<PAGE> 1
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM 10-Q/A
AMENDMENT NO. 1
(MARK ONE)
<TABLE>
<C> <S>
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM --------------- TO
---------------
</TABLE>
COMMISSION FILE NUMBER: 0-27276
CAREMARK RX, INC.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<S> <C>
DELAWARE 63-1151076
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
3000 GALLERIA TOWER, SUITE 1000
BIRMINGHAM, ALABAMA 35244
(Address of principal executive offices)
(205)733-8996
(Registrant's telephone number, including area code)
(Formerly MedPartners, Inc.)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ].
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
<TABLE>
<CAPTION>
CLASS OUTSTANDING AT NOVEMBER 1, 1999
----- -------------------------------
<S> <C>
Common Stock, Par Value $.001 Per Share 199,566,476
</TABLE>
- ---------------
* Includes 8,419,952 shares held in trust to be utilized in employee benefit
plans.
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<PAGE> 2
EXPLANATORY NOTE
The purpose of this amendment is solely for the addition of the following
documents, utilized in connection with the offering in September 1999, of 7%
Shared Preference Redeemable Securities ("SPuRS") of Caremark Rx Capital Trust
I, to the Company's Form 10-Q filed for the period ending September 30, 1999.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
The exhibits required by Regulation S-K are set forth in the following
list:
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C> <C>
4.1 -- Certificate of Trust of Caremark Rx Capital Trust I
4.2 -- Trust Agreement of Caremark Rx Capital Trust I dated as of
September 10, 1999, between Caremark Rx, Inc., the
Wilmington Trust Company and the Administrative Trustees
named therein
4.3 -- Amended and Restated Trust Agreement dated as of September
29, 1999 between Caremark Rx, Inc., the Wilmington Trust
Company, and the Holders named therein.
4.4 -- Indenture for the Convertible Subordinated Debentures due
2029 dated as of September 29, 1999 between Caremark Rx,
Inc. and the Wilmington Trust Company
4.5 -- Form of Common Securities
4.6 -- Form of SPuRS
4.7 -- Form of Convertible Subordinated Debentures due 2029
4.8 -- Guarantee Agreement dated as of September 29, 1999 between
Caremark Rx, Inc. and the Wilmington Trust Company.
10.6 -- Registration Rights Agreement dated September 29, 1999 by
and among Caremark Rx Capital Trust I, Caremark Rx, Inc. and
Warburg Dillon Read LLC.
</TABLE>
Caremark Rx, Inc.
By: /s/ JAMES H. DICKERSON, JR.
------------------------------------
James H. Dickerson, Jr.
Executive Vice President and
Chief Financial Officer
By: /s/ HOWARD A. MCLURE
------------------------------------
Howard A. McLure
Senior Vice President and
Chief Accounting Officer
Date: December 3, 1999
<PAGE> 1
EXHIBIT 4.1
CERTIFICATE OF TRUST OF
CAREMARK RX CAPITAL TRUST I
THIS Certificate of Trust of Caremark Rx Capital Trust I (the "Trust")
is being duly executed and filed on behalf of the Trust by the undersigned, as
trustee, to form a business trust under the Delaware Business Trust Act (12
Del. C. ss. 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed by this
Certificate of Trust is Caremark Rx Capital Trust I.
2. Delaware Trustee. The name and business address of the
trustee of the Trust in the State of Delaware are Wilmington Trust Company,
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001,
Attn: Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall be effective
upon filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY, not in
its individual capacity but solely as Trustee
By: /s/ Patricia A. Evans
-------------------------------------------
Name: Patricia A. Evans
Title: Financial Services Officer
<PAGE> 1
EXHIBIT 4.2
TRUST AGREEMENT
OF
CAREMARK RX CAPITAL TRUST I
THIS TRUST AGREEMENT is made as of September 10, 1999 (this "Trust
Agreement"), by and between Caremark Rx, Inc., a Delaware corporation, as
depositor (the "Depositor"), and Wilmington Trust Company, a Delaware banking
corporation, as trustee (the "Trustee"). The Depositor and the Trustee hereby
agree as follows:
1. The trust created hereby shall be known as "Caremark Rx Capital
Trust I" (the "Trust"), in which name the Trustee or the Depositor, to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10. Such amount shall constitute the initial trust
estate. It is the intention of the parties hereto that the Trust created hereby
constitute a business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. ss. 3801, et seq. (the "Business Trust Act"), and that this document
constitute the governing instrument of the Trust. The Trustee is hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in the form attached hereto.
3. The Depositor and the Trustee will enter into an amended and
restated Trust Agreement satisfactory to each such party to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities and Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement, the
Trustee shall not have any duty or obligation hereunder or with respect of the
trust estate, except as otherwise required by applicable law or as may be
necessary to obtain prior to such execution and delivery any licenses, consents
or approvals required by applicable law or otherwise. Notwithstanding the
foregoing, the Trustee may take all actions deemed proper as are necessary to
effect the transactions contemplated herein.
4. The Depositor, as the depositor of the Trust, is hereby authorized,
in its discretion, (i) to prepare one or more offering memoranda or circular in
preliminary and final form relating to the offering and sale of Preferred
Securities of the Trust in a transaction exempt from the registration
requirements of the Securities Act of 1933, as amended (the "1933 Act"), and
such forms or filings as may be required by the 1933 Act, the Securities
Exchange Act of 1934, as amended, or the Trust Indenture Act of 1939, as
amended, in each case relating to the Preferred Securities of the Trust; (ii)
to file and execute on behalf of the Trust, such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of process
and other papers and documents that shall be necessary or desirable to register
or establish the exemption from registration of the Preferred or Capital
Securities of the Trust under the securities or "Blue Sky" laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem necessary or
desirable; (iii) to execute and file an application, and all other
applications, statements, certificates, agreements and other instruments that
shall be necessary or desirable, to the Private Offerings, Resales and Trading
through Automated Linkages ("PORTAL") Market; (iv) to execute and
<PAGE> 2
deliver letters or documents to, or instruments for filing with, a depository
relating to the Preferred Securities of the Trust; and (v) to execute, deliver
and perform on behalf of the Trust one or more purchase agreements, dealer
manager agreements, escrow agreements, remarketing agreements, registration
rights agreements and other related agreements providing for or relating to the
sale of the Preferred Securities of the Trust.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Securities and Exchange Commission (the
"Commission"), PORTAL or state securities or "Blue Sky" laws to be executed on
behalf of the Trust by the Trustee, the Trustee, in its capacity as trustee of
the Trust, is hereby authorized to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that the
Trustee, in its capacity as trustee of the Trust, shall not be required to join
in any such filing or execute on behalf of the Trust any such document unless
required by the rules and regulations of the Commission, PORTAL or state
securities or "Blue Sky" laws.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be one and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of trustees of the Trust; provided,
however, that to the extent required by the Business Trust Act, one trustee of
the Trust shall either be a natural person who is a resident of the State of
Delaware or, if not a natural person, an entity which has its principal place
of business in the State of Delaware. Subject to the foregoing, the Depositor
is entitled to appoint or remove without cause any trustee of the Trust at any
time. Any trustee of the Trust may resign upon thirty days' prior notice to the
Depositor.
7. The Depositor hereby agrees to (i) reimburse the Trustee for all
reasonable expenses (including reasonable fees and expenses of counsel and
other experts) and (ii) indemnify, defend and hold harmless the Trustee and any
of the officers, directors, employees and agents of the Trustee (the
"Indemnified Persons") from and against and all losses, damages, liabilities,
claims, actions, suits, costs, expenses, disbursements (including the
reasonable fees and expenses of counsel), taxes and penalties of any kind and
nature whatsoever (collectively, "Expenses"), to the extent that such Expenses
arise out of or are imposed upon or asserted at any time against such
Indemnified Persons with respect to the performance of this Trust Agreement,
the creation, operation or termination of the Trust or the transactions
contemplated hereby; provided, however, that the Depositor shall not be
required to indemnify any Indemnified Person for any Expenses which are a
result of the willful misconduct, bad faith or gross negligence of such
Indemnified Person.
8. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
-2-
<PAGE> 3
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
CAREMARK RX, INC., as Depositor
By: /s/ C. Clark Wingfield
-------------------------------------
Name: C. Clark Wingfield
Title: EVP & CAO
WILMINGTON TRUST COMPANY, as Trustee
By: /s/ James P. Lawler
-------------------------------------
Name: James P. Lawler
Title: Vice President
-3-
<PAGE> 1
EXHIBIT 4.3
AMENDED AND RESTATED TRUST AGREEMENT
AMONG
CAREMARK RX, INC., AS DEPOSITOR
CAREMARK RX CAPITAL TRUST I
WILMINGTON TRUST COMPANY
AS PROPERTY TRUSTEE AND
AS DELAWARE TRUSTEE,
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN,
AND
THE SEVERAL HOLDERS (AS DEFINED HEREIN)
DATED AS OF SEPTEMBER 29, 1999
<PAGE> 2
Certain Sections of this Trust Agreement relating
to Sections 310 through 318 of the Trust Indenture
Act of 1939:
<TABLE>
<CAPTION>
Indenture Trust
Trust Act Section Agreement Section
- ----------------------------------------------------------------- -------------------------
<S> <C>
(Section) 310 (a)(1) 8.7
(a)(2) 8.7
(a)(3) 8.9
(a)(4) 2.7(a)(ii)
(b) 8.8
(Section) 311 (a) 8.13
(b) 8.13
(Section) 312 (a) 5.7
(b) 5.7
(c) 5.7
(Section) 313 (a) 8.14(a)
(a)(4) 8.14(b)
(b) 8.14(b)
(c) 10.9
(d) 8.14(c)
(Section) 314 (a) 8.15
(b) Not Applicable
(c)(1) 8.16
(c)(2) 8.16
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.1, 8.16
(Section) 315 (a) 8.1(a), 8.3(a)
(b) 8.2, 10.9
(c) 8.1(a)
(d) 8.1, 8.3
(e) Not Applicable
(Section) 316 (a) Not Applicable
(a)(1)(A) Not Applicable
(a)(1)(B) Not Applicable
(a)(2) Not Applicable
(b) 5.14
(c) 6.7
(Section) 317 (a)(1) Not Applicable
(a)(2) Not Applicable
(b) 5.9
(Section) 318 (a) 10.11
</TABLE>
Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I DEFINED TERMS.............................................................................................1
SECTION 1.1. DEFINITIONS.........................................................................................1
ARTICLE II CONTINUATION OF TRUST...................................................................................11
SECTION 2.1. NAME...............................................................................................11
SECTION 2.2. OFFICE OF DELAWARE TRUSTEE; PRINCIPAL PLACE OF BUSINESS............................................11
SECTION 2.3. INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL EXPENSES....................................11
SECTION 2.4. ISSUANCE OF PREFERRED SECURITIES...................................................................11
SECTION 2.5. ISSUANCE OF COMMON SECURITIES......................................................................12
SECTION 2.6. SUBSCRIPTION AND PURCHASE OF DEBENTURES............................................................12
SECTION 2.7. DECLARATION OF TRUST...............................................................................12
SECTION 2.8. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS...................................................12
SECTION 2.9. ASSETS OF TRUST....................................................................................16
SECTION 2.10. TITLE TO TRUST PROPERTY...........................................................................17
ARTICLE III PAYMENT ACCOUNT........................................................................................17
SECTION 3.1. PAYMENT ACCOUNT....................................................................................17
ARTICLE IV DISTRIBUTIONS; REDEMPTION; CONVERSION...................................................................17
SECTION 4.1. DISTRIBUTIONS......................................................................................17
SECTION 4.2. REDEMPTION.........................................................................................18
SECTION 4.3. CONVERSION.........................................................................................20
SECTION 4.4. SUBORDINATION OF COMMON SECURITIES.................................................................23
SECTION 4.5. PAYMENT PROCEDURES.................................................................................24
SECTION 4.6. TAX RETURNS AND REPORTS............................................................................24
SECTION 4.7. PAYMENT OF EXPENSES OF TRUST.......................................................................24
SECTION 4.8. PAYMENTS UNDER INDENTURE OR PURSUANT TO DIRECT ACTIONS.............................................25
ARTICLE V TRUST SECURITIES CERTIFICATES............................................................................25
SECTION 5.1. INITIAL OWNERSHIP..................................................................................25
SECTION 5.2. TRUST SECURITIES CERTIFICATES......................................................................25
SECTION 5.3. EXECUTION AND DELIVERY OF TRUST SECURITIES CERTIFICATES............................................25
SECTION 5.4. REGISTRATION OF TRANSFER AND EXCHANGE OF PREFERRED SECURITIES......................................26
SECTION 5.5. TRANSFER OF CERTIFICATES...........................................................................29
SECTION 5.6. DEEMED HOLDERS.....................................................................................30
</TABLE>
i
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<TABLE>
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<S> <C>
SECTION 5.7. ACCESS TO LIST OF HOLDERS'NAMES AND ADDRESSES......................................................30
SECTION 5.8. MAINTENANCE OF OFFICE OR AGENCY....................................................................30
SECTION 5.9. APPOINTMENT OF PAYING AGENT........................................................................30
SECTION 5.10. APPOINTMENT OF CONVERSION AGENT...................................................................31
SECTION 5.11. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR.......................................................31
SECTION 5.12. BOOK ENTRY INTERESTS..............................................................................32
SECTION 5.13. NOTICES TO CLEARING AGENCY........................................................................33
SECTION 5.14. APPOINTMENT OF SUCCESSOR CLEARING AGENCY..........................................................33
SECTION 5.15. DEFINITIVE PREFERRED SECURITIES UNDER CERTAIN CIRCUMSTANCES.......................................33
SECTION 5.16. MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES CERTIFICATES................................34
SECTION 5.17. RIGHTS OF HOLDERS.................................................................................34
SECTION 5.18. CUSIP NUMBERS.....................................................................................36
ARTICLE VI ACTS OF HOLDERS; MEETINGS; VOTING.......................................................................37
SECTION 6.1. LIMITATIONS ON VOTING RIGHTS.......................................................................37
SECTION 6.2. NOTICE OF MEETINGS.................................................................................38
SECTION 6.3. MEETINGS OF HOLDERS................................................................................38
SECTION 6.4. VOTING RIGHTS......................................................................................39
SECTION 6.5. PROXIES, ETC.......................................................................................39
SECTION 6.6. HOLDER ACTION BY WRITTEN CONSENT...................................................................39
SECTION 6.7. RECORD DATE FOR VOTING AND OTHER PURPOSES..........................................................39
SECTION 6.8. ACTS OF HOLDERS....................................................................................39
SECTION 6.9. INSPECTION OF RECORDS..............................................................................40
ARTICLE VII REPRESENTATIONS AND WARRANTIES.........................................................................41
SECTION 7.1. REPRESENTATIONS AND WARRANTIES OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE............................41
ARTICLE VIII THE TRUSTEES..........................................................................................42
SECTION 8.1. CERTAIN DUTIES AND RESPONSIBILITIES................................................................42
SECTION 8.2. CERTAIN NOTICES....................................................................................43
SECTION 8.3. CERTAIN RIGHTS OF PROPERTY TRUSTEE.................................................................44
SECTION 8.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.............................................46
SECTION 8.5. MAY HOLD SECURITIES................................................................................46
SECTION 8.6. COMPENSATION; INDEMNITY; FEES......................................................................46
SECTION 8.7. CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF TRUSTEES.......................................47
SECTION 8.8. CONFLICTING INTERESTS..............................................................................48
SECTION 8.9. CO-TRUSTEES AND SEPARATE TRUSTEE...................................................................48
SECTION 8.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.................................................49
SECTION 8.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR............................................................50
SECTION 8.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.......................................51
</TABLE>
ii
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<TABLE>
<CAPTION>
<S> <C>
SECTION 8.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR OR TRUST......................................51
SECTION 8.14. REPORTS BY PROPERTY TRUSTEE.......................................................................52
SECTION 8.15. REPORTS TO PROPERTY TRUSTEE.......................................................................52
SECTION 8.16. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT..................................................52
SECTION 8.17. NUMBER OF TRUSTEES................................................................................53
SECTION 8.18. DELEGATION OF POWER...............................................................................53
ARTICLE IX DISSOLUTION, LIQUIDATION, TERMINATION AND MERGER........................................................54
SECTION 9.1. TERMINATION UPON EXPIRATION DATE...................................................................54
SECTION 9.2. EARLY TERMINATION..................................................................................54
SECTION 9.3. TERMINATION........................................................................................54
SECTION 9.4. LIQUIDATION........................................................................................55
SECTION 9.5. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF TRUST....................................56
ARTICLE X RIGHT TO REQUIRE REPURCHASE..............................................................................57
SECTION 10.1. RIGHT TO REQUIRE REPURCHASE.......................................................................57
SECTION 10.2. NOTICE; METHOD OF EXERCISING REPURCHASE RIGHT.....................................................57
SECTION 10.3. DEPOSIT OF REPURCHASE PRICE.......................................................................58
SECTION 10.4. SECURITIES NOT REPURCHASED ON REPURCHASE DATE.....................................................58
SECTION 10.5. SECURITIES REPURCHASED IN PART....................................................................58
SECTION 10.6. DEFINITIONS.......................................................................................59
ARTICLE XI MISCELLANEOUS PROVISIONS................................................................................60
SECTION 11.1. LIMITATION OF RIGHTS OF HOLDERS...................................................................60
SECTION 11.2. LIABILITY.........................................................................................60
SECTION 11.3. AMENDMENT.........................................................................................60
SECTION 11.4. SEPARABILITY......................................................................................61
SECTION 11.5. GOVERNING LAW.....................................................................................62
SECTION 11.6. PAYMENTS DUE ON NON-BUSINESS DAY..................................................................62
SECTION 11.7. SUCCESSORS........................................................................................62
SECTION 11.8. HEADINGS..........................................................................................62
SECTION 11.9. REPORTS, NOTICES AND DEMANDS......................................................................62
SECTION 11.10. AGREEMENT NOT TO PETITION........................................................................63
SECTION 11.11. TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE ACT...........................................63
SECTION 11.12. ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE AND INDENTURE..................................64
SECTION 11.13. HOLDERS ARE PARTIES..............................................................................64
SECTION 11.14. COUNTERPARTS.....................................................................................64
</TABLE>
iii
<PAGE> 6
AMENDED AND RESTATED TRUST AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT (this "Trust Agreement"), dated as of
September 29, 1999 among (i) CAREMARK RX, INC., a Delaware corporation
(including any successors or assigns, the "Depositor"), (ii) Wilmington Trust
Company, as property trustee (in such capacity, the "Property Trustee" and, in
its separate corporate capacity and not in its capacity as Property Trustee, the
"Bank") and as Delaware trustee (the "Delaware Trustee"), (iii) James H.
Dickerson, Jr., an individual, Howard A. McLure, an individual, and Sara J.
Finley, an individual, each of whose address is c/o Caremark Rx, Inc., 3000
Galleria Tower, Suite 1000, Birmingham, Alabama 35244 (each an "Administrative
Trustee" and collectively the "Administrative Trustees") (the Property Trustee,
the Delaware Trustee and the Administrative Trustees are referred to
individually as a "Trustee" and collectively as the "Trustees") and (iv) the
several Holders (as hereinafter defined).
WITNESSETH:
WHEREAS, the Depositor and certain of the Trustees have
heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by the entering into that certain Trust Agreement,
dated as of September 10, 1999 (the "Original Trust Agreement"), and by the
execution and filing with the Secretary of State of the State of Delaware of the
Certificate of Trust, filed on September 10, 1999, attached as Exhibit A (the
"Certificate of Trust"); and
WHEREAS, the Depositor and the Trustees desire to amend and
restate the Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (i) the issuance and sale of the Common
Securities (as hereinafter defined) by the Trust to the Depositor, (ii) the
issuance and sale of the Preferred Securities (as hereinafter defined) by the
Trust pursuant to the Purchase Agreement (as hereinafter defined) and (iii) the
acquisition by the Trust from the Depositor of all of the right, title and
interest in the Debentures (as hereinafter defined) issued pursuant to the
Indenture (as hereinafter defined).
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders (as hereinafter defined),
hereby amends and restates the Original Trust Agreement in its entirety and
agrees as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1. DEFINITIONS.
For all purposes of this Trust Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the singular;
1
<PAGE> 7
(b) all other terms used herein that are defined in the Trust
Indenture Act (as hereinafter defined), either directly or by reference therein,
have the meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement; and
(d) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8(a).
"Additional Amount" means, with respect to Trust Securities of
a given Liquidation Amount and/or a given period, the amount of Additional
Interest (as defined in the Indenture) paid by the Depositor on a Like Amount of
Debentures for such period.
"Administrative Trustee" means each of the individuals
identified as an "Administrative Trustee" in the preamble to this Trust
Agreement, solely in such individual's capacity as an Administrative Trustee of
the Trust and not in such individual's individual capacity, or such
Administrative Trustee's successor in interest in such capacity, and includes
any Special Administrative Trustee (as hereinafter defined) appointed as herein
provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Appointment Event" has the meaning set forth in Section
6.1(d).
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"BHCA Person" has the meaning set forth in Section 4.3(a).
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such Person under any applicable
federal or state bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of such Person or of any substantial part of its property or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 60 consecutive
days; or
2
<PAGE> 8
(b) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law, or the consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
similar official) of such Person or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts generally as they become due
and its willingness to be adjudicated a bankrupt, or the taking of corporate
action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 11.10.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Depositor to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, and delivered to the Trustees.
"Book-Entry Preferred Securities Certificates" means a
beneficial interest in the Preferred Securities Certificates, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 5.12.
"Business Day" means a day other than (i) a Saturday or Sunday
and (ii) a day on which banking institutions in The City of New York or the
State of Delaware are authorized or required by law or executive order to remain
closed.
"Certificate Depository Agreement" means the agreement among
the Trust, the Depositor and The Depository Trust Company, as the initial
Clearing Agency, dated as of the Closing Date, relating to the Preferred
Securities Certificates, substantially in the form attached as Exhibit B, as the
same may be amended and supplemented from time to time.
"Certificate of Trust" has the meaning specified in the
recitals hereof, as amended from time to time.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act. The Depository
Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" means the date of execution and delivery of
this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
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"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Common Security" means an undivided common beneficial
interest in the assets of the Trust, having a Liquidation Amount of $50 and
having the rights provided therefor in this Trust Agreement, including the right
to convert to shares of the Common Stock and the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Common Stock" means the common stock of the Depositor, par
value $.001 per share.
"Conversion Agent" has the meaning set forth in Section
4.3(d).
"Conversion Date" has the meaning set forth in Section 4.3(c).
"Conversion Price" has the meaning set forth in Section
4.3(a).
"Conversion Request" has the meaning set forth in Section
4.3(b).
"Corporate Trust Office" means (i) when used with respect to
the Property Trustee, the principal office of the Property Trustee located in
Wilmington, Delaware, and (ii) when used with respect to the Indenture Trustee,
the principal office of the Indenture Trustee located in Wilmington, Delaware.
"Debenture Redemption Date" means, with respect to any
Debentures to be redeemed under the Indenture, the date fixed for redemption
under the Indenture.
"Debenture Stated Maturity" means the date specified pursuant
to the terms of the Debentures as the date on which the principal of the
Debentures is due and payable.
"Debenture Tax Event" means a "Tax Event" as defined in the
Indenture.
"Debentures" means the $206,186,000 aggregate principal amount
of the Depositor's 7.0% Convertible Subordinated Debentures due 2029 issued
pursuant to the Indenture.
"Definitive Preferred Securities" means either or both (as the
context requires) of (i) Preferred Securities Certificates issued as Book-Entry
Preferred Securities Certificates as provided in Section 5.12 and (ii) Preferred
Securities Certificates issued in certificated, fully registered form as
provided in Section 5.15.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. 3801, et seq., as it may be amended from time to
time.
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"Delaware Trustee" means the Person identified as the
"Delaware Trustee" in the preamble to this Trust Agreement solely in its
capacity as Delaware Trustee of the Trust and not in its individual capacity, or
its successor in interest in such capacity, or any successor trustee appointed
as herein provided.
"Depositor" has the meaning specified in the preamble to this
Trust Agreement.
"Direct Action" has the meaning specified in Section 5.17(f).
"Distribution Date" has the meaning specified in Section
4.1(a).
"Distributions" has the meaning specified in Section 4.1(a).
"Early Termination Event" has the meaning specified in Section
9.2.
"Event of Default" means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Indenture Event of Default; or
(b) default by the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of such default
for a period of 30 days; provided, however, that a valid extension of the
interest payment period by the Depositor pursuant to Section 3.11 of the
Indenture shall not constitute a default in the payment of Distributions); or
(c) default by the Property Trustee in the payment of any
Redemption Price or Repurchase Price of any Trust Security when it becomes due
and payable; or
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in this Trust Agreement
(other than a covenant or warranty a default in the performance or breach of
which is dealt with in clause (b) or (c) above) and continuation of such default
or breach for a period of 90 days after there has been given, by registered or
certified mail, to the defaulting Trustee or Trustees by the Holders of at least
25% in aggregate Liquidation Amount of the Outstanding Preferred Securities, a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee and the failure by the Depositor to appoint a successor
Property Trustee within 90 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expiration Date" has the meaning specified in Section 9.1.
"Global Preferred Security" or "Global Preferred Securities"
means a Preferred Security or Securities in the form set forth in Exhibit D
attached hereto.
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"Global Preferred Securities Certificate" has the meaning
specified in Section 5.12.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Depositor and Wilmington Trust Company, as trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the Holders of the Preferred Securities, as amended from time to
time.
"Holder" means a Person in whose name a Trust Security is
registered in the Securities Register; any such Person shall be a beneficial
owner within the meaning of the Delaware Business Trust Act; provided, however,
that in determining whether the Holders of the requisite amount of Preferred
Securities have voted on any matter provided for in this Trust Agreement, then
for the purpose of any such determination, so long as Definitive Preferred
Securities Certificates have not been issued, the term Holders or Holders as
used herein shall refer to the Owners.
"Indenture" means the Indenture, dated as of September 29,
1999 between the Depositor and the Indenture Trustee, as trustee, as amended or
supplemented from time to time.
"Indenture Event of Default" means an "Event of Default" as
defined in the Indenture.
"Indenture Trustee" means Wilmington Trust Company, a Delaware
corporation, as trustee under the Indenture, and any successor trustee appointed
as provided therein.
"Initial Purchaser" means Warburg Dillon Read LLC.
"Investment Company Event" means that the Administrative
Trustees shall have received an opinion from independent counsel to the effect
that, as a result of the occurrence of a change in law or regulation or a
written change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority (a "Change
in 1940 Act Law"), there is more than an insubstantial risk that the Trust is or
will be considered an "investment company" which is required to be registered
under the Investment Company Act of 1940, as amended, which Change in 1940 Act
Law becomes effective on or after the date of the Offering Memorandum.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption or
repurchase of Trust Securities, Trust Securities having a Liquidation Amount
equal to the principal amount of Debentures to be contemporaneously redeemed or
repurchased in accordance with the Indenture, the proceeds of which will be used
to pay the Redemption Price or Repurchase Price of such Trust Securities and (b)
with respect to a distribution of Debentures to Holders of Trust Securities in
connection with a dissolution or liquidation of the Trust, Debentures having a
principal amount equal to the Liquidation Amount of the Trust Securities of the
Holder to whom such Debentures are distributed.
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"Liquidated Damages" shall have the meaning set forth in
Section 5 of the Registration Rights Agreement.
"Liquidation Amount" means the stated amount of $50 per Trust
Security.
"Liquidation Date" means the date on which Debentures are to
be distributed to Holders of Trust Securities in connection with a termination
and liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in
Section 9.4(d).
"1940 Act" means the Investment Company Act of 1940, as
amended.
"Offering Memorandum" means the offering memorandum dated
September 24, 1999 relating to the offering of the Preferred Securities
contemplated by the Purchase Agreement.
"Officers' Certificate" means a certificate signed by the
Chairman, Chief Executive Officer, President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Controller, the Secretary or an Assistant
Secretary, of the Depositor, and delivered to the appropriate Trustee. One of
the officers signing an Officers' Certificate given pursuant to Section 8.16
shall be the principal executive, financial or accounting officer of the
Depositor. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering the
Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust, the Property Trustee or the Depositor, and who
shall be reasonably acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding" means, when used with respect to Trust
Securities as of the date of determination, all Trust Securities theretofore
executed and delivered under this Trust Agreement, except:
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(a) Trust Securities theretofore canceled by the Securities
Registrar or delivered to the Securities Registrar for cancellation;
(b) Trust Securities for whose payment or redemption funds in
the necessary amount theretofore have been deposited with the Property Trustee
or any Paying Agent for the Holders of such Trust Securities; provided that, if
such Trust Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement;
(c) Trust Securities which have been converted pursuant to
Section 4.3; and
(d) Trust Securities which have been paid or in exchange for
or in lieu of which other Trust Securities have been executed and delivered
pursuant to this Trust Agreement, including pursuant to Sections 5.4, 5.5, 5.11
and 5.16; provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Preferred Securities have given
any request, demand, authorization, direction, notice, consent or waiver
hereunder, Preferred Securities owned by the Depositor, any Trustee or any
Affiliate of the Depositor or any Trustee shall be disregarded and deemed not to
be Outstanding, except that (a) in determining whether any Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Preferred Securities that such Trustee actually
knows to be so owned shall be so disregarded and (b) the foregoing shall not
apply at any time when all of the Outstanding Preferred Securities are owned by
the Depositor, one or more of the Trustees and/or any such Affiliate. Preferred
Securities so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Administrative
Trustees the pledgee's right so to act with respect to such Preferred Securities
and that the pledgee is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a
Book-Entry Preferred Securities Certificate as reflected in the records of the
Clearing Agency or, if a Clearing Agency Participant is not the beneficial
owner, then as reflected in the records of a Person maintaining an account with
such Clearing Agency (directly or indirectly, in accordance with the rules of
such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.9 and initially shall be the Bank.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee with the Bank in its
corporate trust department for the benefit of the Holders in which all amounts
paid in respect of the Debentures will be held and from which the Property
Trustee, through the Paying Agent, shall make payments to the Holders in
accordance with Sections 4.1 and 4.2 and Article X.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in the form attached
as Exhibit D.
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<PAGE> 14
"Preferred Security" means an undivided preferred beneficial
interest in the assets of the Trust, having a Liquidation Amount of $50 and
having the rights provided therefor in this Trust Agreement, including the right
to convert to shares of the Common Stock and the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Property Trustee" means the Person identified as the
"Property Trustee" in the preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Trust and not in its individual capacity, or
its successor in interest in such capacity, or any successor property trustee
appointed as herein provided.
"Purchase Agreement" means the Purchase Agreement, dated as of
September 24, 1999, among the Trust, the Depositor and Warburg Dillon Read LLC.
"Redemption Date" means, with respect to any Trust Security to
be redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the Debenture Stated
Maturity shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security,
the redemption price paid by the Depositor upon the concurrent redemption of a
Like Amount of Debentures, allocated on a pro rata basis (based on Liquidation
Amounts) among the Trust Securities.
"Registration Rights Agreement" means that certain
Registration Rights Agreement dated as of September 29, 1999 among the Trust,
the Depositor and the Initial Purchasers.
"Regulation S" means Regulation S under the Securities Act.
"Relevant Trustee" shall have the meaning specified in Section
8.10(a).
"Repurchase Date" shall have the meaning specified in Section
10.1
"Repurchase Price" shall have the meaning specified in Section
10.1
"Resale Restriction Termination Date" means, with respect to
any Preferred Security, the later of (i) the date which is two years after the
later of the original issue date of such Preferred Security and (ii) the last
date on which the Depositor or an Affiliate of the Depositor was the owner of
such Preferred Security (or any predecessor Trust Security).
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Registrar" shall have the meaning specified in
Section 5.5.
"Securities Register" shall have the meaning specified in
Section 5.5.
"Shelf Registration Statement" means the registration
statement under the Securities Act with respect to the Preferred Securities, the
Debentures, the Guarantee and Common Stock that the Trust and the Depositor are
required to file pursuant to the Registration Rights Agreement.
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"Special Administrative Trustee" means an Administrative
Trustee appointed by the Holders of the Preferred Securities pursuant to the
provisions of Section 6.1(d).
"Special Event" means an Investment Company Event or a Tax
Event.
"Tax Event" means the receipt by the Trust of an Opinion of
Counsel experienced in such matters to the effect that, as a result of (a) any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein or (b) any amendment to, or
change in, an interpretation or application of such laws or regulations, there
is more than an insubstantial risk that (i) the Trust would be subject to United
States federal income tax with respect to income accrued or received on the
Convertible Subordinated Debentures, (ii) interest payable to the Trust on the
Convertible Subordinated Debentures would not be deductible, in whole or in
part, by the Depositor for United States federal income tax purposes or (iii)
the Trust would be subject to more than a de minimis amount of other taxes,
duties or other governmental charges, which change or amendment becomes
effective on or after the date of the Offering Memorandum.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday, other than any day on which securities are generally not traded on
the applicable securities exchange or in the relevant market.
"Transfer Restricted Securities" means Preferred Securities
that bear or are required to bear the legend set forth in Section 5.4(e).
"Trust" means the Delaware business trust created and
continued hereby and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in accordance
with the applicable provisions hereof, including (i) all exhibits hereto and
(ii) for all purposes of this Trust Agreement and any such modification,
amendment or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Trust Agreement and any such
modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) any funds on
deposit in, or owing to, the Payment Account and (c) all proceeds and rights in
respect of the foregoing.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trust Security" means any of the Common Securities and the
Preferred Securities.
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"Trustees" means, collectively, the Property Trustee, the
Delaware Trustee and the Administrative Trustees.
ARTICLE II
CONTINUATION OF TRUST
SECTION 2.1. NAME.
The Trust continued hereby shall be known as "Caremark Rx
Capital Trust I," as such name may be modified from time to time by the
Administrative Trustees following written notice to the Holders and the other
Trustees, in which name the Trustees engage in the transactions contemplated
hereby, make and execute contracts and other instruments on behalf of the Trust
and sue and be sued.
SECTION 2.2. OFFICE OF DELAWARE TRUSTEE; PRINCIPAL PLACE OF
BUSINESS.
The address of the Delaware Trustee in the State of Delaware
is Wilmington Trust Company, 1100 North Market Street, Wilmington, Delaware
19801, Attention: Corporate Trust Department, or such other address in the State
of Delaware as the Delaware Trustee may designate by written notice to the
Holders and the Depositor. The principal executive office of the Trust is c/o
Caremark Rx, Inc., 3000 Galleria Tower, Suite 1000, Birmingham, Alabama 35244.
SECTION 2.3. INITIAL CONTRIBUTION OF TRUST PROPERTY;
ORGANIZATIONAL EXPENSES.
The Property Trustee acknowledges receipt in trust from the
Depositor in connection with the Original Trust Agreement of the sum of $10,
which constituted the initial Trust Property. The Depositor will pay
organizational expenses of the Trust as they arise or, upon request of any
Trustee, promptly will reimburse such Trustee for any such expenses paid by such
Trustee. The Depositor will make no claim upon the Trust Property for the
payment of such expenses.
SECTION 2.4. ISSUANCE OF PREFERRED SECURITIES.
(a) As of September 24, 1999, the Depositor, on behalf of the
Trust and pursuant to the Original Trust Agreement, executed and delivered the
Purchase Agreement. Contemporaneously with the execution and delivery of this
Trust Agreement, an Administrative Trustee, on behalf of the Trust, will execute
in accordance with Section 5.2 and deliver to the Initial Purchaser named in the
Purchase Agreement the Preferred Securities Certificates, registered in the name
of the nominee of the initial Clearing Agency, 4,000,000 Preferred Securities
having an aggregate Liquidation Amount of $200,000,000, against receipt of an
aggregate purchase price of $200,000,000 plus accrued Distributions from
September 29, 1999, if any.
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SECTION 2.5. ISSUANCE OF COMMON SECURITIES.
(a) Contemporaneously with the execution and delivery of this
Trust Agreement, an Administrative Trustee, on behalf of the Trust, will execute
in accordance with Section 5.2 and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
123,720 Common Securities having an aggregate Liquidation Amount of $6,186,000
against payment by the Depositor of an aggregate purchase price of $6,186,000,
plus accrued Distributions from September 29, 1999, if any.
SECTION 2.6. SUBSCRIPTION AND PURCHASE OF DEBENTURES.
(a) Contemporaneously with the issuance of Preferred
Securities and Common Securities pursuant to Section 2.4(a) and Section 2.5(a),
an Administrative Trustee, on behalf of the Trust, will subscribe to and
purchase from the Depositor Debentures registered in the name of the Trust and
having an aggregate principal amount equal to $206,186,000. In satisfaction of
the purchase price for such Debentures, the Trust will deliver to the Depositor
the sum of $206,186,000.
SECTION 2.7. DECLARATION OF TRUST.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Trust Securities, (b) to use the proceeds from such sale to
acquire the Debentures and (c) to engage in those activities necessary or
incidental thereto. The Depositor hereby appoints the Trustees as trustees of
the Trust, to have all the rights, powers and duties to the extent set forth
herein, and the Trustees hereby accept such appointment. The Property Trustee
hereby declares that it will hold the Trust Property in trust upon and subject
to the conditions set forth herein for the benefit of the Trust and the Holders.
The Administrative Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to accomplishing the
purposes of the Trust. The Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees set
forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Delaware Business Trust Act.
SECTION 2.8. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.
