement.<\/p>\n
The “Applicable Market Value” means the average of the Closing Price
\nper share of Common Stock on each of the 20 consecutive Trading Days ending on
\nthe third Trading Day immediately preceding the Stock Purchase Date.<\/p>\n
The “Closing Price” of the Common Stock on any date of determination
\nmeans the closing sale price (or, if no closing price is reported, the last
\nreported sale price) of the Common Stock on the New York Stock Exchange (the
\n“NYSE”) on such date or, if the Common Stock is not listed for trading on the
\nNYSE on any such date, as reported in the composite transactions for the
\nprincipal United States securities exchange on which the Common Stock is so
\nlisted, or if the Common Stock is not so listed on a United States national or
\nregional securities exchange, as reported by The Nasdaq Stock Market, or, if the
\nCommon Stock is not so reported, the last quoted bid price for the Common Stock
\nin the over-the-counter market as reported by the National Quotation Bureau or
\nsimilar<\/p>\n
A-6
\n 74
\norganization, or, if such bid price is not available, the market value of the
\nCommon Stock on such date as determined by a nationally recognized independent
\ninvestment banking firm retained for this purpose by the Company.<\/p>\n
A “Trading Day” means a day on which the Common Stock (A) is not
\nsuspended from trading on any national or regional securities exchange or
\nassociation or over-the-counter market at the close of business and (B) has
\ntraded at least once on the national or regional securities exchange or
\nassociation or over-the-counter market that is the primary market for the
\ntrading of the Common Stock.<\/p>\n
Each Purchase Contract evidenced hereby may be settled prior to the
\nStock Purchase Date through Early Settlement or Merger Early Settlement, in
\naccordance with the terms of the Purchase Contract Agreement.<\/p>\n
In accordance with the terms of the Purchase Contract Agreement, the
\nHolder of this Normal Units Certificate shall pay the Purchase Price for the
\nshares of Common Stock purchased pursuant to each Purchase Contract evidenced
\nhereby (i) by effecting an Early Settlement or Merger Early Settlement, (ii) by
\napplication of payments received in respect of the Pledged Treasury
\nConsideration acquired from the proceeds of a remarketing of the related Pledged
\nCapital Securities underlying the Normal Units represented by this Normal Units
\nCertificate or (iii) if the Holder has elected not to participate in the
\nremarketing, by application of payments received in respect of the Pledged
\nTreasury Consideration deposited by such Holder in respect of such Purchase
\nContract. If, as provided in the Purchase Contract Agreement, upon the
\noccurrence of a Failed Remarketing the Collateral Agent, for the benefit of the
\nCompany, exercises its rights as a secured creditor with respect to the Pledged
\nCapital Securities related to this Normal Units certificate, any accumulated and
\nunpaid distributions on such Pledged Capital Securities will become payable by
\nthe Company to the Holder of this Normal Units Certificate in the manner
\nprovided for in the Purchase Contract Agreement.<\/p>\n
The Company shall not be obligated to issue any shares of Common
\nStock in respect of a Purchase Contract or deliver any certificates therefor to
\nthe Holder unless it shall have received payment in full of the aggregate
\nPurchase Price for the shares of Common Stock to be purchased thereunder in the
\nmanner herein set forth.<\/p>\n
Under the terms of the Pledge Agreement, the Agent will be entitled
\nto exercise the voting and any other consensual rights pertaining to the Pledged
\nCapital Securities. Upon receipt of notice of any meeting at which holders of
\nCapital Securities are entitled to vote or upon the solicitation of consents,
\nwaivers or proxies of holders of Capital Securities, the Agent shall, as soon as
\npracticable thereafter, mail to the Holders of Normal Units a notice (a)
\ncontaining such information as is contained in the notice or<\/p>\n
A-7
\n 75
\nsolicitation, (b) stating that each such Holder on the record date set by the
\nAgent therefor (which, to the extent possible, shall be the same date as the
\nrecord date for determining the holders of Capital Securities entitled to vote)
\nshall be entitled to instruct the Agent as to the exercise of the voting rights
\npertaining to the Pledged Capital Securities constituting a part of such
\nHolder’s Normal Units and (c) stating the manner in which such instructions may
\nbe given. Upon the written request of the Holders of Normal Units on such record
\ndate, the Agent shall endeavor insofar as practicable to vote or cause to be
\nvoted, in accordance with the instructions set forth in such requests, the
\nmaximum number of Pledged Capital Securities as to which any particular voting
\ninstructions are received. In the absence of specific instructions from the
\nHolder of a Normal Unit, the Agent shall abstain from voting the Pledged Capital
\nSecurity evidenced by such Normal Unit.<\/p>\n
Upon a voluntary or involuntary dissolution of the Trust, a principal
\namount of the Debentures constituting the assets of the Trust and underlying the
\nPledged Capital Securities equal to the aggregate Stated Amount of the Pledged
\nCapital Securities shall be delivered to the Collateral Agent in exchange for
\nPledged Capital Securities. Thereafter, the Debentures shall be held by the
\nCollateral Agent to secure the obligations of each Holder of Normal Units to
\npurchase shares of Common Stock under the Purchase Contracts constituting a part
\nof such Normal Units. Following a voluntary or involuntary dissolution of the
\nTrust, the Holders and the Collateral Agent shall have such security interests,
\nrights and obligations with respect to the Debentures as the Holders and the
\nCollateral Agent had in respect of the Pledged Capital Securities, and any