(a) The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Trust Agreement. Subject to the limitations
set forth in Section 2.8(b) and Article VIII and in accordance with the
following provisions (i), (ii) and (iii), the Trustees shall have the authority
to enter into all transactions and agreements determined by the Trustees to be
appropriate in exercising the authority, express or implied, otherwise granted
to the Trustees under this Trust Agreement, and to perform all acts in
furtherance thereof, including the following:
(i) As among the Trustees, each Administrative
Trustee, acting singly or collectively, shall have the power and
authority (except during any period in which the Holders of the
Preferred Securities shall have appointed a Special Administrative
Trustee
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pursuant to Section 6.1(d)) to act on behalf of the Trust with respect
to the following matters:
(A) the issuance and sale of the Trust
Securities; provided, however, that the Trust may
issue no more than one series of Preferred Securities
and no more than one series of Common Securities,
and, provided further, that there shall be no
interests in the Trust other than the Trust
Securities, and the issuance of Trust Securities
shall be limited to simultaneous issuances of both
Preferred Securities and Common Securities on the
Closing Date;
(B) causing the Trust to enter into, and
executing, delivering and performing on behalf of the
Trust, the Purchase Agreement, the Registration
Rights Agreement, the Certificate Depository
Agreement and such other agreements as may be
necessary or desirable in connection with the
purposes and function of the Trust;
(C) assisting in the registration of the
Preferred Securities under the Securities Act of
1933, as amended, and under state securities or blue
sky laws, and the qualification of this Trust
Agreement and the Guarantee as trust indentures under
the Trust Indenture Act;
(D) assisting in the listing, if any, of the
Preferred Securities upon the PORTAL Market or upon
any national stock exchange or exchanges or the
Nasdaq National Market or any other automated
quotation system or systems as shall be determined by
the Depositor and the registration of the Preferred
Securities under the Exchange Act, if required, and
the preparation and filing of all periodic and other
reports and other documents pursuant to the
foregoing;
(E) sending notices (other than notices of
default) and other information regarding the Trust
Securities and the Debentures to the Holders in
accordance with this Trust Agreement;
(F) appointing a Paying Agent, Conversion
Agent and Securities Registrar in accordance with
this Trust Agreement;
(G) registering transfer of the Trust
Securities in accordance with this Trust Agreement;
(H) to the extent provided in this Trust
Agreement, the winding up of the affairs of and
liquidation of the Trust and executing and filing the
certificate of cancellation with the Secretary of
State of the State of Delaware;
(I) unless otherwise required by the
Delaware Business Trust Act or the Trust Indenture
Act, executing on behalf of the Trust (either acting
alone or together with any or all of the
Administrative Trustees) any documents
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that the Administrative Trustees have the power to
execute pursuant to this Trust Agreement; and
(J) taking any action incidental to the
foregoing as the Administrative Trustees may from
time to time determine is necessary or advisable to
give effect to the terms of this Trust Agreement for
the benefit of the Holders (without consideration of
the effect of any such action on any particular
Holder).
(ii) As among the Trustees, the Property Trustee
shall have the power, duty and authority to act on behalf of
the Trust with respect to the following matters:
(A) establishing the Payment Account;
(B) receiving and holding the Debentures;
(C) collecting principal of, premium, if
any, and interest on, and any other payments made in
respect of, the Debentures in the Payment Account;
(D) distributing, through the Paying Agent,
amounts owed to the Holders in respect of the Trust
Securities (including, without limitation, Liquidated
Damages pursuant to the Registration Rights
Agreement);
(E) exercising all of the rights, powers and
privileges of a holder of the Debentures;
(F) sending notices of default and other
information regarding the Trust Securities and the
Debentures to the Holders in accordance with this
Trust Agreement;
(G) distributing the Trust Property in
accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust
Agreement, winding up the affairs of and liquidating
the Trust and the executing and filing the
certificate of cancellation with the Secretary of
State of the State of Delaware; and
(I) except as otherwise provided in this
Section 2.8(a)(ii), the Property Trustee shall have
none of the duties, liabilities, powers or the
authority of the Administrative Trustees set forth in
Section 2.8(a)(i).
(iii) At such times as a Special Administrative
Trustee shall have been appointed by the Holders of the
Preferred Securities pursuant to Section 6.1(d), the Special
Administrative Trustee shall have the power and authority to
act on behalf of the Trust jointly with the Administrative
Trustees, and the Administrative Trustees and the Special
Administrative Trustee shall act collectively as determined by
a majority.
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(b) So long as this Trust Agreement remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not: (i) acquire any
investments or engage in any activities not authorized by this Trust Agreement;
(ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise
dispose of any of the Trust Property or interests therein, including to Holders,
except as expressly provided herein; (iii) take any action that would cause the
Trust to fail or cease to qualify as a "grantor trust" for United States federal
income tax purposes; (iv) incur any indebtedness for borrowed money or issue any
other debt; (v) take or consent to any action that would result in the creation
of a Lien on any of the Trust Property; (vi) invest any proceeds received by the
Trust from holding the Debentures, but shall distribute all such proceeds to
Holders of Trust Securities pursuant to the terms of this Trust Agreement and of
the Trust Securities; (vii) acquire any assets other than the Trust Property;
(viii) possess any power or otherwise act in such a way as to vary the Trust
Property; (ix) possess any power or otherwise act in such a way as to vary the
terms of the Trust Securities in any way whatsoever (except to the extent
expressly authorized in this Trust Agreement or by the terms of the Trust
Securities); or (x) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the Trust
Securities. The Administrative Trustees shall defend all claims and demands of
all Persons at any time claiming any Lien on any of the Trust Property adverse
to the interest of the Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all
(i) to prepare and distribute the Offering
Memorandum in preliminary and final form and any supplements and
amendments thereto, in relation to the offering and sale by the Trust
to the Initial Purchaser of Preferred Securities for resale to
qualified institutional buyers in reliance on Rule 144A under the
Securities Act and outside the United States to non-U.S. persons in
offshore transactions in reliance on Regulation S under the Securities
Act and to prepare for filing by the Trust and the Depositor with the
Commission any registration statement, including any amendment thereto,
as contemplated by the Registration Rights Agreement;
(ii) to prepare or cause to be prepared for filing
by the Trust an application to the PORTAL Market;
(iii) to prepare for filing by the Trust of documents
or instruments to be delivered to DTC relating to the Preferred
Securities;
(iv) to prepare for execution and filing by the
Trust with the Commission a registration statement on Form 8-A,
including any supplements and amendments thereto, relating to any
registration of the Preferred Securities under Section 12(b) of the
Exchange Act;
(v) to determine the States in which to take
appropriate action to qualify or register for sale or resale all or
part of the Preferred Securities and to do any and all such
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acts, other than actions which must be taken by the Trust, and advise
the Trust of actions it must take, and prepare for execution and filing
any documents to be executed and filed by the Trust, as the Depositor
deems necessary or advisable in order to comply with the applicable
laws of any such States;
(vi) to negotiate the terms of and execute the
Purchase Agreement providing for the sale of the Preferred Securities;
(vii) to negotiate the terms of the Registration
Rights Agreement providing for, among other things, the registration
under the Securities Act of resales from time to time of the Preferred
Securities;
(viii) to provide all annual and quarterly reports
and the information, documents and other reports that the Depositor is
required to file with the Commission pursuant to Section 13(a) or 15(d)
of the Exchange Act (the "SEC Reports") with the Indenture Trustee and
the Property Trustee within 15 days after it files them with the
Commission;
(ix) whether or not required by the Exchange Act,
to file SEC Reports with the Commission so long as any Preferred
Securities are outstanding and to furnish copies of the SEC Reports to
any Holder of Preferred Securities originally issued in an offering not
registered pursuant to the Securities Act; and
(x) to provide any Holder of Preferred Securities
originally issued in an offering not registered pursuant to the
Securities Act, at the request of such Holder, if prior to the Transfer
Restriction Termination Date the Depositor is neither subject to
Section 13 or 15(d) of the Exchange Act, such information, if any,
required by Rule 144A(d)(4) under the Securities Act.
(d) The Administrative Trustees are authorized and directed to
conduct the affairs of the Trust and to operate the Trust so that the Trust will
not be deemed to be an "investment company" required to be registered under the
1940 Act, or fail to be classified as a grantor trust for United States federal
income tax purposes and so that the Debentures will be treated as indebtedness
of the Depositor for United States federal income tax purposes. In this
connection, the Depositor and the Administrative Trustees are authorized to take
any action, not inconsistent with applicable law, the Certificate of Trust or
this Trust Agreement, that each of the Depositor and any Administrative Trustee
determines in its discretion to be necessary or desirable for such purposes, as
long as such action does not adversely affect in any material respect the
interests of the Holders of the Preferred Securities.
SECTION 2.9. ASSETS OF TRUST.
The assets of the Trust shall consist solely of the Trust
Property.
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SECTION 2.10. TITLE TO TRUST PROPERTY.
Legal title to all Trust Property shall be vested at all times
in the Property Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the Trust and the
Holders in accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property Trustee will
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee will have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All funds and other property deposited or held from time to time in the Payment
Account will be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Holders and for distribution as provided herein,
including (and subject to) any priority of payments provided for herein.
(b) The Property Trustee will deposit in the Payment Account,
promptly upon receipt, all payments of principal of, premium, if any, or
interest on, and any other payments or proceeds with respect to, the Debentures
and any payments in respect of Liquidated Damages. Amounts held in the Payment
Account will not be invested by the Property Trustee.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION; CONVERSION
SECTION 4.1. DISTRIBUTIONS.
(a) The Trust Securities represent undivided beneficial
ownership interests in the Trust Property, and distributions (the
"Distributions") will be made on the Trust Securities at the rate and on the
dates that payments of interest (including Additional Interest, as defined in
the Indenture) are made on the Debentures.
Accordingly:
(i) Distributions on the Trust Securities will be
cumulative, and will accumulate whether or not there are funds of the
Trust available for the payment of Distributions. Distributions will
accrue from September 29, 1999, and, except in the event (and to the
extent) that the Depositor exercises its right to defer the payment of
interest on the Debentures pursuant to the Indenture, will be payable
quarterly in arrears on January 1, April 1, July 1 and October 1 of
each year, commencing on January 1, 2000. If any date on which a
Distribution is otherwise payable on the Trust Securities is not a
Business Day, then the payment of such Distribution will be made on the
next succeeding day that is a Business
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Day (without any additional Distributions or other payment in respect
of such delay) except that, if such Business Day is in the next
succeeding calendar year, payment of such Distribution shall be made on
the immediately preceding Business Day, in each case with the same
force and effect as if made on such date (each date on which
Distributions are payable in accordance with this Section 4.1(a), a
"Distribution Date").
(ii) Assuming payments of interest on the Debentures
are made when due (and before giving effect to Additional Amounts
and/or Liquidated Damages, if applicable), Distributions on the Trust
Securities shall be payable at an annual rate of 7.0% of the
Liquidation Amount of the Trust Securities, the annual interest rate
for the Debentures. The amount of Distributions payable for any period
will be computed on the basis of a 360-day year of twelve 30-day
months.
(iii) Distributions on the Trust Securities will be
made by the Property Trustee from the Payment Account and shall be
payable on each Distribution Date only to the extent that the Trust has
funds then on hand and available in the Payment Account for the payment
of such Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date, which
shall be the 15th day of the month preceding the month in which the relevant
Distribution Date occurs without giving effect to the third sentence of Section
4.1(a)(i) (whether or not such record date is a Business Day).
SECTION 4.2. REDEMPTION.
(a) On each Debenture Redemption Date and on the Debenture
Stated Maturity, the Trust shall be required to redeem a Like Amount of Trust
Securities at the Redemption Price. In addition, in the case of the occurrence
of a Tax Event, if (i) the Depositor has received an opinion (a "Redemption Tax
Opinion") from independent tax counsel experienced in such matters that, as a
result of a Tax Event, there is more than an insubstantial risk that the
Depositor would be precluded from deducting the interest on the Debentures for
United States federal income tax purposes even after the Convertible
Subordinated Debentures were distributed to the holders of Preferred Securities
in liquidation of such holders' interests in the Trust Pursuant to Section 9.4
or (ii) the Administrative Trustees shall have been informed by such tax counsel
that an opinion from independent tax counsel experienced in such matters to the
effect that the holders of the Preferred Securities will not recognize any gain
or loss for United States federal income tax purposes as a result of such
dissolution and distribution of Convertible Subordinated Debentures (a "No
Recognition Opinion") cannot be delivered, the Depositor shall have the right,
upon not less than 30 nor more than 60 days notice, to redeem the Convertible
Subordinated Debentures in whole or in part for cash within 90 days following
the occurrence of such Tax Event, and, following such redemption, Preferred
Securities with an aggregate liquidation amount equal to the aggregate principal
amount of the Convertible Subordinated Debentures so redeemed shall be redeemed
by the Trust at the Redemption Price on a pro rata basis or in such other manner
as the Property Trustee deems appropriate; provided, however, that, if at the
time there is available to the Depositor or the Trust the opportunity to
eliminate, within such 90 day period, the Tax Event by taking some ministerial
action, such as filing a form or making an election, or pursuing some other
similar
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reasonable measure which has no adverse effect on the Trust, the holders of the
Preferred Securities or the Depositor, the Trust will pursue such measure in
lieu of redemption.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date to each Holder of Trust Securities to
be redeemed, at such Holder's address appearing in the Security Register. All
notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust
Securities are to be redeemed, the identification and the total
Liquidation Amount of the particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption
Price shall become due and payable upon each such Trust Security to be
redeemed and that Distributions thereon shall cease to accrue on and
after said date; and
(vi) if the Preferred Securities are no longer in
book-entry-only form, the place and address where the Holders shall
surrender their Preferred Securities Certificates.
(c) The Trust Securities redeemed on each Redemption Date will
be redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption on the Debenture Redemption Date or payment at the Debenture Stated
Maturity. Redemptions of the Trust Securities will be made and the Redemption
Price will be payable on each Redemption Date only to the extent that the Trust
has funds then on hand and available in the Payment Account for the payment of
such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, New York City time, on
the Redemption Date, subject to Section 4.2(c), the Property Trustee, so long as
the Preferred Securities are in book-entry-only form, will irrevocably deposit
with the Clearing Agency for the Preferred Securities funds sufficient to pay
the applicable Redemption Price and shall give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the Holders thereof.
If the Preferred Securities are no longer in book-entry-only form, the Property
Trustee, subject to Section 4.2(c), will irrevocably deposit with the Paying
Agent funds sufficient to pay the applicable Redemption Price and will give the
Paying Agent irrevocable instructions and authority to pay the Redemption Price
to the Holders thereof upon surrender of their Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions payable on or prior
to the Redemption Date for any Trust Securities called for redemption will be
payable to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then upon the date of such deposit all rights of Holders
holding Trust Securities so called for redemption shall cease, except (i) the
right of such Holders to receive the Redemption Price and any Distribution
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payable on or prior to the Redemption Date, but without interest thereon and
(ii) any right of the Holders to cause the Conversion Agent to convert the Trust
Securities, and such Trust Securities will cease to be Outstanding. In the event
that any date on which any Redemption Price is payable is not a Business Day,
then payment of the Redemption Price payable on such date shall be made on the
next succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day falls
in the next calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. In the event that payment of the Redemption Price in respect of
any Trust Securities called for redemption is improperly withheld or refused and
not paid either by the Trust or by the Depositor pursuant to the Guarantee,
Distributions on such Trust Securities shall continue to accrue, at the then
applicable rate, from the Redemption Date originally established by the Trust
for such Trust Securities to the date such Redemption Price is actually paid, in
which case the actual payment date shall be the date fixed for redemption for
purposes of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities
shall be made to the recordholders thereof as they appear on the Securities
Register for the Trust Securities on the relevant record date, which shall be 15
days prior to the relevant Redemption Date.
(f) Subject to Section 4.4(a), if less than all of the
Outstanding Trust Securities are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of Trust Securities to be redeemed shall be
allocated among the Common Securities and the Preferred Securities. The
particular Preferred Securities to be redeemed shall be selected not more than
60 days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for redemption on a pro
rata basis or by such other method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $50 or an integral multiple of $50 in excess thereof) of the
Liquidation Amount of Preferred Securities of a denomination larger than $50.
The Property Trustee shall promptly notify the Security Registrar in writing of
the Preferred Securities selected for redemption and, in the case of any
Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the Liquidation
Amount of Preferred Securities that has been or is to be redeemed.
SECTION 4.3. CONVERSION.
The Holders shall have the right at any time prior to 5:00
p.m. (New York City time) on the second Business Day immediately preceding the
date of repayment of such Trust Securities, whether at maturity or upon
redemption (either at the option of the Depositor or pursuant to a Tax Event),
at their option, to cause the Conversion Agent to convert Trust Securities, on
behalf of the converting Holders, into shares of the Common Stock in the manner
described herein on and subject to the following terms and conditions:
(a) The Trust Securities shall be convertible at the office of
the Conversion Agent into fully paid and nonassessable shares of Common Stock
pursuant to the Holder's direction to the Conversion Agent to exchange such
Trust Securities for a portion of the Debentures theretofore
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held by the Trust on the basis of one Trust Security per $50 principal amount of
Debentures, and immediately convert such amount of Debentures into fully paid
and nonassessable shares of Common Stock at an initial conversion rate of 6.7125
shares of Common Stock per $50 principal amount of Debentures (which is
equivalent to a conversion price of $7.4488 per share of Common Stock, subject
to certain adjustments set forth in the terms of the Debentures (as so adjusted,
"Conversion Price")).
Notwithstanding the foregoing, no holder of Preferred Securities that
is subject to the restrictions of Section 4 of the Bank Holding Company Act of
1956, as amended (the "BHCA") (a "BHCA Person"), shall have the right to convert
any Preferred Securities if, after giving effect to such conversion, the BHCA
Person, its affiliates and transferees would own or be deemed to own shares of
Common Stock in excess of either the maximum number of shares of Common Stock
which the BHCA Person is permitted to own under the BHCA and the regulations of
the Board of Governors of the Federal Reserve thereunder or such lower number as
the relevant BHCA Person may have requested in writing to the Conversion Agent.
No BHCA Person shall have the right to assign or transfer its Preferred
Securities (other than to an Affiliate) unless such Preferred Securities are
assigned or transferred (i) to the public in an offering registered under the
Securities Act, (ii) in a transaction pursuant to Rule 144 or 144A under the
Securities Act in which no person acquires Preferred Securities convertible into
more than 2% of the outstanding Common Stock, (iii) in a single transaction to a
third party who acquires a majority of the Common Stock without regard to the
conversion of any Preferred Securities so transferred or (iv) in any other
manner permitted under the BHCA. The Conversion Agent may rely on the
representation of the relevant BHCA Person that a transfer has been made in the
foregoing manner.
(b) In order to convert Trust Securities into Common Stock,
the Holder shall submit to the Conversion Agent an irrevocable request to
convert Trust Securities on behalf of such Holder (the "Conversion Request"),
together, if the Trust Securities are in certificated form, with such Trust
Security Certificates. The Conversion Request shall: (i) set forth the number of
Trust Securities to be converted and the name or names, if other than the
Holder, in which the shares of Common Stock should be issued; and (ii) direct
the Conversion Agent (A) to exchange such Trust Securities for a portion of the
Debentures held by the Trust (at the rate of exchange specified in Section
4.3(a)) and (B) to immediately convert such Debentures on behalf of such Holder
into Common Stock (at the Conversion Price specified in Section 4.3(a)). The
Conversion Agent shall notify the Trust of the Holder's election to exchange
Trust Securities for a portion of the Debentures held by the Trust and the
Property Trustee on behalf of the Trust shall, upon receipt of such notice,
deliver to the Conversion Agent the appropriate principal amount of Debentures
for exchange in accordance with this Section 4.3. The Conversion Agent shall
thereupon notify the Depositor of the Holder's election to convert such
Debentures into shares of Common Stock.
(c) Accrued Distributions shall not be paid on Preferred
Securities that are converted, nor will any payment, allowance or adjustment be
made for accumulated and unpaid Distributions, whether or not in arrears, on
converted Preferred Securities except that if any Preferred Security is
converted (i) on or after a record date for payment of Distributions thereon,
the amount of the Distributions payable on the related payment date with respect
to such Preferred Security shall be paid by the converting Holder to the Trust
and the Distributions payable on the related payment date with respect to such
Preferred Security shall be distributed on such payment
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date to the Holder as of such record date, despite such conversion, and (ii)
during an Extension Period and after the Property Trustee mails a notice of
redemption with respect to the Preferred Securities that are converted, accrued
and unpaid Distributions through the date of conversion on such Preferred
Securities called for redemption shall be distributed to the Holder who converts
such Preferred Securities, which Distribution shall be made on the redemption
date fixed for redemption. Except as provided above, neither the Trust nor the
Depositor shall make, or be required to make, any payment, allowance or
adjustment upon any conversion on account of any accumulated and unpaid
Distributions accrued on the Trust Securities (including Additional Amounts
and/or Liquidated Damages, if applicable) surrendered for conversion, or on
account of any accumulated and unpaid dividends, if any, on the shares of Common
Stock issued upon such conversion. The Depositor shall make no payment or
allowance for distributions on the shares of Common Stock issued upon such
conversion, except to the extent that such shares of Common Stock are held of
record on the record date for any such distributions and except as provided in
Section 13.9 of the Indenture. Trust Securities shall be deemed to have been
converted immediately prior to 5:00 p.m. (New York City time) on the day on
which a Conversion Request relating to such Trust Securities is received by the
Trust in accordance with the foregoing provisions of this Section 4.3 (the
"Conversion Date"). The Person or Persons entitled to receive the Common Stock
issuable upon conversion of the Debentures shall be treated for all purposes as
the record holder or holders of such Common Stock at such time. As promptly as
practicable on or after the Conversion Date, the Depositor shall issue and
deliver at the office of the Conversion Agent a certificate or certificates for
the number of full shares of Common Stock issuable upon such conversion,
together with the cash payment, if any, in lieu of any fraction of any share to
the Person or Persons entitled to receive the same as provided in Section
4.3(e), unless otherwise directed by the Holder in the Conversion Request, and
the Conversion Agent shall distribute such certificate or certificates to such
Person or Persons.
(d) Each Holder of a Trust Security by his acceptance thereof
appoints the Bank (the "Conversion Agent") for the purpose of effecting the
conversion of Trust Securities in accordance with this Section 4.3. In effecting
the conversion and transactions described in this Section 4.3, the Conversion
Agent shall be acting as agent of the Holders directing it to effect such
conversion transactions. The Conversion Agent is hereby authorized (i) to
exchange Trust Securities from time to time for Debentures held by the Trust in
connection with the conversion of such Trust Securities in accordance with this
Section 4.3 and (ii) to convert all or a portion of the Debentures into Common
Stock and thereupon to deliver such shares of Common Stock in accordance with
the provisions of this Section 4.3 and to deliver to the Trust a new Debenture
or Debentures for any resulting unconverted principal amount.
(e) No fractional shares of Common Stock shall be issued as a
result of conversion, but in lieu thereof, such fractional interest shall be
paid in cash (based on the last reported sale price of the Common Stock on the
Conversion Date) by the Depositor to the Trust, which in turn shall make such
payment to the Holder or Holders of Trust Securities so converted.
(f) The Depositor shall at all times reserve and keep
available out of its authorized and unissued Common Stock, solely for issuance
upon the conversion of the Debentures, free from any preemptive or other similar
rights, such number of shares of Common Stock as shall from time to time be
issuable upon the conversion of all of the Debentures then outstanding.
Notwithstanding the foregoing, the Depositor shall be entitled to deliver, upon
conversion of Debentures, shares of
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Common Stock reacquired and held in the treasury of the Depositor (in lieu of
the issuance of authorized and unissued shares of Common Stock), so long as any
such treasury shares are free and clear of all liens, charges, security
interests or encumbrances. Any shares of Common Stock issued upon conversion of
the Debentures shall be duly authorized, validly issued, fully paid and
nonassessable. The Trust shall deliver the shares of Common Stock received upon
conversion of the Debentures to the converting Holder free and clear of all
liens, charges, security interests and encumbrances, except for United States
withholding taxes. Each of the Depositor and the Trust shall prepare and shall
use its best efforts to obtain and keep in force such governmental or regulatory
permits or other authorizations as may be required by law, and shall comply with
all applicable requirements as to registration or qualification of the Common
Stock (and all requirements to list the Common Stock issuable upon conversion of
Debentures that are at the time applicable), in order to enable the Depositor to
lawfully issue Common Stock to the Trust upon conversion of the Debentures and
the Trust to lawfully deliver the Common Stock to each Holder upon conversion of
the Trust Securities.
(g) The Depositor will pay any and all taxes that may be
payable in respect of the issue or delivery of shares of Common Stock on
conversion of Debentures and the delivery of the shares of Common Stock by the
Trust upon conversion of the Trust Securities. The Depositor shall not, however,
be required to pay any tax that may be payable in respect of any transfer
involved in the issue and delivery of shares of Common Stock in a name other
than that in which the Trust Securities so converted were registered, and no
such issue or delivery shall be made unless and until the person requesting such
issue has paid to the Trust the amount of any such tax or has established to the
satisfaction of the Trust that such tax has been paid.
(h) Nothing in this Section 4.3 shall limit the requirement of
the Trust to withhold taxes pursuant to the terms of the Trust Securities or as
set forth in this Trust Agreement or otherwise require the Property Trustee or
the Trust to pay any amount on account of such withholdings.
SECTION 4.4. SUBORDINATION OF COMMON SECURITIES.
(a) Payment of Distributions (including Additional Amounts
and/or Liquidated Damages, if applicable) on, and the Redemption Price of, the
Trust Securities, as applicable, shall be made, subject to Section 4.2(f), pro
rata among the Common Securities and the Preferred Securities based on the
Liquidation Amount of the Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date any Event of Default resulting from a
Indenture Event of Default shall have occurred and be continuing, no payment of
any Distribution (including Additional Amounts and/or Liquidated Damages, if
applicable) on, or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions (including Additional Amounts and/or Liquidated Damages, if
applicable) on all Outstanding Preferred Securities for all Distribution periods
terminating on or prior thereto, or in the case of payment of the Redemption
Price the full amount of such Redemption Price on all Outstanding Preferred
Securities then called for redemption, shall have been made or provided for, and
all funds available to the Property Trustee shall first be applied to the
payment in full in cash of all Distributions (including Additional Amounts or
Liquidated Damages, if applicable) on, or the Redemption Price of, Preferred
Securities then due and payable.
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(b) In the case of the occurrence of any Event of Default
resulting from any Indenture Event of Default, the Holder of Common Securities
shall be deemed to have waived any right to act with respect to any such Event
of Default under this Trust Agreement until the effect of all such Events of
Default with respect to the Preferred Securities shall have been cured, waived
or otherwise eliminated. Until any such Event of Default under this Trust
Agreement with respect to the Preferred Securities has been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Preferred Securities and not the Holder of the Common Securities,
and only the Holders of the Preferred Securities shall have the right to direct
the Property Trustee to act on their behalf.
SECTION 4.5. PAYMENT PROCEDURES.
Payments of Distributions (including Additional Amounts and/or
Liquidated Damages, if applicable) in respect of the Preferred Securities shall
be made by check mailed to the address of the Person entitled thereto as such
address shall appear on the Securities Register or, if the Preferred Securities
are held by a Clearing Agency, such Distributions shall be made to the Clearing
Agency in immediately available funds, which shall credit the relevant Persons'
accounts at such Clearing Agency on the applicable Distribution Dates. Payments
in respect of the Common Securities shall be made in such manner as shall be
mutually agreed in writing between the Property Trustee and the Holder of the
Common Securities.
SECTION 4.6. TAX RETURNS AND REPORTS.
The Administrative Trustees shall prepare (or cause to be
prepared), at the Depositor's expense, and file all United States federal, state
and local tax and information returns and reports required to be filed by or in
respect of the Trust. In this regard, the Administrative Trustees shall (a)
prepare and file (or cause to be prepared and filed) the appropriate Internal
Revenue Service Form required to be filed in respect of the Trust in each
taxable year of the Trust and (b) prepare and furnish (or cause to be prepared
and furnished) to each Holder the appropriate Internal Revenue Service form and
the information required to be provided on such form. The Administrative
Trustees shall provide the Depositor and the Property Trustee with a copy of all
such returns and reports promptly after such filing or furnishing. The Trustees
shall comply with United States federal withholding and backup withholding tax
laws and information reporting requirements with respect to any payments to
Holders under the Trust Securities.
SECTION 4.7. PAYMENT OF EXPENSES OF TRUST.
Pursuant to Section 10.6 of the Indenture, the Depositor, as
borrower, has agreed to pay to the Trust, and reimburse the Trust for, the full
amount of any costs, expenses or liabilities of the Trust (other than
obligations of the Trust to pay the Holders of any Preferred Securities or other
similar interests in the Trust the amounts due such Holders pursuant to the
terms of the Preferred Securities or such other similar interests, as the case
may be), including any taxes, duties or other governmental charges of whatever
nature (other than withholding taxes) imposed on the Trust by the United States
or any other taxing authority. Such payment obligation includes any such costs,
expenses or liabilities of the Trust that are required by applicable law to be
satisfied in connection with a termination of the Trust.
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SECTION 4.8. PAYMENTS UNDER INDENTURE OR PURSUANT TO DIRECT
ACTIONS.
Any amount payable hereunder to any Holder of Preferred
Securities shall be reduced by the amount of any corresponding payment such
Holder (or an Owner with respect to the Holder's Preferred Securities) has
directly received pursuant to Section 5.8 of the Indenture or Section 5.17 of
this Trust Agreement.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. INITIAL OWNERSHIP.
Upon the creation of the Trust and the contribution by the
Depositor pursuant to Section 2.3 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are Outstanding,
the Depositor shall be the sole beneficial owner of the Trust.
SECTION 5.2. TRUST SECURITIES CERTIFICATES.
The Trust Securities Certificates shall be issued in minimum
denominations of $50 Liquidation Amount and integral multiples of $50 in excess
thereof. The Trust Securities Certificates shall be executed on behalf of the
Trust by manual or facsimile signature of at least one Administrative Trustee
and, if executed on behalf of the Trust by facsimile, countersigned by a
transfer agent or its agent. The Preferred Securities Certificates shall be
authenticated by the Property Trustee by manual or facsimile signature of an
authorized signatory thereof and, if executed by such authorized signatory of
the Property Trustee by facsimile, countersigned by a transfer agent or its
agent. Trust Securities Certificates bearing the manual signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust or the Property Trustee or, if
executed on behalf of the Trust or the Property Trustee by facsimile,
countersigned by a transfer agent or its agent, shall be validly issued and
entitled to the benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
delivery of such Trust Securities Certificates or did not hold such offices at
the date of delivery of such Trust Securities Certificates. A transferee of a
Trust Securities Certificate shall become a Holder, and shall be entitled to the
rights and subject to the obligations of a Holder hereunder, upon due
registration of such Trust Securities Certificate in such transferee's name
pursuant to Sections 5.4, 5.12 and 5.15.
SECTION 5.3. EXECUTION AND DELIVERY OF TRUST SECURITIES
CERTIFICATES.
On the Closing Date, (i) the Administrative Trustees shall
cause Trust Securities Certificates, in an aggregate Liquidation Amount as
provided in, or determined in accordance with, Sections 2.4 and 2.5, to be
executed on behalf of the Trust and delivered to or upon the written order of
the Depositor, signed by its chairman of the board, its president, any executive
vice president or any vice president and its treasurer or assistant treasurer or
controller without further
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corporate action by the Depositor, in authorized denominations and (ii) the
Property Trustee shall authenticate the Preferred Securities Certificates in
accordance with an order of the Depositor.
SECTION 5.4. REGISTRATION OF TRANSFER AND EXCHANGE OF
PREFERRED SECURITIES.
(a) Trust Securities may only be transferred, in whole or in
part, in accordance with the terms and conditions set forth in this Trust
Agreement and in the terms of the Preferred Securities. Any transfer or
purported transfer of any Trust Security not made in accordance with this Trust
Agreement shall, to the fullest extent permitted by applicable law, be null and
void.
(b) Upon issuance of the Common Securities, the Depositor
shall acquire and retain beneficial and record ownership of the Common
Securities and, for so long as the Preferred Securities remain outstanding, the
Depositor shall maintain 100% ownership of the Common Securities, provided that
any permitted successor of the Depositor under the Indenture may succeed to the
Depositor's ownership of the Common Securities; and provided further, that the
Depositor and any wholly-owned subsidiary may transfer Common Securities to the
Depositor or wholly-owned subsidiary of the Depositor or any entity owning all
of the outstanding Common Stock of the Depositor, with any such transfer being
subject to the condition precedent that the transferor obtain Opinion of Counsel
that such transfer would not cause more than an insubstantial risk that:
(i) the Trust would not be classified for United
States federal income tax purposes as a grantor trust; or
(ii) the Trust would be an investment company
required to register under the Investment Company Act or the transferee
would become an investment company required to register under the
Investment Company Act.
(c) Subject to this Article 5, Preferred Securities shall be
freely transferable; provided that, any Holder which is a BHCA Person shall be
subject to the restrictions set forth in Section 4.3(a) hereof.
(d) The Trust shall not be required (i) to issue, register the
transfer of or exchange any Preferred Securities during a period beginning at
the opening of business 15 days before the day of any selection of Preferred
Securities for redemption and ending at the close of business on the earliest
date on which the relevant notice of redemption is deemed to have been given to
all Holders of Preferred Securities to be redeemed, or (ii) to register the
transfer or exchange of any Preferred Security so selected for redemption in
whole or in part, except the unredeemed portion of any Preferred Security being
redeemed in part. Furthermore, the Trust shall refuse to register any transfer
of any Preferred Security (and the Depositor shall refuse to register any
transfer of Common Stock issued upon the conversion or exchange of a Preferred
Security) if such transfer is not made pursuant to registration under the
Securities Act or pursuant to Rule 144A or Regulation S under the Securities Act
or pursuant to another available exemption from registration.
(e) Each Trust Security that bears or is required to bear the
legend set forth in this Section 5.4(e) (a "Transfer Restricted Security") shall
be subject to the restrictions on transfer provided in the legend set forth in
this Section 5.4(e), unless such restrictions on transfer shall be waived by the
written consent of the Administrative Trustees, and the Holder of each Transfer
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Restricted Security, by such Holder's acceptance thereof, agrees to be bound by
such restrictions on transfer. As used in this Section 5.4, the term "transfer"
encompasses any sale, pledge, transfer or other disposition of any Transfer
Restricted Security.
Prior to the Resale Restriction Termination Date, any
certificate representing Preferred Securities shall bear the following legend
(unless such Preferred Securities have been sold pursuant to a registration
statement that has been declared effective under the Securities Act):
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, RESOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, SUCH REGISTRATION. THE HOLDER HEREOF MAY NOT
ENGAGE IN HEDGING TRANSACTIONS IN THIS SECURITY UNLESS SUCH
TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, RESELL OR OTHERWISE TRANSFER SUCH SECURITY,
PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE")
WHICH IS THE LATER OF (X) TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), AND (Y) SUCH
LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW ONLY
(A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES IN ACCORDANCE WITH REGULATION S UNDER THE
SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE COMPANY'S AND THE TRANSFER AGENT'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM. THIS LEGEND WILL BE
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REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. ANY TRANSFER OF THIS SECURITY IS
REQUIRED TO BE MADE IN COMPLIANCE WITH THE APPLICABLE STATE
SECURITIES LAWS AND APPLICABLE SECURITIES LAWS OF OTHER
JURISDICTIONS.
EACH PURCHASER OR HOLDER OF THE SECURITY EVIDENCED
HEREBY WILL BE DEEMED TO HAVE REPRESENTED EITHER THAT (A) IT
IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO PART 4 OF SUBTITLE
B OF TITLE I OF ERISA OR A PLAN DESCRIBED IN SECTION 4975 OF
THE CODE OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE THE
ASSETS OF ANY SUCH ERISA PLAN OR OTHER PLAN OR (B) ITS
ACQUISITION, HOLDING AND DISPOSITION OF THE SECURITY EVIDENCED
HEREBY WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE BY REASON OF
PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 91-38, PTCE
84-14, PTCE 90-1, PTCE 95-60 OR PTCE 96-23.
THE HOLDER OF THIS SECURITY AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS CAPITAL SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND.
Any global security issued hereunder shall, in addition to the provisions set
forth above contain a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF THE DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") OR
A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER
STREET, NEW YORK) TO CAREMARK RX, INC. OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
SECURITY ISSUED IS REGISTERED IN THE
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NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
Following the Resale Restriction Termination Date, any Trust
Security or security issued in exchange or substitution therefor (other than (i)
Trust Securities acquired by the Depositor or any Affiliate of the Depositor and
(ii) Common Stock issued upon the conversion or exchange of any Trust Security
described in clause (i) above) may, upon surrender of such Trust Security for
exchange to any Administrator on behalf of the Trust in accordance with the
provisions of this Section 5.4, be exchanged for a new Trust Security or Trust
Securities, of like tenor and aggregate liquidation amount, which shall not bear
the restrictive legend required by this Section 5.4(e).
(f) Any Preferred Security or Common Stock issued upon the
conversion or exchange of a Preferred Security that, prior to the Resale
Restriction Termination Date, is purchased or owned by the Depositor or any
Affiliate thereof may not be resold by the Depositor or such Affiliate unless
registered under the Securities Act or resold pursuant to an exemption from the
registration requirements of the Securities Act in a transaction that results in
such Preferred Securities or Common Stock, as the case may be, no longer being
"restricted securities" (as defined under Rule 144).
SECTION 5.5. TRANSFER OF CERTIFICATES.
The Trust shall maintain an office or agency in The City of
New York or Wilmington, Delaware where Securities may be presented for transfer,
exchange or conversion. The Trust shall keep or cause to be kept at such office
or agency a register for the purpose of registering Preferred Securities and
transfers and exchanges of Preferred Securities (the "Securities Register"),
such register to be held by a registrar (the "Securities Registrar"). The
Securities Registrar shall provide for the registration of Trust Securities
Certificates and of transfers of Trust Securities Certificates, which will be
effected without charge, but only upon payment (with such indemnity as the
Securities Registrar may require) in respect of any tax or other government
charges that may be imposed in relation to it. Upon surrender for registration
of transfer of any Trust Securities Certificate, the Trust shall cause one or
more new Trust Securities Certificates to be issued in the name of the
designated transferee or transferees. Every Trust Securities Certificate
surrendered for registration of transfer shall be accompanied by a written
instrument of transfer in the form attached hereto as Exhibit E and which is
satisfactory to the Securities Registrar and duly executed by the Holder or such
Holder's attorney duly authorized in writing. Each Trust Securities Certificate
surrendered for registration of transfer shall be canceled by the Securities
Registrar. A transferee of a Trust Securities Certificate shall be entitled to
the rights and subject to the obligations of a Holder hereunder upon the receipt
by such transferee of a Trust Securities Certificate. By acceptance of a Trust
Securities Certificate, each transferee shall be deemed to have agreed to be
bound by this Trust Agreement.
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SECTION 5.6. DEEMED HOLDERS.
The Trustees or the Securities Registrar may treat the Person
in whose name any Trust Securities Certificate shall be registered on the books
and records of the Trust as the sole Holder of such Trust Securities Certificate
and of the Trust Securities represented by such Trust Securities Certificate for
purposes of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Trust Securities Certificate or in the Trust Securities
represented by such Trust Securities Certificate on the part of any Person,
whether or not the Trustees or the Securities Registrar shall have actual or
other notice thereof.