\nreference in the Purchase Contract Agreement or Pledge Agreement to the Capital
\nSecurities or Pledged Capital Securities shall be deemed to be a reference to
\nthe Debentures.<\/p>\n
The Normal Units Certificates are issuable only in registered form
\nand only in denominations of a single Normal Unit and any integral multiple
\nthereof. The transfer of any Normal Units Certificate will be registered and
\nNormal Units Certificates may be exchanged as provided in the Purchase Contract
\nAgreement. The Normal Units Registrar may require a Holder, among other things,
\nto furnish appropriate endorsements and transfer documents permitted by the
\nPurchase Contract Agreement. No service charge shall be required for any such
\nregistration of transfer or exchange, but the Company and the Agent may require
\npayment of a sum sufficient to cover any tax or other governmental charge
\npayable in connection therewith. The Holder of a Normal Unit may substitute for
\nthe Pledged Capital Securities or Pledged Treasury Consideration securing its
\nobligations under the related Purchase Contract Treasury Securities in
\naccordance with the terms of the Purchase Contract Agreement and the Pledge
\nAgreement. From and after such Collateral Substitution, the Unit for which such
\nPledged Treasury Securities secures the Holder’s obligation under the Purchase
\nContract shall be referred to as a “Stripped Unit.” A Holder that elects to
\nsubstitute a Treasury Security for Pledged Capital Securities or Pledged
\nTreasury Consideration, thereby creating Stripped Units, shall be responsible
\nfor<\/p>\n
A-8
\n 76
\nany fees or expenses payable in connection therewith. Except as provided in the
\nPurchase Contract Agreement, for so long as the Purchase Contract underlying a
\nNormal Unit remains in effect, such Normal Unit shall not be separable into its
\nconstituent parts, and the rights and obligations of the Holder of such Normal
\nUnits in respect of the Pledged Capital Security or Pledged Treasury
\nConsideration, as the case may be, and Purchase Contract constituting such
\nNormal Unit may be transferred and exchanged only as a Normal Unit.<\/p>\n
A Holder of Stripped Units may reestablish Normal Units by delivering
\nto the Collateral Agent Capital Securities or the appropriate Treasury
\nConsideration in exchange for the release of the Pledged Treasury Securities in
\naccordance with the terms of the Purchase Contract Agreement and the Pledge
\nAgreement.<\/p>\n
The Purchase Contracts and all obligations and rights of the Company
\nand the Holders thereunder shall immediately and automatically terminate,
\nwithout the necessity of any notice or action by any Holder, the Agent or the
\nCompany, if, on or prior to the Stock Purchase Date, a Termination Event shall
\nhave occurred. Upon the occurrence of a Termination Event, the Company shall
\npromptly but in no event later than two Business Days thereafter give written
\nnotice to the Agent, the Collateral Agent and to the Holders, at their addresses
\nas they appear in the Normal Units Register. Upon and after the occurrence of a
\nTermination Event, the Collateral Agent shall release the Pledged Capital
\nSecurities or Pledged Treasury Consideration, as the case may be, from the
\nPledge in accordance with the provisions of the Pledge Agreement.<\/p>\n
Upon registration of transfer of this Normal Units Certificate, the
\ntransferee shall be bound (without the necessity of any other action on the part
\nof such transferee, except as may be required by the Agent pursuant to the
\nPurchase Contract Agreement), under the terms of the Purchase Contract Agreement
\nand the Purchase Contracts evidenced hereby and the transferor shall be released
\nfrom the obligations under the Purchase Contracts evidenced by this Normal Units
\nCertificate. The Company covenants and agrees, and the Holder, by its acceptance
\nhereof, likewise covenants and agrees, to be bound by the provisions of this
\nparagraph.<\/p>\n
The Holder of this Normal Units Certificate, by its acceptance
\nhereof, authorizes the Agent to enter into and perform the related Purchase
\nContracts forming part of the Normal Units evidenced hereby on his behalf as his
\nattorney-in-fact, expressly withholds any consent to the assumption (i.e.,
\naffirmance) of the Purchase Contracts by the Company or its trustee in the event
\nthat the Company becomes the subject of a case under the Bankruptcy Code, agrees
\nto be bound by the terms and provisions thereof, covenants and agrees to perform
\nhis obligations under such Purchase Contracts, consents to the provisions of the
\nPurchase Contract Agreement, authorizes the Agent to enter into and<\/p>\n
A-9
\n 77
\nperform the Pledge Agreement on his behalf as its attorney-in-fact, and consents
\nto the Pledge of the Capital Securities or the appropriate Treasury
\nConsideration, as the case may be, underlying this Normal Units Certificate
\npursuant to the Pledge Agreement. The Holder further covenants and agrees, that,
\nto the extent and in the manner provided in the Purchase Contract Agreement and
\nthe Pledge Agreement, but subject to the terms thereof, payments in respect of
\nthe Pledged Capital Securities or the Pledged Treasury Consideration, as the
\ncase may be, to be paid upon settlement of such Holder’s obligations to purchase
\nCommon Stock under the Purchase Contract, shall be paid on the Stock Purchase
\nDate by the Collateral Agent to the Company in satisfaction of such Holder’s
\nobligations under such Purchase Contract and such Holder shall acquire no right,
\ntitle or interest in such payments.<\/p>\n
Each Holder of any Unit, and each Beneficial Owner thereof, by its
\nacceptance thereof or of its interest therein, further agrees to treat (i)
\nitself as the owner of the related Capital Securities, Treasury Consideration or