SECTION 5.7. ACCESS TO LIST OF HOLDERS' NAMES AND ADDRESSES.
Each Holder and each Owner shall be deemed to have agreed not
to hold the Depositor, the Property Trustee or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
SECTION 5.8. MAINTENANCE OF OFFICE OR AGENCY.
The Administrative Trustees shall maintain an office or
offices or agency or agencies where Trust Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust Securities Certificates
may be served. The Administrative Trustees initially designate the corporate
trust office of Wilmington Trust Company, a Delaware banking Corporation, Attn:
Corporate Trust Department, as their principal corporate trust office for such
purposes. The Administrative Trustees shall give prompt written notice to the
Depositor, the Property Trustee and to the Holders of any change in the location
of the Securities Register or any such office or agency.
SECTION 5.9. APPOINTMENT OF PAYING AGENT.
The Paying Agent shall make Distributions to Holders from the
Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making the Distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. The Paying Agent
shall initially be the Bank and any co-paying agent chosen by the Bank and
acceptable to the Administrative Trustees and the Depositor. Any Person acting
as Paying Agent shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Administrative Trustees, the Property Trustee and the
Depositor. In the event that the Bank shall no longer be the Paying Agent or a
successor Paying Agent shall resign or its authority to act be revoked, the
Administrative Trustees shall appoint a successor that is acceptable to the
Property Trustee and the Depositor to act as Paying Agent (which shall be a bank
or trust company). The Administrative Trustees shall cause such successor Paying
Agent or any additional Paying Agent appointed by the Administrative Trustees to
execute and deliver to the Trustees an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the
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Trustees that, as Paying Agent, such successor Paying Agent or additional Paying
Agent will hold all sums, if any, held by it for payment to the Holders in trust
for the benefit of the Holders entitled thereto until such sums shall be paid to
such Holders. The Paying Agent shall return all unclaimed funds to the Property
Trustee and upon resignation or removal of a Paying Agent such Paying Agent
shall also return all funds in its possession to the Property Trustee. The
provisions of Sections 8.1, 8.3 and 8.6 shall apply to the Bank also in its role
as Paying Agent, for so long as the Bank shall act as Paying Agent and, to the
extent applicable, to any other paying agent appointed hereunder. Any Paying
Agent shall be bound by the requirements of the Trust Indenture Act with respect
to paying agents of securities. Any reference in this Trust Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise. The Paying Agent shall be entitled to the rights and protections
extended to the Property Trustee when acting in such capacity.
SECTION 5.10. APPOINTMENT OF CONVERSION AGENT.
The Conversion Agent shall convert the Trust Securities of the
Holders in accordance with Section 4.3. The Administrative Trustees may revoke
such power and remove the Conversion Agent if such Trustees determine in their
sole discretion that the Conversion Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. The Conversion
Agent shall initially be the Bank. Any Person acting as Conversion Agent shall
be permitted to resign as Conversion Agent upon 30 days' written notice to the
Administrative Trustees, the Property Trustee and the Depositor. In the event
that the Bank shall no longer be the Conversion Agent or a successor Conversion
Agent shall resign or its authority to act be revoked, the Administrative
Trustees shall appoint a successor (which shall be a bank or trust company) that
is acceptable to the Property Trustee and the Depositor to act as Conversion
Agent. The provisions of Sections 8.1, 8.3 and 8.6 shall apply to the Bank also
in its role as Conversion Agent for so long as the Bank shall act as Conversion
Agent and, to the extent applicable, to any other conversion agent appointed
hereunder. Any Conversion Agent shall be bound by the requirements with respect
to conversion agents of securities issued pursuant to the Trust Indenture Act.
Any reference in this Trust Agreement to the Conversion Agent shall include any
co-paying agent unless the context requires otherwise. The Conversion Agent
shall be entitled to the rights and protections extended to the Property Trustee
when acting in such capacity.
SECTION 5.11. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR.
(i) On the Closing Date, the Depositor shall acquire
and retain beneficial and record ownership of the Common Securities. To
the fullest extent permitted by law, other than a transfer in
connection with a consolidation or merger of the Depositor into another
Person, or any conveyance, transfer or lease by the Depositor of its
properties and assets substantially as an entirety to any Person,
pursuant to Section 8.1 of the Indenture, any attempted transfer of the
Common Securities shall be void. The Administrative Trustees shall
cause each Common Securities Certificate issued to the Depositor to
contain a legend stating:
"THIS CERTIFICATE IS NOT TRANSFERABLE TO ANY PERSON,
EXCEPT THAT THE HOLDER AND ANY WHOLLY-OWNED
SUBSIDIARY MAY TRANSFER THIS SECURITY TO THE HOLDER
OR A WHOLLY-OWNED SUBSIDIARY OF THE HOLDER OR ANY
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ENTITY OWNING ALL OF THE OUTSTANDING COMMON STOCK OF
THE HOLDER, SUBJECT TO RECEIPT BY THE TRUST OF AN
OPINION OF COUNSEL THAT SUCH TRANSFER WOULD NOT CAUSE
MORE THAN AN INSUBSTANTIAL RISK THAT (I) THE TRUST
WOULD NOT BE CLASSIFIED FOR UNITED STATES FEDERAL
INCOME TAX PURPOSES AS A GRANTOR TRUST; OR (II) THE
TRUST WOULD BE AN INVESTMENT COMPANY REQUIRED TO
REGISTER UNDER THE INVESTMENT COMPANY ACT OR THE
TRANSFEREE WOULD BECOME AN INVESTMENT COMPANY
REQUIRED TO REGISTER UNDER THE INVESTMENT COMPANY
ACT."
SECTION 5.12. BOOK ENTRY INTERESTS.
(a) So long as Preferred Securities are eligible for
book-entry settlement with the Clearing Agency or unless otherwise required by
law, all Preferred Securities that are so eligible may be represented by one or
more fully registered Preferred Securities Certificates (each a "Global
Preferred Securities Certificate") in global form to be delivered to the
Clearing Agency, by, or on behalf of, the Trust. Such Global Preferred
Securities Certificates shall initially be registered on the books and records
of the Trust in the name of Cede & Co., the nominee of DTC, and no Owner will
receive a definitive Preferred Securities Certificate representing such Owner's
interests in such Global Preferred Securities Certificates, except as provided
in Section 5.15 below. The transfer and exchange of beneficial interests in any
such Preferred Security in global form shall be effected through the Clearing
Agency in accordance with this Trust Agreement and the procedures of the
Clearing Agency therefor.
(b) Any Global Preferred Securities Certificate may be
endorsed with or have incorporated in the text thereof such legends or recitals
or changes not inconsistent with the provisions of this Trust Agreement as may
be required by the Clearing Agency, by any national securities exchange or by
the National Association of Securities Dealers, Inc. in order for the Preferred
Securities to be tradeable on the PORTAL Market or as may be required for the
Preferred Securities to be tradeable on any other market developed for trading
of securities pursuant to Rule 144A or required to comply with any applicable
law or any regulation thereunder or with the rules and regulations of any
securities exchange upon which the Preferred Securities may be listed or traded
or to conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Preferred Securities are
subject.
(c) Unless and until definitive, fully registered Preferred
Securities Certificates represented by a Global Preferred Securities Certificate
pursuant to Section 5.15 have been issued to the Owners:
(i) the provisions of this Section 5.12 shall be in
full force and effect with respect to such Preferred Securities;
(ii) the Trust and the Trustees shall be entitled to
deal with the Clearing Agency for all purposes of this Trust Agreement
(including the payment of Distributions on the Global Preferred
Securities Certificates and receiving approvals, votes or consents
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hereunder) as the Holder of such Preferred Securities and the sole
holder of the Global Preferred Securities Certificates and shall have
no obligation to the Owners;
(iii) to the extent that the provisions of this
Section 5.12 conflict with any other provisions of this Trust
Agreement, the provisions of this Section 5.12 shall control; and
(iv) the rights of the Owners shall be exercised
only through the Clearing Agency and shall be limited to those
established by law and agreements between such Owners and the Clearing
Agency and/or the Clearing Agency Participants.
(d) Notwithstanding any other provisions of this Trust
Agreement, a Preferred Security represented by a Global Preferred Securities
Certificate may not be transferred as a whole except by the Clearing Agency to a
nominee of the Clearing Agency or by a nominee of the Clearing Agency to the
Clearing Agency or another nominee to a successor Clearing Agency or a nominee
of such successor Clearing Agency.
SECTION 5.13. NOTICES TO CLEARING AGENCY.
Whenever a notice or other communication to the Holders is
required under this Trust Agreement, unless and until definitive Preferred
Securities Certificates shall have been issued to the Owners pursuant to Section
5.15, the Administrative Trustees shall give all such notices and communications
specified herein to be given to the Holders to the Clearing Agency, and shall
have no notice obligations to the Owners.
SECTION 5.14. APPOINTMENT OF SUCCESSOR CLEARING AGENCY.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities, the
Administrative Trustees may, in their sole discretion, appoint a successor
Clearing Agency with respect to such Preferred Securities.
SECTION 5.15. DEFINITIVE PREFERRED SECURITIES UNDER CERTAIN
CIRCUMSTANCES.
(a) If:
(i) a Clearing Agency elects to discontinue its
services as securities depositary with respect to the Preferred
Securities and a successor Clearing Agency is not appointed within 90
days after such discontinuance pursuant to Section 5.14; or
(ii) the Administrative Trustees elect after
consultation with the Depositor to terminate the book entry system
through the Clearing Agency with respect to the Preferred Securities in
global form,
then:
(A) definitive Preferred Securities Certificates shall be
prepared by the Administrative Trustees on behalf of the Trust with
respect to such Preferred Securities; and
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(B) upon surrender of the Global Preferred Securities
Certificates by the Clearing Agency, accompanied by registration
instructions, the Administrative Trustees shall cause definitive Global
Preferred Securities Certificates to be delivered to Owners of such
Preferred Securities in accordance with the instructions of the
Clearing Agency. Neither the Trustees nor the Trust shall be liable for
any delay in delivery of such instructions and each of them may
conclusively rely on and shall be protected in relying on, said
instructions of the Clearing Agency. The definitive Preferred
Securities Certificates shall be printed, lithographed or engraved or
may be produced in any other manner as is reasonably acceptable to the
Administrative Trustees, as evidenced by their execution thereof, and
may have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Administrative
Trustees may deem appropriate, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which Preferred Securities
may be listed, or to conform to usage.
(b) At such time as all interests in a Global Preferred
Securities Certificate have been redeemed, converted, exchanged, repurchased or
canceled, such Global Preferred Securities Certificate shall be, upon receipt
thereof, canceled by the Trust in accordance with standing procedures and
instructions of the Clearing Agency.
SECTION 5.16. MUTILATED, DESTROYED, LOST OR STOLEN TRUST
SECURITIES CERTIFICATES.
If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate, and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute by manual or facsimile signature and, if executed on behalf
of the Trust by facsimile signature, such certificate shall be countersigned by
a transfer agent, and make available for delivery, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section 5.16, the Administrative Trustees or the Securities Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith. Any duplicate Trust
Securities Certificate issued pursuant to this Section 5.16 shall constitute
conclusive evidence of an undivided beneficial interest in the Trust Property,
as if originally issued, whether or not the lost, stolen or destroyed Trust
Securities Certificate shall be found at any time.
SECTION 5.17. RIGHTS OF HOLDERS.
(a) The legal title to the Trust Property is vested
exclusively in the Property Trustee (in its capacity as such) in accordance with
Section 2.10, and the Holders shall not have any right or title therein other
than the undivided beneficial ownership interest in the assets of the Trust
conferred by their Trust Securities, and they shall have no right to call for
any partition or division of property, profits or rights of the Trust except as
described below. The Trust Securities
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shall be personal property giving only the rights specifically set forth therein
and in this Trust Agreement. The Trust Securities shall have no preemptive or
similar rights and when issued and delivered to Holders against payment of the
purchase price therefor shall be fully paid and nonassessable by the Trust. The
Holders of the Preferred Securities, in their capacities as such, shall be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware.
(b) For so long as any Preferred Securities remain
Outstanding, if, upon a Indenture Event of Default, the Indenture Trustee fails
or the holders of not less than 25% in principal amount of the outstanding
Debentures fail to declare the principal of all of the Debentures to be
immediately due and payable, the Holders of at least 25% in Liquidation Amount
of the Preferred Securities then Outstanding shall have such right by a notice
in writing to the Depositor and the Indenture Trustee; and upon any such
declaration such principal amount of and the accrued interest on all of the
Debentures shall become immediately due and payable as set forth in the
Indenture, provided that the payment of principal and interest on such
Debentures shall remain subordinated to the extent provided in the Indenture. At
any time after such a declaration of acceleration with respect to the Debentures
has been made and before a judgment or decree for payment of the money due has
been obtained by the Indenture Trustee as described in the Indenture, the
Holders of a majority in Liquidation Amount of the Preferred Securities, by
written notice to the Property Trustee, the Depositor and the Indenture Trustee,
may rescind and annul such declaration and its consequences if: (i) the
Depositor has paid or deposited with the Indenture Trustee a sum sufficient to
pay (A) all overdue installments of interest (including any Additional Interest
(as defined in the Indenture)) on all of the Debentures, (B) the principal of
any Debentures which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Debentures and (C)
all sums paid or advanced by the Indenture Trustee under the Indenture and the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee and the Property Trustee, their agents and counsel; and (ii) all Events
of Default with respect to the Debentures, other than the non-payment of the
principal of the Debentures which has become due solely by such acceleration,
have been cured or waived as provided in Section 5.13 of the Indenture.
(c) The Holders of a majority in aggregate Liquidation Amount
of the Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default under the Indenture, except a default in the
payment of principal or interest (unless all Events of Default with respect to
the Debentures, other than the non-payment of the principal of the Debentures
which has become due solely by such acceleration, have been cured or annulled as
provided in Section 5.13 of the Indenture and the Depositor has paid or
deposited with the Indenture Trustee a sum sufficient to pay all overdue
installments of interest (including any Additional Interest) on the Debentures,
the principal of any Debentures which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate borne by the
Debentures, and all sums paid or advanced by the Indenture Trustee under the
Indenture and the reasonable compensation, expenses, disbursements and advances
of the Indenture Trustee and the Property Trustee, their agents and counsel) or
a default in respect of a covenant or provision which under the Indenture cannot
be modified or amended without the consent of the holder of each outstanding
Debenture. No such rescission shall affect any subsequent default or impair any
right consequent thereon.
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(d) Upon receipt by the Property Trustee of written notice
declaring such an acceleration, or rescission and annulment thereof, by Holders
of the Preferred Securities all or part of which is represented by Book-Entry
Preferred Securities Certificates, a record date shall be established for
determining Holders of Outstanding Preferred Securities entitled to join in such
notice, which record date shall be at the close of business on the day the
Property Trustee receives such notice. The Holders of Outstanding Preferred
Securities on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such notice, whether or not such Holders
remain Holders after such record date; provided, that, unless such declaration
of acceleration, or rescission and annulment, as the case may be, shall have
become effective by virtue of the requisite percentage having joined in such
notice prior to the day which is 90 days after such record date, such notice of
declaration of acceleration, or rescission and annulment, as the case may be,
shall automatically and without further action by any Holder be canceled and of
no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice that has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.17(d).
(e) Without limiting the generality of the foregoing, the
Holders of a majority in aggregate Liquidation Amount of the Preferred
Securities will have the right to appoint a Special Administrative Trustee under
the circumstances described in Section 6.1(d), who shall have the same rights,
powers and privileges as the other Administrative Trustees.
(f) For so long as any Preferred Securities remain
Outstanding, to the fullest extent permitted by law and subject to the terms of
this Trust Agreement and the Indenture, upon an Indenture Event of Default
specified in Section 5.1(1) or 5.1(2) of the Indenture, any Holder of Preferred
Securities shall have the right to institute a proceeding directly against the
Depositor, pursuant to Section 5.8 of the Indenture, for enforcement of payment
to such Holder of the principal amount of or interest on Debentures having a
principal amount equal to the Liquidation Amount of the Preferred Securities of
such Holder (a "Direct Action"). Except as set forth in this Section 5.17, the
Holders of Preferred Securities shall have no right to exercise directly any
right or remedy available to the holders of, or in respect of, the Debentures.
SECTION 5.18. CUSIP NUMBERS.
The Administrative Trustees in issuing the Preferred
Securities may use "CUSIP" numbers (if then generally in use), and, if so, the
Property Trustee shall use "CUSIP" numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Preferred Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Preferred Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers. The Administrative Trustees will promptly
notify the Property Trustee of any change in the CUSIP numbers.
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ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. LIMITATIONS ON VOTING RIGHTS.
(a) Except as provided in this Section 6.1, in Sections 5.17,
8.10 and 11.3 of the Trust Agreement and as otherwise required by law, no Holder
of Preferred Securities shall have any right to vote or in any manner otherwise
control the administration, operation and management of the Trust or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed so as
to constitute the Holders from time to time as partners or members of an
association.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees, without obtaining the prior approval of the Holders of at
least a majority in Liquidation Amount of all Outstanding Preferred Securities,
shall not: (i) direct the time, method and place of conducting any proceeding
for any remedy available to the Indenture Trustee, or executing any trust or
power conferred on the Indenture Trustee with respect to such Debentures; (ii)
waive any past default which is waiveable under Section 5.13 of the Indenture;
(iii) exercise any right to rescind or annul a declaration that the principal of
all the Debentures shall be due and payable; or (iv) consent to any amendment,
modification or termination of the Indenture or the Debentures, where such
consent shall be required; provided, however, that where a consent under the
Indenture would require the consent of each holder of Debentures affected
thereby, no such consent shall be given by the Property Trustee without the
prior written consent of each Holder of Preferred Securities. The Trustees shall
not revoke any action previously authorized or approved by a vote of the Holders
of Preferred Securities, except by a subsequent vote of the Holders of Preferred
Securities. The Property Trustee shall notify all Holders of the Preferred
Securities of any notice of default received from the Indenture Trustee with
respect to the Debentures. In addition to obtaining the foregoing approvals of
the Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Administrative Trustees shall, at the expense of the Depositor,
obtain an Opinion of Counsel experienced in such matters to the effect that such
action shall not cause the Trust to fail to be classified as a grantor trust for
United States federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides
for, or the Trustees otherwise propose to effect, (i) any action that would
adversely affect in any material respect the powers, preferences or special
rights of the Preferred Securities, whether by way of amendment to the Trust
Agreement or otherwise, or (ii) the dissolution, winding-up or termination of
the Trust, other than pursuant to the terms of this Trust Agreement, then the
Holders of Outstanding Preferred Securities as a class shall be entitled to vote
on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a majority in
Liquidation Amount of the Outstanding Preferred Securities. Notwithstanding any
other provision of this Trust Agreement, no amendment to this Trust Agreement
may be made if, as a result of such amendment, the Trust would fail to be
classified as a grantor trust for United States federal income tax purposes.
(d) If (i) the Trust fails to pay Distributions in full on the
Preferred Securities for six consecutive quarterly distribution periods, or (ii)
a Trust Agreement Event of Default occurs
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and is continuing (each, an "Appointment Event"), then the holders of the
Preferred Securities, acting as a single class, will be entitled by the majority
vote of such holders to appoint a Special Administrative Trustee. For purposes
of determining whether the Trust has failed to pay Distributions in full for six
consecutive quarterly distribution periods, Distributions shall be deemed to
remain in arrears, notwithstanding any payments in respect thereof, until full
cumulative Distributions have been or contemporaneously are paid with respect to
all quarterly distribution periods terminating on or prior to the date of
payment of such cumulative distributions. Any holder of Preferred Securities
(other than the Depositor or any of its affiliates) shall be entitled to
nominate any person to be appointed as Special Administrative Trustee. Not later
than 30 days after such right to appoint a Special Administrative Trustee
arises, the Administrative Trustees shall convene a meeting of the holders of
Preferred Securities for the purpose of appointing a Special Administrative
Trustee. If the Administrative Trustees fail to convene such meeting within such
30-day period, the holders of not less than 10% of the aggregate stated
liquidation amount of the outstanding Preferred Securities will be entitled to
convene such meeting. The provisions of this Agreement relating to the convening
and conduct of the meetings of the holders will apply with respect to any such
meeting. Any Special Administrative Trustee so appointed shall cease to be a
Special Administrative Trustee if the Appointment Event pursuant to which the
Special Administrative Trustee was appointed and all other Appointment Events
cease to be continuing.
SECTION 6.2. NOTICE OF MEETINGS.
Notice of all meetings of the Holders, stating the time, place
and purpose of the meeting, shall be given by the Property Trustee pursuant to
Section 11.9 to each Holder of record, at his registered address, at least 15
days and not more than 90 days before the meeting. At any such meeting, any
business properly before the meeting may be so considered whether or not stated
in the notice of the meeting. Any adjourned meeting may be held as adjourned
without further notice.
SECTION 6.3. MEETINGS OF HOLDERS.
(a) No annual meeting of Holders is required to be held. The
Administrative Trustees, however, shall call a meeting of Holders to vote on any
matter upon the written request of the Holders holding of record of 25% of the
Outstanding Preferred Securities (based upon their Liquidation Amount) and the
Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of Holders to vote on any matters as to which Holders
are entitled to vote.
(b) Holders holding of record of 50% of the Outstanding
Preferred Securities (based upon their Liquidation Amount), present in person or
by proxy, shall constitute a quorum at any meeting of Holders.
(c) If a quorum is present at a meeting, an affirmative vote
by the Holders of record present, in person or by proxy, holding more than a
majority of the Outstanding Preferred Securities (based upon their Liquidation
Amount) held by Holders of record of Outstanding Preferred Securities present,
either in person or by proxy, at such meeting shall constitute the action of the
Holders, unless this Trust Agreement requires a greater number of affirmative
votes.
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SECTION 6.4. VOTING RIGHTS.
Holders shall be entitled to one vote for each $50 of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Holders are entitled to vote.
SECTION 6.5. PROXIES, ETC.
At any meeting of Holders, any Holder entitled to vote thereat
may vote by proxy, provided that no proxy shall be voted at any meeting unless
it shall have been placed on file with the Administrative Trustees, or with such
other officer or agent of the Trust as the Administrative Trustees may direct,
for verification prior to the time at which such vote shall be taken. Pursuant
to a resolution of the Property Trustee, proxies may be solicited in the name of
the Property Trustee or one or more officers of the Property Trustee. Only
Holders of record shall be entitled to vote. When Trust Securities are held
jointly by several Persons, any one of them may vote at any meeting in person or
by proxy in respect of such Trust Securities, but if more than one of them shall
be present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Holder shall be deemed valid unless challenged at or prior
to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
SECTION 6.6. HOLDER ACTION BY WRITTEN CONSENT.
Any action which may be taken by Holders at a meeting may be
taken without a meeting if Holders holding a majority of all Outstanding Trust
Securities (based upon their Liquidation Amount) entitled to vote in respect of
such action (or such larger proportion thereof as shall be required by any
express provision of this Trust Agreement) shall consent to the action in
writing. Prompt notice of the action taken shall be given by the Holders to the
Property Trustee and the Depositor, and the Property Trustee shall give notice
within 90 days of its receipt thereof by regular mail to all Holders entitled to
vote who have not consented in writing.
SECTION 6.7. RECORD DATE FOR VOTING AND OTHER PURPOSES.
For the purposes of determining the Holders who are entitled
to notice of and to vote at any meeting or by written consent, or to participate
in any Distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees may from time to time fix a date, not
more than 90 days prior to the date of any meeting of Holders or the payment of
a Distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such purposes.
SECTION 6.8. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Trust Agreement to
be given, made or taken by Holders or Owners may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders or
Owners in person or by an agent duly appointed in writing; and,
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except as otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to an Administrative
Trustee. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
or Owners signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.1) conclusive in favor
of the Trustees, if made in the manner provided in this Section 6.8.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
(c) The ownership of Preferred Securities shall be proved by
the Securities Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of a Holder of any Trust Security shall bind every
future Holder of the same Trust Security and the Holder of every Trust Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustees or the Trust in reliance thereon, whether or not notation of such
action is made upon such Trust Security.
(e) Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount of
such Trust Security or by one or more duly appointed agents each of which may do
so pursuant to such appointment with regard to all or any part of such
Liquidation Amount.
(f) If any dispute shall arise between the Holders and the
Administrative Trustees or among such Holders or Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Holder or Trustee under this
Article VI, then the determination of such matter by the Property Trustee shall
be conclusive with respect to such matter.
SECTION 6.9. INSPECTION OF RECORDS.
Upon reasonable notice to the Administrative Trustees and the
Property Trustee, the records of the Trust shall be open to inspection by
Holders during normal business hours for any purpose reasonably related to such
Holder's interest as a Holder.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. REPRESENTATIONS AND WARRANTIES OF PROPERTY
TRUSTEE AND DELAWARE TRUSTEE.
The Property Trustee on behalf of and as to itself, hereby
represents and warrants for the benefit of the Depositor and the Holders that:
(a) the Delaware Trustee is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware;
(b) the Delaware Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(c) the Property Trustee is a Delaware banking corporation
duly organized, validly existing and in good standing in the State of Delaware;
(d) the Property Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed
and delivered by the Property Trustee and, assuming due authorization, execution
and delivery by the other parties hereto, constitutes the valid and legally
binding agreement of the Property Trustee enforceable against it in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(f) the execution, delivery and performance of this Trust
Agreement has been duly authorized by all necessary corporate or other action on
the part of the Property Trustee does not require any approval of stockholders
of the Property Trustee and such execution, delivery and performance will not
(i) violate the charter or by-laws of the Property Trustee, (ii) violate any
provision of, or constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of, any Lien on any properties
included in the Trust Property (other than as contemplated by this Trust
Agreement) pursuant to the provisions of, any indenture, mortgage, credit
agreement, license or other agreement or instrument to which the Property
Trustee is a party or by which it is bound, or (iii) violate any law,
governmental rule or regulation of the State of Delaware, as the case may be,
governing the banking, trust or general powers of the Property Trustee (as
appropriate in context) or any order, judgment or decree applicable to the
Property Trustee;
(g) neither the authorization, execution or delivery by the
Property Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Property Trustee contemplated herein or therein requires the
consent or approval of, the giving of notice to, the registration with or the
taking of any other action with respect to any governmental authority or
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agency under any existing law or regulation or Delaware law governing the
banking, trust or general powers of the Property Trustee, as the case may be;
and
(h) there are no proceedings pending or, to the best of the
Property Trustee's knowledge, threatened against or affecting the Property
Trustee in any court or before any governmental authority, agency or arbitration
board or tribunal which, individually or in the aggregate, would materially and
adversely affect the Trust or would question the right, power and authority of
the Property Trustee, as the case may be, to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
ARTICLE VIII
THE TRUSTEES
SECTION 8.1. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees shall be
as provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Trust Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
them. Whether or not therein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the provisions of this
Section 8.1. Nothing in this Trust Agreement shall be construed to release an
Administrative Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct. To the extent that, at
law or in equity, an Administrative Trustee has duties (including fiduciary
duties) and liabilities relating thereto to the Trust or to the Holders, such
Administrative Trustee shall not be liable to the Trust or to any Holder for
such Trustee's good faith reliance on the provisions of this Trust Agreement.
The provisions of this Trust Agreement, to the extent that they restrict the
duties and liabilities of the Administrative Trustees otherwise existing at law
or in equity, replace such other duties and liabilities of the Administrative
Trustees.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the Property
Trustee or a Paying Agent to make payments in accordance with the terms hereof.
Each Holder, by its acceptance of a Trust Security, agrees that it shall look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.1(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
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(c) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any
error of judgment made in good faith by an authorized officer of the
Property Trustee, unless it shall be proved that the Property Trustee
was negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of not less than a
majority in Liquidation Amount of the Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect
to the custody, safe keeping and physical preservation of the
Debentures and the Payment Account shall be to deal with such property
in a similar manner as the Property Trustee deals with similar property
for its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Trust Agreement
and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for
any interest on any money received by it except as it may otherwise
agree in writing with the Depositor; and money held by the Property
Trustee need not be segregated from other funds held by it except in
relation to the Payment Account maintained by the Property Trustee
pursuant to Section 3.1 and except to the extent otherwise required by
law; and
(v) the Property Trustee shall not be responsible
for monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for the default or misconduct of
the Administrative Trustees or the Depositor.
SECTION 8.2. CERTAIN NOTICES.
(a) Within ten Business Days after the occurrence of any Event
of Default actually known to the Property Trustee, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 11.9, notice of
such Event of Default to the Holders, the Administrative Trustees and the
Depositor, unless such Event of Default shall have been cured or waived.
(b) Within five Business Days after the receipt of notice of
the Depositor's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Indenture, the Administrative Trustee shall transmit,
in the manner and to the extent provided in Section 11.9, notice of such
exercise to the Holders and the Property Trustee, unless such exercise shall
have been revoked.
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SECTION 8.3. CERTAIN RIGHTS OF PROPERTY TRUSTEE.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any resolution, Opinion of
Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) if (i) in performing its duties under this Trust Agreement
the Property Trustee is required to decide between alternative courses of
action, (ii) in construing any of the provisions of this Trust Agreement the
Property Trustee finds the same ambiguous or inconsistent with any other
provisions contained herein or (iii) the Property Trustee is unsure of the
application of any provision of this Trust Agreement, then, except as to any
matter as to which the Holders are entitled to vote under the terms of this
Trust Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Holders, in which event
the Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(c) any direction or act of the Depositor or the
Administrative Trustees contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement,
the Property Trustee shall deem it desirable that a matter be established before
undertaking, suffering or omitting any action hereunder, the Property Trustee
(unless other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the Depositor or
the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel of its
selection (which counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees) and the advice of such counsel
shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance thereon
and in accordance with such advice; and the Property Trustee shall have the
right at any time to seek
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instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust Agreement at the
request or direction of any of the Holders pursuant to this Trust Agreement,
unless such Holders shall have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, debenture, note or other evidence of indebtedness or other paper
or document, unless requested in writing to do so by one or more Holders, but
the Property Trustee may make such further inquiry or investigation into such
facts or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys, provided that the Property Trustee shall be
responsible for its own negligence or recklessness with respect to selection of
any agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive written instructions with
respect to enforcing any remedy or right or taking any other action hereunder,
the Property Trustee (i) may request written instructions from the Holders of
the Trust Securities, which written instructions may only be given by the
Holders of the same proportion in Liquidation Amount of the Trust Securities as
would be entitled to direct the Property Trustee under the terms of the Trust
Securities in respect of such remedy, right or action, (ii) may refrain from
enforcing such remedy or right or taking such other action until such written
instructions are received and (iii) shall be protected in acting in accordance
with such written instructions;
(k) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Trust Agreement; and
(l) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders, and the signature of the
Property Trustee or its agents alone shall be sufficient and effective to
perform any such action and no third party shall be required to inquire as to
the authority of the Property Trustee to so act or as to its compliance with any
of the terms and provisions of this Trust Agreement, both of which shall be
conclusively evidenced by the Property Trustee's or its agent's taking such
action.
No provision of this Trust Agreement shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
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SECTION 8.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and the Trustees do
not assume any responsibility for their correctness. The Trustees shall not be
accountable for the use or application by the Depositor of the proceeds of the
Debentures.
SECTION 8.5. MAY HOLD SECURITIES.
Any Trustee or any other agent of any Trustee or the Trust, in
its individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13, except as provided in the
definition of the term "Outstanding" in Article I, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
SECTION 8.6. COMPENSATION; INDEMNITY; FEES.
The Depositor, as borrower, agrees:
(a) to pay to the Trustees from time to time such compensation
as shall be agreed in writing with the Depositor for all services rendered by
them hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee,
(iii) any officer, director, shareholder, employee, representative or agent of
any Trustee and (iv) any employee or agent of the Trust or its Affiliates
(referred to herein as an "Indemnified Person") from and against any and all
loss, damage, liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by such Indemnified Person by reason of the creation,
operation or termination of the Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Trust Agreement, except
that no Indemnified Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by reason of
negligence or willful misconduct with respect to such acts or omissions. When
the Property Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 5.1(4) or Section 5.1(5) of the Indenture,
the expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
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(d) The provisions of this Section 8.6 shall survive the
termination of this Trust Agreement.
(e) No Trustee may claim any lien or charge on any Trust
Property as a result of any amount due pursuant to this Section 8.6.
(f) The Depositor and any Trustee (in the case of the Property
Trustee, subject to Section 8.8 hereof) may engage in or possess an interest in
other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and the Trust and
the Holders of Trust Securities shall have no rights by virtue of this Trust
Agreement in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be deemed wrongful or improper. Neither the
Depositor nor any Trustee shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and the
Depositor and any Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Trustee may engage or be
interested in any financial or other transaction with the Depositor or any
Affiliate of the Depositor, or may act as depository for, trustee or agent for,
or act on any committee or body of Holders of, securities or other obligations
of the Depositor or its Affiliates.
SECTION 8.7. CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY
OF TRUSTEES.
(a) There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities. The Property Trustee shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section 8.7, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Property Trustee with
respect to the Trust Securities shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article VIII. The Property Trustee
may also act as the Delaware Trustee if so eligible under clause (c) of this
Section 8.7.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each Administrative
Trustee shall be either a natural person who is at least 21 years of age or a
legal entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the State of
Delaware or (ii) a legal entity with its principal place of business in the
State of Delaware and that otherwise meets the requirements of applicable
Delaware law that shall act through one or more persons authorized to bind such
entity. The Delaware Trustee may also act as the Property Trustee if so eligible
under clause (a) if this Section 8.7.
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SECTION 8.8. CONFLICTING INTERESTS.
If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Property Trustee
shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Trust Agreement.
SECTION 8.9. CO-TRUSTEES AND SEPARATE TRUSTEE.
(a) Unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in which any
part of the Trust Property may at the time be located, the Depositor and the
Administrative Trustees, by agreed action of the majority of such Trustees,
shall have power to appoint, and upon the written request of the Administrative
Trustees, the Depositor shall for such purpose join with the Administrative
Trustees in the execution, delivery and performance of all instruments and
agreements necessary or proper to appoint, one or more Persons approved by the
Property Trustee either to act as co-trustee, jointly with the Property
Trustee, of all or any part of such Trust Property, or to the extent required
by law to act as separate trustee of any such property, in either case with
such powers as may be provided in the instrument of appointment, and to vest in
such Person or Persons in the capacity aforesaid, any property, title, right or
power deemed necessary or desirable, subject to the other provisions of this
Section 8.9. If the Depositor does not join in such appointment within 15 days
after the receipt by it of a request so to do, or in case an Indenture Event of
Default has occurred and is continuing, the Property Trustee alone shall have
power to make such appointment. Any co-trustee or separate trustee appointed
pursuant to this Section 8.9 shall either be (i) a natural person who is at
least 21 years of age and a resident of the United States or (ii) a legal
entity with its principal place of business in the United States that shall act
through one or more persons authorized to bind such entity. Should any written
instrument from the Depositor be required by any co-trustee or separate trustee
so appointed for more fully confirming to such co-trustee or separate trustee
such property, title, right, or power, any and all such instruments shall, on
request, be executed, acknowledged and delivered by the Depositor.
(b) Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms, namely:
(i) The Trust Securities shall be executed and
delivered and all rights, powers, duties, and obligations hereunder in
respect of the custody of securities, cash and other personal property
held by, or required to be deposited or pledged with, the Trustees
specified hereunder shall be exercised solely by such Trustees and not
by such co-trustee or separate trustee.
(ii) The rights, powers, duties, and obligations
hereby conferred or imposed upon the Property Trustee in respect of
any property covered by such appointment shall be conferred or imposed
upon and exercised or performed by the Property Trustee or by the
Property Trustee and such co-trustee or separate trustee jointly, as
shall be provided in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the
Property Trustee shall be incompetent or unqualified to perform such
act, in which event
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such rights, powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an
instrument in writing executed by it, with the written concurrence of
the Depositor, may accept the resignation of or remove any co-trustee
or separate trustee appointed under this Section 8.9, and, in case an
Indenture Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the
concurrence of the Depositor. Upon the written request of the Property
Trustee, the Depositor shall join with the Property Trustee in the
execution, delivery and performance of all instruments and agreements
necessary or proper to effectuate such resignation or removal. A
successor to any co-trustee or separate trustee so resigned or removed
may be appointed in the manner provided in this Section 8.9.
(iv) No co-trustee or separate trustee hereunder
shall be personally liable by reason of any act or omission of the
Property Trustee or any other trustee hereunder.
(v) The Property Trustee shall not be liable by
reason of any act of a co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property
Trustee shall be deemed to have been delivered to each such co-trustee
and separate trustee.
SECTION 8.10. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
(a) No resignation or removal of any Trustee (the "Relevant
Trustee") and no appointment of a successor Trustee pursuant to this Article
VIII shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section
8.11.
(b) Subject to Section 8.10(a), the Relevant Trustee may
resign at any time by giving written notice thereof to the Holders. If the
instrument of acceptance by the successor Trustee required by Section 8.11
shall not have been delivered to the Relevant Trustee within 30 days after the
giving of such notice of resignation, the Relevant Trustee may petition, at the
expense of the Trust, any court of competent jurisdiction for the appointment
of a successor Relevant Trustee.
(c) Unless an Indenture Event of Default shall have occurred
and be continuing, any Trustee may be removed at any time by Act of the Holders
of Common Securities (which such removal shall not constitute an amendment of
this Trust Agreement). If an Indenture Event of Default shall have occurred and
be continuing, the Property Trustee may be removed at such time by Act of the
Holders of a majority in Liquidation Amount of the Preferred Securities,
delivered to the Relevant Trustee (in its individual capacity and on behalf of
the Trust). An Administrative Trustee may be removed by the Holder of Common
Securities at any time. If the instrument of acceptance by the successor
Trustee required by Section 8.11 shall not have been delivered to the Relevant
Trustee within 30 days after such removal, the Relevant Trustee may petition,
at the
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expense of the Trust, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
(d) If any Trustee shall resign, be removed or become
incapable of acting as Trustee, or if a vacancy shall occur in the office of
any Trustee for any cause, at a time when no Indenture Event of Default shall
have occurred and be continuing, the Holder of Common Securities, by Act of the
Holder of Common Securities delivered to the retiring Trustee, shall promptly
appoint a successor Trustee or Trustees, and the retiring Trustee shall comply
with the applicable requirements of Section 8.11. If the Property Trustee shall
resign, be removed or become incapable of continuing to act as the Property
Trustee at a time when a Indenture Event of Default shall have occurred and be
continuing, the Holders, by Act of the Holders holding a majority in
Liquidation Amount of the Preferred Securities then Outstanding delivered to
the retiring Relevant Trustee, shall promptly appoint a successor Relevant
Trustee or Trustees, and such successor Trustee shall comply with the
applicable requirements of Section 8.11. If an Administrative Trustee shall
resign, be removed or become incapable of acting as Administrative Trustee, at
a time when an Indenture Event of Default shall have occurred and be
continuing, the Holder of Common Securities by Act of the Holder of Common
Securities delivered to the Administrative Trustee shall promptly appoint a
successor Administrative Trustee or Administrative Trustees and such successor
Administrative Trustee or Trustees shall comply with the applicable
requirements of Section 8.11. If no successor Relevant Trustee shall have been
so appointed by the Holder of Common Securities or the Holders and accepted
appointment in the manner required by Section 8.11, any Holder who has been a
Holder of Trust Securities for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Relevant Trustee.
(e) The Property Trustee shall give notice of each resignation
and each removal of a Trustee and each appointment of a successor Trustee to
all Holders in the manner provided in Section 11.9 and shall give notice to the
Depositor. Each notice shall include the name of the successor Relevant Trustee
and the address of its Corporate Trust Office if it is the Property Trustee.
(f) Notwithstanding the foregoing or any other provision of
this Trust Agreement, in the event any Administrative Trustee who is a natural
person dies or becomes, in the opinion of the Depositor, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by (i) the unanimous act of the remaining Administrative Trustees
if there are at least two of them or (ii) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirement
for Administrative Trustees set forth in Section 8.7).
SECTION 8.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Relevant Trustee with
respect to the Trust Securities shall execute and deliver an amendment hereto
wherein each successor Relevant Trustee shall accept such appointment and which
(a) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Relevant Trustee all
the rights, powers, trusts and duties of the retiring Relevant Trustee with
respect to the Trust Securities and the Trust and (b)
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shall add to or change any of the provisions of this Trust Agreement as shall
be necessary to provide for or facilitate the administration of the Trust by
more than one Relevant Trustee, it being understood that nothing herein or in
such amendment shall constitute such Relevant Trustees co-trustees and upon the
execution and delivery of such amendment the resignation or removal of the
retiring Relevant Trustee shall become effective to the extent provided therein
and each such successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Relevant Trustee; but, on written request of the Trust or any
successor Relevant Trustee such retiring Relevant Trustee shall duly assign,
transfer and deliver to such successor Relevant Trustee all Trust Property, all
proceeds thereof and funds held by such retiring Relevant Trustee hereunder
with respect to the Trust Securities and the Trust. Upon written request of any
such successor Relevant Trustee, the Trust shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Relevant Trustee all such rights, powers and trusts referred to in
this Section 8.11. No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
SECTION 8.12. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS.
Any Person into which the Property Trustee may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which such Relevant Trustee shall be
a party, or any Person succeeding to all or substantially all the corporate
trust business of such Relevant Trustee, shall be the successor of such
Relevant Trustee hereunder, provided such Person shall be otherwise qualified
and eligible under this Article VIII, without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
SECTION 8.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
DEPOSITOR OR TRUST.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other similar judicial proceeding relative to the Trust or any other obligor
upon the Trust Securities or the property of the Trust or of such other obligor
or their creditors, the Property Trustee (irrespective of whether any
Distributions on the Trust Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Property Trustee shall have made any demand on the Trust for the payment of any
past due Distributions) shall be entitled and empowered, to the fullest extent
permitted by law, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount
of any Distributions owing and unpaid in respect of the Trust
Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Property
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
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(ii) to collect and receive any money or other
property payable or deliverable on any such claims and to distribute
the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the
Property Trustee and, in the event the Property Trustee shall consent
to the making of such payments directly to the Holders, to pay to the
Property Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement adjustment or
compensation affecting the Trust Securities or the rights of any
Holder thereof or to authorize the Property Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 8.14. REPORTS BY PROPERTY TRUSTEE.
(a) The Property Trustee shall transmit to Holders such
reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto. If required by Section 313(a) of
the Trust Indenture Act, the Property Trustee shall, within 60 days after each
May 15 following the date of this Trust Agreement, deliver to Holders a brief
report, dated as of such May 15, which complies with the provisions of such
Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each national
stock exchange, the Nasdaq National Market or such other interdealer quotation
system or self-regulatory organization upon which the Preferred Securities are
listed or traded, if any, with the Commission and with the Depositor. The
Depositor will promptly notify the Property Trustee of any such listing or
trading.
SECTION 8.15. REPORTS TO PROPERTY TRUSTEE.
The Depositor and the Administrative Trustees on behalf of
the Trust shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act (if any) and
the compliance certificate required by Section 314(a) of the Trust Indenture
Act in the form, in the manner and at the times required by Section 314 of the
Trust Indenture Act. Delivery of such reports, information and documents to the
Property Trustee is for informational purposes only and the Property Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Trust's compliance with any of its covenants hereunder (as to which the
Property Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 8.16. EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT.
Each of the Depositor and the Administrative Trustees on
behalf of the Trust shall provide to the Property Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Trust
Agreement that relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c) of
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the Trust Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) of the Trust Indenture Act shall be given
in the form of an Officers' Certificate.
SECTION 8.17. NUMBER OF TRUSTEES.
(a) The number of Trustees shall be five (four if the
Property Trustee and the Delaware Trustee are the same Person), provided that
the Holder of all of the Common Securities by written instrument may increase or
decrease the number of Administrative Trustees and provided that the number of
Trustees may be increased to add a Special Administrative Trustee. The Property
Trustee and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section 8.17(a), or
if the number of Trustees is increased pursuant to Section 8.17(a), a vacancy
shall occur. The vacancy shall be filled with a Trustee appointed in accordance
with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to dissolve, terminate or annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Trust Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
SECTION 8.18. DELEGATION OF POWER.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any documents
contemplated in Section 2.8, including any registration statement or amendment
thereto filed with the Commission, or making any other governmental filing.
(b) The Administrative Trustees shall have power to delegate
from time to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Trust Agreement, as set
forth herein.
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ARTICLE IX
DISSOLUTION, LIQUIDATION, TERMINATION AND MERGER
SECTION 9.1. TERMINATION UPON EXPIRATION DATE.
Unless earlier terminated, the Trust shall automatically
dissolve on January 1, 2030 (the "Expiration Date"), following the distribution
of the Trust Property in accordance with Section 9.4.
SECTION 9.2. EARLY TERMINATION.
The first to occur of any of the following events is an
"Early Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of the
Holder of the Common Securities, or the filing by the Holder of Common
Securities of a certificate of dissolution or its equivalent with respect to
the Holder of Common Securities (except for permitted mergers, consolidations
or reorganizations of the Holder of Common Securities) or the revocation of the
charter of the Holder of Common Securities and the expiration of 90 days after
the date of such revocation without reinstatement thereof;
(b) the occurrence of (i) a Tax Event, but only if the
Administrative Trustees shall have received an opinion from independent tax
counsel experienced in such matters, which opinion may rely on published
revenue rulings of the Internal Revenue Service, to the effect that the holders
of the Preferred Securities will not recognize any gain or loss for United
States federal income tax purposes as a result of such Early Termination Event
and distribution of Debentures; unless at the time there is available to the
Trust the opportunity to eliminate, within such 90 day period, the Tax Event by
taking some ministerial action, such as filing a form or making an election, or
pursuing some other similar reasonable measure, which has no adverse effect on
the Trust, Caremark Rx, Inc. or the holders of the Preferred Securities, and
the Trust pursues such measure in lieu of dissolution; or (ii) an Investment
Company Event;
(c) the redemption of all of the Preferred Securities in
connection with the redemption of all of the Debentures;
(d) the entry of an order for dissolution of the Trust by a
court of competent jurisdiction; and
(e) the distribution of Common Stock to all Holders upon
conversion of all outstanding Preferred Securities.
SECTION 9.3. TERMINATION.
The respective obligations and responsibilities of the
Trustees and, to the fullest extent permitted by applicable law, the Trust
created and continued hereby shall terminate upon the latest to occur of the
following: (a) the distribution by the Property Trustee to Holders upon the
liquidation of the Trust pursuant to Section 9.4, or upon the redemption of all
of the Trust Securities pursuant to Section 4.2 or repurchase of all the Trust
Securities pursuant to Article X, of
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all amounts required to be distributed hereunder upon the final payment of
the Trust Securities; (b) the payment of any expenses owed by the Trust; and
(c) the discharge of all administrative duties of the Administrative Trustees,
including the performance of any tax reporting obligations with respect to the
Trust or the Holders. Upon the completion of the liquidation of the Trust and
its termination, the Property Trustee shall execute and file a Certificate of
Cancellation of the Trust with the Secretary of State of the State of Delaware.
SECTION 9.4. LIQUIDATION.
(a) If an Early Termination Event specified in clause (a),
(b) or (d) of Section 9.2 occurs or upon the Expiration Date, the Trust shall
be liquidated by the Trustees as expeditiously as the Trustees determine to be
possible by distributing, after satisfaction or the making of reasonable
provisions for the payment of liabilities to creditors of the Trust as provided
by applicable law, to each Holder a Like Amount of Debentures, subject to
Section 9.4(d). Notice of liquidation shall be given by the Property Trustee by
first-class mail, postage prepaid mailed not later than 30 nor more than 60
days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the CUSIP Number of the Trust Securities;
(ii) state the Liquidation Date;
(iii) state that from and after the Liquidation Date,
the Trust Securities will no longer be deemed to be Outstanding and
any Trust Securities Certificates not surrendered for exchange will be
deemed to represent a Like Amount of Debentures; and
(iv) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities Certificates
for Debentures or, if Section 9.4(d) applies, receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Section 9.2(c) or 9.2(e) applies, in order
to effect the liquidation of the Trust and distribution of the Debentures to
Holders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for the
Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.2(e) applies, after the
Liquidation Date, (i) the Trust Securities shall no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures shall
be issued to Holders of Trust Securities Certificates, upon surrender of such
certificates to the Administrative Trustees or their agent for exchange, (iii)
the Depositor shall use its best efforts to have the Debentures listed on any
exchange, interdealer quotation system or self-regulatory organization as the
Preferred Securities are then listed or traded, (iv) any Trust Securities
Certificates not so surrendered for exchange shall be deemed to represent a
Like Amount of Debentures, accruing interest at the rate provided for in the
Debentures from the last Distribution Date on which a Distribution was made on
such Trust Securities Certificates until such certificates are so surrendered
(and until such certificates are so surrendered, no payments of interest or
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principal will be made to Holders of Trust Securities Certificates with respect
to such Debentures), and (v) all rights of Holders holding Trust Securities
shall cease, except the right of such Holders to receive Debentures upon
surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions
of this Section 9.4, whether because of an order for dissolution entered by a
court of competent jurisdiction or otherwise, distribution of the Debentures in
the manner provided herein is determined by the Property Trustee not to be
practical, the Trust Property shall be liquidated, and the Trust shall be
wound-up or terminated, by the Property Trustee. In such event, Holders will be
entitled to receive out of the assets of the Trust available for distribution
to Holders, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, an amount equal to the Liquidation Amount per Trust
Security plus accumulated and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"). If, upon any such
winding up or termination, the Liquidation Distribution can be paid only in
part because the Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust Securities shall be
paid on a pro rata basis (based upon Liquidation Amounts). The Holder of the
Common Securities shall be entitled to receive Liquidation Distributions upon
any such winding-up or termination pro rata (determined as aforesaid) with
Holders of Preferred Securities, except that, if a Indenture Event of Default
has occurred and is continuing, the Preferred Securities shall have a priority
over the Common Securities.
SECTION 9.5. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR
REPLACEMENTS OF TRUST.
The Trust may not consolidate, amalgamate, merge with or
into, or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except
pursuant to this Article IX. At the request of the Depositor, with the consent
of the Administrative Trustees and without the consent of the Holders of the
Preferred Securities, the Property Trustee or the Delaware Trustee, the Trust
may consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to a
trust organized as such under the laws of any State; provided, that (i) such
successor entity either (a) expressly assumes all of the obligations of the
Trust with respect to the Preferred Securities or (b) substitutes for the
Preferred Securities other securities having substantially the same terms as
the Preferred Securities (the "Successor Securities") so long as the Successor
Securities rank the same as the Preferred Securities rank in priority with
respect to Distributions and payments upon liquidation, redemption and
otherwise, (ii) the Depositor expressly appoints a trustee of such successor
entity possessing the same powers and duties as the Property Trustee as the
holder of the Debentures, (iii) the Successor Securities are listed or traded,
or any Successor Securities shall be listed upon notification of issuance, on
any national securities exchange or other organization on which the Preferred
Securities are then listed or traded, if any, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor Securities) to be downgraded by
any nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does
not adversely affect the rights, preferences and privileges of the Holders of
the Preferred Securities (including any Successor Securities) in any material
respect, (vi) such successor entity has a purpose substantially identical to
that of the Trust,
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(vii) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Depositor has received an Opinion of Counsel
to the effect that (a) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders of the Preferred Securities (including any
Successor Securities) in any material respect, and (b) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease,
neither the Trust nor such successor entity will be required to register as an
investment company under the 1940 Act, and (viii) the Depositor owns all of the
common securities of such successor entity and guarantees the obligations of
such successor entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, the Trust shall not,
except with the consent of Holders of 100% in Liquidation Amount of the
Preferred Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to any other Person or permit any other Person to
consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger, replacement, conveyance, transfer or lease
would cause the Trust or the successor entity to be classified as other than a
grantor trust for United States federal income tax purposes.
ARTICLE X
RIGHT TO REQUIRE REPURCHASE
SECTION 10.1. RIGHT TO REQUIRE REPURCHASE.
In the event that there shall occur a Change of Control (as
defined in Section 10.6), then each Holder shall have the right, at such
Holder's option, to require the Trust to purchase, and upon the exercise of
such right, the Trust shall, subject to the provisions of Section 14.3 of the
Indenture, purchase, all or any part of such Holder's Preferred Securities on
the date (the "Repurchase Date") that is 30 days after the date the Depositor
gives notice of the Change of Control as contemplated in Section 10.2(a) at a
price (the "Repurchase Price") equal to $50 per Preferred Security, together
with accrued and unpaid Distributions and Liquidated Damages pursuant to the
Registration Rights Agreement, if any, to the Repurchase Date.
SECTION 10.2. NOTICE; METHOD OF EXERCISING REPURCHASE
RIGHT.
(a) Within 30 days following a Change of Control (as defined
in Section 10.6), the Depositor, or at the written request of the Depositor
received by the Property Trustee at least 40 days prior to the Repurchase Date,
the Property Trustee (in the name and at the expense of the Depositor), in its
capacity as tender agent (for which services it shall be reasonably
compensated), shall give notice of the occurrence of the Change of Control and
of the repurchase right set forth herein arising as a result thereof by
first-class mail, postage prepaid, to the Property Trustee and to each Holder
of the Preferred Securities at such Holder's address appearing in the Security
Register.
Each notice of a repurchase right shall state:
(1) the event constituting the Change of Control and the
date thereof,
(2) the Repurchase Date,
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(3) the date by which the repurchase right must be exercised,
(4) the Repurchase Price, and
(5) the instructions a Holder must follow to exercise a
repurchase right.
No failure of the Depositor to give the foregoing notice
shall limit any Holder's right to exercise a repurchase right. The Property
Trustee shall have no affirmative obligation to determine if there shall have
occurred a Repurchase Event.
(b) To exercise a repurchase right, a Holder shall deliver to
the Depositor, the Trust (or an agent designated by the Depositor for such
purpose in the notice referred to in (a) above) and to the Property Trustee on
or before the close of business on the second Business Day preceding the
Repurchase Date (i) written notice of the Holder's exercise of such right, in
the form attached hereto as Exhibit F, and (ii) the Preferred Security or
Preferred Securities with respect to which the repurchase right is being
exercised, duly endorsed for transfer to the Trust. Such written notice shall
be irrevocable.
In the event a repurchase right shall be exercised in
accordance with the terms hereof, the Depositor shall on the Repurchase Date
cause to be paid in cash by the Trust to the Holder thereof the Repurchase
Price of the Preferred Security or Preferred Securities as to which the
repurchase right had been exercised. In the event that a repurchase right is
exercised with respect to less than the entire amount of Preferred Securities
represented by a Preferred Securities Certificate, the Trust shall cause to be
issued and executed in the name of the Holder a new Preferred Securities
Certificate representing the unrepurchased portion of such surrendered
Preferred Securities Certificate.
SECTION 10.3. DEPOSIT OF REPURCHASE PRICE.
On or prior to the Repurchase Date, the Depositor shall
redeem Debentures equal in aggregate principal amount to the Liquidation Amount
of Preferred Securities to be repurchased on the Repurchase Date and cause to
be deposited with the Property Trustee or with a Paying Agent an amount of
money in same day funds sufficient to pay the redemption price therefor. The
Trust shall cause such funds to be applied to the payment of the Repurchase
Price of the Preferred Securities which are to be repaid on the Repurchase
Date.
SECTION 10.4. SECURITIES NOT REPURCHASED ON REPURCHASE
DATE.
If any Preferred Security surrendered for repurchase shall
not be so paid on the Repurchase Date, such Preferred Security shall, until
paid, accrue Distributions to the extent permitted by applicable law from the
Repurchase Date at the Distribution rate per annum applicable to such Preferred
Security.
SECTION 10.5. SECURITIES REPURCHASED IN PART.
Any Preferred Securities Certificate representing Preferred
Securities, only a portion of which are to be repurchased, shall be surrendered
at any office or agency of the Property Trustee
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designated for that purpose (with, if the Trust or the Property Trustee so
requires, due endorsement by, or written instrument of transfer in form
satisfactory to the Trust and the Property Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Trust shall issue
to the Holder, without service charge, a Preferred Securities Certificate of
any authorized denomination as requested by such Holder, in aggregate amount
equal to and in exchange for the unrepurchased portion of Preferred Securities
so surrendered.
SECTION 10.6. DEFINITIONS.
(a) A "Change in Control" shall occur when: (a) the sale,
lease, transfer, conveyance or other disposition (other than by way of merger
or consolidation), in one or a series of related transactions, or all or
substantially all of the assets of the Depositor and its subsidiaries, taken as
a whole, (b) the adoption of a plan relating to the liquidation or dissolution
of the Depositor, (c) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" or "group" (as such terms are used in Section 13(d)(3) of the Exchange
Act) becomes the "beneficial owner" (as such term is defined in Rule 13d-3 and
Rule 13d-5 under the Exchange Act), directly or indirectly through one or more
intermediaries, of more than 50% of the voting power of the outstanding voting
stock of the Depositor, (d) the Depositor consolidates with, or merges with or
into, any person, or any person consolidates with, or merges with or into, the
Depositor, other than any such transaction where the beneficial owners of the
outstanding common stock of the Depositor immediately prior to such transaction
beneficially own a majority of the outstanding shares of voting stock of the
surviving person immediately after such transaction, or (e) the first day on
which more than a majority of the members of the Board of Directors of the
Depositor are not Continuing Directors; provided, however, that a Change of
Control shall not be deemed to have occurred if the last reported sale price
per share of the Common Stock for any ten Trading Days (as defined) within the
period of twenty consecutive Trading Days (x) ending immediately after the
later of the Change of Control and the public announcement of the Change in
Control (in the case of a Change in Control under clause (a), (b), (c) or (e)
above) or (y) ending immediately before the Change in Control (in the case of a
Change in Control under clause (d) above) shall equal or exceed 105% of the
Conversion Price in effect on each such Trading Day. If not earlier made, the
Company shall make a public announcement of a Change of Control within five
Business Days of the occurrence of such Change of Control.
(b) "Continuing Directors" means as of any date of
determination, any member of the board of directors of the Depositor who (a)
was a member of the board of directors on the date of original issuance of the
Preferred Securities or (b) was nominated for election to the board of
directors with the approval of, or whose election was ratified by, at least
two-thirds of the Continuing Directors who were members of the board of
directors at the time of such nomination or election.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. LIMITATION OF RIGHTS OF HOLDERS.
The death, incapacity, liquidation, dissolution, termination
or bankruptcy of any Person having an interest, beneficial or otherwise, in
Trust Securities shall not operate to terminate this Trust Agreement, nor
entitle the legal representatives or heirs of such Person or any Holder for
such Person, to claim an accounting, take any action or bring any proceeding in
any court for a partition or winding up of the arrangements contemplated
hereby, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
SECTION 11.2. LIABILITY.
(a) Except as expressly set forth in this Trust Agreement,
the Guarantee and the terms of the Trust Securities, the Depositor shall not
be:
(i) personally liable for the return of any portion
of the capital contributions (or any return thereon) of the Holders,
which shall be made solely from assets of the Trust; or
(ii) required to pay to any Holder any deficit upon
dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for
all of the debts and obligations of the Trust (other than with respect to the
Trust Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act,
the Holders of the Preferred Securities shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware.
SECTION 11.3. AMENDMENT.
(a) This Trust Agreement may be amended from time to time by
the Property Trustee, the Administrative Trustees and the Depositor, without
the consent of any Holders, (i) to cure any ambiguity, correct or supplement
any provision herein which may be inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Trust Agreement, which shall not be inconsistent with the other
provisions of this Trust Agreement, or to add to the covenants of the Trust for
the benefit of the Holders or to surrender any right or power herein conferred
upon the Trust, (ii) to modify, eliminate or add to any provisions of this
Trust Agreement to such extent as shall be necessary to ensure that the Trust
will be classified for United States federal income tax purposes as a grantor
trust at all times that any Trust Securities are Outstanding or to ensure that
the Trust will not be required to register as an investment company under the
1940 Act or (iii) to cause this Trust Agreement to be qualified under the Trust
Indenture Act; provided, however, that in the case of clauses (i), (ii) or
(iii), such action
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shall not adversely affect in any material respect the interests of any Holder,
and any such amendments of this Trust Agreement shall become effective when
notice thereof is given to the Holders.
(b) Except as provided in Section 11.3(c) hereof, any
provision of this Trust Agreement may be amended by the Trustees and the
Depositor with (i) the consent of Holders representing not less than a majority
(based upon Liquidation Amounts) of the Trust Securities then Outstanding, and
(ii) receipt by the Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status as a grantor trust for
United States federal income tax purposes or the Trust's exemption from status
of an investment company under the 1940 Act.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected Holder (such consent
being obtained in accordance with Section 6.3 or 6.6 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount
of any Distribution required to be made in respect of the Trust Securities as
of a specified date, or (ii) restrict the right of a Holder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the Holders (such
consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
Section 11.3(c) may not be amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any amendment to this
Trust Agreement which would cause the Trust to fail or cease to qualify for the
exemption from status of an investment company under the 1940 Act or fail or
cease to be classified as a grantor trust for United States federal income tax
purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust Agreement may not be
amended in a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement
is made, the Administrative Trustees shall promptly provide to the Depositor a
copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee
shall be required to enter into any amendment to this Trust Agreement which
affects its own rights, duties or immunities under this Trust Agreement. The
Property Trustee shall be entitled to receive an Opinion of Counsel and an
Officers' Certificate stating that any amendment to this Trust Agreement is in
compliance with this Trust Agreement.
SECTION 11.4. SEPARABILITY.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
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SECTION 11.5. GOVERNING LAW.
THIS TRUST AGREEMENT AND TILE RIGHTS AND OBLIGATIONS OF EACH
OF THE HOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES).
SECTION 11.6. PAYMENTS DUE ON NON-BUSINESS DAY.
If the date fixed for any payment on any Trust Security shall
be a day that is not a Business Day, then such payment shall be made on the
next succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay) (except as otherwise provided in Sections
4.1(a) and 4.2(d)), with the same force and effect as though made on the date
fixed for such payment.
SECTION 11.7. SUCCESSORS.
This Trust Agreement shall be binding upon and shall inure to
the benefit of any successor to the Depositor, the Trust or the Relevant
Trustee, including any successor by operation of law. Except in connection with
a consolidation, merger or sale involving the Depositor that is permitted under
Article Eight of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
SECTION 11.8. HEADINGS.
The Article and Section headings are for convenience only and
shall not affect the construction of this Trust Agreement.
SECTION 11.9. REPORTS, NOTICES AND DEMANDS.
(a) Any report, notice, demand or other communication which
by any provision of this Trust Agreement is required or permitted to be given
or served to or upon any Holder or the Depositor may be given or served in
writing by deposit thereof, first-class postage prepaid, in the United States
mail, hand delivery or facsimile transmission, in each case, addressed: (i) in
the case of a Holder, to such Holder as such Holder's name and address may
appear on the Securities Register; and (ii) in the case of the Holder of Common
Securities or the Depositor, to Caremark Rx, Inc., 3000 Galleria Tower, Suite
1000, Birmingham, Alabama 35242, Attention: Chief Financial Officer, facsimile
no.: (205) 733-9780. Such notice, demand or other communication to or upon a
Holder shall be deemed to have been sufficiently given or made, for all
purposes, upon hand delivery, mailing or transmission. Such notice, demand or
other communication to or upon the Depositor shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the
Depositor.
(b) Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or
served to or upon the Trust, the Property Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is
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published by the Trust) as follows: (i) with respect to the Property Trustee to
Wilmington Trust Company ,1100 N. Market Street, Wilmington, Delaware 19801
Attention: Corporate Trust Administration; and (ii) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention Administrative Trustees of Caremark Rx Capital
Trust I." Such notice, demand or other communication to or upon the Trust or
the Property Trustee shall be deemed to have been sufficiently given or made
only upon actual receipt of the writing by the Trust or the Property Trustee.
SECTION 11.10. AGREEMENT NOT TO PETITION.
Each of the Trustees and the Depositor agree for the benefit
of the Holders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including the United States Bankruptcy
Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement
of any proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 11.10, the Property Trustee
agrees, for the benefit of Holders, that at the expense of the Depositor, it
shall file an answer with the bankruptcy court or otherwise properly contest
the filing of such petition by the Depositor against the Trust or the
commencement of such action and raise the defense that the Depositor has agreed
in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Property Trustee
or the Trust may assert. The provisions of this Section 11.10 shall survive the
termination of this Trust Agreement.
SECTION 11.11. TRUST INDENTURE ACT; CONFLICT WITH TRUST
INDENTURE ACT.
(a) This Trust Agreement shall be subject to the provisions
of the Trust Indenture Act whether or not such provisions are required or
deemed to be part of this Trust Agreement and shall, to the extent applicable,
be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is or would be required or deemed to be
included in this Trust Agreement by any of the provisions of the Trust
Indenture Act, such required or deemed provision shall control. If any
provision of this Trust Agreement modifies or excludes any provision of the
Trust Indenture Act which may be so modified or excluded, the latter provision
shall be deemed to apply to this Trust Agreement as so modified or excluded, as
the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
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SECTION 11.12. ACCEPTANCE OF TERMS OF TRUST AGREEMENT,
GUARANTEE AND INDENTURE.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY
INTEREST THEREIN BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT
ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL
INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE
GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST,
SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH HOLDER AND SUCH OTHERS.
SECTION 11.13. HOLDERS ARE PARTIES.
Notwithstanding that Holders have not executed and delivered
this Trust Agreement or any counterpart thereof, Holders shall be deemed to be
parties to this Trust Agreement and shall be bound by all of the terms and
conditions hereof and of the Trust Securities by acceptance and delivery of the
Trust Securities.
SECTION 11.14. COUNTERPARTS.
This Trust Agreement may contain more than one counterpart of
the signature page and this Trust Agreement may be executed by the affixing of
the signature of each of the Trustees of one of such counterpart signature
pages. All of such counterpart signature pages shall be read as though one, and
they shall have the same force and effect as though all of the signers had
signed a single signature page.
CAREMARK RX, INC.
By: /s/ James H. Dickerson, Jr.
-------------------------------------
Name: James H. Dickerson, Jr.
Title: Executive Vice President and
Chief Financial Officer
WILMINGTON TRUST COMPANY, as Property
Trustee and Delaware Trustee
By: /s/ Patricia A. Evans
-------------------------------------
Name: Patricia A. Evans
Title: Financial Services Officer
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, as Administrative Trustee
By: /s/ James H. Dickerson, Jr.
-------------------------------------
Name: James H. Dickerson, Jr.
Title:
, as Administrative Trustee
By: /s/ Howard A. McLure
-------------------------------------
Name: Howard A. McLure
Title:
, as Administrative Trustee
By: /s/ Sara J. Finley
-------------------------------------
Name: Sara J. Finley
Title:
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EXHIBIT A
CERTIFICATE OF TRUST
OF
CAREMARK RX CAPITAL TRUST I
See attached.
A-1
<PAGE> 72
EXHIBIT B
CERTIFICATE DEPOSITORY AGREEMENT
See attached.
B-1
<PAGE> 73
EXHIBIT C
FORM OF COMMON SECURITY
THIS CERTIFICATE IS NOT TRANSFERABLE TO ANY PERSON, EXCEPT THAT THE
HOLDER AND ANY WHOLLY-OWNED SUBSIDIARY MAY TRANSFER THIS SECURITY TO THE HOLDER
OR A WHOLLY-OWNED SUBSIDIARY OF THE HOLDER OR ANY ENTITY OWNING ALL OF THE
OUTSTANDING COMMON STOCK OF THE HOLDER, SUBJECT TO RECEIPT BY THE TRUST OF AN
OPINION OF COUNSEL THAT SUCH TRANSFER WOULD NOT CAUSE MORE THAN AN
INSUBSTANTIAL RISK THAT (I) THE TRUST WOULD NOT BE CLASSIFIED FOR UNITED STATES
FEDERAL INCOME TAX PURPOSES AS A GRANTOR TRUST; OR (II) THE TRUST WOULD BE AN
INVESTMENT COMPANY REQUIRED TO REGISTER UNDER THE INVESTMENT COMPANY ACT OR THE
TRANSFEREE WOULD BECOME AN INVESTMENT COMPANY REQUIRED TO REGISTER UNDER THE
INVESTMENT COMPANY ACT.
CERTIFICATE NUMBER: NUMBER OF COMMON SECURITIES:
C-1 123,720
Certificate Evidencing Common Securities of
CAREMARK RX CAPITAL TRUST I
(Liquidation Amount $50 per Common Security)
Caremark Rx Capital Trust I, a statutory business trust
created under the laws of the State of Delaware (the "Trust"), hereby certifies
that Caremark Rx, Inc. (the "Holder") is the registered owner of 123,720 common
securities of the Trust representing beneficial ownership interests of the
Trust and designated the Common Securities (Liquidation Amount $50 per Common
Security) (the "Common Securities"). In accordance with Section 5.11 of the
Trust Agreement (as defined below) the Common Securities are not transferable
except in limited circumstances and any attempted transfer, except in such
limited circumstances, shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust dated
as of September 29, 1999, as the same may be amended from time to time (the
"Trust Agreement") including the designation of the terms of the Common
Securities as set forth therein. The Trust will furnish a copy of the Trust
Agreement to the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder and by acceptance
hereof agrees to the provisions of (i) the Guarantee Agreement entered into by
Caremark Rx, Inc., a Delaware corporation ("Caremark"), and Wilmington Trust
Company, a Delaware banking corporation, as guarantee trustee, dated as of
C-1
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September 29, 1999, and (ii) the Indenture entered into by Caremark and
Wilmington Trust Company, as trustee, dated as of September 29, 1999.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate.
CAREMARK RX CAPITAL TRUST I
By:
-------------------------------------
Name:
Title: Administrative Trustee
C-2
<PAGE> 75
EXHIBIT D
FORM OF PREFERRED SECURITY
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, RESOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
SUCH REGISTRATION. THE HOLDER HEREOF MAY NOT ENGAGE IN
HEDGING TRANSACTIONS IN THIS SECURITY UNLESS SUCH
TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, RESELL OR OTHERWISE TRANSFER SUCH SECURITY,
PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE")
WHICH IS THE LATER OF (X) TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), AND (Y) SUCH
LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW ONLY
(A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE
ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES IN ACCORDANCE WITH REGULATION S
UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRANSFER
AGENT'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE. ANY TRANSFER OF THIS SECURITY IS REQUIRED
TO BE MADE IN COMPLIANCE WITH
D-1
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THE APPLICABLE STATE SECURITIES LAWS AND APPLICABLE
SECURITIES LAWS OF OTHER JURISDICTIONS.
EACH PURCHASER OR HOLDER OF THE SECURITY EVIDENCED
HEREBY WILL BE DEEMED TO HAVE REPRESENTED EITHER THAT (A) IT
IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO PART 4 OF SUBTITLE
B OF TITLE I OF ERISA OR A PLAN DESCRIBED IN SECTION 4975 OF
THE CODE OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE THE
ASSETS OF ANY SUCH ERISA PLAN OR OTHER PLAN OR (B) ITS
ACQUISITION, HOLDING AND DISPOSITION OF THE SECURITY
EVIDENCED HEREBY WILL NOT RESULT IN A PROHIBITED TRANSACTION
UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE BY
REASON OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE")
91-38, PTCE 84-14, PTCE 90-1, PTCE 95-60 OR PTCE 96-23.
THE HOLDER OF THIS SECURITY AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS CAPITAL SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND.
Any global security issued hereunder shall, in addition to the provisions set
forth above contain a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE
"DEPOSITARY") OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY
IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55
WATER STREET, NEW YORK) TO THE TRUST OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS
MADE TO CEDE & CO.,
D-2
<PAGE> 77
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CERTIFICATE NUMBER: P-1 NUMBER OF PREFERRED SECURITIES: 4,000,000
CUSIP NO.
ISIN NO.
COMMON CODE:
Certificate Evidencing Preferred Securities
of
CAREMARK RX CAPITAL TRUST I
7.0% Shared Preference Redeemable Preferred Securities,
(Liquidation Amount $50 per Preferred Security)
Caremark Rx Capital Trust I, a statutory business trust
created under the laws of the State of Delaware (the "Trust"), hereby certifies
that Cede & Co. (the "Holder") is the registered owner of 4,000,000 preferred
securities of the Trust representing an undivided beneficial ownership interest
in the assets of the Trust and designated the Caremark Rx Capital Trust I
Shared Preference Redeemable Securities (SPuRS SM) (Liquidation Amount $50 per
Preferred Security unit redeemable) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in person by
a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer as provided in Section 5.4 of the Trust
Agreement (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities are set forth in, and this certificate and the Preferred Securities
represented hereby are issued and shall in all respects be subject to, the
terms and provisions of, the Amended and Restated Trust Agreement of the Trust
dated as of September 29, 1999, as the same may be amended from time to time
(the "Trust Agreement") including the designation of the terms of Preferred
Securities as set forth herein. The Holder is entitled to the benefits of (i)
the Guarantee Agreement entered into by Caremark Rx, Inc., a Delaware
corporation ("Caremark"), and Wilmington Trust Company, a Delaware banking
corporation ("Preferred Guaranty Trustee"), as guarantee trustee, dated as of
September 29, 1999 (the "Guarantee") and (ii) the Registration Rights Agreement
dated as of September 29, 1999 among the Trust, Caremark and Warburg Dillon
Read LLC (the "Registration Rights Agreement"), in each case to the extent
provided therein. The Trust will furnish a copy of the Trust Agreement, the
Guarantee and the Registration Rights Agreement to the Holder without charge
upon written request to the Trust at its principal place of business or
registered office.
D-3
<PAGE> 78
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder and by acceptance
hereof agrees to the provisions of (i) the Guarantee, (ii) the Indenture
entered into by Caremark and Wilmington Trust Company, as trustee, dated as of
September 29, 1999 and (iii) the Registration Rights Agreement.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate.
Dated: September , 1999
CAREMARK RX CAPITAL TRUST I
By:
-------------------------------------
Name:
Title: Administrative Trustee
This is one of the Securities referred to in the within
mentioned Trust Agreement.
Date of Authentication:
September __, 1999
WILMINGTON TRUST COMPANY,
as Property Trustee
By:
-------------------------------------
Name:
Title:
D-4
<PAGE> 79
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers
this Trust Security to:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Insert assignee's social security or tax identification number)
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:_________________________________
Signature:
----------------------------
(Sign exactly as your name appears on the other side of this Trust Security
certificate)
Signature Guarantee*:
--------------------------------
- ------------------
*(Signature must be guaranteed by an "eligible guarantor institution" that is,
a bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended)
D-5
<PAGE> 80
CONVERSION REQUEST
To: Wilmington Trust Company, as Conversion Agent under the Trust
Agreement of Caremark Rx Capital Trust I
The undersigned owner of these Preferred Securities hereby
irrevocably exercises the option to convert these Preferred Securities, or the
portion below designated, into Common Stock of CAREMARK RX, INC. (the "Common
Stock") in accordance with the terms of the Trust Agreement. Pursuant to the
aforementioned exercise of the option to convert these Preferred Securities,
the undersigned hereby directs the Conversion Agent (as that term is defined in
the Trust Agreement) to (i) exchange such Preferred Securities for a portion of
the Debentures (as that term is defined in the Trust Agreement) held by the
Trust at the Conversion Price specified in the Trust Agreement, and (ii)
immediately convert such Debentures on behalf of the undersigned, into Common
Stock at the Conversion Price specified in the Trust Agreement.
The undersigned also hereby directs the Conversion Agent that
the shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment
below. If shares are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto.
If the undersigned is a BHCA Person (as that term is defined
in the Trust Agreement, the undersigned certifies that it is in compliance with
Section 4.3(a) of the Trust Agreement.
Date:______________________
Number of Preferred Securities to be converted: ____________
If a name or names other than the undersigned, please indicate in the spaces
below the name or names in which the shares of Common Stock are to be issued,
along with the address or addresses of such person or persons.
- -----------------------------------------
- -----------------------------------------
- -----------------------------------------
(Sign exactly as your name appears on the other side of this Preferred
Securities certificate) (for conversion of definitive Preferred Securities
only)
Please Print or Typewrite Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number.
- -----------------------------------------
- -----------------------------------------
D-6
<PAGE> 81
- ----------------------------------------------------
Signature Guarantee:*
-------------------------------
- -------------------
*(Signature must be guaranteed by an "eligible guarantor institution" that is,
a bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended)
D-7
<PAGE> 82
EXHIBIT E
FORM OF CERTIFICATE TO BE DELIVERED
UPON EXCHANGE OR REGISTRATION OF TRANSFER
OF PREFERRED SECURITIES
CERTIFICATE FOR EXCHANGE OR TRANSFER
Re: 7.0% Shared Preference Redeemable Securities ("SpuRS" or "Preferred
Securities)
This Certificate relates to _________ Preferred Securities
held by _________ (the "Transferor").