\nTreasury Securities, as the case may be, and (ii) the Debentures as indebtedness
\nof the Company, in each case, for United States federal, state and local income
\nand franchise tax purposes.<\/p>\n
Subject to certain exceptions, the provisions of the Purchase
\nContract Agreement may be amended with the consent of the Holders of a majority
\nof the Purchase Contracts.<\/p>\n
The Purchase Contracts shall for all purposes be governed by, and
\nconstrued in accordance with, the laws of the State of New York, without regard
\nto its principles of conflicts of laws.<\/p>\n
The Company, the Agent and its Affiliates and any agent of the
\nCompany or the Agent may treat the Person in whose name this Normal Units
\nCertificate is registered as the owner of the Normal Units evidenced hereby for
\nthe purpose of receiving payments of distributions payable quarterly on the
\nCapital Securities or the Treasury Portfolio, as the case may be, performance of
\nthe Purchase Contracts and for all other purposes whatsoever, whether or not any
\npayments in respect thereof be overdue and notwithstanding any notice to the
\ncontrary, and neither the Company, the Agent nor any such agent shall be
\naffected by notice to the contrary.<\/p>\n
The Purchase Contracts shall not, prior to the settlement thereof,
\nentitle the Holder to any of the rights of a holder of shares of Common Stock.<\/p>\n
A copy of the Purchase Contract Agreement is available for inspection
\nat the offices of the Agent.<\/p>\n
A-10
\n 78
\n ABBREVIATIONS<\/p>\n
The following abbreviations, when used in the inscription on the face
\nof this instrument, shall be construed as though they were written out in full
\naccording to applicable laws or regulations:<\/p>\n
TEN COM – as tenants in common<\/p>\n
UNIF GIFT MIN ACT – Custodian<\/p>\n
——————————————-
\n (cust) (minor)<\/p>\n
Under Uniform Gifts to Minors Act<\/p>\n
——————————————-
\n (State)<\/p>\n
TEN ENT – as tenants by the entireties<\/p>\n
JT TEN – as joint tenants with right of survivorship
\n and not as tenants in common<\/p>\n
Additional abbreviations may also be used though not in the above list.<\/p>\n
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
\ntransfer(s) unto ______________________________________________________________
\n_______________________________________________________________________________<\/p>\n
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
\nAssignee)
\n_______________________________________________________________________________
\n_______________________________________________________________________________
\n_______________________________________________________________________________<\/p>\n
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
\nthe within Normal Units Certificates and all rights thereunder, hereby
\nirrevocably constituting
\n_______________________________________________________________________________<\/p>\n
A-11
\n 79
\n and appointing attorney to transfer said Normal Units Certificates on
\nthe books of MetLife, Inc. with full power of substitution in the premises.<\/p>\n
Dated: ________________ ____________________________________
\n Signature<\/p>\n
NOTICE: The signature to this
\n assignment must correspond with the
\n name as it appears upon the face of
\n the within Normal Units Certificates
\n in every particular, without
\n alteration or enlargement or any
\n change whatsoever.<\/p>\n
Signature Guarantee:_____________________<\/p>\n
A-12
\n 80
\n SETTLEMENT INSTRUCTIONS<\/p>\n
The undersigned Holder directs that a certificate for shares of
\nCommon Stock deliverable upon settlement on or after the Stock Purchase Date of
\nthe Purchase Contracts underlying the number of Normal Units evidenced by this
\nNormal Units Certificate be registered in the name of, and delivered, together
\nwith a check in payment for any fractional share, to the undersigned at the
\naddress indicated below unless a different name and address have been indicated
\nbelow. If shares are to be registered in the name of a Person other than the
\nundersigned, the undersigned will pay any transfer tax payable incident thereto.<\/p>\n
Dated:
\n ——————– ————————————–
\n Signature
\n Signature Guarantee:
\n (if assigned to another person) ——————<\/p>\n
If shares are to be registered in the name of and delivered to a Person other
\nthan the Holder, please (i) print such Person’s name and address and (ii)
\nprovide a guarantee of your signature:<\/p>\n
——————————————————————————–
\n Name<\/p>\n
——————————————————————————–
\n Address<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
Social Security or other Taxpayer Identification Number, if any<\/p>\n
REGISTERED HOLDER<\/p>\n
Please print name and address of Registered Holder:<\/p>\n
——————————————————————————–
\n Name<\/p>\n
——————————————————————————–
\n Address<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
A-13
\n 81
\n ELECTION TO SETTLE EARLY<\/p>\n
The undersigned Holder of this Normal Units Certificate hereby
\nirrevocably exercises the option to effect Early Settlement in accordance with
\nthe terms of the Purchase Contract Agreement with respect to the Purchase
\nContracts underlying the number of Normal Units evidenced by this Normal Units
\nCertificate specified below. The option to effect Early Settlement may be
\nexercised only with respect to Purchase Contracts underlying Normal Units with
\nan aggregate Stated Amount equal to $1,000 or an integral multiple thereof. The
\nundersigned Holder directs that a certificate for shares of Common Stock
\ndeliverable upon such Early Settlement be registered in the name of, and
\ndelivered, together with a check in payment for any fractional share and any
\nNormal Units Certificate representing any Normal Units evidenced hereby as to
\nwhich Early Settlement of the related Purchase Contracts is not effected, to the
\nundersigned at the address indicated below unless a different name and address