The Transferor has requested the Trustee by written order to
exchange or register the transfer of a Preferred Security or Preferred
Securities.
In connection with such request and in respect of each such
security, the Transferor does hereby certify to the Depositor and the Trustee
that Transferor is familiar with the Trust Agreement relating to the above
captioned Preferred Securities and, as provided in Section 5.4 and Section 5.5
of such Trust Agreement, the transfer of this Preferred Security does not
require registration under the Securities Act (as defined below) because:
[ ] Such Preferred Security is being acquired for the
Transferor's own account, without transfer.
[ ] Such Preferred Security is being transferred pursuant
to an effective registration statement under the Securities Act.
[ ] Such Preferred Security is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A under the Securities
Act of 1933, as amended (the "Securities Act")) in reliance on Rule 144A.
[ ] Such Preferred Security is being transferred in
reliance on and in compliance with an exemption from the registration
requirements of the Securities Act pursuant to Regulation S, Rule 144 or
otherwise (other than pursuant to Rule 144A) under the Securities Act. An
opinion of counsel to the effect that such transfer does not require
registration under the Securities Act accompanies this Certificate.
If this certificate is being delivered in connection with a
transfer or exchange of Preferred Securities held by a BHCA Person (as that
term is defined in the Trust Agreement), such BHCA Person certifies that this
transfer or exchange complies with Section 4.3(a) of the Trust Agreement.
You are entitled to rely upon this certificate and you are
irrevocably authorized to produce this certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
_______________________________________
[INSERT NAME OF TRANSFEROR]
E-1
<PAGE> 83
By:
-------------------------------------
Date:
--------------------------------
E-2
<PAGE> 84
EXHIBIT F
[OPTION OF HOLDER TO ELECT PURCHASE]
If you wish to have Preferred Securities represented by this
certificate purchased by the Depositor pursuant to Article X of the Trust
Agreement, check the Box: [ ]
If you wish to have a portion of the Preferred Securities
represented by this certificate purchased by the Depositor pursuant to Article
X of the Trust Agreement, state the number of Preferred Securities you wish to
have purchased: ____________________
Date: ___________________ Your Signature(s):
--------------------------
Tax Identification No.:
(Sign exactly as your name appears on the face of this Security)
Signature Guarantee*:
------------------------------------------
- -----------------
*(Signature must be guaranteed by an "eligible guarantor institution" that is,
a bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended)
F-1
<PAGE> 1
EXHIBIT 4.4
CAREMARK RX, INC.
to
WILMINGTON TRUST COMPANY,
as Trustee
INDENTURE
Dated as of September 29, 1999
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION........................................1
SECTION 1.1. Definitions........................................................................1
SECTION 1.2. Compliance Certificate and Opinions................................................9
SECTION 1.3. Forms of Documents Delivered to Trustee............................................9
SECTION 1.4. Acts of Holders...................................................................10
SECTION 1.5. Notices, etc. to Trustee and Company..............................................12
SECTION 1.6. Notice to Holders; Waiver.........................................................12
SECTION 1.7. Conflict with Trust Indenture Act.................................................12
SECTION 1.8. Effect of Headings and Table of Contents..........................................12
SECTION 1.9. Successors and Assigns............................................................13
SECTION 1.10. Separability Clause...............................................................13
SECTION 1.11. Benefits of Indenture.............................................................13
SECTION 1.12. Governing Law.....................................................................13
SECTION 1.13. Non-Business Days.................................................................13
ARTICLE II DEBENTURE FORMS..............................................................................13
SECTION 2.1. Forms Generally...................................................................13
SECTION 2.2. Form of Face of Debenture.........................................................14
SECTION 2.3. Form of Reverse Debenture.........................................................18
SECTION 2.4. Form of Trustee's Certificate of Authentication...................................21
SECTION 2.5. Form of Conversion Notice.........................................................21
ARTICLE III DEBENTURES..................................................................................23
SECTION 3.1. Title and Terms; Paying Agent.....................................................23
SECTION 3.2. Denominations.....................................................................24
SECTION 3.3. Execution, Authentication, Delivery and Dating....................................24
SECTION 3.4. Temporary Debentures..............................................................24
SECTION 3.5. Registration, Transfer and Exchange...............................................25
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Debentures..................................26
SECTION 3.7. Payment of Interest; Interest Rights Preserved....................................27
SECTION 3.8. Persons Deemed Owners.............................................................29
SECTION 3.9. Cancellation......................................................................29
SECTION 3.10. Computation of Interest...........................................................29
SECTION 3.11. Deferrals of Interest Payment Dates...............................................29
SECTION 3.12. Right of Set-Off..................................................................30
SECTION 3.13. Agreed Tax Treatment..............................................................30
SECTION 3.14. Shortening or Extension of Stated Maturity........................................31
SECTION 3.15. Cusip Numbers.....................................................................31
ARTICLE IV SATISFACTION AND DISCHARGE...................................................................31
SECTION 4.1. Satisfaction and Discharge of Indenture...........................................31
SECTION 4.2. Application of Trust Money........................................................32
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE V REMEDIES......................................................................................32
SECTION 5.1. Events of Default.................................................................32
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment................................33
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee...................35
SECTION 5.4. Trustee May File Proofs of Claim..................................................35
SECTION 5.5. Trustee May Enforce Claims Without Possession of Debentures.......................36
SECTION 5.6. Application of Money Collected....................................................36
SECTION 5.7. Limitation on Suits...............................................................37
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium and
Interest; Direct Action by Holders of Preferred Securities...................37
SECTION 5.9. Restoration of Rights and Remedies................................................37
SECTION 5.10. Rights and Remedies Cumulative....................................................38
SECTION 5.11. Delay or Omission Not Waiver......................................................38
SECTION 5.12. Control by Holders................................................................38
SECTION 5.13. Waiver of Past Defaults...........................................................39
SECTION 5.14. Undertaking for Costs.............................................................39
ARTICLE VI TRUSTEE......................................................................................40
SECTION 6.1. Certain Duties and Responsibilities...............................................40
SECTION 6.2. Notice of Defaults................................................................41
SECTION 6.3. Certain Rights of Trustee.........................................................41
SECTION 6.4. Not Responsible for Recitals or Issuance of Debentures............................42
SECTION 6.5. May Hold Debentures...............................................................42
SECTION 6.6. Money Held in Trust...............................................................42
SECTION 6.7. Compensation and Reimbursement....................................................42
SECTION 6.8. Disqualification; Conflicting Interests...........................................43
SECTION 6.9. Corporate Trustee Required; Eligibility...........................................43
SECTION 6.10. Resignation and Removal; Appointment of Successor.................................44
SECTION 6.11. Acceptance of Appointment by Successor............................................45
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.......................45
SECTION 6.13. Preferential Collection of Claims Against Company.................................45
SECTION 6.14. Appointment of Authenticating Agent...............................................46
ARTICLE VII HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY...........................................47
SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders.........................47
SECTION 7.2. Preservation of Information, Communications to Holders............................47
SECTION 7.3. Reports by Trustee................................................................48
SECTION 7.4. Reports by Company................................................................48
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.......................................48
SECTION 8.1. Company May Consolidate, etc., Only on Certain Terms..............................48
SECTION 8.2. Successor Corporation Substituted.................................................49
ARTICLE IX SUPPLEMENTAL INDENTURES......................................................................50
SECTION 9.1. Supplemental Indentures without Consent of Holders................................50
SECTION 9.2. Supplemental Indentures with Consent of Holders...................................51
SECTION 9.3. Execution of Supplemental Indentures..............................................52
SECTION 9.4. Effect of Supplemental Indentures.................................................52
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
SECTION 9.5. Conformity with Trust Indenture Act...............................................52
SECTION 9.6. Reference in Debentures to Supplemental Indentures................................52
ARTICLE X COVENANTS.....................................................................................52
SECTION 10.1. Payment of Principal, Premium and Interest........................................52
SECTION 10.2. Maintenance of Office or Agency...................................................53
SECTION 10.3. Money for Debenture Payments to be Held in Trust..................................53
SECTION 10.4. Statement as to Compliance........................................................54
SECTION 10.5. Waiver of Certain Covenants.......................................................54
SECTION 10.6. Payment of Trust Costs and Expenses...............................................55
SECTION 10.7. Additional Covenants..............................................................55
ARTICLE XI REDEMPTION OF SECURITIES AT THE OPTION OF THE COMPANY........................................56
SECTION 11.1. Applicability of Article..........................................................56
SECTION 11.2. Election to Redeem; Notice to Trustee.............................................56
SECTION 11.3. Selection of Debentures to be Redeemed............................................56
SECTION 11.4. Notice of Redemption..............................................................57
SECTION 11.5. Deposit of Redemption Price.......................................................57
SECTION 11.6. Payment of Debentures Called for Redemption.......................................58
SECTION 11.7. Right of Redemption of Debentures.................................................58
ARTICLE XII MANDATORY REDEMPTION........................................................................58
SECTION 12.1. Mandatory Redemption..............................................................58
SECTION 12.2. Notice of Redemption..............................................................59
SECTION 12.3. Selection of Debentures to be Redeemed............................................59
SECTION 12.4. Right to Require Repurchase of Debentures.........................................59
SECTION 12.5. Definitions.......................................................................59
ARTICLE XIII CONVERSION OF SECURITIES...................................................................60
SECTION 13.1. Conversion Rights.................................................................60
SECTION 13.2. Conversion Procedures.............................................................61
SECTION 13.3. Conversion Price Adjustments......................................................62
SECTION 13.4. Reclassification, Consolidation, Merger or Sale of Assets.........................66
SECTION 13.5. Notice of Adjustments of Conversion Price.........................................66
SECTION 13.6. Prior Notice of Certain Events....................................................67
SECTION 13.7. Certain Defined Terms.............................................................67
SECTION 13.8. Dividend or Interest Reinvestment Plans...........................................68
SECTION 13.9. Certain Additional Rights.........................................................68
SECTION 13.10. Trustee Not Responsible for Determining Conversion Price or Adjustments...........69
ARTICLE XIV SUBORDINATION OF SECURITIES.................................................................69
SECTION 14.1. Debentures Subordinate to Senior Indebtedness.....................................69
SECTION 14.2. Payment Over of Proceeds Upon Dissolution, etc....................................69
SECTION 14.3. Prior Payment to Senior Indebtedness Upon Acceleration of Debentures..............70
SECTION 14.4. No Payment when Senior Indebtedness in Default....................................71
SECTION 14.5. Payment Permitted if no Default...................................................71
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C>
SECTION 14.6. Subrogation to Rights of Holders of Senior Indebtedness...........................71
SECTION 14.7. Provisions Solely to Define Relative Rights.......................................72
SECTION 14.8. Trustee to Effectuate Subordination...............................................72
SECTION 14.9. No Waiver of Subordination Provisions.............................................72
SECTION 14.10. Notice to Trustee.................................................................73
SECTION 14.11. Reliance on Judicial Order or Certificate of Liquidating Agent....................73
SECTION 14.12. Trustee Not Fiduciary for Holders of Senior Indebtedness..........................74
SECTION 14.13. Rights of Trustee as Holder of Senior Indebtedness; of Trustee's Rights...........74
SECTION 14.14. Article Applicable to Paying Agents...............................................74
SECTION 14.15. Certain Conversions or Exchanges Deemed Payment...................................74
SECTION 14.16. Trust Funds not Subordinated......................................................75
</TABLE>
iv
<PAGE> 6
Reconciliation and tie between the Trust Indenture Act of 1939
(including cross-references to provisions of Sections 310 to and including 317
which, pursuant to Section 318(c) of the Trust Indenture Act of 1939, as amended
by the Trust Reform Act of 1990, are a part of and govern the Indenture whether
or not physically contained therein) and the Indenture, dated as of September
29, 1999.
<TABLE>
<CAPTION>
Trust Indenture Act Selection Indenture Selection
- ----------------------------- -------------------
<S> <C> <C>
Section 310 (a)(1), (2) and(5)......................................... 6.9
(a)(3)..................................................... Not Applicable
(a)(4)..................................................... Not Applicable
(b)........................................................ 6.8, 6.10
(c)........................................................ Not Applicable
Section 311 (a)........................................................ 6.13
(b)........................................................ 6.13
Section 312 (a)........................................................ 7.1, 7.2(a)
(b)........................................................ 7.2(b)
(c)........................................................ 7.2(c)
Section 313 (a)........................................................ 7.3(a)
(b)........................................................ 7.3(b)
(c)........................................................ 7.3(a)
(d)........................................................ 7.3(b)
Section 314 (a)(1), (2) and(3)......................................... 7.4
(a)(4)..................................................... 10.4
(b)........................................................ Not Applicable
(c)(1)..................................................... 1.2
(c)(2)..................................................... 1.2
(c)(3)..................................................... Not Applicable
(d)........................................................ Not Applicable
(e)........................................................ 1.2
(f)........................................................ Not Applicable
Section 315 (a)........................................................ 6.1(a)
(b)........................................................ 6.2
(c)........................................................ 6.1(b)
(d)........................................................ 6.1(c)
(d)(1)..................................................... 6.1(a)(1) and 6.1(a)(2)
(d)(2)..................................................... 6.1(c)(2)
(d)(3)..................................................... 6.1(c)(3)
(e)........................................................ 5.14
Section 316 (a)(1)(A).................................................. 5.12
(a)(1)(B).................................................. 5.13
(a)(2)..................................................... Not Applicable
(b)........................................................ 5.8
(c)........................................................ 1.4(f)
Section 317 (a)(1)..................................................... 5.3
(a)(2)..................................................... 5.4
(b)........................................................ 10.3
Section 318 (a)........................................................ 1.7
</TABLE>
v
<PAGE> 7
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Junior Subordinated Indenture.
vi
<PAGE> 8
INDENTURE, dated as of September 29, 1999 between CAREMARK RX,
INC., a Delaware corporation (the "Company") having its principal office at 3000
Galleria Tower, Suite 1000, Birmingham, Alabama 35244, and WILMINGTON TRUST
COMPANY, a Delaware corporation, as Trustee (the "Trustee").
RECITALS
A. For its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of securities to be known as its 7.0% Convertible Subordinated
Debentures due 2029 (the "Debentures"), the form and substance of such
Debentures and the terms, provisions and conditions thereof to be set forth as
provided in this Indenture.
B. Caremark Rx Capital Trust I, a Delaware statutory business
trust (the "Trust"), has offered to the investors $200,000,000 aggregate
liquidation amount of preferred interests in such Trust (the "Preferred
Securities") and proposes to invest the proceeds from such offering, together
with the proceeds of the issuance and sale by the Trust to the Company of
$6,186,000 aggregate liquidation amount of common interests in such Trust (the
"Common Securities" and collectively with the Preferred Securities, the "Trust
Securities"), in $206,186,000 aggregate principal amount of the Debentures.
C. The Company has requested that the Trustee execute and
deliver this Indenture.
D. All requirements necessary to make this Indenture a valid
instrument in accordance with its terms, and to make the Debentures, when
executed by the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company, have been performed, and the execution and
delivery of this Indenture have been duly authorized in all respects.
E. To provide the terms and conditions upon which the
Debentures are to be authenticated, issued and delivered, the Company has duly
authorized the execution of this Indenture.
F. All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH: For and in
consideration of the promises and the purchase of the Debentures by the Holders
(as defined herein) thereof, it is mutually covenanted and agreed, for the equal
and proportionate benefit of all of the Holders of the Debentures, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
<PAGE> 9
(1) The terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) All other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder means such accounting principles which are generally accepted
at the date or time of such computation; provided that when two or more
principles are so generally accepted, it means that set of principles
consistent with those in use by the Company; and
(4) The words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act" when used with respect to any Holder has the meaning
specified in Section 1.4.
"Additional Interest" means the interest, if any, that shall
accrue on any interest on the Debentures the payment of which has not been made
on the applicable Interest Payment Date and which shall accrue at the rate of
7.0% per annum compounded quarterly.
"Additional Taxes" means the sum of any additional taxes,
duties and other governmental charges to which the Trust has become subject from
time to time as a result of a Tax Event.
"Administrative Trustee" means each Person identified as an
"Administrative Trustee" in the Trust Agreement, solely in such Person's
capacity as Administrative Trustee of the Trust under such Trust Agreement and
not in such Person's individual capacity, or any successor administrative
trustee appointed as therein provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person; provided, however, the Trust shall
not be deemed to be an Affiliate of the Company. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Debentures.
"BHCA Person" has the meaning set forth in Section 31.1(a).
"Board of Directors" means either the board of directors of
the Company or any committee of the board duly authorized to act hereunder.
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<PAGE> 10
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors, or such committee of the Board of Directors or
officers of the Company to which authority to act on behalf of the Board of
Directors has been delegated, and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day" means any day other than (i) a Saturday or
Sunday, (ii) a day on which banking institutions in The City of New York or the
State of Delaware are authorized or required by law or executive order to remain
closed.
"Closing Prices" has the meaning specified in Section 13.7(a).
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Securities" has the meaning specified in the Recitals
of this Indenture.
"Common Stock" means the common stock, par value $.001 per
share, of the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, the
written request or order signed in the name of the Company by the Chairman of
the Board of Directors, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Conversion Agent" means the Person appointed to act on behalf
of the holders of Preferred Securities in effecting the conversion of Preferred
Securities to Debentures and Debentures to Common Stock as and in the manner set
forth in the Trust Agreement and this Indenture.
"Conversion Price" has the meaning specified in Section 13.1.
"Conversion Request" means (a) the irrevocable request to be
given by a Holder to the Conversion Agent directing the Conversion Agent to
convert the Holder's Debenture into shares of Common Stock, and (b) the
irrevocable request to be given by a holder of Preferred Securities to the
Conversion Agent directing the Conversion Agent to exchange such Preferred
Securities for Debentures and to convert such Debentures into Common Stock on
behalf of such holder.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which at the date hereof is 1100 N. Market Street, Wilmington,
Delaware 19801 Attention: Corporate Trust Administration.
"Corporation" includes a corporation, association, company,
joint-stock company or business trust.
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"Current Market Price" has the meaning specified in Section
13.3(f).
"Debentures" or "Debenture" has the meaning specified in the
Recitals to this Indenture.
"Debenture Register" and "Debenture Registrar" have the
respective meanings specified in Section 3.5.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means, with respect to the Debentures issuable or
issued in whole or in part in the form of one or more Global Debentures, the
Person designated as Depositary by the Company pursuant to this Indenture or any
successor thereto.
"Distributions," with respect to the Trust Securities, means
amounts payable in respect of such Trust Securities as provided in the Trust
Agreement and referred to therein as "Distributions."
"Dollar" means the currency of the United States of America
that, as at the time of payment, is legal tender for the payment of public and
private debts.
"Event of Default" has the meaning specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934 and
any statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.4(h).
"Extension Period" has the meaning specified in Section 2.2.
"Global Debenture" means a Debenture in the form prescribed in
Section 2.2 and 2.3 evidencing all or part of the Debentures, issued to the
Depositary or its nominee, and registered in the name of such Depositary or its
nominee.
"Guarantee," with respect to the Trust Securities, means the
guarantee by the Company of Distributions on such Trust Securities to the extent
provided in the Guarantee Agreement.
"Guarantee Agreement," with respect to the Trust Securities,
means the Preferred Securities Guarantee Agreement, dated as of September 29,
1999, between the Company and Wilmington Trust Company, as guarantee trustee, as
amended from time to time.
"Holder" means a Person in whose name a Debenture is
registered in the Register.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Debentures.
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<PAGE> 12
"Junior Subordinated Payment" has the meaning specified in
Section 14.2.
"Like Amount" means with respect to a redemption of Debentures
pursuant to Article XII in connection with a Change of Control, Debentures
having a principal amount equal to the Liquidation Amount of Trust Securities to
be redeemed in accordance with Article X of the Trust Agreement.
"Liquidation Amount" means the stated amount of $50 per Trust
Security.
"Maturity" when used with respect to the Debentures means the
date on which the principal of the Debentures becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, in connection with a Change of Control or
otherwise.
"Notice of Default" means a written notice of the kind
specified in Section 6.2.
"NYSE" has the meaning specified in Section 13.3(f).
"Officers' Certificate" means a certificate signed by the
Chairman of the Board of Directors, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Date" means September 29, 1999.
"Outstanding" means, as of the date of determination, all
Debentures theretofore authenticated and delivered under this Indenture, except:
(i) Debentures theretofore canceled by the Trustee
or delivered to the Trustee for cancellation;
(ii) Debentures for whose payment or redemption price
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent in trust for the Holders of such
Debentures; and
(iii) Debentures in substitution for or in lieu of
which other Debentures have been authenticated and delivered or which
have been paid pursuant to Section 3.6, unless proof satisfactory to
the Trustee is presented that any such Debentures are held by Holders
in whose hands such Debentures are valid, binding and legal obligations
of the Company; provided, however, that in determining whether the
Holders of the requisite principal amount of Outstanding Debentures
have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Debentures owned by the Company or any
other obligor upon the Debentures or any Affiliate of the Company or
such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Debentures which the Trustee
actually knows to be so owned shall be so disregarded. Debentures so
owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right
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<PAGE> 13
so to act with respect to such Debentures and that the pledgee is not
the Company or any other obligor upon the Debentures or any Affiliate
of the Company or such other obligor. Upon the written request of the
Trustee, the Company promptly shall furnish to the Trustee an Officers'
Certificate listing and identifying all Debentures, if any, known by
the Company to be owned or held by or for the account of the Company or
any other obligor on the Debentures or any Affiliate of the Company or
such obligor, and, subject to the provisions of Section 6.1, the
Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that
all Debentures not listed therein are Outstanding for the purpose of
any such determination.
"Paying Agent" means the Trustee or any Person authorized by
the Company to pay the principal of, premium, if any, or interest on the
Debentures on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment" means, with respect to the Debentures, the
place or places where the principal of, premium, if any, and interest on the
Debentures are payable pursuant to Section 3.11.
"Predecessor Debenture" of any particular Debenture means
every previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 3.6 in lieu
of a lost, destroyed or stolen Debenture shall be deemed to evidence the same
debt as the lost, destroyed or stolen Debenture.
"Preferred Securities" has the meaning specified in the
Recitals of this Indenture.
"Proceeding" has the meaning specified in Section 14.2.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the Trust Agreement, solely in its
capacity as Property Trustee of such Trust under such Trust Agreement and not in
its individual capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as therein provided.
"Purchased Shares" has the meaning specified in Section
13.3(e).
"Redemption Date," when used with respect to any Debenture to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Debenture to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the date which is 15 days next preceding such Interest
Payment Date (whether or not a Business Day).
"Responsible Officer" when used with respect to the Trustee
means any officer of the Trustee assigned by the Trustee from time to time to
administer its corporate trust matters.
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<PAGE> 14
"Rights Plan" means a plan of the Company, if any, providing
for the issuance by the Company to all holders of Common Stock of rights
entitling the holders thereof to subscribe for or purchase shares of Common
Stock or any class or series of preferred stock of the Company, which rights (i)
are deemed to be transferred with such shares of Common Stock, (ii) are not
exercisable and (iii) are also issued in respect of future issuances of Common
Stock, in each case until the occurrence of a specified event or events.
"SEC Reports" shall have the meaning specified in Section 7.4.
"Senior Indebtedness" means, with respect to the Company,
whether outstanding at the date of execution of this Indenture or thereafter
incurred, created or assumed the (i) principal, premium, if any, and interest
(including any interest accruing after the filing of any bankruptcy or
insolvency proceeding whether or not such interest constitutes an allowable
claim in such proceeding) of (A) indebtedness of such obligor for money borrowed
under any credit agreements, notes, guarantees or similar documents and (B)
indebtedness evidenced by securities, debentures, bonds or other similar
instruments issued by such obligor, (ii) all capital lease obligations of such
obligor, (iii) all obligations of such obligor issued or assumed as the deferred
purchase price of property, all conditional sale obligations of such obligor and
all obligations of such obligor under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course of business),
(iv) all obligations of such obligor for the reimbursement on any letter of
credit bankers' acceptance, security purchase facility or similar credit
transaction, (v) all obligations of such obligor (contingent or otherwise) with
respect to an interest rate or other swap, cap or collar agreements, commodity
hedge transactions or other similar instruments or agreements or foreign
currency hedge, exchange, purchase or similar instruments or agreements, (vi)
all obligations of the types referred to in clauses (i) through (v) above of
other persons for the payment of which such obligor is responsible or liable as
obligor, guarantor or otherwise and (vii) all obligations of the types referred
to in clauses (i) through (vi) above of other persons secured by any lien on any
property or asset of such obligor (whether or not such obligation is assumed by
such obligor); provided, however, that Senior Indebtedness shall not include (1)
any such indebtedness that is by its terms expressly subordinated to or pari
passu with the Convertible Subordinated Debentures and (2) any indebtedness
between or among such obligor and its Affiliates, including all debt securities
and guarantees in respect of those debt securities, issued to any trust, or a
trustee of such trust, partnership or other entity affiliated with the Company
that is a financing vehicle of the Company (a "financing entity") in connection
with the issuance by such financing entity of preferred securities or other
securities that rank pari passu with, or junior to, the Preferred Securities.
Such Senior Indebtedness shall continue to be Senior Indebtedness and be
entitled to the benefits of the subordination provisions irrespective of any
deferrals, renewals, extensions or refundings of, or amendments, modifications,
supplements or waivers of any term of such Senior Indebtedness.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" when used with respect to any Debenture or
any installment of principal thereof or interest thereon means the date
specified pursuant to the terms of such Debenture as the date on which the
principal of such Debenture or such installment of interest is due and payable,
in the case of such principal, as such date may be shortened or extended as
provided pursuant to the terms of such Debenture and this Indenture.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries,
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<PAGE> 15
or by the Company and one or more other Subsidiaries. For purposes of this
definition, "voting stock" means stock which ordinarily has voting power for the
election of directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.
"Tax Event" means the receipt by the Trust of an Opinion of
Counsel (as defined in the Trust Agreement) experienced in such matters to the
effect that, as a result of any amendment to, or change (including any announced
proposed change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, or
as a result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which proposed change, pronouncement or decision is announced on or
after the date of issuance of the Preferred Securities, there is more than an
insubstantial risk that: (i) the Trust is, or will be within 90 days of the date
of such Opinion of Counsel, subject to United States federal income tax with
respect to income received or accrued on the Debentures; (ii) interest payable
by the Company on the Debentures is not, or within 90 days of the date of such
Opinion of Counsel, will not be, deductible by the Company, in whole or in part,
for United States federal income tax purposes; or (iii) such Trust is, or will
be within 90 days of the date of such Opinion of Counsel, subject to more than a
de minimis amount of other taxes, duties or other governmental charges.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday, other than any day on which securities are generally not traded on
the applicable securities exchange or in the applicable securities market.
"Trust" has the meaning specified in the second recital of
this Indenture.
"Trust Agreement" means the Amended and Restated Trust
Agreement dated as of September 29, 1999 between the Company, as depositor,
James H. Dickerson, Jr., Howard A. McLure and Sara J. Finley, as Administrative
Trustees, Wilmington Trust Company as Delaware Trustee and as Property Trustee,
as amended from time to time.
"Trust Securities" has the meaning specified in the second
recital of this Indenture.
"Trust Securities Repurchase Price" means, with respect to any
Trust Security, the Liquidation Amount of such Trust Security, plus accrued and
unpaid Distributions and Liquidated Damages pursuant to the Registration Rights
Agreement, if any, to the Repurchase Date, paid by the Trust upon the repurchase
of Trust Securities pursuant to Article X of the Trust Agreement in connection
with the Change of Control.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939
(15 U.S.C. ss.ss. 77aaa-77bbb), as amended and as in effect on the date as of
this Indenture, except as provided in Section 9.5.
"Trust Securities" has the meaning specified in the Recitals
of this Indenture.
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"Vice President," when used with respect to the Company means
any duly appointed vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
SECTION 1.2. Compliance Certificate and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company will
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent (including covenants, compliance with which constitutes a condition
precedent), if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent (including covenants,
compliance with which constitute a condition precedent), if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
certificates provided pursuant to Section 10.5) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made or caused to be made such examination or investigation as
is necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3. Forms of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer or counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his or her certificate or
opinion is based are erroneous. Any Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or
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<PAGE> 17
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel
rendering such Opinion of Counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given to or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent or
proxy duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
is or are delivered to the Trustee, and, where it is hereby expressly required,
to the Company. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent or proxy shall be
sufficient for any purpose of this Indenture and (subject to Section 6.1)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section 1.4.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a Person acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority.
(c) The fact and date of the execution by any Person of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient and in
accordance with such reasonable rules as the Trustee may determine.
(d) The ownership of Debentures shall be proved by the
Debenture Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Debenture shall bind every
future Holder of the same Debenture and the Holder of every Debenture issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Debenture.
(f) The Company may set any day as a record date for the
purpose of determining the Holders of Outstanding Debentures entitled to give,
make or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given, made
or taken by Holders of Debentures, provided that the Company may not set a
record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of the relevant
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<PAGE> 18
Outstanding Debentures on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders
after such record date, provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of the relevant Outstanding Debentures on such
record date. Nothing in this paragraph shall be construed to prevent the Company
from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be canceled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of the
relevant Outstanding Debentures on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Trustee in writing and to
each Holder of the relevant Debentures in the manner set forth in Section 1.6.
(g) The Trustee may set any day as a record date for the
purpose of determining the Holders of Outstanding Debentures entitled to join in
the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 5.2, (iii) any request to institute
proceedings referred to in Section 5.7(2) or (iv) any direction referred to in
Section 5.12. If any record date is set pursuant to this paragraph, the Holders
of the Outstanding Debentures on such record date shall be entitled to join in
such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date, provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of the Outstanding Debentures on
such record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be canceled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of the
Outstanding Debentures on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Company's
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Company in writing and to
each Holder of the Debentures in the manner set forth in Section 1.6.
(h) With respect to any record date set pursuant to this
Section, the party hereto which sets such record dates may designate any day as
the "Expiration Date" and from time to time may change the Expiration Date to
any earlier or later day, provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of the Outstanding Debentures in the manner set
forth in Section 10.6 on or prior to the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date set pursuant
to this Section 1.4, the party hereto which set such record date shall be deemed
to have initially designated the 180th day after such record date as the
Expiration Date with respect thereto, subject to its right to change the
Expiration Date as provided in this Section 1.4(h). Notwithstanding the
foregoing, no Expiration Date shall be later than the 180th day after the
applicable record date.
(i) Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any Debenture may do so
with regard to all or any part of the principal amount of such Debenture or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
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SECTION 1.5. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, any holder of Preferred
Securities or the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the
Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee, any Holder or any holder of
Preferred Securities shall be sufficient for every purpose hereunder
(except as otherwise provided in Section 5.1) if in writing and mailed,
first class, postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing
to the Trustee by the Company.
SECTION 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first class postage prepaid, to
each Holder affected by such event, at the address of such Holder as it appears
in the Debenture Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
SECTION 1.7. Conflict with Trust Indenture Act.
(a) This Indenture shall be subject to the provisions of the
Trust Indenture Act whether or not such provisions are required or deemed to be
part of this Indenture and shall, to the extent applicable, be governed by such
provisions.
(b) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is or would be required or deemed to be
included in this Indenture by any of the provisions of the Trust Indenture Act,
such required or deemed provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act which
may be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or excluded, as the case may be.
SECTION 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
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<PAGE> 20
SECTION 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
In case any provision of this Indenture or in the Debentures
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Debentures, express or
implied, shall give to any Person, other than the parties hereto and their
successors and assigns, the holders of Senior Indebtedness, the Holders of the
Debentures and, to the extent expressly provided in Sections 5.2, 5.8, 5.9,
5.11, 5.13, 9.1 and 9.2, the holders of Preferred Securities, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO CONFLICTS OF LAW PRINCIPLES THEREOF.
SECTION 1.13. Non-Business Days.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Debenture shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or the Debentures)
payment of principal of, premium, if any, and interest thereon need not be made
on such date, but may be made on the next succeeding Business Day (and no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, until such next
succeeding Business Day) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day (in each case with the same force and effect as if made
on the Interest Payment Date or Redemption Date or at the Stated Maturity).
ARTICLE II
DEBENTURE FORMS
SECTION 2.1. Forms Generally.
The Debentures and the Trustee's certificate of authentication
shall be in substantially the forms set forth in this Article II, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with applicable tax laws or the rules of any
securities exchange or automated quotation system on which the Debentures may be
listed or traded or as may, consistently herewith, be determined by the officers
executing such Debentures, as evidenced by their execution of the Debentures.
13
<PAGE> 21
The definitive Debentures shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods, if
required by any securities exchange or automated quotation system on which the
Debentures may be listed or traded, on a steel engraved border or steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange or automated quotation system on which the Debentures may be
listed or traded, all as determined by the officers executing such Debentures,
as evidenced by their execution of such Debentures.
SECTION 2.2. Form of Face of Debenture.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, RESOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, SUCH REGISTRATION. THE HOLDER HEREOF MAY NOT
ENGAGE IN HEDGING TRANSACTIONS IN THIS SECURITY UNLESS SUCH
TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, RESELL OR OTHERWISE TRANSFER SUCH SECURITY,
PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE")
WHICH IS THE LATER OF (X) TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), AND (Y) SUCH
LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW ONLY
(A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE144A UNDER
THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES IN ACCORDANCE WITH REGULATION S UNDER THE
SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE COMPANY'S AND THE TRANSFER AGENT'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY
14
<PAGE> 22
TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
ANY TRANSFER OF THIS SECURITY IS REQUIRED TO BE MADE IN
COMPLIANCE WITH THE APPLICABLE STATE SECURITIES LAWS AND
APPLICABLE SECURITIES LAWS OF OTHER JURISDICTIONS.
THE HOLDER OF THIS SECURITY AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS CAPITAL SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND.
Any global security issued hereunder shall, in addition to the provisions set
forth above contain a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF THE DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") OR
A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER
STREET, NEW YORK) TO CAREMARK RX, INC. OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY A PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CAREMARK RX, INC.
7.0% Convertible Subordinated Debentures
No. _____ $206,186,000
15
<PAGE> 23
CAREMARK RX, INC., a corporation organized and existing under
the laws of the state of Delaware (the "Company," which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Caremark Rx Capital Trust I, or registered
assigns, the principal sum of 206,186,000 Dollars on October 1, 2029; provided
that the Company, subject to certain conditions set forth in Section 3.14 of the
Indenture, may shorten the Stated Maturity of the principal of this Debenture to
a date not earlier than October 1, 2014. The Company further promises to pay
interest on said principal sum from September 29, 1999, or from the most recent
interest payment date (each such date, an "Interest Payment Date") on which
interest has been paid or duly provided for, quarterly (subject to deferral as
set forth herein) in arrears on January 1, April 1, July 1 and October 1 of each
year, commencing January 1, 2000, at the rate of 7.0% per annum, until the
principal hereof shall have become due and payable, plus Additional Interest, if
any, until the principal hereof is paid or duly provided for or made available
for payment and on any overdue principal and (without duplication and to the
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the rate of 7.0% per annum, compounded
quarterly. The amount of interest payable for any period shall be computed on
the basis of twelve 30-day months and a 360-day year. The amount of interest
payable for any partial period shall be computed on the basis of the number of
days elapsed in a 360-day year of twelve 30-day months. In the event that any
date on which interest is payable on this Debenture is not a Business Day, then
a payment of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date the payment was originally payable. A "Business Day" shall mean any
day other than (i) a Saturday or Sunday or (ii) a day on which banking
institutions in The City of New York or the State of Delaware are authorized or
required by law or executive order to remain closed. The interest installment so
payable, and punctually paid or duly provided for, on any Interest Payment Date
shall, as provided in the Indenture, be paid to the Person in whose name this
Debenture (or one or more Predecessor Debentures) is registered at the close of
business on the Regular Record Date for such interest installment, which shall
be the 15th day of the month next preceding such Interest Payment Date (whether
or not a Business Day). Any such interest installment not so punctually paid or
duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Debenture (or one or more Predecessor Debentures) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Debentures
not less than ten days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange or automated quotation system on which the Debentures may be
listed or traded, and upon such notice as may be required by such exchange or
self-regulatory organization, all as more fully provided in the Indenture.
So long as no Event of Default has occurred and is continuing,
the Company shall have the right at any time during the term of this Debenture
to defer payment of interest on this Debenture, at any time or from time to
time, for up to 20 consecutive quarterly interest payment periods with respect
to each deferral period (each an "Extension Period"), during which Extension
Periods the Company shall have the right to make partial payments of interest on
any Interest Payment Date, and at the end of which the Company shall pay all
interest then accrued and unpaid (together with Additional Interest thereon to
the extent permitted by applicable law); provided, however, that no Extension
Period shall extend beyond the Stated Maturity of the principal of this
Debenture; and provided, further, that during any such Extension Period, the
Company shall not, and shall not permit any Subsidiary of the Company to, (i)
declare or pay any
16
<PAGE> 24
dividends or distributions on or redeem, purchase, acquire or make a liquidation
payment with respect to, any of the Company's capital stock, (ii) make any
payment of principal of, premium, if any, or interest or on or repay, repurchase
or redeem any debt security of the Company that ranks pari passu with or junior
in interest to this Debenture or (iii) make any guarantee payments with respect
to any guarantee by the Company of the debt securities of any Subsidiary of the
Company if such guarantee ranks pari passu with or junior in interest to this
Debenture (other than (a) dividends or distributions in the Company's capital
stock, (b) any declaration of a dividend in connection with the implementation
of a Rights Plan or the redemption or repurchase of any rights distributed
pursuant to a Rights Plan, (c) payments under the Guarantee with respect to this
Debenture and (d) purchases of Common Stock related to the issuance of Common
Stock or rights under any of the Company's benefit plans for its directors,
officers or employees, related to the issuance of Common Stock or rights under a
dividend reinvestment and stock purchase plan or related to the issuance of
Common Stock (or securities convertible or exchangeable for Common Stock) as
consideration in an acquisition transaction that was entered into prior to the
commencement of such Extension Period). Prior to the termination of any such
Extension Period, the Company may further defer the payment of interest,
provided that no Extension Period shall exceed 20 consecutive quarters or extend
beyond the Stated Maturity of the principal of this Debenture. Upon the
termination of any such Extension Period and upon the payment of all accrued and
unpaid interest and any Additional Interest then due, the Company may elect to
begin a new Extension Period, subject to the above requirements. No interest
shall be due and payable during an Extension Period except at the end thereof.