\nhave been indicated below. Pledged Capital Securities or Pledged Treasury
\nConsideration, as the case may be, deliverable upon such Early Settlement will
\nbe transferred in accordance with the transfer instructions set forth below. If
\nshares are to be registered in the name of a Person other than the undersigned,
\nthe undersigned will pay any transfer tax payable incident thereto.<\/p>\n
Dated: ____________________ _________________________________________
\n Signature<\/p>\n
Signature Guarantee:_____________________<\/p>\n
A-14
\n 82
\n Number of Units evidenced hereby as to which Early Settlement of the
\nrelated Purchase Contracts is being elected:<\/p>\n
If shares of Common Stock or Income Certificates are to be registered in the
\nname of and delivered to and Pledged Capital Securities, or Pledged
\nConsideration, as the case may be, are to be transferred to a Person other than
\nthe Holder, please print such Person’s name and address:<\/p>\n
——————————————————————————–
\n Name<\/p>\n
——————————————————————————–
\n Address<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
REGISTERED HOLDER<\/p>\n
Please print name and address of Registered Holder:<\/p>\n
——————————————————————————–
\n Name<\/p>\n
——————————————————————————–
\n Address<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
Social Security or other Taxpayer Identification Number, if any
\n ————-<\/p>\n
Transfer Instructions for Pledged Capital Securities, or Pledged Treasury
\nConsideration, as the case may be, Transferable Upon Early Settlement or a
\nTermination Event:<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
A-15
\n 83
\n [TO BE ATTACHED TO GLOBAL CERTIFICATES]<\/p>\n
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE<\/p>\n
The following increases or decreases in this Global Certificate have
\nbeen made:<\/p>\n
\n\n Stated Amount of
\n the Global
\n Amount of Amount of Certificate Signature of
\n decrease in Stated increase in Stated following such authorized officer
\n Amount of the Amount of the decrease or of Trustee or
\nDate Global Certificate Global Certificate increase Units Custodian
\n———————————————————————————————–
\n <\/p>\n<\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
A-16
\n 84
\n EXHIBIT B<\/p>\n
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
\nPURCHASE CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND IS REGISTERED IN THE
\nNAME OF A CLEARING AGENCY OR A NOMINEE THEREOF. THIS CERTIFICATE MAY NOT BE
\nEXCHANGED IN WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND NO TRANSFER OF
\nTHIS CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
\nPERSON OTHER THAN SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN THE
\nLIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.<\/p>\n
Unless this Certificate is presented by an authorized representative
\nof The Depository Trust Company (55 Water Street, New York, New York) to the
\nCompany or its agent for registration of transfer, exchange or payment, and any
\nCertificate issued is registered in the name of Cede & Co., or such other name
\nas requested by an authorized representative of The Depository Trust Company,
\nand any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
\nHEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
\nhereof, Cede & Co., has an interest herein.<\/p>\n
No. Cusip No. _____________
\nNumber of Stripped Units<\/p>\n
Form of Face of Stripped Units Certificate<\/p>\n
This Stripped Units Certificate certifies that Cede & Co. is the
\nregistered Holder of the number of Stripped Units set forth above. Each Stripped
\nUnit represents (i) a 1\/20 undivided beneficial ownership interest in a Treasury
\nSecurity, subject to the Pledge of such interest in such Treasury Security by
\nsuch Holder pursuant to the Pledge Agreement, and (ii) the rights and
\nobligations of the Holder under one Purchase Contract with MetLife, Inc., a
\nDelaware corporation (the “Company”). All capitalized terms used herein which
\nare defined in the Purchase Contract Agreement have the meaning set forth
\ntherein.<\/p>\n
Pursuant to the Pledge Agreement, the Treasury Security constituting
\npart of each Stripped Unit evidenced hereby has been pledged to the Collateral
\nAgent, for the benefit of the Company, to secure the obligations of the Holder
\nunder the Purchase Contract comprising a part of such Stripped Unit.
\n 85
\n Each Purchase Contract evidenced hereby obligates the Holder of this
\nStripped Units Certificate to purchase, and the Company to sell, on
\n____________, 2003 (the “Stock Purchase Date”), at a price equal to $50 (the
\n“Stated Amount”), a number of shares of common stock, $0.01 par value per share
\n(“Common Stock”), of the Company, equal to the Settlement Rate, unless on or
\nprior to the Stock Purchase Date there shall have occurred a Termination Event
\nor an Early Settlement or Merger Early Settlement with respect to the Stripped
\nUnits of which such Purchase Contract is a part, all as provided in the Purchase
\nContract Agreement and more fully described on the reverse hereof. The Purchase
\nPrice (as defined herein) for the shares of Common Stock purchased pursuant to
\neach Purchase Contract evidenced hereby, if not paid earlier, shall be paid on
\nthe Stock Purchase Date by application of payments received in respect of the
\nPledged Treasury Securities pledged to secure the obligations under such
\nPurchase Contract in accordance with the terms of the Pledge Agreement.<\/p>\n
Reference is hereby made to the further provisions set forth on the
\nreverse hereof, which further provisions shall for all purposes have the same
\neffect as if set forth at this place.<\/p>\n
Unless the certificate of authentication hereon has been executed by
\nthe Agent by manual signature, this Stripped Units Certificate shall not be
\nentitled to any benefit under the Pledge Agreement or the Purchase Contract
\nAgreement or be valid or obligatory for any purpose.<\/p>\n
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
\nexecuted.<\/p>\n
METLIFE, INC.<\/p>\n
By:_______________________________
\n Name:
\n Title:<\/p>\n
By:_______________________________
\n Name:
\n Title:<\/p>\n
B-2
\n 86
\n HOLDER SPECIFIED ABOVE (as to
\n obligations of such Holder under
\n the Purchase Contracts)<\/p>\n
By: __________________________________________,
\n not individually but solely as Attorney-in-
\n Fact of such Holder<\/p>\n
By:____________________________________________
\n Name:
\n Title:<\/p>\n
Dated:<\/p>\n
B-3
\n 87
\n AGENT’S CERTIFICATE OF AUTHENTICATION<\/p>\n
This is one of the Stripped Units referred to in the within-mentioned
\nPurchase Contract Agreement.<\/p>\n
By: BANK ONE TRUST COMPANY, N.A.,
\n as Purchase Contract Agent<\/p>\n
By:
\n Authorized officer<\/p>\n
B-4
\n 88
\n (Reverse of Stripped Units Certificate)<\/p>\n
Each Purchase Contract evidenced hereby is governed by a Purchase
\nContract Agreement, dated as of ____________, 2000 (as may be supplemented from
\ntime to time, the “Purchase Contract Agreement”), between the Company and
\n____________________, as Purchase Contract Agent (including its successors
\nthereunder, herein called the “Agent”), to which the Purchase Contract Agreement
\nand supplemental agreements thereto reference is hereby made for a description
\nof the respective rights, limitations of rights, obligations, duties and
\nimmunities thereunder of the Agent, the Company and the Holders and of the terms
\nupon which the Stripped Units Certificates are, and are to be, executed and
\ndelivered.<\/p>\n
Each Purchase Contract evidenced hereby obligates the Holder of this
\nStripped Units Certificate to purchase, and the Company to sell, on the Stock
\nPurchase Date at a price equal to the Stated Amount (the “Purchase Price”), a
\nnumber of shares of Common Stock of the Company equal to the Settlement Rate,
\nunless, on or prior to the Stock Purchase Date, there shall have occurred a
\nTermination Event or an Early Settlement or Merger Early Settlement with respect
\nto the Unit of which such Purchase Contract is a part. The “Settlement Rate” is
\nequal to (a) if the Applicable Market Value (as defined below) is equal to or
\ngreater than $- (the “Threshold Appreciation Price”), – shares of Common Stock
\nper Purchase Contract, (b) if the Applicable Market Value is less than the
\nThreshold Appreciation Price but is greater than $-, the number of shares of
\nCommon Stock per Purchase Contract equal to the Stated Amount divided by the
\nApplicable Market Value and (c) if the Applicable Market Value is less than or
\nequal to $-, – shares of Common Stock per Purchase Contract, in each case
\nsubject to adjustment as provided in the Purchase Contract Agreement. No
\nfractional shares of Common Stock will be issued upon settlement of Purchase
\nContracts, as provided in the Purchase Contract Agreement.<\/p>\n
The “Applicable Market Value” means the average of the Closing Prices
\nper share of Common Stock on each of the 20 consecutive Trading Days ending on
\nthe third Trading Day immediately preceding the Stock Purchase Date.<\/p>\n
The “Closing Price” of the Common Stock on any date of determination
\nmeans the closing sale price (or, if no closing price is reported, the last
\nreported sale price) of the Common Stock on the New York Stock Exchange (the
\n“NYSE”) on such date or, if the Common Stock is not listed for trading on the
\nNYSE on any such date, as reported in the composite transactions for the
\nprincipal United States securities exchange on which the Common Stock is so
\nlisted, or if the Common Stock is not so listed on a United States national or
\nregional securities exchange, as reported by The Nasdaq Stock Market, or, if the
\nCommon Stock is not so reported, the last quoted bid price for the Common Stock
\nin<\/p>\n
B-5
\n 89
\nthe over-the-counter market as reported by the National Quotation Bureau or
\nsimilar organization, or, if such bid price is not available, the market value
\nof the Common Stock on such date as determined by a nationally recognized
\nindependent investment banking firm retained for this purpose by the Company.<\/p>\n
A “Trading Day” means a day on which the Common Stock (A) is not
\nsuspended from trading on any national or regional securities exchange or
\nassociation or over-the-counter market at the close of business and (B) has
\ntraded at least once on the national or regional securities exchange or
\nassociation or over-the-counter market that is the primary market for the
\ntrading of the Common Stock.<\/p>\n
Each Purchase Contract evidenced hereby may be settled prior to the
\nStock Purchase Date through Early Settlement or Merger Early Settlement, in
\naccordance with the terms of the Purchase Contract Agreement.<\/p>\n
In accordance with the terms of the Purchase Contract Agreement, the
\nHolder of this Stripped Units Certificate shall pay the Purchase Price for the
\nshares of Common Stock purchased pursuant to each Purchase Contract evidenced
\nhereby (i) by effecting an Early Settlement or Merger Early Settlement or (ii)
\nby application of payments received in respect of the Pledged Treasury
\nSecurities underlying the Stripped Units represented by this Stripped Units
\nCertificate.<\/p>\n
The Company shall not be obligated to issue any shares of Common
\nStock in respect of a Purchase Contract or deliver any certificates therefor to
\nthe Holder unless it shall have received payment in full of the aggregate
\nPurchase Price for the shares of Common Stock to be purchased thereunder in the
\nmanner herein set forth.<\/p>\n
The Stripped Units Certificates are issuable only in registered form
\nand only in denominations of a single Stripped Unit and any integral multiple
\nthereof. The transfer of any Stripped Units Certificate will be registered and
\nStripped Units Certificates may be exchanged as provided in the Purchase