If the Trust is the sole Holder of this Debenture, the Company shall give the
Trustees notice of its selection of such Extension Period one Business Day prior
to the earlier of (i) the next succeeding date on which Distributions on the
Preferred Securities would be payable but for such deferral or (ii) the date the
Administrative Trustees are required to give notice to any securities exchange
or other applicable self-regulatory organization or to holders of such Preferred
Securities of the record date or the date such Distributions are payable, but in
any event not less than one Business Day prior to such record date. If the
Trustee shall not be the sole Holder of this Debenture, the Company shall give
the Holders of this Debenture notice of its selection of such Extension Period
ten Business Days prior to the earlier of (i) the next Interest Payment Date or
(ii) the date the Company is required to give notice to any applicable
securities exchange or self-regulatory organization or to the Holders of this
Debenture of the record or payment date of such related interest payment.
Payment of principal of, premium, if any, and interest on this
Debenture shall be made at the office or agency of the Company maintained for
that purpose in the United States, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made, except in the case of Debentures in global form, by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Debenture Register.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and subject in right of payments to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each Holder of
this Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
actions as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes. Each Holder hereof, by his acceptance hereof, waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
17
<PAGE> 25
Reference is hereby made to the further provisions of this
Debenture set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Debenture shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
CAREMARK RX, INC.
By:
---------------------------------------
[President or Vice President]
Attest:
-----------------------------------
[Secretary or Assistant Secretary]
SECTION 2.3. Form of Reverse Debenture.
This Debenture is one of a duly authorized issue of securities
of the Company, designated as its 7.0% Convertible Subordinated Debentures (the
"Debentures"), limited in aggregate principal amount to $206,186,000 issued
under an Indenture, dated as of September 29, 1999 (the "Indenture"), between
the Company and Wilmington Trust Company, as Trustee (the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Trustee, the Company and the Holders of the Debentures, and of the terms
upon which the Debentures are, and are to be, authenticated and delivered. All
capitalized terms used but not defined in this Debenture that are defined in the
Indenture or in the Amended and Restated Trust Agreement, dated as of September
29, 1999 (the "Trust Agreement"), among Caremark Rx, as Depositor, and the
Trustees named therein, shall have the meanings assigned to them in the
Indenture or the Trust Agreement, as the case may be.
The Company may at any time, at its option, on or after
October 15, 2002, and subject to the terms and conditions of Article XI of the
Indenture, redeem this Debenture in whole at any time or in part from time to
time at the redemption prices set forth below, in each case, together with
accrued and unpaid interest, including Additional Interest and liquidated
damages pursuant to the Registration Rights Agreement, if any, to the Redemption
Date, upon not less than 30 nor more than 60 days' prior written notice, if
redeemed during the 12-month period commencing on October 1 (October 15 in the
case of 2002) of each of the years set forth below.
<TABLE>
<CAPTION>
Price Per $50
Year Principal Amount
- ---- ----------------
<S> <C>
2002............................................................................. $52.00
2003............................................................................. $51.50
2004............................................................................. $51.00
2005............................................................................. $50.50
2006 and thereafter.............................................................. $50.00
</TABLE>
18
<PAGE> 26
Upon the occurrence and during the continuation of a Tax
Event, the Company may, at its option, at any time within 90 days of the
occurrence of such Tax Event redeem this Debenture, in whole or in part, subject
to the provisions of Section 11.7 and the other provisions of Article XI of the
Indenture, at a redemption price equal to 100% of the principal amount thereof
plus accrued and unpaid interest, including Additional Interest and liquidated
damages pursuant to the Registration Rights Agreement, if any, to the Redemption
Date. Upon the occurrence of a Change in Control, the Company is required to
redeem Debentures issued under the Indenture equal in aggregate principal amount
to the Liquidation Amount of Preferred Securities required to be repurchased by
the Trust upon such a Change of Control in accordance with Article X of the
Trust Agreement. In the event of redemption of this Debenture in part only, a
new Debenture or Debentures for the unredeemed portion hereof shall be issued in
the name of the Holder hereof upon the cancellation hereof. If at any time
Debentures are distributed to Holders of Preferred Securities upon a liquidation
of the Trust permitted by the Trust Agreement, such Holders shall have the right
to require the Company to repurchase Debentures upon a Change of Control in
accordance with Article XII of the Indenture.
The Indenture contains provisions for satisfaction and
discharge of the entire indebtedness of this Debenture upon compliance by the
Company with certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the Company and the Trustee at any time to enter into a supplemental
indenture or indentures for the purpose of modifying in any manner the rights
and obligations of the Company and of the Holders of the Debentures, with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Debentures. The Indenture also contains provisions permitting
Holders of specified percentages in principal amount of the Debentures at the
time Outstanding, on behalf of the Holders of all Debentures, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Debenture shall be conclusive and binding upon such
Holder and upon all future Holders of this Debenture and of any Debenture issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Debenture.
As provided in and subject to the provisions of the Indenture,
if an Event of Default occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debentures may declare the principal amount of all the Debentures to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), provided that, in the case of the Debentures
issued to the Trust, if upon an Event of Default the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Debentures fail to
declare the principal of all the Debentures to be immediately due and payable,
the holders of at least 25% in aggregate Liquidation Amount of the Preferred
Securities then outstanding shall have such right by a notice in writing to the
Company and the Trustee; and upon any such declaration the principal amount of
and the accrued interest, including Additional Interest, if any, on all the
Debentures shall become immediately due and payable, provided that the payment
of principal and interest, including Additional Interest, if any, on such
Debentures shall remain subordinated to the extent provided in Article XIV of
the Indenture.
19
<PAGE> 27
Subject to Section 13.1(a) of the Indenture, the Holder of any
Debenture has the right, exercisable at any time on or before 5:00 p.m. (New
York City time) on the second Business Day immediately preceding the date of
repayment of the Debentures, whether at maturity or upon redemption (either at
the option of the Company or pursuant to a Tax Event), to convert the principal
amount thereof (or any portion thereof that is an integral multiple of $50) into
fully paid and nonassessable shares of Common Stock at an initial conversion
rate of 6.7125 shares of Common Stock for each $50 in aggregate principal amount
of Debentures (equal to a Conversion Price of $7.4488 per share of Common
Stock), subject to adjustment under certain circumstances. The number of shares
issuable upon conversion of a Debenture is determined by dividing the principal
amount of the Debenture to be converted by the Conversion Price in effect on the
Conversion Date. No fractional shares of Common Stock shall be issued upon
conversion and, in lieu thereof, a cash payment shall be made for any fractional
interest. The outstanding principal amount of any Debenture shall be reduced by
the portion of the principal amount thereof converted into shares of Common
Stock.
To convert a Debenture, a Holder shall (i) complete and sign a
Conversion Request substantially in the form attached hereto, (ii) surrender the
Debenture to the Conversion Agent, (iii) furnish appropriate endorsements or
transfer documents if required by the Debenture Registrar or Conversion Agent
and (iv) pay any transfer or similar tax, if required. If a Conversion Request
is delivered on or after the Regular Record Date and prior to the subsequent
Interest Payment Date, the Holder shall be required to pay to the Company the
interest payment to be made on the subsequent Interest Payment Date, and shall
be entitled to receive the interest payable on the subsequent Interest Payment
Date, on the portion of Debentures to be converted notwithstanding the
conversion thereof prior to such Interest Payment Date. Notwithstanding the
foregoing, if, during an Extension Period, a notice of redemption is mailed
pursuant to Section 11.4 of the Indenture and a Debenture is converted after
such mailing but prior to the relevant Redemption Date, all accrued but unpaid
interest (including Additional Payments, if any) through the date of conversion
shall be paid to the holder of such Debenture on the Redemption Date. Except as
otherwise provided in the immediately preceding two sentences, in the case of
any Debenture which is converted, interest with a Stated Maturity which is after
the date of conversion of such Debenture shall not be payable, and the Company
shall not make nor be required to make any other payment, adjustment or
allowance with respect to accrued but unpaid interest (including Additional
Payments, if any) on the Debentures being converted, which shall be deemed to be
paid in full. If any Debenture called for redemption is converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held in
trust for the redemption of such Debenture shall (subject to any right of the
Holder of such Debenture or any Predecessor Debenture to receive interest as
provided in the last paragraph of Section 3.7 of the Indenture and this
paragraph) be paid to the Company upon Company Request or, if then held by the
Company, shall be discharged from such trust.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest on this Debenture at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Debenture is registrable in
the Debenture Register, upon surrender of this Debenture for registration of
transfer at the office or agency of the Company maintained under Section 10.2 of
the Indenture duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Debenture Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new
20
<PAGE> 28
Debentures, of authorized denominations and for the same aggregate principal
amount, shall be issued to the designated transferee or transferees. No service
charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this Debenture for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Debenture is registered as the owner
hereof for all purposes, whether or not this Debenture be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Debentures are issuable only in registered form without
coupons in denominations of $50 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein set forth,
Debentures are exchangeable for a like aggregate principal amount of Debentures
of a different authorized denomination, as requested by the Holder surrendering
the same.
The Company and, by its acceptance of this Debenture or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, this Debenture agree that for United States federal,
state and local tax purposes it is intended that this Debenture constitute
indebtedness.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 2.4. Form of Trustee's Certificate of Authentication.
This is one of the Debentures referred to in the within
mentioned Indenture.
Dated:
----------------------------------------
as Trustee
By:
-------------------------------------
Authorized Signatory
SECTION 2.5. Form of Conversion Notice.
CONVERSION REQUEST
To: Caremark Rx, Inc.
The undersigned owner of these Debentures hereby irrevocably
elects to convert these Debentures, or the portion below designated, into Common
Stock of the Company (the "Common Stock") in accordance with the terms of the
Indenture (the "Indenture"), dated as of September 29, 1999, between the Company
and Wilmington Trust Company, as Trustee.
21
<PAGE> 29
The undersigned owner of these Debentures hereby directs the
Conversion Agent to convert such Debentures on behalf of the undersigned into
Common Stock at the Conversion Price specified in the Indenture. The undersigned
owner of these Debentures also hereby notifies the Conversion Agent that the
shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, should be issued in the name of and delivered to
the undersigned, unless a different name has been indicated in the assignment
below. If shares are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto.
Date:
------------------
Principal Amount of Debentures to be converted ($50 or integral multiples
thereof):
--------------
If a name or names other than the undersigned, please indicate in the spaces
below the name or names in which the shares of Common Stock are to be issued,
along with the address or addresses of such person or persons.
- -----------------------
- -----------------------
- -----------------------
(Sign exactly as your name appears on the other side of this Debenture) (for
conversion only)
Please print or type name and address, including zip code, and social security
or other identifying number:
- -----------------------
- -----------------------
- -----------------------
Signature Guarantee: (*)
---------------------------------
- --------
(*) Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities and Exchange Act of 1934, as amended.
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ARTICLE III
DEBENTURES
SECTION 3.1. Title and Terms; Paying Agent.
The aggregate principal amount of Debentures which may be
authenticated and delivered under this Indenture is limited to $206,186,000,
except for Debentures authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Debentures pursuant to Section 3.4,
3.5, 3.6, 9.6, 11.6 or 12.1 and except for any Debentures which, pursuant to the
last paragraph of Section 3.3, are deemed never to have been authenticated and
delivered hereunder.
The Debentures shall be known and designated as the "7.0%
Convertible Subordinated Debentures due 2029" of the Company. Their Stated
Maturity shall be October 1, 2029, or if the Company elects to accelerate the
maturity date in accordance with Section 5.2 hereof, such earlier date as the
Company selects, but in no event before October 1, 2014.
The Debentures shall bear interest at the rate of 7.0% per
annum, from September 29, 1999 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, as the case may be, payable
quarterly (subject to deferral as set forth herein), in arrears, on January 1,
April 1, July 1 and October 1 of each year, commencing January 1, 2000 until the
principal thereof is paid or made available for payment. Accrued interest that
is not paid on the applicable Interest Payment Date (even if unpaid due to an
extension of an interest payment period as set forth below in this Section 3.1)
shall bear Additional Interest on the amount thereof. In the event that any date
on which interest is payable on the Debentures is not a Business Day, then a
payment of the interest payable on such date shall be made on the next
succeeding day which is a Business Day (except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day) (and without any interest or other payment in respect of
any such delay), in each case with the same force and effect as if made on the
date the payment was originally payable.
The principal of, premium, if any, and interest on the
Debentures shall be payable at the office of the Paying Agent or Paying Agents
as the Company may designate for such purpose from time to time, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Company payment of interest may be made, except in the case of
Global Debentures, by check mailed to the address of the Person entitled thereto
as such address shall appear in the Debenture Register.
The Company designates the Trustee as the initial Paying Agent
with respect to the Debentures. The Company may at any time designate additional
Paying Agents or rescind the designation of any Paying Agent or approve a change
in the office through which any Paying Agent acts pursuant to Section 10.2.
The Debentures shall be subordinated in right of payment to
Senior Indebtedness as provided in Article XIV.
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SECTION 3.2. Denominations.
The Debentures shall be in registered form without coupons and
shall be issuable in denominations of $50 and any integral multiple thereof.
SECTION 3.3. Execution, Authentication, Delivery and Dating.
The Debentures shall be executed on behalf of the Company by
its Chief Executive Officer, President or one of its Vice Presidents under its
corporate seal reproduced or impressed thereon and attested by its Secretary or
one of its Assistant Secretaries. The signature of any of these officers on the
Debentures may be manual or facsimile. Debentures bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Debentures or did not hold such offices at the date of such
Debentures. The Debentures may contain such notations, legends or endorsements
required by law, stock exchange rule or usage. Each Debenture shall be dated the
date of its authentication by the Trustee.
A Debenture shall not be valid until manually authenticated by
an authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Debenture so authenticated has
been duly authenticated and delivered hereunder and that the holder is entitled
to the benefits of this Indenture. Notwithstanding the foregoing, if any
Debenture shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Debenture to the
Trustee for cancellation as provided in Section 3.9, for all purposes of this
Indenture such Debenture shall be deemed never to have been authenticated and
delivered hereunder and shall not be entitled to the benefits of this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debentures executed by the
Company to the Trustee for authentication, together with a written order of the
Company for the authentication and delivery of such Debentures signed by its
Chief Executive Officer, President or any Vice President and its Treasurer or
any Assistant Treasurer, and the Trustee in accordance with such written order
shall authenticate and deliver such Debentures.
In authenticating such Debentures and accepting the additional
responsibilities under this Indenture in relation to such Debentures, the
Trustee shall be entitled to receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating that the form and terms thereof have been
established in conformity with the provisions of this Indenture.
The Trustee shall not be required to authenticate such
Debentures if the issue of such Debentures pursuant to this Indenture shall
affect the Trustee's own rights, duties or immunities under the Debentures and
this Indenture or otherwise in a manner that is not reasonably acceptable to the
Trustee.
Each Debenture shall be dated the date of its authentication.
SECTION 3.4. Temporary Debentures.
Pending the preparation of definitive Debentures, the Company
may execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary
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Debentures which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Debentures in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Debentures may determine, as evidenced by their
execution of such Debentures.
If temporary Debentures are issued, the Company will cause
definitive Debentures to be prepared without unreasonable delay. After the
preparation of definitive Debentures, the temporary Debentures shall be
exchangeable for definitive Debentures upon surrender of the temporary
Debentures at the office or agency of the Company designated for that purpose
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Debentures, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor one or more
definitive Debentures, of any authorized denominations having the same Original
Issue Date and Stated Maturity and having the same terms as such temporary
Debentures. Until so exchanged, the temporary Debentures shall in all respects
be entitled to the same benefits under this Indenture as definitive Debentures.
SECTION 3.5. Registration, Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the "Debenture Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Debentures and of transfers of Debentures. The Trustee is
hereby appointed "Debenture Registrar" for the purpose of registering Debentures
and transfers of Debentures as herein provided.
Upon surrender for registration of transfer of any Debenture
at the office or agency of the Company designated for that purpose the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, in the name of the designated transferee or transferees, one or more
new Debentures of any authorized denominations, of a like aggregate principal
amount, of the same Original Issue Date and Stated Maturity and having the same
terms.
At the option of the Holder, Debentures may be exchanged for
other Debentures of any authorized denominations, of a like aggregate principal
amount, of the same Original Issue Date and Stated Maturity and having the same
terms, upon surrender of the Debentures to be exchanged at such office or
agency; provided that, any Holder which is a BHCA Person shall be subject to the
transfer restrictions set forth in Section 13.1(a) hereof. Whenever any
Debentures are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, the Debentures which
the Holder making the exchange is entitled to receive.
All Debentures issued upon any registration of transfer or
exchange of Debentures shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Debentures surrendered upon such registration of transfer or exchange.
Every Debenture presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Debenture
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Debenture Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
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No service charge shall be made to a Holder for any transfer
or exchange of Debentures, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Debentures.
The provisions of clauses (1), (2), (3) and (4) below shall
apply only to Global Debentures:
(1) Each Global Debenture authenticated under this Indenture
shall be registered in the name of the Depositary designated for such
Global Debenture or a nominee thereof and delivered to such Depositary
or a nominee thereof or custodian therefor, and each such Global
Debenture shall constitute a single Debenture for all purposes of this
Indenture.
(2) Notwithstanding any other provision in this Indenture, no
Global Debenture may be exchanged in whole or in part for Debentures
registered, and no transfer of a Global Debenture in whole or in part
may be registered, in the name of any Person other than the Depositary
for such Global Debenture or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling or unable
to continue as Depositary for such Global Debenture or (ii) has ceased
to be a clearing agency registered under the Exchange Act at a time
when the Depositary is required to be so registered to act as
depositary, in either case unless the Company has approved a successor
Depositary within 90 days, (B) there shall have occurred and be
continuing an Event of Default with respect to such Global Debenture or
(C) the Company in its sole discretion determines that such Global
Debenture shall be so exchangeable or transferable.
(3) Subject to clause (2) above, any exchange of a Global
Debenture for other Debentures may be made in whole or in part, and all
Debentures issued in exchange for a Global Debenture or any portion
thereof shall be registered in such names as the Depositary for such
Global Debenture shall direct.
(4) Every Debenture authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Debenture or any portion thereof, whether pursuant to this Section 3.5,
Section 3.4, 3.6, 9.6 or 11.6 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Debenture, unless such
Debenture is registered in the name of a Person other than the
Depositary for such Global Debenture or a nominee thereof.
Neither the Company nor the Trustee shall be required,
pursuant to the provisions of this Section 3.5, (a) to issue, register the
transfer of or exchange any Debenture during a period beginning at the opening
of business 15 days before the day of selection for redemption of Debentures
pursuant to Article XI and ending at the close of business on the day of mailing
of notice of redemption or (b) to register the transfer of or exchange any
Debenture so selected for redemption in whole or in part, except, in the case of
any Debenture to be redeemed in part, any portion thereof not to be redeemed.
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Debentures.
If any mutilated Debenture is surrendered to the Trustee
together with such security or indemnity as may be required by the Company or
the Trustee to save each of them
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harmless, the Company shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor a new Debenture of like tenor and
principal amount, having the same Original Issue Date and Stated Maturity and
bearing the same interest rate as such mutilated Debenture, and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Debenture and (ii) such security or indemnity as may be required by them to save
each of them harmless, then, in the absence of notice to the Company or the
Trustee that such Debenture has been acquired by a bona fide purchaser, the
Company shall execute and upon its request the Trustee shall authenticate and
make available for delivery, in lieu of any such destroyed, lost or stolen
Debenture, a new Debenture of like tenor and principal amount, having the same
Original Issue Date and Stated Maturity and bearing the same interest rate as
such destroyed, lost or stolen Debenture and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Debenture has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debenture, pay such Debenture.
Upon the issuance of any new Debenture under this Section 3.6,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debenture issued pursuant to this Section 3.6 in
lieu of any destroyed, lost or stolen Debenture shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Debenture shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Debentures duly issued hereunder.
The provisions of this Section 3.6 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Debentures.
SECTION 3.7. Payment of Interest; Interest Rights Preserved.
Interest on any Debenture which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date, shall be paid to the
Person in whose name that Debenture (or one or more Predecessor Debentures) is
registered at the close of business on the Regular Record Date for such interest
payment, except that, unless otherwise provided in the Debentures, interest
payable on the Stated Maturity of the principal of a Debenture shall be paid to
the Person to whom principal is paid. The initial payment of interest on any
Debenture which is issued between a Regular Record Date and the related Interest
Payment Date shall be payable as provided in such Debenture. At the option of
the Company, interest on any Debentures may be paid (i) by check mailed to the
address of the Person entitled thereto as it shall appear on the Debenture
Register or (ii) in the case of a Global Debenture, by wire transfer in
immediately available funds at such place and to such account as designated by
the Person entitled thereto as specified in the Debenture Register.
Any interest on any Debenture which is payable, but is not
timely paid or duly provided for, on any Interest Payment Date ("Defaulted
Interest"), shall forthwith cease to be
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payable to the registered Holder on the relevant Regular Record Date by virtue
of having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Debentures (or their
respective Predecessor Debentures) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Debenture and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than ten days prior to the date of the proposed
payment and not less than ten days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first class, postage prepaid, to each Holder of a Debenture at
the address of such Holder as it appears in the Debenture Register not
less than ten days prior to such Special Record Date. The Trustee may,
in its discretion, in the name and at the expense of the Company, cause
a similar notice to be published at least once in a newspaper,
customarily published in the English language on each Business Day and
of general circulation in New York City, but such publication shall not
be a condition precedent to the establishment of such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the
Debentures (or their respective Predecessor Debentures) are registered
on such Special Record Date and shall no longer be payable pursuant to
the following clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange or automated quotation system on which the
Debentures may be listed or traded and, upon such notice as may be
required by such exchange (or by the Trustee if the Debentures are not
listed), if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such payment shall be deemed
practicable by the Trustee.
Any interest on any Debenture which is deferred or extended
pursuant to Section 3.11 shall not be Defaulted Interest for the purposes of
this Section 3.7.
Subject to the foregoing provisions of this Section 3.7, each
Debenture delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Debenture shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debenture.
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SECTION 3.8. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any Debenture is registered on the
Debenture Register as the owner of such Debenture for the purpose of receiving
payment of principal of, premium, if any, and (subject to Section 3.7) interest
on such Debenture and for all other purposes whatsoever, whether or not such
Debenture be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
SECTION 3.9. Cancellation.
All Debentures surrendered for payment, redemption,
registration of transfer, conversion or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee, and any such
Debentures and Debentures surrendered directly to the Trustee for any such
purpose shall be promptly canceled by it. The Company may at any time deliver to
the Trustee for cancellation any Debentures previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Debentures so delivered shall be promptly canceled by the
Trustee. No Debentures shall be authenticated in lieu of or in exchange for any
Debentures canceled as provided in this Section 3.9, except as expressly
permitted by this Indenture. All canceled Debentures shall be returned by the
Trustee to the Company and destroyed by the Company.
SECTION 3.10. Computation of Interest.
Interest on the Debentures payable for any full quarterly
period shall be computed on the basis of a 360-day year of twelve 30-day months
and interest on the Debentures for any partial period shall be computed on the
basis of the number of days elapsed in a 360-day year of twelve 30-day months.
SECTION 3.11. Deferrals of Interest Payment Dates.
So long as no Event of Default has occurred and is continuing,
the Company shall have the right, at any time during the term of the Debentures,
from time to time to defer the payment of interest on the Debentures for up to
20 consecutive quarterly interest payment periods with respect to each deferral
period (each, an "Extension Period"), during which Extension Periods the Company
shall have the right to make partial payments of interest on any Interest
Payment Date. No Extension Period shall end on a date other than an Interest
Payment Date. At the end of any such Extension Period the Company shall pay all
interest then accrued and unpaid on the Debentures (together with Additional
Interest thereon, if any, at the rate of 7.0%, to the extent permitted by
applicable law) to the Persons in whose names the Debentures are registered at
the close of business on the Regular Record Date with respect to the Interest
Payment Date at the end of such Extension Period; provided, however, that no
Extension Period shall extend beyond the Stated Maturity of the principal of the
Debentures; and provided, further, that during any such Extension Period, the
Company shall not, and shall not permit any Subsidiary to, (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's capital stock, (ii)
make any payment of principal of, premium, if any, or interest on or repay,
repurchase or redeem any debt security of the Company that ranks pari passu with
or junior in interest to the Debentures or (iii) make any guarantee payments
with respect to any guarantee by the Company of the debt securities of any
Subsidiary of the Company that by their terms rank pari passu with or junior in
interest to the Debentures (other than (a) dividends or distributions in the
Company's capital stock, (b) any
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declaration of a dividend in connection with the implementation of a Rights
Plan, or the redemption or repurchase of any rights distributed pursuant to a
Rights Plan, (c) payments under the Guarantee with respect to such Debenture and
(d) purchases of Common Stock related to the issuance of Common Stock or rights
under any of the Company's benefit plans for its directors, officers or
employees, related to the issuance of Common Stock or rights under a dividend
reinvestment and stock purchase plan or related to the issuance of Common Stock
(or securities convertible or exchangeable for Common Stock) as consideration in
an acquisition transaction that was entered into prior to the commencement of
such Extension Period). Prior to the termination of any such Extension Period,
the Company may further defer the payment of interest, provided that no
Extension Period shall exceed 20 consecutive quarterly periods or extend beyond
the Stated Maturity of the principal of the Debentures. Upon termination of any
Extension Period and upon the payment of all accrued and unpaid interest and any
Additional Interest then due on any Interest Payment Date, the Company may elect
to begin a new Extension Period, subject to the above requirements. No interest
shall be due and payable during an Extension Period, except at the end thereof.
If the Property Trustee shall be the sole Holder of the Debentures, the Company
shall give the Administrative Trustees and the Property Trustee written notice
of its election to begin any such Extension Period at least one Business Day
prior to the earlier of (i) the next succeeding date on which Distributions on
the Preferred Securities of the Trust would be payable but for such deferral or
(ii) the date the Administrative Trustees of the Trust are required to give
notice to any securities exchange or other applicable self-regulatory
organization or to holders of such Preferred Securities of the record date or
the date such Distributions are payable, but in any event not less than one
Business Day prior to such record date. If the Property Trustee shall not be the
sole Holder of the Debentures, the Company shall give Holders written notice of
its election to begin any such Extension Period at least ten Business Days prior
to the earlier of (i) the next succeeding date Interest Payment Date or (ii) the
date the Company is required to give notice to any securities exchange or other
applicable self-regulatory organization or to Holders of the record date or the
date of such Interest Payment Date. Notwithstanding any other provision of this
Indenture, for all purposes under this Indenture Distributions on the Debentures
shall not be deemed payable, and the deferral of Distributions shall not
constitute an Event of Default, at any time during which an Extension Period is
in effect.
The Trustee shall promptly give notice, in the name and at the
expense of the Company, of the Company's election to begin any such Extension
Period to the Holders of the Outstanding Debentures.
SECTION 3.12. Right of Set-Off.
Notwithstanding anything to the contrary in the Indenture, the
Company shall have the right to set-off any payment it is otherwise required to
make thereunder in respect of any Debenture to the extent the Company has
theretofore made, or is concurrently on the date of such payment making, a
payment under the Guarantee or under Section 5.8 of this Indenture.
SECTION 3.13. Agreed Tax Treatment.
Each Debenture issued hereunder shall provide that the Company
and, by its acceptance of a Debenture or a beneficial interest therein, the
Holder of, and any Person that acquires a beneficial interest in, such Debenture
intend that such Debenture constitutes indebtedness and agree to treat such
Debenture as indebtedness for United States federal, local and state tax
purposes.
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SECTION 3.14. Shortening of Stated Maturity.
Upon the occurrence of a Tax Event and subject to (i) the
receipt by the Company of an opinion of independent tax counsel experienced in
such matters that after advancing the Stated Maturity, interest paid on the
Debentures will be deductible for United States income tax purposes and (ii)
advancing the Stated Maturity shall not result in a taxable event to holders of
the Preferred Securities, the Company shall have the right, prior to the
termination of the Trust, to advance the Stated Maturity of the Debentures to
the minimum extent required in order to allow for the payments of interest in
respect of the Debentures to be tax deductible, provided that, in no event shall
the resulting maturity of the Debentures be less than 15 years from the date of
original issuance thereof. In the event that the Company elects to shorten the
Stated Maturity of the Debentures pursuant to this Section 3.14, it shall give
written notice to the Trustee, and the Trustee shall give notice of such
shortening to the Holders, no less than 30 and no more than 60 days prior to the
effectiveness thereof.
SECTION 3.15. Cusip Numbers.
The Company in issuing the Debentures may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use CUSIP numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Debentures or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Debentures, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the CUSIP numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange of Debentures herein expressly provided for and as otherwise provided
in this Section 4.1) and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Debentures theretofore authenticated and
delivered (other than (i) Debentures which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.6 and (ii) Debentures for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 10.3) have been delivered to the Trustee
for cancellation; or
(B) all such Debentures not theretofore delivered to the
Trustee for cancellation.
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(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year of the date of deposit, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company,
and the Company, in the case of clause (B)(i), (ii) or (iii)
above, has deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an amount in
the currency or currencies in which the Debentures are payable
sufficient to pay and discharge the entire indebtedness on
such Debentures not theretofore delivered to the Trustee for
cancellation, for principal, premium, if any and interest
(including any Additional Interest) to the date of such
deposit (in the case of Debentures which have become due and
payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.7, the
obligations of the Company to any Authenticating Agent under Section 6.14 and,
if money shall have been deposited with the Trustee pursuant to Section
4.2(1)(B), the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
SECTION 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
10.3, all money deposited with the Trustee pursuant to Section 4.1 shall be held
in trust and applied by the Trustee, in accordance with the provisions of the
Debentures and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal,
premium, if any, and interest for the payment of which such money has been
deposited with or received by the Trustee.
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or
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be effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest upon the
Debentures, including any Additional Interest in respect thereof, when
it becomes due and payable, and continuance of such default for a
period of 30 days; provided, however, that the deferral of any
Distributions at any time an Extension Period is in effect shall not
constitute and Event of Default;
(2) default in the payment of the principal of or premium, if
any, on the Debentures at their Maturity;
(3) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Company in this Indenture
(other than a covenant or warranty a default in the performance of
which or the breach of which is elsewhere in this Section 5.1
specifically dealt with), and continuance of such default or breach for
a period of 90 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Debentures a written notice specifying such default or
breach and requiring it to be remedied;
(4) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days;
(5) the institution by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing
of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its' property, or the making by
it of an assignment for the benefit for creditors, or the admission by
it in writing of its inability to pay its debts generally as they
become due and its willingness to be adjudicated a bankrupt, or the
taking of corporate action by the Company in furtherance of any such
action; or
(6) the voluntary or involuntary dissolution, winding-up or
termination of the Trust, except in connection with the distribution of
the Debentures to the holders of Preferred Securities in liquidation of
the Trust and in connection with certain mergers, consolidations or
amalgamations permitted by the Trust Agreement.
SECTION 5.2. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default (other than an Event of Default
specified in Section 5.1(4) or 5.1(5)) occurs and is continuing, then and in
every such case the Trustee or the Holders of not
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less than 25% in principal amount of the Outstanding Debentures may declare the
principal amount of all the Debentures to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders),
provided that, in the case of the Debentures issued to the Trust, if, upon an
Event of Default, the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Debentures fail to declare the principal amount of all
the Debentures to be immediately due and payable, the holders of at least 25% in
aggregate liquidation amount of the corresponding Preferred Securities then
outstanding shall have such right by a notice in writing to the Company and the
Trustee; and upon any such declaration such principal amount (or specified
portion thereof) of and the accrued interest (including any Additional Interest)
on all the Debentures shall become immediately due and payable. Payment of
principal and interest (including any Additional Interest) on such Debentures
shall remain subordinated to the extent provided in Article XIV notwithstanding
that such amount shall become immediately due and payable as herein provided. If
an Event of Default specified in Section 5.1(4) or 5.1(5) occurs, the principal
amount of all the Debentures shall automatically, and without any declaration or
other action on the part of the Trustee or any Holder, become immediately due
and payable.
At any time after such a declaration of acceleration with
respect to Debentures has been made and before a judgment or decree for payment
of the money due has been obtained by the Trustee as hereinafter in this Article
V provided, the Holders of a majority in principal amount of the Outstanding
Debentures, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest (including any
Additional Interest) on all of the Debentures,
(B) the principal of and premium, if any, on any
Debentures which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Debentures, and
(C) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default, other than the non-payment of the
principal of Debentures which has become due solely by such
acceleration, have been cured or waived as provided in Section 5.13;
provided that, in the case of Debentures held by the Trust, if the Holders of at
least a majority in principal amount of the Outstanding Debentures fail to
rescind and annul such declaration and its consequences, the holders of a
majority in aggregate Liquidation Amount of the Preferred Securities then
outstanding shall have such right by written notice to the Company and the
Trustee, subject to the satisfaction of the conditions set forth in Clauses (1)
and (2) above of this Section 5.2.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
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SECTION 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of
interest (including any Additional Interest) on any Debenture when such
interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of and
premium, if any, on any Debenture at the Maturity thereof,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Debentures, the whole amount then due and payable
on such Debentures for principal, premium, if any, and interest (including any
Additional Interest); and, in addition thereto, all amounts owing the Trustee
under Section 6.7.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the amounts so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon the Debentures
and collect the money adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the
Debentures, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Debentures or the property of the Company or of such other obligor or their
creditors,
(a) the Trustee (irrespective of whether the principal of the
Debentures shall then be due and payable as therein expressed or by declaration
of acceleration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal, premium, if
any, or interest (including any Additional Interest)) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal, premium, if any, and interest (including any Additional
Interest) owing and unpaid in respect to the Debentures and to file
such other papers or documents as may be necessary or advisable and to
take any and all actions as are authorized under the Trust Indenture
Act in order to have the claims of the Holders and any predecessor to
the Trustee under Section 6.7 allowed in any such judicial proceedings;
and
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(ii) in particular, the Trustee shall be authorized to collect
and receive any money or other property payable or deliverable on any
such claims and to distribute the same in accordance with Section 5.6;
and
(b) any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee for
distribution in accordance with Section 5.6, and in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it and any predecessor Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Debentures or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
SECTION 5.5. Trustee May Enforce Claims Without Possession of
Debentures.
All rights of action and claims under this Indenture or the
Debentures may be prosecuted and enforced by the Trustee without the possession
of any of the Debentures or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of all the amounts owing the Trustee and any
predecessor Trustee under Section 6.7, its agents and counsel, be for the
ratable benefit of the Holders of the Debentures in respect of which such
judgment has been recovered.
SECTION 5.6. Application of Money Collected.
Any money or property collected or to be applied by the
Trustee pursuant to this Article V shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money or property on account of principal, premium, if any, or interest
(including any Additional Interest), upon presentation of the Debentures and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.7;
SECOND: Subject to Article XIV, to the payment of the amounts
then due and unpaid upon the Debentures for principal (and premium, if any),
interest (including any Additional Interest) and Additional Taxes, in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Debentures for principal, premium, if any, and interest
(including any Additional Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
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SECTION 5.7. Limitation on Suits.
Subject to Section 5.8, no Holder of any Debenture shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture or for the appointment of a receiver, assignee, trustee,
liquidator, sequestrator (or other similar official) or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Debentures shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of security or indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Debentures;
it being understood and intended that no one or more of the Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all Holders.
SECTION 5.8. Unconditional Right of Holders to Receive
Principal, Premium and Interest; Direct Action by Holders of Preferred
Securities.
Notwithstanding any other provision in this Indenture, the
Holder of any Debenture shall have the right which is absolute and unconditional
to receive payment of the principal of, premium, if any, and (subject to Section
3.7) interest (including any Additional Interest) on such Debenture on the
respective Stated Maturities expressed in such Debenture (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such right shall not be impaired without the consent of
such Holder. In the case of Debentures held by the Trust, any holder of the
Preferred Securities shall have the right, upon the occurrence of an Event of
Default described in Section 5.1(1) or 5.1(2), to institute a suit directly
against the Company for enforcement of payment to such holder of principal of,
premium, if any, and (subject to Section 3.7) interest (including any Additional
Interest) on the Debentures having a principal amount equal to the aggregate
Liquidation Amount of such Preferred Securities held by such holder.
SECTION 5.9. Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Preferred
Securities has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been
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discontinued or abandoned for any reason, or has been determined adversely to
the Trustee, such Holder or such holder of Preferred Securities, then and in
every such case the Company, the Trustee, the Holders and such holder of
Preferred Securities shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee, the Holders and the holders
of Preferred Securities shall continue as though no such proceeding had been
instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section
3.6, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any
Debenture or any holder of any Preferred Security to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article V or by law to
the Trustee or to the Holders and the right and remedy given to the holders of
Preferred Securities by Section 5.8 may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee, the Holders or the holders of
Preferred Securities, as the case may be.
SECTION 5.12. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Debentures shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, provided that:
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow such direction if a
Responsible Officer or Officers of the Trustee shall, in good faith,
determine that the proceeding so directed would be unjustly prejudicial
to the Holders not joining in any such direction or would involve the
Trustee in personal liability.
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SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Debentures and, in the case of any Debentures issued to the
Trust, the holders of a majority in Liquidation Amount of Preferred Securities
issued by the Trust may waive any past default hereunder and its consequences,
except a default:
(1) in the payment of the principal of, premium, if any, or
interest (including any Additional Interest) on any Debenture (unless
all Events of Default, other than the non-payment of the principal of
Debentures which has become due solely by such acceleration, have been
cured or annulled as provided in Section 5.3 and the Company has paid
or deposited with the Trustee a sum sufficient to pay all overdue
installments of interest (including any Additional Interest) on all
Debentures, the principal of and premium, if any, on any Debentures
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Debentures,
and all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel), or
(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Debenture affected.
Any such waiver shall be deemed to be on behalf of the Holders
of all the Debentures or, in the case of a waiver by holders of Preferred
Securities, by all holders of Preferred Securities.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Debenture by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees and expenses, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 5.14 shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Holder or group of Holders holding
in the aggregate more than 10% in principal amount of the Outstanding
Debentures, to any suit instituted pursuant to Section 5.8 by any holder or
group of holders holding in the aggregate more than 10% in aggregate Liquidation
Amount of Preferred Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of, premium, if any, or interest
(including any Additional Interest) on any Debenture on or after the respective
Stated Maturities expressed in such Debenture.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or
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advantage of, any usury, stay or extension law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the performance of
this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE VI
TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct except that
(1) this subsection (c) shall not be construed to limit the
effect of subsection (a) of this Section 6.1;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of Holders pursuant to Section 5.12 relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties
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hereunder, or in the exercise of any of its rights or powers, if there shall be
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section 6.1.