\nContract Agreement. The Stripped Units Registrar may require a Holder, among
\nother things, to furnish appropriate endorsements and transfer documents
\npermitted by the Purchase Contract Agreement. No service charge shall be
\nrequired for any such registration of transfer or exchange, but the Company and
\nthe Agent may require payment of a sum sufficient to cover any tax or other
\ngovernmental charge payable in connection therewith. The Holder of a Stripped
\nUnit may substitute for the Pledged Treasury Securities securing its obligations
\nunder the related Purchase Contract Capital Securities or the appropriate
\nTreasury Consideration in accordance with the terms of the Purchase Contract
\nAgreement and the Pledge Agreement. From and after such substitution, the Unit
\nfor which such Pledged Capital Securities or Pledged Treasury Consideration
\nsecures the Holder’s obligation under the Purchase Contract shall be<\/p>\n
B-6
\n 90
\nreferred to as a “Normal Unit.” A Holder that elects to substitute Capital
\nSecurities or the appropriate Treasury Consideration, as the case may be, for
\nPledged Treasury Securities, thereby reestablish Normal Units, shall be
\nresponsible for any fees or expenses payable in connection therewith. Except as
\nprovided in the Purchase Contract Agreement, for so long as the Purchase
\nContract underlying a Stripped Unit remains in effect, such Stripped Unit shall
\nnot be separable into its constituent parts, and the rights and obligations of
\nthe Holder of such Stripped Unit in respect of the Pledged Treasury Security and
\nthe Purchase Contract constituting such Stripped Unit may be transferred and
\nexchanged only as a Stripped Unit.<\/p>\n
The Purchase Contracts and all obligations and rights of the Company
\nand the Holders thereunder shall immediately and automatically terminate,
\nwithout the necessity of any notice or action by any Holder, the Agent or the
\nCompany, if, on or prior to the Stock Purchase Date, a Termination Event shall
\nhave occurred. Upon the occurrence of a Termination Event, the Company shall
\npromptly but in no event later than two business days thereafter give written
\nnotice to the Agent, the Collateral Agent and to the Holders, at their addresses
\nas they appear in the Stripped Units Register. Upon and after the occurrence of
\na Termination Event, the Collateral Agent shall release the Pledged Treasury
\nSecurities from the Pledge in accordance with the provisions of the Pledge
\nAgreement.<\/p>\n
Upon registration of transfer of this Stripped Units Certificate, the
\ntransferee shall be bound (without the necessity of any other action on the part
\nof such transferee, except as may be required by the Agent pursuant to the
\nPurchase Contract Agreement), under the terms of the Purchase Contract Agreement
\nand the Purchase Contracts evidenced hereby and the transferor shall be released
\nfrom the obligations under the Purchase Contracts evidenced by this Stripped
\nUnits Certificate. The Company covenants and agrees, and the Holder, by his
\nacceptance hereof, likewise covenants and agrees, to be bound by the provisions
\nof this paragraph.<\/p>\n
The Holder of this Stripped Units Certificate, by his acceptance
\nhereof, authorizes the Agent to enter into and perform the related Purchase
\nContracts forming part of the Stripped Units evidenced hereby on his behalf as
\nits attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
\naffirmance) of the Purchase Contracts by the Company or its trustee in the event
\nthat the Company becomes the subject of a case under the Bankruptcy Code, agrees
\nto be bound by the terms and provisions thereof, covenants and agrees to perform
\nits obligations under such Purchase Contracts, consents to the provisions of the
\nPurchase Contract Agreement, authorizes the Agent to enter into and perform the
\nPledge Agreement on his behalf as his attorney-in-fact, and consents to the
\nPledge of the Treasury Securities underlying this Stripped Units Certificate
\npursuant to the Pledge Agreement. The Holder further covenants and agrees, that,
\nto the extent and<\/p>\n
B-7
\n 91
\nin the manner provided in the Purchase Contract Agreement and the Pledge
\nAgreement, but subject to the terms thereof, payments in respect of the Pledged
\nTreasury Securities, to be paid upon settlement of such Holder’s obligations to
\npurchase Common Stock under the Purchase Contract, shall be paid on the Stock
\nPurchase Date by the Collateral Agent to the Company in satisfaction of such
\nHolder’s obligations under such Purchase Contract and such Holder shall acquire
\nno right, title or interest in such payments.<\/p>\n
Each Holder of any Unit, and each Beneficial Owner thereof, by its
\nacceptance thereof or of its interest therein, further agrees to treat (i)
\nitself as the owner of the related Capital Securities, Treasury Consideration or
\nTreasury Securities, as the case may be, and (ii) the Debentures as indebtedness
\nof the Company, in each case, for United States federal, state and local income
\nand franchise tax purposes.<\/p>\n
Subject to certain exceptions, the provisions of the Purchase
\nContract Agreement may be amended with the consent of the Holders of a majority
\nof the Purchase Contracts.<\/p>\n
The Purchase Contracts shall for all purposes be governed by, and
\nconstrued in accordance with, the laws of the State of New York, without regard
\nto its principles of conflicts of laws.<\/p>\n
The Company, the Agent and its Affiliates and any agent of the
\nCompany or the Agent may treat the Person in whose name this Stripped Units
\nCertificate is registered as the owner of the Stripped Units evidenced hereby
\nfor the purpose of performance of the Purchase Contracts and for all other
\npurposes whatsoever, whether or not any payments in respect thereof be overdue
\nand notwithstanding any notice to the contrary, and neither the Company, the
\nAgent nor any such agent shall be affected by notice to the contrary.<\/p>\n
The Purchase Contracts shall not, prior to the settlement thereof,
\nentitle the Holder to any of the rights of a holder of shares of Common Stock.<\/p>\n
A copy of the Purchase Contract Agreement is available for inspection
\nat the offices of the Agent.<\/p>\n
B-8
\n 92
\n ABBREVIATIONS<\/p>\n
The following abbreviations, when used in the inscription on the face
\nof this instrument, shall be construed as though they were written out in full
\naccording to applicable laws or regulations:<\/p>\n
TEN COM – as tenants in common<\/p>\n
UNIF GIFT MIN ACT – Custodian
\n ——————————————-
\n (cust) (minor)<\/p>\n
Under Uniform Gifts to Minors Act<\/p>\n
——————————————-
\n (State)<\/p>\n
TEN ENT – as tenants by the entireties<\/p>\n
JT TEN – as joint tenants with right of survivorship
\n and not as tenants in common<\/p>\n
Additional abbreviations may also be used though not in the above list.<\/p>\n
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
\ntransfer(s) unto ______________________________________________________________
\n_______________________________________________________________________________<\/p>\n
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
\nAssignee)
\n_______________________________________________________________________________
\n_______________________________________________________________________________
\n_______________________________________________________________________________<\/p>\n
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
\nthe within Normal Units Certificates and all rights thereunder, hereby
\nirrevocably constituting
\n_______________________________________________________________________________<\/p>\n
B-9
\n 93
\n attorney to transfer said Stripped Units Certificates on the books of
\nMetLife, Inc. with full power of substitution in the premises.<\/p>\n
Dated: ________________ ____________________________________
\n Signature<\/p>\n
NOTICE: The signature to this
\n assignment must correspond with the
\n name as it appears upon the face of
\n the within Normal Units Certificates
\n in every particular, without
\n alteration or enlargement or any
\n change whatsoever.<\/p>\n
Signature Guarantee:_____________________<\/p>\n
B-10
\n 94
\n SETTLEMENT INSTRUCTIONS<\/p>\n
The undersigned Holder directs that a certificate for shares of
\nCommon Stock deliverable upon settlement on or after the Stock Purchase Date of
\nthe Purchase Contracts underlying the number of Stripped Units evidenced by this
\nStripped Units Certificate be registered in the name of, and delivered, together
\nwith a check in payment for any fractional share, to the undersigned at the
\naddress indicated below unless a different name and address have been indicated
\nbelow. If shares are to be registered in the name of a Person other than the
\nundersigned, the undersigned will pay any transfer tax payable incident thereto.<\/p>\n
Dated: ____________________ _________________________________________
\n Signature
\n Signature Guarantee:<\/p>\n
If shares are to be registered in the name of and delivered to a Person other
\nthan the Holder, please (i) print such Person’s name and address and (ii)
\nprovide a guarantee of your signature:<\/p>\n
——————————————————————————–
\n Name<\/p>\n
——————————————————————————–
\n Address<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
REGISTERED HOLDER<\/p>\n
Please print name and address of Registered Holder:<\/p>\n
——————————————————————————–
\n Name<\/p>\n
——————————————————————————–
\n Address<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
Social Security or other Taxpayer Identification Number, if any<\/p>\n
B-11
\n 95
\n ELECTION TO SETTLE EARLY<\/p>\n
The undersigned Holder of this Stripped Units Certificate hereby
\nirrevocably exercises the option to effect Early Settlement in accordance with
\nthe terms of the Purchase Contract Agreement with respect to the Purchase
\nContracts underlying the number of Stripped Units evidenced by this Stripped
\nUnits Certificate specified below. The option to effect Early Settlement may be
\nexercised only with respect to Purchase Contracts underlying Stripped Units with
\nan aggregate Stated Amount equal to $1,000 or an integral multiple thereof. The
\nundersigned Holder directs that a certificate for shares of Common Stock
\ndeliverable upon such Early Settlement be registered in the name of, and
\ndelivered, together with a check in payment for any fractional share and any
\nStripped Units Certificate representing any Stripped Units evidenced hereby as
\nto which Early Settlement of the related Purchase Contracts is not effected, to
\nthe undersigned at the address indicated below unless a different name and
\naddress have been indicated below. Pledged Treasury Securities deliverable upon
\nsuch Early Settlement will be transferred in accordance with the transfer
\ninstructions set forth below. If shares are to be registered in the name of a
\nPerson other than the undersigned, the undersigned will pay any transfer tax
\npayable incident thereto.<\/p>\n
Dated: ____________________ _________________________________________
\n Signature<\/p>\n
Signature Guarantee:_____________________<\/p>\n
B-12
\n 96
\n Number of Units evidenced hereby as to which Early Settlement of the
\nrelated Purchase Contracts is being elected:<\/p>\n
If shares of Common Stock or Stripped Units Certificates are to be registered in
\nthe name of and delivered to and Pledged Treasury Securities are to be
\ntransferred to a Person other than the Holder, please print such Person’s name
\nand address:<\/p>\n
——————————————————————————–
\n Name<\/p>\n
——————————————————————————–
\n Address<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
REGISTERED HOLDER<\/p>\n
Please print name and address of Registered Holder:<\/p>\n
——————————————————————————–
\n Name<\/p>\n