SECTION 6.2. Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer
of the Trustee of the occurrence of any default hereunder, the Trustee shall
transmit by mail to all Holders of Debentures, as their names and addresses
appear in the Debenture Register, notice of such default, unless such default
shall have been cured or waived; provided, however, that, except in the case of
a default in the payment of the principal of, premium, if any, or interest
(including any Additional Interest) on any Debenture, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of Debentures; and provided, further,
that, in the case of any default of the character specified in Section 5.1(3),
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section 6.2, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default.
SECTION 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
Debenture or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or
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indemnity against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
indenture, Debenture or other paper or document, but the Trustee in its
discretion may make such inquiry or investigation into such facts or matters as
it may see fit, and, if the Trustee shall determine to make such inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
SECTION 6.4. Not Responsible for Recitals or Issuance of
Debentures.
The Recitals contained herein and in the Debentures, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Debentures. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of the Debentures or the proceeds thereof.
SECTION 6.5. May Hold Debentures.
The Trustee, any Authenticating Agent, any Paying Agent, any
Debenture Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Debentures and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Debenture Registrar or such other agent.
SECTION 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
SECTION 6.7. Compensation and Reimbursement.
The Company, as borrower, agrees
(1) to pay to the Trustee from time to time such compensation
as shall be agreed in writing between the Company and the Trustee for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
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(2) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including
the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any and all loss, liability, damage, claim or expense
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel) incurred without negligence or
bad faith, arising out of or in connection with the acceptance or
administration of this trust or the performance of its duties
hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder. This indemnification shall
survive the termination of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 5.1(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or any successor statute.
SECTION 6.8. Disqualification; Conflicting Interests.
The Trustee shall be subject to the provisions of Section
310(b) of the Trust Indenture Act. Nothing herein shall prevent the Trustee from
filing with the Commission the application referred to in said Section 310(b).
SECTION 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall
be:
(a) a corporation organized and doing business under the laws
of the United States of America or of any state or territory or the District of
Columbia, authorized under such laws to exercise corporate trust powers and
subject to supervision or examination by federal, state, territorial or District
of Columbia authority, or
(b) a corporation or other Person organized and doing business
under the laws of a foreign government that is permitted to act as Trustee
pursuant to a rule, regulation or order of the Commission, authorized under such
laws to exercise corporate trust powers, and subject to supervision or
examination by authority of such foreign government or a political subdivision
thereof substantially equivalent to supervision or examination applicable to
United States institutional trustees, in either case having a combined capital
and surplus of at least $50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then, for the purposes of this
Section 6.9, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 6.9, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article VI. Neither the Company nor any Person directly or indirectly
controlling, controlled by or under common control with the Company shall serve
as Trustee.
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SECTION 6.10. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article VI shall become
effective until the acceptance of appointment by the successor Trustee under
Section 6.11.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Debentures,
delivered to the Trustee and to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30 days
after such removal, the Trustee being removed may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Debenture for at least six months,
(2) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, acting pursuant to the authority of a
Board Resolution, may remove the Trustee or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Debenture for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debentures delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Debenture for at least
six months may, subject to Section 5.14, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
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(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Debentures as their names and addresses appear in the Debenture
Register. Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all rights, powers and trusts referred
to in Section 6.11(a).
(c) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article VI.
SECTION 6.12. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article VI, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Debentures
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Debentures so
authenticated, and in case any Debentures shall not have been authenticated, any
successor to the Trustee may authenticate such Debentures either in the name of
any predecessor Trustee or in the name of such successor Trustee, and in all
cases the certificate of authentication shall have the full force which it is
provided anywhere in the Debentures or in this Indenture that the certificate of
the Trustee shall have.
SECTION 6.13. Preferential Collection of Claims Against
Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Debentures), the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
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SECTION 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents
which shall be authorized to act on behalf of the Trustee to authenticate
Debentures issued upon original issue and upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 3.6. Debentures so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Debentures by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, or of any state or territory or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section 6.14 the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section 6.14, such Authenticating Agent shall resign immediately in the manner
and with the effect specified in this Section 6.14.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of an Authenticating Agent
shall be the successor Authenticating Agent hereunder, provided such corporation
shall be otherwise eligible under this Section 6.14, without the execution or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.14, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment in the manner provided in Section 1.6 to all Holders.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provision of this Section 6.14.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section 6.14.
If an appointment is made pursuant to this Section 6.14, the
Debentures may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternative certificate of authentication in the following
form:
This is one of the Debentures referred to in the within
mentioned Indenture.
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Dated:
WILMINGTON TRUST COMPANY
-----------------------------------------
As Trustee
By:
--------------------------------------
As Authenticating Agent
By:
--------------------------------------
As Authorized Officer
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. Company to Furnish Trustee Names and Addresses of
Holders.
The Company shall furnish or cause to be furnished to the
Trustee:
(a) semi-annually, not more than 15 days after January 15 and
July 15 in each year, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such January 1 and July
1, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished, excluding from any such list names and addresses
received by the Trustee in its capacity as Debenture Registrar.
SECTION 7.2. Preservation of Information, Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 7.1 and the names
and addresses of Holders received by the Trustee in its capacity as Debenture
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Debentures, and
the corresponding rights and privileges of the Trustee, shall be as provided in
the Trust Indenture Act.
(c) Every Holder of Debentures, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
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SECTION 7.3. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the
Trustee shall, within 60 days after each May 15 following the date of this
Indenture deliver to Holders a brief report, dated as of such May 15, which
complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Debentures are listed and with the Commission. The Company will
promptly notify the Trustee when any Debentures are listed on any stock
exchange.
SECTION 7.4. Reports by Company.
The Company shall file all annual and quarterly reports and
the information, documents and other reports that the Company is required to
file with the Commission pursuant to Section 13(a) or Section 15(d) of the
Exchange Act ("SEC Reports") with the Trustee and the Property Trustee within 15
days after the same is filed with the Commission. Notwithstanding that the
Company may not be required or shall cease to be required to remain subject to
the reporting requirements of Section 13(a) or 15(d) of the Exchange Act, the
Company shall continue to file the SEC Reports with the Commission, unless the
Commission shall not accept such a filing. The Company shall, for so long as any
Debentures or Preferred Securities are outstanding, (i) furnish copies of the
SEC Reports to Holders of the Preferred Securities and Debentures, respectively,
at the time the Company is required to make such information available to the
Trustee and the Property Trustee and to prospective investors who request it in
writing, whether or not required by the Exchange Act to file SEC Reports with
the Commission and (ii) furnish to the Holders and prospective investors, upon
their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, and no Person shall consolidate with or merge into
the Company or convey, transfer or lease its properties and assets substantially
as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a
corporation, partnership or trust organized and existing under the laws
of the United States of America or any State or the District of
Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of, premium,
if any, and interest (including any
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Additional Interest) on all the Debentures and the performance of every
covenant of this Indenture on the part of the Company to be performed
or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing;
(3) in the case of Debentures held by the Trust, such
consolidation, merger, conveyance, transfer or lease is permitted under
the Trust Agreement and Guarantee and does not give rise to any breach
or violation of the Trust Agreement or Guarantee; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and any such
supplemental indenture complies with this Article VIII and that all
conditions precedent herein provided for relating to such transaction
have been complied with; and the Trustee, subject to Section 6.1, may
rely upon such Officers' Certificate and Opinion of Counsel as
conclusive evidence that such transaction complies with this Section
8.1.
SECTION 8.2. Successor Corporation Substituted.
Upon any consolidation or merger by the Company with or into
any other Person, or any conveyance, transfer or lease by the Company of its
properties and assets substantially as an entirety to any Person in accordance
with Section 8.1, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; and in the event of any
such conveyance, transfer or lease the Company shall be discharged from all
obligations and covenants under the Indenture and the Debentures and may be
dissolved and liquidated.
Such successor Person may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Debentures issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the written order of such
successor Person instead of the Company and subject to all the terms, conditions
and limitations prescribed herein, the Trustee shall authenticate and shall make
available for delivery any Debentures which previously shall have been signed
and delivered by the officers of the Company to the Trustee for authentication
pursuant to such provisions and any Debentures which such successor Person
thereafter shall cause to be signed and delivered to the Trustee on its behalf
for the purpose pursuant to such provisions. All the Debentures so issued shall
in all respects have the same legal rank and benefit under this Indenture as the
Debentures theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Debentures had been issued at the date of the
execution hereof.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures without Consent of
Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
reasonably satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company contained herein and in the Debentures;
(2) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee or to surrender any right or power
herein conferred upon the Company;
(3) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company;
(4) to add any additional Events of Default;
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Outstanding Debenture created prior to
the execution of such supplemental indenture which is entitled to the
benefit of such provision;
(6) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided that such
action pursuant to this clause (6) shall not adversely affect the
interest of the Holders in any material respect or, in the case of the
Debentures issued to the Trust and for so long as any of the
corresponding Preferred Securities issued by the Trust shall remain
outstanding, the holders of such Preferred Securities;
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trust hereunder by more than one
Trustee, pursuant to the requirements of Section 6.11(b);
(8) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the
Trust Indenture Act;
(9) to provide for the right of Holders to require the Company
to repurchase Debentures in accordance with Section XII of this
Indenture upon a Change of Control; or
(10) to provide for the issuance of Debentures to Holders of
Preferred Securities in connection with the liquidation of the Trust
permitted by the Trust Agreement.
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SECTION 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Debentures, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Debenture affected thereby,
(1) except to the extent permitted by Section 3.11 or as
otherwise specified as contemplated by Section 2.1 with respect to the
deferral of the payment of interest on the Debentures, change the
Stated Maturity of the principal of, or any installment of interest
(including any Additional Interest) on, any Debenture, or reduce the
principal amount thereof or the rate of interest thereon or reduce any
premium payable upon the redemption thereof, or change the place of
payment where, or the coin or currency in which, any Debenture or
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date);
(2) reduce the percentage in principal amount of the
Outstanding Debentures, the consent of the Holders of which is required
for any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture;
(3) modify any of the provisions of this Section 9.2, Section
5.13 or Section 10.5, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Debenture
affected thereby; or
(4) modify the provisions in Article XIV with respect to the
subordination of Outstanding Debentures in a manner adverse to the
Holders;
provided, further, that, in the case of Debentures issued to the Trust, so long
as any of the Preferred Securities issued by the Trust remains outstanding, (i)
no such amendment shall be made that adversely affects the holders of such
Preferred Securities in any material respect, and no termination of this
Indenture shall occur, and no waiver of any Event of Default or compliance with
any covenant under this Indenture shall be effective, without the prior consent
of the holders of at least a majority of the aggregate Liquidation Amount of the
Preferred Securities then outstanding unless and until the principal of,
premium, if any, and all accrued and, subject to Section 3.7, unpaid interest
(including any Additional Interest) on the Debentures have been paid in full,
and (ii) no amendment shall be made to Section 5.8 that would impair the rights
of the holders of Preferred Securities provided therein without the prior
consent of the holders of each Preferred Security then outstanding unless and
until the principal of, premium, if any, and all accrued and (subject to Section
3.7) unpaid interest (including any Additional Interest) on the Debentures have
been paid in full.
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It shall not be necessary for any Act of Holders under this
Section 9.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 9.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article IX or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 6.1) shall be fully protected in relying upon,
an Officers' Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture, and
that all conditions precedent have been complied with.
The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article IX, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Debentures theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
IX shall conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 9.6. Reference in Debentures to Supplemental
Indentures.
Debentures authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article IX may, and shall if
required by the Company, bear a notation in form approved by the Company as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Debentures so modified as to conform, in the opinion of the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Debentures.
ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of the
Holders that it shall duly and punctually pay the principal of, premium, if any,
and interest (including Additional Interest) on the Debentures in accordance
with the terms of the Debentures and this Indenture.
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SECTION 10.2. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for the
Debentures an office or agency where Debentures may be presented or surrendered
for payment and an office or agency where Debentures may be surrendered for
registration of transfer, conversion or exchange and where notices and demands
to or upon the Company in respect of the Debentures and this Indenture may be
served. The Company initially appoints the Trustee, acting through its Corporate
Trust Office, as its agent for said purposes. The Company shall give prompt
written notice to the Trustee of any change in the location of any such office
or agency. If at any time the Company shall fail to maintain such office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
other offices or agencies where the Debentures may be presented or surrendered
for any or all of such purposes, and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Debentures for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation and any change
in the location of any such office or agency.
SECTION 10.3. Money for Debenture Payments to be Held in
Trust.
If the Company shall at any time act as its own Paying Agent,
it shall, on or before each due date of the principal of, premium, if any. or
interest on any of the Debentures, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal, premium,
if any, or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and shall promptly notify
the Trustee of its failure so to act.
Whenever the Company shall have one or more Paying Agents, it
shall, prior to 10:00 a.m. New York City time on each due date of the principal
of or interest on any Debentures, deposit with a Paying Agent a sum sufficient
to pay the principal, premium, if any, or interest so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such principal,
premium, if any, or interest, and (unless such Paying Agent is the Trustee) the
Company shall promptly notify the Trustee of its failure so to act.
The Company shall cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section
10.3, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal
of, premium, if any, or interest (including Additional Interest) on
Debentures in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Debentures) in the making of any payment of
principal, premium, if any, or interest (including Additional
Interest);
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(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent; and
(4) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by the Company or any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium,
if any, or interest (including Additional Interest) on any Debenture and
remaining unclaimed for two years after such principal, premium, if any, or
interest has become due and payable shall (unless otherwise required by
mandatory provision of applicable escheat or abandoned or unclaimed property
law) be paid on Company Request to the Company, or (if then held by the Company)
shall (unless otherwise required by mandatory provision of applicable escheat or
abandoned or unclaimed property law) be discharged from such trust; and the
Holder of such Debenture shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in The City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 10.4. Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after the date hereof,
an Officers' Certificate, one of the signatories of which shall be the principal
executive, principal financial or principal accounting officer of the Company,
covering the preceding fiscal year, stating whether or not to the best knowledge
of the signers thereof the Company is in default in the performance, observance
or fulfillment of or compliance with any of the terms, provisions, covenants and
conditions of this Indenture, and if the Company shall be in default, specifying
all such defaults and the nature and status thereof of which they may have
knowledge. For the purpose of this Section 10.4, compliance shall be determined
without regard to any grace period or requirement of notice provided pursuant to
the terms of this Indenture.
SECTION 10.5. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any covenant or condition provided pursuant to Section 9.1(3) or 9.1(4), if
before or after the time for such compliance the Holders of at least a majority
in principal amount of the Outstanding Debentures
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shall, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company in respect of any such covenant or condition shall remain in full
force and effect.
SECTION 10.6. Payment of Trust Costs and Expenses.
Since the Trust is being formed solely to facilitate an
investment in the Debentures, the Company, in its capacity as the issuer of the
Debentures, hereby covenants to pay all debts and obligations (other than with
respect to the Preferred Securities and Common Securities) and all costs and
expenses of the Trust (including all costs and expenses relating to the
organization of the Trust, the fees and expenses of the Trustees and all costs
and expenses relating to the operation of the Trust) and to pay any and all
taxes, duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed on the Trust by the United States or any other
taxing authority, so that the net amounts received and retained by the Trust and
the Property Trustee after paying such expenses shall be equal to the amounts
the Trust and the Property Trustee would have received had no such costs or
expenses been incurred by or imposed on the Trust. The obligations of the
Company to pay all debts, obligations, costs and expenses of the Trust (other
than with respect to the Preferred Securities and Common Securities) shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture.
SECTION 10.7. Additional Covenants.
The Company covenants and agrees with each Holder of
Debentures that it shall not, and it shall not permit any Subsidiary of the
Company to, (i) declare or pay any dividends or distributions on, or redeem
purchase, acquire or make a liquidation payment with respect to, any shares of
the Company's capital stock, (ii) make any payment of principal of, premium, if
any, or interest on or repay, repurchase or redeem any debt securities of the
Company that rank pari passu with or junior in interest to the Debentures or
(iii) make any guarantee payments with respect to any guarantee by the Company
of debt securities of any subsidiary of the Company if such guarantee ranks pari
passu with or junior in interest to the Debentures (other than (a) dividends or
distributions in the Company's capital stock, (b) any declaration of a dividend
in connection with the implementation of a Rights Plan or the redemption or
repurchase of any rights distributed pursuant to a Rights Plan, (c) payments
under the Guarantee and (d) purchases of Common Stock related to the issuance of
Common Stock or rights under any of the Company's benefit plans for its
directors, officers or employees, related to the issuance of Common Stock or
rights under a dividend reinvestment and stock purchase plan, or related to the
issuance of Common Stock (or securities convertible or exchangeable for Common
Stock) as consideration in an acquisition transaction that was entered into
prior to the commencement of such Extension Period) if at such time (x) there
shall have occurred any event of which the Company has actual knowledge that (A)
with the giving of notice or the lapse of time or both, would constitute an
Event of Default with respect to the Debentures and (B) in respect of which the
Company shall not have taken reasonable steps to cure, (y) if the Debentures are
held by the Trust, the Company shall be in default with respect to its payment
of any obligations under the Guarantee or (z) the Company shall have given
notice of its election to begin an Extension Period with respect to the
Debentures as provided herein and shall not have rescinded such notice, or such
Extension Period or any extension thereof shall be continuing.
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The Company also covenants: (i) to maintain directly or
indirectly 100% ownership of the Common Securities; provided, however, that any
permitted successor of the Company hereunder may succeed to the Company's
ownership of the Common Securities; (ii) not to voluntarily terminate, wind-up
or liquidate the Trust, except (a) in connection with a distribution of the
Debentures to the holders of the Trust Securities in a liquidation of the Trust
permitted by the Trust Agreement or (b) in connection with certain mergers,
consolidations or amalgamations permitted by the Trust Agreement; (iii) to use
its reasonable efforts, consistent with the terms and provisions of the Trust
Agreement, to cause the Trust to remain classified as a grantor trust and not an
association taxable as a corporation for United States federal income tax
purposes; (iv) to pay to the Trust any amounts that the Trust would be required
to pay as Liquidated Damages to the Holders of Preferred Securities pursuant to
the Registration Rights Agreement and (v) where Debentures are distributed upon
a liquidation of the Trust permitted by the Trust Agreement, to pay to the
Holders of the Debentures any Liquidated Damages that are payable to such
Holders pursuant to the Registration Rights Agreement.
ARTICLE XI
REDEMPTION OF SECURITIES AT THE OPTION OF THE COMPANY
SECTION 11.1. Applicability of Article.
Redemption of Debentures as permitted or required by any form
of Debenture issued pursuant to this Indenture shall be made in accordance with
such form of Debenture and this Article XI; provided, however, that if any
provision of any such form of Debenture shall conflict with any provision of
this Article XI, the provision of such form of Debenture shall govern. Except as
otherwise set forth in the form of Debenture, each Debenture shall be subject to
partial redemption only in the amount of $50 or integral multiples thereof.
SECTION 11.2. Election to Redeem; Notice to Trustee.
The Company's election to redeem any Debentures shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption of the
Debentures at the election of the Company, the Company shall, not less than 45
nor more than 60 days prior to the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such date and of
the principal amount of Debentures to be redeemed. In the case of any redemption
of Debentures prior to the expiration of any restriction on such redemption
provided in the terms of such Debentures, the Company shall furnish the Trustee
with an Officers' Certificate and an Opinion of Counsel evidencing compliance
with such restriction.
SECTION 11.3. Selection of Debentures to be Redeemed.
If less than all the Debentures are to be redeemed, the
particular Debentures to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Debentures not
previously called for redemption, pro rata or by such other method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of a portion of the principal amount of any Debenture, provided
that the unredeemed portion of the principal amount of any Debenture shall be in
an authorized denomination (which shall not be less than the minimum authorized
denomination) for such Debenture. If less than all the Debentures are to be
redeemed, the particular Debentures to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Debentures
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of such specified tenor not previously called for redemption in accordance with
the preceding sentence.
The Trustee shall promptly notify the Company in writing of
the Debentures selected for partial redemption and the principal amount thereof
to be redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debentures shall relate,
in the case of any Debenture redeemed or to be redeemed only in part, to the
portion of the principal amount of such Debenture which has been or is to be
redeemed. If the Company shall so direct, Debentures registered in the name of
the Company, any Affiliate or any Subsidiary thereof shall not be included in
the Debentures selected for redemption.
SECTION 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not later than the 30th day, and not earlier than the
60th day, prior to the Redemption Date, to each Holder of Debentures to be
redeemed, at the address of such Holder as it appears in the Debenture Register.
Each notice of redemption shall identify the Debentures to be
redeemed (including CUSIP number, if a CUSIP number has been assigned to such
Debentures) and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Debentures are to be
redeemed, the identification (and, in the case of partial redemption, the
respective principal amounts) of the particular Debentures to be redeemed;
(d) that on the Redemption Date, the Redemption Price shall
become due and payable upon each such Debenture or portion thereof, and that
interest thereon shall cease to accrue on and after said date; and
(e) the place or places where such Debentures are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Debentures to be redeemed at the
election of the Company, shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company and shall
not be irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Debenture designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Debenture.
SECTION 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m. New York City time on the Redemption Date
specified in the notice of redemption given as provided in Section 11.4, the
Company shall deposit with the Trustee or with one or more Paying Agents (or if
the Company is acting as its own Paying Agent, the Company will segregate and
hold in trust as provided in Section 10.3) an amount of money
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sufficient to pay the Redemption Price of, and any accrued interest (including
Additional Interest) on, all the Debentures which are to be redeemed on that
date.
SECTION 11.6. Payment of Debentures Called for Redemption.
If any notice of redemption has been given as provided in
Section 11.4, the Debentures or portion of Debentures with respect to which such
notice has been given shall become due and payable on the date and at the place
or places stated in such notice at the applicable Redemption Price. On
presentation and surrender of such Debentures at a Place of Payment specified in
such notice, such Debentures or the specified portions thereof shall be paid and
redeemed by the Company at the applicable Redemption Price, together with
accrued interest (including any Additional Interest) to the Redemption Date;
provided, however, that installments of interest whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Debentures,
or one or more Predecessor Debentures, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 3.7.
Upon presentation of any Debenture redeemed in part only, the
Company shall execute and the Trustee shall authenticate and make available for
delivery to the Holder thereof, at the expense of the Company, a new Debenture
or Debentures, of authorized denominations, in aggregate principal amount equal
to the unredeemed portion of the Debenture so presented and having the same
Original Issue Date, Stated Maturity and terms. If a Global Debenture is so
surrendered, such new Debenture shall also be a new Global Debenture.
If any Debenture called for redemption shall not be so paid
upon surrender thereof for redemption, the principal of and premium, if any, on
such Debenture shall, until paid, bear interest from the Redemption Date at the
rate prescribed therefor in the Debenture.
SECTION 11.7. Right of Redemption of Debentures.
The Company, at its option, may redeem the Debentures, in
whole or in part, (i) on or after October 15, 2002 at the redemption prices
specified in the form of the Debenture herein before set forth, together with
accrued and unpaid interest, including Additional Interest, and liquidated
damages pursuant to the Registration Rights Agreement, if any, to the Redemption
Date, or (ii) upon the occurrence and during the continuation of a Tax Event, at
any time within 90 days following the occurrence of such Tax Event in respect of
the Trust, at a redemption price equal to 100% of the principal amount thereof,
plus any accrued and unpaid interest, including Additional Interest and
liquidated damages pursuant to the Registration Rights Agreement, if any, to the
Redemption Date; provided that, in either case, if a partial redemption of the
Debentures would result in the delisting of the Preferred Securities or
Debentures from any securities exchange on which the Preferred Securities or
Debentures are then listed, the Company may redeem the Debentures only in whole.
ARTICLE XII
MANDATORY REDEMPTION
SECTION 12.1. Mandatory Redemption
In the event that the Trust shall be required to repurchase
Preferred Securities pursuant to Article X of the Trust Agreement, the Company
shall be required to redeem a Like
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Amount of Debentures on a pro rata basis at a Redemption Price per $50 principal
amount of Debentures equal to the Trust Securities Repurchase Price.
SECTION 12.2. Notice of Redemption.
The Company shall give notice of its obligation to redeem
Debentures pursuant to this Article XII, which notice shall specify the
Redemption Date (but need not specify the principal amount to be redeemed at
such time), to the Trustee no later than the date on which the Trust is required
to give notice to the Property Trustee of a Change of Control and the right of
Holders to require repurchase of Preferred Securities pursuant to Article X of
the Trust Agreement.
SECTION 12.3. Deposit of Repurchase Price.
On or prior to the Repurchase Date, the Company shall notify
the Trustee of the principal amount of Debentures to be redeemed on the
Redemption Date and the Company shall redeem Debentures equal in aggregate
principal amount to the Liquidation Amount of Preferred Securities to be
repurchased on the Repurchase Date and cause to be deposited with the Property
Trustee or with a Paying Agent an amount of money in same day funds sufficient
to pay the redemption price therefor.
SECTION 12.4. Right to Require Repurchase of Debentures.
In the event Debentures are distributed to Holders of
Preferred Securities upon a liquidation of the Trust permitted by the Trust
Agreement, the Company and the Trustee shall cause this Indenture to be amended
(which amendment shall not require the consent of Holders of Debentures) to
provide Holders of Debentures with a right to require the Company to repurchase
Debentures upon a Change of Control substantially similar to the right of
Holders of Preferred Securities to require such a repurchase of Preferred
Securities pursuant to Article X of the Trust Agreement.
SECTION 12.5. Definitions.
For purposes of this Section:
(a) A "Change in Control" shall occur when : (a) the sale,
lease, transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, or all or
substantially all of the assets of the Company and its subsidiaries, taken as a
whole, (b) the adoption of a plan relating to the liquidation or dissolution of
the Company, (c) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" or "group" (as such terms are used in Section 13(d)(3) of the Exchange
Act) becomes the "beneficial owner" (as such term is defined in Rule 13d-3 and
Rule 13d-5 under the Exchange Act), directly or indirectly through one or more
intermediaries, of more than 50% of the voting power of the outstanding voting
stock of the Company, (d) the Company consolidates with, or merges with or into,
any person, or any person consolidates with, or merges with or into, the
Company, other than any such transaction where the beneficial owners of the
outstanding common stock of the Company immediately prior to such transaction
beneficially own a majority of the outstanding shares of voting stock of the
surviving person immediately after such transaction, or (e) the first day on
which more than a majority of the members of the Board of Directors of the
Company are not Continuing Directors; provided, however, that a Change of
Control shall not be deemed to have occurred if the last
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reported sale price per share of the Common Stock for any ten Trading Days (as
defined) within the period of twenty consecutive Trading Days (x) ending
immediately after the later of the Change of Control and the public announcement
of the Change in Control (in the case of a Change in Control under clause (a),
(b), (c) or (e) above) or (y) ending immediately before the Change in Control
(in the case of a Change in Control under clause (d) above) shall equal or
exceed 105% of the Conversion Price in effect on each such Trading Day. If not
earlier made, the Company shall make a public announcement of a Change of
Control within five Business Days of the occurrence of such Change of Control.
(b) "Continuing Directors" means as of any date of
determination, any member of the board of directors of the Company who (a) was a
member of the board of directors on the date of original issuance of the
Debentures or (b) was nominated for election to the board of directors with the
approval of, or whose election was ratified by, at least two-thirds of the
Continuing Directors who were members of the board of directors at the time of
such nomination or election.
ARTICLE XIII
CONVERSION OF SECURITIES
SECTION 13.1. Conversion Rights.
Subject to and upon compliance with the provisions of this
Article XIII, the Debentures are convertible, at the option of the Holder, at
any time after September 29, 1999, and on or before 5:00 p.m. (New York City
time) on the second Business Day immediately preceding the date of repayment of
such Debentures, whether at maturity or upon redemption, into fully paid and
nonassessable shares of Common Stock at an initial conversion rate of 6.7125
shares of Common Stock for each $50 in aggregate principal amount of Debentures
(equal to a conversion price (the "Conversion Price") of $7.4488 per share of
Common Stock, subject to adjustment as described in this Article XIII). A Holder
of Debentures may convert any portion of the principal amount of the Debentures
into that number of fully paid and nonassessable shares of Common Stock
(calculated as to each conversion to the nearest 1/100th of a share) obtained by
dividing the principal amount of the Debentures to be converted by the
Conversion Price. In case a Debenture or portion thereof is called for
redemption, such conversion right in respect of the Debenture or portion so
called shall expire at 5:00 p.m. (New York City time) on the second Business Day
immediately preceding the corresponding Redemption Date, unless the Company
defaults in making the payment due upon redemption.
Notwithstanding the foregoing, no holder of Debentures that is subject
to the restrictions of Section 4 of the Bank Holding Company Act of 1956, as
amended (the "BHCA") (a "BHCA Person"), shall have the right to convert any
Debentures if, after giving effect to such conversion, the BHCA Person, its
affiliates and transferees would own or be deemed to own shares of Common Stock
in excess of either the maximum number of shares of Common Stock which the BHCA
Person is permitted to own under the BHCA and the regulations of the Board of
Governors of the Federal Reserve thereunder or such lower number as the relevant
BHCA Person may have requested in writing to the Conversion Agent. No BHCA
Person shall have the right to assign or transfer its Debentures (other than to
an affiliate) unless such Debentures are assigned or transferred (i) to the
public in an offering registered under the Securities Act, (ii) in a transaction
pursuant to Rule 144 or 144A under the Securities Act in which no person
acquires Debentures convertible into more than 2% of the outstanding Common
Stock, (iii) in a single transaction to a third party who acquires a majority of
the Common Stock without regard to the
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conversion of any Debentures so transferred or (iv) in any other manner
permitted under the BHCA. The Conversion Agent may rely on the representation of
the relevant BHCA Person that a transfer has been made in the foregoing manner.
SECTION 13.2. Conversion Procedures.
(a) To convert all or a portion of the Debentures, the Holder
thereof shall deliver to the Conversion Agent an irrevocable Conversion Request
setting forth the principal amount of Debentures to be converted, together with
the name or names, if other than the Holder, in which the shares of Common Stock
should be issued upon conversion and, if such Debentures are definitive
Debentures, surrender to the Conversion Agent the Debentures to be converted,
duly endorsed or assigned to the Company or in blank. In addition, a holder of
Preferred Securities may exercise its right under the Trust Agreement to
exchange such Preferred Securities for Debentures which shall be converted into
Common Stock by delivering to the Conversion Agent an irrevocable Conversion
Request setting forth the information called for by the preceding sentence and
directing the Conversion Agent (i) to exchange such Preferred Security for a
portion of the Debentures held by the Trust (at an exchange rate of $50
principal amount of Debentures for each Preferred Security) and (ii) to
immediately convert such Debentures, on behalf of such Holder, into Common Stock
pursuant to this Article XIII and, if such Preferred Securities are in
definitive form, surrendering such Preferred Securities, duly endorsed or
assigned to the Company or in blank. So long as any Preferred Securities are
outstanding, the Trust shall not convert any Debentures except pursuant to a
Conversion Request delivered to the Conversion Agent by a holder of Preferred
Securities.
If a Conversion Request is delivered on or after the Regular
Record Date and prior to the subsequent Interest Payment Date, the Holder shall
be required to pay to the Company the interest payable to the Holder on the
subsequent Interest Payment Date prior to receiving the shares of Common Stock,
and shall be entitled to receive the interest payable on the subsequent Interest
Payment Date, on the portion of Debentures to be converted notwithstanding the
conversion thereof prior to such Interest Payment Date. Except as provided in
the immediately preceding sentence, the Company shall not make, or be required
to make, any payment, allowance or adjustment for accumulated and unpaid
interest, whether or not in arrears, on converted Debentures; provided, however,
that if, during an Extension Period, a notice of redemption of Debentures is
mailed or otherwise given to Holders of Debentures pursuant to Section 11.6 of
this Indenture and a Holder of Debentures converts any Debentures into Common
Stock after the date on which such notice of redemption is mailed or otherwise
given but prior to the relevant Redemption Date, all accrued but unpaid interest
(including Additional Payments and/or Liquidated Damages, if applicable) through
the date of conversion shall be paid the Holder of such Debenture on the
Redemption Date. Except as otherwise provided in the immediately preceding two
sentences, in the case of any Debenture converted by a Holder of such Debenture,
interest with a Stated Maturity which is after the date of conversion of such
Debenture shall not be payable, and the Company shall not make nor be required
to make any other payment, adjustment or allowance with respect to accrued but
unpaid interest (including Additional Payments and/or Liquidated Damages, if
applicable) on the Debentures being converted, which shall be deemed to be paid
in full. If any Debenture called for redemption is converted, any money
deposited with Trustee or with any Paying Agent or so segregated and held in
trust for the redemption of such Debenture shall (subject to any right of the
Holder of such Debenture or any Predecessor Debenture to receive interest as
provided in the last paragraph of Section 3.7 of this Indenture and this
paragraph) be paid to the Company upon Company Request, or if then held by the
Company, shall be discharged from such trust.
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Each conversion shall be deemed to have been effected
immediately prior to 5:00 p.m. (New York City time) on the day on which the
Conversion Request was received (the "Conversion Date") by the Conversion Agent
from the Holder or from a holder of the Preferred Securities effecting a
conversion thereof pursuant to its conversion rights under the Trust Agreement,
as the case may be. The Person or Persons entitled to receive the Common Stock
issuable upon such conversion shall be treated for all purposes as a record
holder or holders of such Common Stock as of the Conversion Date. As promptly as
practicable on or after the Conversion Date, the Company shall issue and deliver
at the office of the Conversion Agent, unless otherwise directed by the Holder
in the Conversion Request, a certificate or certificates for the number of full
shares of Common Stock issuable upon such conversion, together with the cash
payment, if any, in lieu of any fraction of any share to the Person or Persons
entitled to receive the same. The Conversion Agent shall deliver such
certificate or certificates to each Person or Persons.
(b) Subject to any right of the Holder of such Debenture or
any Predecessor Debenture to receive interest as provided in Section 13.2(a),
the Company's delivery upon conversion of the fixed number of shares of Common
Stock into which the Debentures are convertible (together with the cash payment,
if any, in lieu of fractional shares) shall be deemed to satisfy the Company's
obligation to pay the principal amount at maturity of the portion of Debentures
so converted and any unpaid interest (including Additional Interest, if any)
accrued on such Debentures at the time of such conversion and any interest
payments which would have otherwise accrued after such conversion.
(c) No fractional shares of Common Stock shall be issued as a
result of conversion, but in lieu thereof, the Company shall pay to the
Conversion Agent a cash adjustment in an amount equal to the same fraction of
the last reported sale price of such fractional interest on the date on which
the Debentures or Preferred Securities, as the case may be, were duly
surrendered to the Conversion Agent for conversion, or, if such day is not a
Trading Day, on the next Trading Day, and the Conversion Agent in turn shall
make such payment, if any, to the Holder of the Debentures or the holder of the
Preferred Securities so converted.
(d) In the event of the conversion of any Debenture in part
only, a new Debenture or Debentures for the unconverted portion thereof will be
issued in the name of the Holder thereof upon the cancellation thereof in
accordance with Section 3.6.
(e) In effecting the conversion transactions described in this
Section 13.2, the Conversion Agent is acting as agent of the holders of
Preferred Securities (in the exchange of Preferred Securities for Debentures)
and as agent of the Holders of Debentures (in the conversion of Debentures into
Common Stock), as the case may be, directing it to effect such conversion
transactions. The Conversion Agent is hereby authorized (i) to exchange
Preferred Securities for Debentures held by the Trust from time to time in
connection with the conversion of such Preferred Securities in accordance with
this Article XIII and (ii) to convert all or a portion of the Debentures into
Common Stock and thereupon to deliver such shares of Common Stock in accordance
with the provisions of this Article XIII and to deliver to the Trust a new
Debenture or Debentures for any resulting unconverted principal amount.
SECTION 13.3. Conversion Price Adjustments.
The Conversion Price shall be subject to adjustment (without
duplication) from time to time as follows:
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(a) If the Company shall (i) pay a dividend or make a
distribution with respect to the Common Stock in shares of Common Stock, (ii)
subdivide the outstanding shares of Common Stock, (iii) combine the outstanding
shares of Common Stock into a smaller number of shares or (iv) issue by
reclassification of the shares of Common Stock any shares of capital stock of
the Company, then the Conversion Price in effect immediately prior to such
action shall be adjusted so that the Holder of any Debentures thereafter
surrendered for conversion shall be entitled to receive the number of shares of
capital stock of the Company which he would have owned immediately following
such action had such Debentures been converted immediately prior thereto. An
adjustment made pursuant to this Section 13.3(a) shall become effective
immediately after the record date in the case of a dividend or other
distribution and shall become effective immediately after the effective date in
case of a subdivision, combination or reclassification (or immediately after the
record date if a record date shall have been established for such event). If, as
a result of an adjustment made pursuant to this Section 13.3(a), the Holder of
any Debenture thereafter surrendered for conversion shall become entitled to
receive shares of two or more classes or series of capital stock of the Company,
the Board of Directors (whose determination shall be conclusive and shall be
described in a Board Resolution filed with the Trustee) shall determine the
allocation of the adjusted Conversion Price between or among shares of such
classes or series of capital stock.
(b) If the Company shall issue rights or warrants to all
holders of the Common Stock entitling them (for a period expiring within 45 days
after the record date mentioned in this Section 13.3) to subscribe for or
purchase shares of Common Stock at a price per share less than the Current
Market Price per share of Common Stock on such record date, then the Conversion
Price for the Debentures shall be adjusted to equal the price determined by
multiplying the Conversion Price in effect immediately prior to the date of
issuance of such rights or warrants by a fraction, the numerator of which shall
be the number of shares of Common Stock outstanding on the date of issuance of
such rights or warrants plus the number of shares which the aggregate offering
price of the total number of shares so offered for subscription or purchase
would purchase at such Current Market Price, and the denominator of which shall
be the number of shares of Common Stock outstanding on the date of issuance of
such rights or warrants plus the number of additional shares of Common Stock
offered for subscription or purchase. Such adjustment shall become effective
immediately after the record date for the determination of stockholders entitled
to receive such rights or warrants. For the purposes of this Section 13.3(b),
the number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company. The Company shall not issue any
rights or warrants in respect of the shares of Common Stock held in the treasury
of the Company. In case any rights or warrants referred to in this Section
13.3(b) in respect of which an adjustment shall have been made shall expire
unexercised within 45 days after the same shall have been distributed or issued
by the Company, the Conversion Price shall be readjusted at the time of such
expiration to the Conversion Price that would have been in effect if no
adjustment had been made on account of the distribution or issuance of such
expired rights or warrants.