——————————————————————————–
\n Address<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
Social Security or other Taxpayer Identification Number, if any<\/p>\n
Transfer Instructions for Pledged Treasury Securities Transferable Upon Early
\nSettlement or a Termination Event:<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
B-13
\n 97
\n [TO BE ATTACHED TO GLOBAL CERTIFICATES]<\/p>\n
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE<\/p>\n
The following increases or decreases in this Global Certificate have
\nbeen made:<\/p>\n
\n\n Stated Amount of
\n the Global
\n Amount of Amount of Certificate Signature of
\n decrease in Stated increase in Stated following such authorized officer
\n Amount of the Amount of the decrease or of Trustee or
\nDate Global Certificate Global Certificate increase Units Custodian
\n———————————————————————————————–
\n <\/p>\n<\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
B-14
\n 98
\n EXHIBIT C<\/p>\n
INSTRUCTION FROM PURCHASE CONTRACT AGENT TO
\n COLLATERAL AGENT<\/p>\n
[Name]
\n[Address]<\/p>\n
Re: Convertible Equity Security Units of MetLife, Inc. (the
\n “Company”), and MetLife Capital Trust I<\/p>\n
We hereby notify you in accordance with Section 4.1 of the Pledge
\nAgreement, dated as of ____________ __, 2000, among the Company, yourselves, as
\nCollateral Agent, and ourselves, as Purchase Contract Agent and as
\nattorney-in-fact for the holders of [Normal Units] [Stripped Units] from time to
\ntime, that the holder of securities listed below (the “Holder”) has elected to
\nsubstitute [$ _______ aggregate principal amount of Treasury Securities (CUSIP
\nNo. _____)] [$_______ stated liquidation amount of Capital Securities or the
\nappropriate Treasury Consideration, as the case may be,] in exchange for the
\nrelated [Pledged Capital Securities or Pledged Treasury Consideration, as the
\ncase may be (CUSIP No. ____),] [Pledged Treasury Securities] held by you in
\naccordance with the Pledge Agreement and has delivered to us a notice stating
\nthat the Holder has transferred [Treasury Securities] [Capital Securities or the
\nappropriate Treasury Consideration, as the case may be,] to you, as Collateral
\nAgent. We hereby instruct you, upon receipt of such [Pledged Treasury
\nSecurities] [Pledged Capital Securities or Pledged Treasury Consideration, as
\nthe case may be], and upon the payment by such Holder of any applicable fees, to
\nrelease the [Capital Securities or Treasury Consideration, as the case may be,]
\n[Treasury Securities] related to such [Normal Units] [Stripped Units] to us in
\naccordance with the Holder’s instructions.<\/p>\n
Date:_____________________________<\/p>\n
By:
\n Name:
\n Title:<\/p>\n
Signature Guarantee:<\/p>\n
Please print name and address of Registered Holder electing to substitute
\n[Treasury Securities] [Capital Securities or Pledged Treasury Consideration, as
\nthe case may be,] for
\n 99
\nthe [Pledged Capital Securities or Pledged Treasury Consideration, as the case
\nmay be,] [Pledged Treasury Securities]:<\/p>\n
__________________________________ ____________________________________
\nName Social Security or other Taxpayer
\n Identification Number, if any<\/p>\n
__________________________________
\nAddress<\/p>\n
__________________________________<\/p>\n
__________________________________<\/p>\n
C-2
\n 100
\n EXHIBIT D<\/p>\n
INSTRUCTION TO PURCHASE CONTRACT AGENT<\/p>\n
Bank One Trust Company, N.A.
\nOne North State Street, 9th Floor
\nChicago, Illinois 60602
\nAttention: Corporate Trust Services Division<\/p>\n
Re: Convertible Equity Security Units of MetLife, Inc. (the
\n “Company”), and MetLife Capital Trust I<\/p>\n
The undersigned Holder hereby notifies you that it has delivered to
\n________, as Collateral Agent, [$_______ aggregate principal amount of Treasury
\nSecurities] [$__________ stated liquidation amount of Capital Securities or the
\nappropriate Treasury Consideration, as the case may be,] in exchange for the
\nrelated [Pledged Capital Securities or Pledged Treasury Consideration as the
\ncase may be,] [Pledged Treasury Securities] held by the Collateral Agent, in
\naccordance with Section 4.1 of the Pledge Agreement, dated _______, 2000, among
\nyou, the Company and the Collateral Agent. The undersigned Holder has paid the
\nCollateral Agent all applicable fees relating to such exchange. The undersigned
\nHolder hereby instructs you to instruct the Collateral Agent to release to you
\non behalf of the undersigned Holder the [Pledged Capital Securities or Pledged
\nTreasury Consideration, as the case may be,] [Pledged Treasury Securities]
\nrelated to such [Normal Units] [Stripped Units].<\/p>\n
Date:_____________________________ ____________________________________<\/p>\n
By:_________________________________<\/p>\n
Signature Guarantee:________________<\/p>\n
Dated:
\n 101
\nPlease print name and address of Registered Holder:<\/p>\n
__________________________________ ____________________________________
\nName Social Security or other Taxpayer
\n Identification Number, if any<\/p>\n
__________________________________
\nAddress<\/p>\n
__________________________________<\/p>\n
__________________________________<\/p>\n
D-2<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6850,8205],"corporate_contracts_industries":[9415,9445],"corporate_contracts_types":[9613,9619],"class_list":["post-42718","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bank-one-corp","corporate_contracts_companies-metlife-inc","corporate_contracts_industries-financial__banks","corporate_contracts_industries-insurance__life","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42718","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42718"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42718"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42718"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42718"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}