(c) Subject to the last sentence of this Section 13.3(c), if
the Company shall, by dividend or otherwise, distribute to all holders of Common
Stock evidences of its indebtedness, shares of any class or series of capital
stock, cash or assets (including securities, but excluding any rights or
warrants referred to in Section 13.3(b), any dividend or distribution paid
exclusively in cash and any dividend or distribution referred to in Section
13.3(a)), then the Conversion Price shall be reduced to the price determined by
multiplying the Conversion Price in effect immediately prior to the
effectiveness of the Conversion Price reduction contemplated by Section 13.3(c)
by a fraction, the numerator of which shall be the Current Market Price per
share of the Common Stock on the date fixed for the payment of such distribution
(the "Reference
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Date") less the fair market value (as determined in good faith by the Board of
Directors, whose determination shall be conclusive and described in a Board
Resolution), on the Reference Date, of the portion of the evidences of
indebtedness, shares of capital stock, cash and assets so distributed applicable
to one share of Common Stock and the denominator of which shall be such Current
Market Price per share of Common Stock, such reduction to become effective
immediately prior to the opening of business on the day following the Reference
Date. In the event that such dividend or distribution is not so paid or made,
the Conversion Price shall again be adjusted to be the Conversion Price which
would then be in effect if such dividend or distribution had not occurred. If
the Board of Directors determines the fair market value of any distribution for
purposes of this Section 13.3(c) by reference to the actual or when issued
trading market for any securities comprising such distribution, it must in doing
so consider the prices in such market over the same period used in computing the
Current Market Price per share of Common Stock. For purposes of this Section
13.3(c), any dividend or distribution that includes shares of Common Stock or
rights or warrants to subscribe for or purchase shares of Common Stock shall be
deemed instead to be (1) a dividend or distribution of the evidences of
indebtedness, shares of capital stock, cash or assets other than such shares of
Common Stock or such rights or warrants (making any Conversion Price reduction
required by this Section 13.3(c)) immediately followed by (2) a dividend or
distribution of such shares of Common Stock or such rights or warrants (making
any further Conversion Price reduction required by Section 13.3(a) or 13.3(b)),
except (A) the Reference Date of such dividend or distribution as defined in
this Section 13.3(c) shall be substituted as (a) "the record date in the case of
a dividend or other distribution," and (b) "the record date for the
determination of stockholders entitled to receive such rights or warrants" and
(c) "the date fixed for such determination" within the meaning of Sections
13.3(a) and 13.3(b), and (B) any shares of Common Stock included in such
dividend or distribution shall not be deemed outstanding for purposes of
computing any adjustment of the Conversion Price in Section 13.3(a).
(d) If the Company shall pay or make a dividend or other
distribution on the Common Stock exclusively in cash (excluding all cash
dividends paid out of the retained earnings of the Company), then the Conversion
Price shall be reduced to equal the price determined by multiplying the
Conversion Price in effect immediately prior to the effectiveness of the
Conversion Price reduction contemplated by this Section 13.3(d) by a fraction,
the numerator of which shall be the Current Market Price per share of Common
Stock on the date fixed for the payment of such distribution less the amount of
cash so distributed (and not excluded as provided in the above parenthetical
phrase) applicable to one share of Common Stock and the denominator of which
shall be such Current Market Price per share of the Common Stock, such reduction
to become effective immediately prior to the opening of business on the day
following the date fixed for the payment of such distribution; provided,
however, that in the event the portion of the cash so distributed applicable to
one share of Common Stock is equal to or greater than the Current Market Price
per share of the Common Stock on the record date mentioned above, in lieu of the
foregoing adjustment, adequate provision shall be made so that each Holder of
Debentures shall have the right to receive upon conversion the amount of cash
such Holder would have received had such Holder converted each Debenture
immediately prior to the record date for the distribution of the cash. In the
event that such dividend or distribution is not so paid or made, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in
effect if such record date had not been fixed.
(e) If the Company or any of its subsidiaries shall make a
tender or exchange offer (other than an odd-lot offer) for all or any portion of
the Common Stock and such tender or exchange offer shall involve the payment by
the Company or such subsidiary of consideration per share of Common Stock having
a fair market value (as determined in good faith by the Board of
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Directors, whose determination shall be conclusive and described in a Board
Resolution) at the last time (the "Expiration Time") tenders or exchanges may be
made pursuant to such tender or exchange offer that exceeds 110% of the Current
Market Price per share of Common Stock on the Trading Day next succeeding the
Expiration Time, then the Conversion Price shall be reduced to equal the price
determined by multiplying the Conversion Price in effect immediately prior to
the effectiveness of the Conversion Price reduction contemplated by this Section
13.3(e) by a fraction, the numerator of which shall be the number of shares of
Common Stock outstanding (including any tendered or exchanged shares) at the
Expiration Time multiplied by the Current Market Price per share of Common Stock
on the Trading Day next succeeding the Expiration Time and the denominator of
which shall be the sum of (x) the fair market value (determined as aforesaid) of
the aggregate consideration payable to stockholders based on the acceptance (up
to any maximum specified in the terms of the tender or exchange offer) of all
shares validly tendered or exchanged and not withdrawn as of the Expiration Time
(the shares deemed so accepted, up to any such maximum, being referred to as the
"Purchased Shares"), and (y) the product of the number of shares of Common Stock
outstanding (less any Purchased Shares) at the Expiration Time and the Current
Market Price per share of Common Stock on the Trading Day next succeeding the
Expiration Time, such reduction to become effective immediately prior to the
opening of business on the day following the Expiration Time.
(f) For the purpose of any computation under Sections 13.3(b),
(c), (d) or (e), the "Current Market Price" per share of Common Stock on any
date in question shall be deemed to be the average of the daily Closing Prices
for the five consecutive Trading Days selected by the Company commencing not
more than 20 Trading Days before, and ending not later than the earlier of the
day in question or, if applicable, the day before the "ex" date with respect to
the issuance or distribution requiring such computation; provided, however, that
if another event occurs that would require an adjustment pursuant to Sections
13.3(a) through (e), inclusive, the Board of Directors may make such adjustments
to the Closing Prices during such five Trading Day period as it deems
appropriate to effectuate the intent of the adjustments in this Section 13.3, in
which case any such determination by the Board of Directors shall be set forth
in a Board Resolution and shall be conclusive. For purposes of this Section
13.3(f), the term "ex" date, (i) when used with respect to any issuance or
distribution, means the first date on which the Common Stock trades regular way
on the New York Stock Exchange (the "NYSE") or on such successor securities
exchange as the Common Stock may be listed or in the relevant market from which
the Closing Prices were obtained without the right to receive such issuance or
distribution, and (ii) when used with respect to any tender or exchange offer,
means the first date on which the Common Stock trades regular way on such
securities exchange or in such market after the Expiration Time of such offer.
(g) The Company may make such reductions in the Conversion
Price, in addition to those required by Sections 13(a) through (e), as it
considers to be advisable to avoid or diminish any income tax to holders of
Common Stock or rights to purchase Common Stock resulting from any dividend or
distribution of stock (or rights to acquire stock) or from any event treated as
such for income tax purposes. The Company from time to time may reduce the
Conversion Price by any amount for any period of time if the period is at least
20 days, the reduction is irrevocable during the period, and the Board of
Directors shall have made a determination that such reduction would be in the
best interest of the Company, which determination shall be conclusive. Whenever
the Conversion Price is reduced pursuant to the preceding sentence, the Company
shall mail to Holders a notice of the reduction at least 15 days prior to the
date the reduced Conversion Price takes effect. Such notice shall state the
reduced Conversion Price and the period it shall be in effect.
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(h) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at least 1% in
the Conversion Price; provided, however, that any adjustments which by reason of
this Section 13.3(h) are not required to be made shall be carried forward and
taken into account in determining whether any subsequent adjustment shall be
required.
(i) If any action would require adjustment of the Conversion
Price pursuant to more than one of the provisions described above, only one
adjustment shall be made and such adjustment shall be the amount of adjustment
that has the highest absolute value to the Holder of the Debentures.
SECTION 13.4. Reclassification, Consolidation, Merger or Sale
of Assets.
In the event that the Company shall be a party to any
transaction involving (a) any recapitalization or reclassification of the Common
Stock (other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision or combination
of the Common Stock), (b) any consolidation of the Company with or merger of the
Company into any other Person, any merger of another Person into the Company
(other than a merger which does not result in a reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock), (c) any sale,
transfer or lease of all or substantially all of the assets of the Company or
(d) any compulsory share exchange, in each case pursuant to which the Common
Stock is converted into the right to receive other securities, cash or other
property, then lawful provision shall be made as part of the terms of such
transaction whereby the Holder of each Outstanding Debenture shall have the
right thereafter to convert each Debenture only into the kind and amount of
securities, cash or other property receivable upon consummation of such
transaction by a holder of the number of shares of Common Stock into which such
Debenture could have been converted immediately prior to such transaction.
The Company or the Person formed by such consolidation or
resulting from such merger or which acquired such assets or which acquires the
shares of the Company, as the case may be, shall make provision in its
certificate or articles of incorporation or other constituent document to
establish such right. Such certificate or articles of incorporation or other
constituent document shall provide for adjustments which, for events subsequent
to the effective date of such certificate or articles of incorporation or other
constituent document, shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article XIII.
SECTION 13.5. Notice of Adjustments of Conversion Price.
Whenever the Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Price
and shall prepare a certificate signed by the Chairman of the Board, President
or a Vice President of the Company and by its Treasurer or an Assistant
Treasurer of the Company setting forth the adjusted Conversion Price and showing
in reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed with the Trustee, the Conversion Agent, the
Debenture Registrar and the registrar for the Preferred Securities; and
(b) notice stating that the Conversion Price has been adjusted
and setting forth the adjusted Conversion Price shall as soon as practicable be
mailed by the Company to all record holders of Preferred Securities and Holders
of Debentures at their last addresses as they appear upon the Debenture
Registrar and the securities register for the Trust Securities.
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SECTION 13.6. Prior Notice of Certain Events.
In case:
(a) the Company shall (i) declare any dividend (or any other
distribution) on the Common Stock, other than (A) a dividend payable in shares
of Common Stock or (B) a dividend payable in cash that would not require an
adjustment pursuant to Section 13.3(c) or (d), or (ii) authorize a tender or
exchange offer that would require an adjustment pursuant to Section 13.3(e);
(b) the Company shall authorize the granting to all holders of
Common Stock of rights or warrants to subscribe for or purchase any shares of
stock of any class or series or of any other rights or warrants;
(c) of any reclassification of Common Stock (other than a
subdivision or combination of the outstanding Common Stock, or a change in par
value, or from par value to no par value, or from no par value to par value), or
of any consolidation or merger to which the Company is a party and for which
approval of any stockholders of the Company shall be required, or the sale or
transfer of all or substantially all of the assets of the Company or of any
compulsory share exchange whereby the Common Stock is converted into other
securities, cash or other property; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then the Company shall (1) if any Preferred Securities are outstanding, cause to
be filed with the transfer agent for the Preferred Securities, and shall cause
to be mailed to the holders of record of the Preferred Securities, at their last
addresses as they shall appear upon the securities register of the Trust or (2)
cause to be mailed to all Holders at their last addresses as they shall appear
in the Debenture Register, at least 15 days prior to the applicable record or
effective date hereinafter specified, a notice stating (x) the date on which a
record (if any) is to be taken for the purpose of such dividend, distribution,
rights or warrants or, if a record is not to be taken, the date as of which the
holders of Common Stock of record to be entitled to such dividend, distribution,
rights or warrants are to be determined, or (y) the date on which such
reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, share exchange, dissolution, liquidation or winding up (but no failure
to mail such notice or any defect therein or in the mailing thereof shall affect
the validity of the corporate action required to be specified in such notice).
SECTION 13.7. Certain Defined Terms.
The following definitions shall apply to terms used in this
Article XIII:
(a) "Closing Prices" of any security on any day means the last
reported sale price for such security, regular way, on such day or, if no sale
takes place on such day, the average of the reported closing bid and asked
prices on such day, regular way, of such security, in either case as reported on
the NYSE Composite Tape or, if the security is not listed or admitted to trading
on the NYSE, on the principal national securities exchange on which such
security is
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listed or admitted to trading, or, if not listed or admitted to trading on a
national securities exchange, on the National Market System of the National
Association of Securities Dealers, Inc., or, if such security is not quoted or
admitted to trading on such quotation system, on the principal quotation system
on which such security is listed or admitted to trading or quoted, or, if not
listed or admitted to trading or quoted on any national securities exchange or
quotation system, the average of the closing bid and asked prices of such
security in the over-the-counter market on the day in question as reported by
the National Quotation Bureau Incorporated, or a similar generally accepted
reporting service, or, if not so available in such manner, as furnished by any
NYSE member firm selected from time to time by the Board of Directors for that
purpose or, if not so available in such manner, as otherwise determined in good
faith by the Board of Directors.
(b) "Trading Day" means a day on which securities are traded
on the national securities exchange or quotation system used to determine the
Closing Price.
SECTION 13.8. Dividend or Interest Reinvestment Plans.
Notwithstanding the foregoing provisions, the issuance of any
shares of Common Stock pursuant to any plan providing for the reinvestment of
dividends or interest payable on securities of the Company and the investment of
additional optional amounts in shares of Common Stock under any such plan, and
the issuance of any shares of Common Stock or options or rights to purchase such
shares pursuant to any employee benefit plan or program of the Company pursuant
to any option, warrant, right or exercisable, exchangeable or convertible
security outstanding as of the date the Debentures were first issued, shall not
be deemed to constitute an issuance of Common Stock or exercisable, exchangeable
or convertible securities by the Company to which any of the adjustment
provisions described above shall apply. There also shall be no adjustment of the
Conversion Price in case of the issuance of any stock (or securities convertible
into or exchangeable for stock) of the Company except as specifically described
in this Article XIII.
SECTION 13.9. Certain Additional Rights.
In case the Company shall, by dividend or otherwise, declare
or make a distribution on the Common Stock referred to in Section 13.3(c) or (d)
(including dividends or distributions referred to in the last sentence of
Section 13.3(c)), then the Holders, upon the conversion thereof subsequent to
5:00 p.m. (New York City time) on the date fixed for the determination of
stockholders entitled to receive such distribution and prior to the
effectiveness of the Conversion Price adjustment in respect of such
distribution, also shall be entitled to receive for each share of Common Stock
into which the Debentures are converted, the portion of the shares of Common
Stock, rights, warrants, evidences of indebtedness, shares of capital stock,
cash and assets so distributed applicable to one share of Common Stock;
provided, however, that, at the election of the Company (whose election shall be
evidenced by a Board Resolution) with respect to all Holders so converting, the
Company may, in lieu of distributing to such Holders any portion of such
distribution not consisting of cash or securities of the Company, pay such
Holders an amount in cash equal to the fair market value thereof (as determined
in good faith by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution). If any conversion of Debentures described
in the immediately preceding sentence occurs prior to the payment date for a
distribution to holders of Common Stock which the Holder so converted is
entitled to receive in accordance with the immediately preceding sentence, the
Company may elect (such election to be evidenced by a Board Resolution) to
distribute to such Holder a due bill for the shares of Common Stock, rights,
warrants, evidences of indebtedness, shares of capital stock, cash or assets to
which such Holder is so entitled, provided that such due bill (i) meets any
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applicable requirements of the principal national securities exchange or other
market on which the Common Stock is then traded and (ii) requires payment or
delivery of such shares of Common Stock, rights, warrants, evidences of
indebtedness, shares of capital stock, cash or assets no later than the date of
payment or delivery thereof to holders of shares of Common Stock receiving such
distribution.
SECTION 13.10. Trustee Not Responsible for Determining
Conversion Price or Adjustments.
Neither the Trustee nor any Conversion Agent shall at any time
be under any duty or responsibility to any Holder to determine whether any facts
exist which may require any adjustment of the Conversion Price, or with respect
to the nature or extent of any such adjustment when made, or with respect to the
method employed, or herein or in any supplemental indenture provided to be
employed, in making the same. Neither the Trustee nor any Conversion Agent shall
be accountable with respect to the validity or value (or the kind of account) of
any shares of Common Stock or of any securities or property, which may at any
time be issued or delivered upon the conversion of any Debenture; and neither
the Trustee nor any Conversion Agent makes any representation with respect
thereto. Neither the Trustee nor any Conversion Agent shall be responsible for
any failure of the Company to make any cash payment or to issue, transfer or
deliver any shares of Common Stock or stock certificates or other securities or
property upon the surrender of any Debenture for the purpose of conversion, or,
except as expressly herein provided, to comply with any of the covenants of the
Company contained in Article X or this Article XIII.
ARTICLE XIV
SUBORDINATION OF SECURITIES
SECTION 14.1. Debentures Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a
Debenture, by its acceptance thereof, likewise covenants and agrees, that, to
the extent and in the manner hereinafter set forth in this Article XIV, the
payment of the principal of, premium, if any, and interest (including any
Additional Interest) on each and all of the Debentures are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness.
SECTION 14.2. Payment Over of Proceeds Upon Dissolution, etc.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company (a "Proceeding"), then the
holders of Senior Indebtedness shall be entitled to receive payment in full of
all amounts due or to become due on such Senior Indebtedness, or provision shall
be made for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Indebtedness, before the Holders are
entitled to receive or retain any payment or distribution of any kind or
character, whether in cash, property or securities (including any payment or
distribution which may be payable or deliverable by reason of the payment of any
other indebtedness or obligations of the Company subordinated to the payment of
the Debentures, such payment or distribution being hereinafter referred to as a
"Junior Subordinated Payment"), on account of principal of, premium, if any, or
interest (including any Additional Interest) on the Debentures or on account of
the purchase or other acquisition of
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Debentures by the Company or any Subsidiary and to that end the holders of
Senior Indebtedness shall be entitled to receive, for application to the payment
thereof, any payment or distribution of any kind or character, whether in cash,
property or securities, including any Junior Subordinated Payment, which may be
payable or deliverable in respect of the Debentures in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of
this Section 14.2, the Trustee or the Holder of any Debenture shall have
received any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, including any Junior
Subordinated Payment, before all amounts due or to become due on all Senior
Indebtedness are paid in full or payment thereof is provided for in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, and if such fact shall, at or prior to the time of such payment or
distribution, have been made known to the Trustee or such Holder, then and in
such event such payment or distribution shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution of
assets of the Company for application to the payment of all amounts due or to
become due on all Senior Indebtedness remaining unpaid, to the extent necessary
to pay all amounts due or to become due on all Senior Indebtedness in full,
after giving effect to any concurrent payment or distribution to or for the
holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the Company
following the sale of all or substantially all of its properties and assets as
an entirety to another Person upon the terms and conditions set forth in Article
VIII shall not be deemed a Proceeding for the purposes of this Section 14.2 if
the Person formed by such consolidation or into which the Company is merged or
the Person which acquires by sale such properties and assets as an entirety, as
the case may be, shall, as a part of such consolidation, merger, or sale comply
with the conditions set forth in Article VIII.
SECTION 14.3. Prior Payment to Senior Indebtedness Upon
Acceleration of Debentures.
In the event that any Debentures are declared due and payable
before their Stated Maturity, then and in such event the holders of the Senior
Indebtedness outstanding at the time such Debentures so become due and payable
shall be entitled to receive payment in full of all amounts due on or in respect
of such Senior Indebtedness (including any amounts due upon acceleration), or
provision shall be made for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Indebtedness, before
the Holders of the Debentures are entitled to receive any payment or
distribution of any kind or character, whether in cash, properties or securities
(including any Junior Subordinated Payment) by the Company on account of the
principal of, premium, if any, or interest (including any Additional Interest)
on the Debentures or on account of the purchase or other acquisition of
Debentures by the Company or any Subsidiary.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Debenture prohibited
by the foregoing provisions of this Section 14.3, as the case may be, such
Holder, then and in such event such payment shall be paid over and delivered
forthwith to the Company.
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The provisions of this Section 14.3 shall not apply to any
payment with respect to which Section 14.2 would be applicable.
SECTION 14.4. No Payment when Senior Indebtedness in Default.
In the event and during the continuation of any default in the
payment of principal of, premium, if any, or interest on any Senior
Indebtedness, or in the event that any event of default with respect to any
Senior Indebtedness shall have occurred and be continuing and shall have
resulted in such Senior Indebtedness becoming or being declared due and payable
prior to the date on which it would otherwise have become due and payable,
unless and until such event of default shall have been cured or waived or shall
have ceased to exist and such acceleration shall have been rescinded or
annulled, or (b) in the event any judicial proceeding shall be pending with
respect to any such default in payment or such event or default, then no payment
or distribution of any kind or character, whether in cash, properties or
securities (including any Junior Subordinated Payment) shall be made by the
Company on account of principal of, premium, if any, or interest (including any
Additional Interest), if any, on the Debentures or on account of the purchase or
other acquisition of Debentures by the Company or any Subsidiary, in each case
unless and until all amounts due or to become due on such Senior Indebtedness
are paid in full.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Debenture prohibited
by the foregoing provisions of this Section 14.4, and if such fact shall, at or
prior to the time of such payment, have been made known to the Trustee or, as
the case may be, such Holder, then and in such event such payment shall be paid
over and delivered forthwith to the Company.
The provisions of this Section 14.4 shall not apply to any
payment with respect to which Section 14.2 would be applicable.
SECTION 14.5. Payment Permitted if no Default.
Nothing contained in this Article XIV or elsewhere in this
Indenture or in any of the Debentures shall prevent (a) the Company, at any time
except during the pendency of any Proceeding referred to in Section 14.2 or
under the conditions described in Sections 14.3 and 14.4, from making payments
at any time of principal of, premium, if any, or interest (including Additional
Interest) on the Debentures or (b) the application by the Trustee , at any time
except during the pendency of any proceeding referred to in Section 14.2 or
under the conditions described in Section 14.3 and 14.4, of any money deposited
with it hereunder to the payment of or on account of the principal of, premium,
if any, or interest (including any Additional Interest) on the Debentures or the
retention of such payment by the Holders, if, at the time of such application by
the Trustee.
SECTION 14.6. Subrogation to Rights of Holders of Senior
Indebtedness.
Subject to the payment in full of all amounts due or to become
due on all Senior Indebtedness, or the provision for such payment in cash or
cash equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, the Holders shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article XIV (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to Senior
Indebtedness of the Company to substantially the same extent as the Debentures
are subordinated to the Senior Indebtedness
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and is entitled to like rights of subrogation by reason of any payments or
distributions made to holders of such Senior Indebtedness) to the rights of the
holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of, premium, if any, and interest on the Debentures shall be paid in
full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the Holders or the Trustee would be entitled except for the provisions of this
Article XIV, and no payments over pursuant to the provisions of this Article XIV
to the holders of Senior Indebtedness by Holders or the Trustee, shall, as among
the Company, its creditors other than holders of Senior Indebtedness and the
Holders, be deemed to be a payment or distribution by the Company to or on
account of the Senior Indebtedness.
SECTION 14.7. Provisions Solely to Define Relative Rights.
The provisions of this Article XIV are and are intended solely
for the purpose of defining the relative rights of the Holders, on the one hand,
and the holders of Senior Indebtedness, on the other hand. Nothing contained in
this Article XIV or elsewhere in this Indenture or in the Debentures is intended
to or shall (a) impair, as between the Company and the Holders, the obligations
of the Company, which are absolute and unconditional, to pay to the Holders the
principal of, premium, if any, and interest (including any Additional Interest)
on the Debentures as and when the same shall become due and payable in
accordance with their terms, (b) affect the relative rights against the Company
of the Holders and creditors of the Company other than their rights in relation
to the holders of Senior Indebtedness or (c) prevent the Trustee or the Holder
of any Debenture from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, including filing and voting claims in any
Proceeding, subject to the rights, if any, under this Article XIV of the holders
of Senior Indebtedness to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
SECTION 14.8. Trustee to Effectuate Subordination.
Each Holder of a Debenture by his or her acceptance thereof
authorizes and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
provided in this Article XIV and appoints the Trustee his or her
attorney-in-fact for any and all such purposes.
SECTION 14.9. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof that any such holder may
have or be otherwise charged with.
Without in any way limiting the generality of the immediately
preceding paragraph, the holders of Senior Indebtedness may, at any time and
from to time, without the consent of or notice to the Trustee or the Holders,
without incurring responsibility to the Holders and without impairing or
releasing the subordination provided in this Article XIV or the obligations
hereunder of the Holders to the holders of Senior Indebtedness, do any one or
more of the following: (i) change the manner, place or terms of payment or
extend the time of payment
72
<PAGE> 80
of, or renew or alter, Senior Indebtedness, or otherwise amend or supplement in
any manner Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (iii) release any Person liable in any manner for
the collection of Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 14.10. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Debentures. Notwithstanding the provisions
of this Article XIV or any other provision of this Indenture, the Trustee shall
not be charged with knowledge of the existence of any facts which would prohibit
the making of any payment to or by the Trustee in respect of the Debentures,
unless and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from any trustee, agent or
representative therefor; provided, however, that if the Trustee shall not have
received the notice provided for in this Section 14.10 at least two Business
Days prior to the date upon which by the terms hereof any money may become
payable for any purpose (including the payment of the principal of, premium, if
any, or interest (including any Additional Interest) on any Debenture), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to the
purpose for which it was received and shall not be affected by any notice to the
contrary which may be received by it within two Business Days prior to such
date.
Subject to the provisions of Section 6.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee
therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee therefor). In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article XIV, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article XIV, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 14.11. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article XIV, the Trustee, subject to the provisions of
Section 6.1, and the Holders shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders,
for the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article XIV.
73
<PAGE> 81
SECTION 14.12. Trustee Not Fiduciary for Holders of Senior
Indebtedness.
The Trustee, in its capacity as trustee under this Indenture,
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders or to the Company or to any
other Person cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article XIV or otherwise. With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or to observe only such of its covenants or obligations as are specifically set
forth in this Article XIV and no implied covenants or obligations with respect
to holders of Senior Indebtedness shall be read into this Indenture against the
Trustee.
SECTION 14.13. Rights of Trustee as Holder of Senior
Indebtedness.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article XIV with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall deprive
the Trustee of any of its rights as such holder. Nothing in this Article XIV
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 6.7.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article XIV shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article XIV in addition to or in place of the Trustee.
SECTION 14.14. Article Applicable to Paying Agents.
If at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article XIV shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article XIV in addition or in place of the Trustee.
SECTION 14.15. Certain Conversions or Exchanges Deemed
Payment.
For the purposes of this Article XIV only, (a) the issuance
and delivery of Common Stock of the Company upon conversion of Debentures in
accordance with their terms shall not be deemed to constitute a payment or
distribution on account of the principal of, premium, if any, or interest
(including any Additional Interest) on Debentures or on account of the purchase
or other acquisition of Debentures, and (b) the payment, issuance or delivery of
cash, property or securities (other than as provided in clause (a) of this
sentence) upon conversion or exchange of a Debenture shall be deemed to
constitute payment on account of the principal of such security.
74
<PAGE> 82
SECTION 14.16. Trust Funds not Subordinated.
Notwithstanding anything contained herein to the contrary,
payments from funds held in trust under Article IV by the Trustee for the
payment of principal of, premium, if any, and interest on the Debentures shall
not be subordinated to the prior payment of any Senior Indebtedness of the
Company or subject to the restrictions set forth in this Article XIV and no
Holder shall be obligated to pay over any such funds to the Company or any
holder of Senior Indebtedness of the Company or any other creditor of the
Company.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
75
<PAGE> 83
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above written.
CAREMARK RX, INC.
By: /s/ James H. Dickerson, Jr.
------------------------------------
Name: James H. Dickerson, Jr.
Title: Executive Vice President and
Chief Financial Officer
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Patricia A. Evans
------------------------------------
Name: Patricia A. Evans
Title: Financial Services Officer
76
<PAGE> 1
EXHIBIT 4.5
THIS CERTIFICATE IS NOT TRANSFERABLE TO ANY PERSON, EXCEPT THAT THE
HOLDER AND ANY WHOLLY-OWNED SUBSIDIARY MAY TRANSFER THIS SECURITY TO CAREMARK
RX, INC. OR A WHOLLY-OWNED SUBSIDIARY OF CAREMARK RX, INC. OR ANY ENTITY OWNING
ALL OF THE OUTSTANDING COMMON STOCK OF CAREMARK RX, INC., SUBJECT TO RECEIPT BY
THE TRUST OF AN OPINION OF COUNSEL THAT SUCH TRANSFER WOULD NOT CAUSE MORE THAN
AN INSUBSTANTIAL RISK THAT (I) THE TRUST WOULD NOT BE CLASSIFIED FOR UNITED
STATES FEDERAL INCOME TAX PURPOSES AS A GRANTOR TRUST; OR (II) THE TRUST WOULD
BE AN INVESTMENT COMPANY REQUIRED TO REGISTER UNDER THE INVESTMENT COMPANY ACT
OR THE TRANSFEREE WOULD BECOME AN INVESTMENT COMPANY REQUIRED TO REGISTER UNDER
THE INVESTMENT COMPANY ACT.
CERTIFICATE NUMBER: NUMBER OF COMMON SECURITIES:
C-1 123,720
Certificate Evidencing Common Securities of
CAREMARK RX CAPITAL TRUST I
(Liquidation Amount $50 per Common Security)
Caremark Rx Capital Trust I, a statutory business trust
created under the laws of the State of Delaware (the "Trust"), hereby certifies
that Caremark Rx, Inc. (the "Holder") is the registered owner of 123,720 common
securities of the Trust representing beneficial ownership interests of the
Trust and designated the Common Securities (Liquidation Amount $50 per Common
Security) (the "Common Securities"). In accordance with Section 5.11 of the
Trust Agreement (as defined below) the Common Securities are not transferable
except in limited circumstances and any attempted transfer, except in such
limited circumstances, shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust dated
as of September 29, 1999, as the same may be amended from time to time (the
"Trust Agreement") including the designation of the terms of the Common
Securities as set forth therein. The Trust will furnish a copy of the Trust
Agreement to the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder and by acceptance
hereof agrees to the provisions of (i) the Guarantee Agreement entered into by
Caremark Rx, Inc., a Delaware corporation ("Caremark"), and Wilmington Trust
Company, a Delaware banking corporation, as guarantee trustee, dated as of
September 29, 1999, and (ii) the Indenture entered into by Caremark and
Wilmington Trust Company, as trustee, dated as of September 29, 1999.
<PAGE> 2
This Certificate shall be construed in accordance with and
governed by the laws of the State of Delaware (without regard to conflict of
laws principles).
<PAGE> 3
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate.
CAREMARK RX CAPITAL TRUST I
By: /s/ James H. Dickerson, Jr.
---------------------------------------
Name: James H. Dickerson, Jr.
Title: Administrative Trustee
<PAGE> 1
EXHIBIT 4.6
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY (THE "DEPOSITARY") OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK) TO THE TRUST OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY A PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER HEREOF MAY NOT ENGAGE IN HEDGING TRANSACTIONS IN THIS SECURITY
UNLESS SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
RESELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS THE LATER OF (X) TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH CAREMARK RX,
INC. (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), AND (Y) SUCH LATER DATE, IF
ANY, AS MAY BE REQUIRED BY APPLICABLE LAW ONLY (A) TO THE COMPANY, (B) PURSUANT
TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED
STATES IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (E)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRANSFER AGENT'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
<PAGE> 2
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE. ANY TRANSFER OF THIS SECURITY IS REQUIRED TO BE MADE IN COMPLIANCE WITH
THE APPLICABLE STATE SECURITIES LAWS AND APPLICABLE SECURITIES LAWS OF OTHER
JURISDICTIONS.
EACH PURCHASER OR HOLDER OF THE SECURITY EVIDENCED HEREBY WILL BE
DEEMED TO HAVE REPRESENTED EITHER THAT (A) IT IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO PART 4 OF SUBTITLE B OF TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, ("ERISA") OR A PLAN DESCRIBED IN SECTION 4975
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE THE ASSETS OF ANY SUCH ERISA PLAN OR OTHER PLAN
OR (B) ITS ACQUISITION, HOLDING AND DISPOSITION OF THE SECURITY EVIDENCED
HEREBY WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA
OR SECTION 4975 OF THE CODE BY REASON OF PROHIBITED TRANSACTION CLASS EXEMPTION
("PTCE") 91-38, PTCE 84-14, PTCE 90-1, PTCE 95-60 OR PTCE 96-23.
THE HOLDER OF THIS SECURITY AGREES THAT IT WILL DELIVER TO EACH PERSON
TO WHOM THIS CAPITAL SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.
<PAGE> 3
CERTIFICATE NUMBER: REG S P-1 NUMBER OF PREFERRED SECURITIES: 0
CUSIP NO. U 14164 10 4
ISIN NO. USU 141 641 048
COMMON CODE: 010254752
Certificate Evidencing Preferred Securities
of
CAREMARK RX CAPITAL TRUST I
7.0% Shared Preference Redeemable Preferred Securities,
(Liquidation Amount $50 per Preferred Security)
Caremark Rx Capital Trust I, a statutory business trust
created under the laws of the State of Delaware (the "Trust"), hereby certifies
that Cede & Co. (the "Holder") is the registered owner of 0 preferred
securities of the Trust representing an undivided beneficial ownership interest
in the assets of the Trust and designated the Caremark Rx Capital Trust I
Shared Preference Redeemable Securities (SPuRS SM) (Liquidation Amount $50 per
Preferred Security unit redeemable) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in person by
a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer as provided in Section 5.4 of the Trust
Agreement (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities are set forth in, and this certificate and the Preferred Securities
represented hereby are issued and shall in all respects be subject to, the
terms and provisions of, the Amended and Restated Trust Agreement of the Trust
dated as of September 29, 1999, as the same may be amended from time to time
(the "Trust Agreement") including the designation of the terms of Preferred
Securities as set forth herein. The Holder is entitled to the benefits of (i)
the Guarantee Agreement entered into by Caremark Rx, Inc., a Delaware
corporation ("Caremark"), and Wilmington Trust Company, a Delaware corporation
("Preferred Guaranty Trustee"), as guarantee trustee, dated as of September 29,
1999 (the "Guarantee") and (ii) the Registration Rights Agreement dated as of
September 29, 1999 among the Trust, Caremark and Warburg Dillon Read LLC (the
"Registration Rights Agreement"), in each case to the extent provided therein.
The Trust will furnish a copy of the Trust Agreement, the Guarantee and the
Registration Rights Agreement to the Holder without charge upon written request
to the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder and by acceptance
hereof agrees to the provisions of (i) the Guarantee, (ii) the Indenture
entered into by Caremark and Wilmington Trust Company, as trustee, dated as of
September 29, 1999 and (iii) the Registration Rights Agreement.
This Certificate shall be construed in accordance with and
governed by the laws of the State of Delaware (without regard to conflict of
laws principles).
<PAGE> 4
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate.
Dated: September 29, 1999
CAREMARK RX CAPITAL TRUST I
By: /s/ James H. Dickerson, Jr.
----------------------------------------
Name: James H. Dickerson, Jr.
Title: Administrative Trustee
This is one of the Securities referred to in the within
mentioned Trust Agreement.
Date of Authentication:
September 29, 1999
WILMINGTON TRUST COMPANY,
as Property Trustee
By: /s/ Mary C. St. Amand
----------------------------------------
Name: Mary C. St. Amand
Title: Assistant Vice President
<PAGE> 5
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust
Security to:
- ---------------------------------------------------------------
- ---------------------------------------------------------------
- ---------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- ---------------------------------------------------------------
- ---------------------------------------------------------------
- ---------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- ---------------------------------------------------------------
- ---------------------------------------------------------------
- ---------------------------------------------------------------
agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
-------------------------------
Signature:
-----------------------------------------
(Sign exactly as your name appears on the other side of this Trust Security
certificate)
Signature Guarantee*:
------------------------------
- ------------------
*(Signature must be guaranteed by an "eligible guarantor institution" that is,
a bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended)
<PAGE> 6
CONVERSION REQUEST
To: Wilmington Trust Company, as Conversion Agent under the Trust
Agreement of Caremark Rx Capital Trust I
The undersigned owner of these Preferred Securities hereby
irrevocably exercises the option to convert these Preferred Securities, or the
portion below designated, into Common Stock of CAREMARK RX, INC. (the "Common
Stock") in accordance with the terms of the Trust Agreement. Pursuant to the
aforementioned exercise of the option to convert these Preferred Securities,
the undersigned hereby directs the Conversion Agent (as that term is defined in
the Trust Agreement) to (i) exchange such Preferred Securities for a portion of
the Debentures (as that term is defined in the Trust Agreement) held by the
Trust at the Conversion Price specified in the Trust Agreement, and (ii)
immediately convert such Debentures on behalf of the undersigned, into Common
Stock at the Conversion Price specified in the Trust Agreement.
The undersigned also hereby directs the Conversion Agent that
the shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment
below. If shares are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto.
If the undersigned is a BHCA Person (as that term is defined
in the Trust Agreement, the undersigned certifies that it is in compliance with
Section 4.3(a) of the Trust Agreement.
Date:
-------------------------
Number of Preferred Securities to be converted:
-----------------
If a name or names other than the undersigned, please indicate in the spaces
below the name or names in which the shares of Common Stock are to be issued,
along with the address or addresses of such person or persons.
- --------------------------------------------
- --------------------------------------------
- --------------------------------------------
(Sign exactly as your name appears on the other side of this Trust Security
certificate) (for conversion of definitive Preferred Securities only)
Please Print or Typewrite Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number.
- --------------------------------------------
- --------------------------------------------
- --------------------------------------------
<PAGE> 7
Signature Guarantee:*
-----------------------
- -------------------
*(Signature must be guaranteed by an "eligible guarantor institution" that is,
a bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended)
<PAGE> 8
CERTIFICATE FOR EXCHANGE OR TRANSFER
Re: 7.0% Shared Preference Redeemable Securities ("SPuRS" or "Preferred
Securities)
This Certificate relates to _________ Preferred Securities held by
_________ (the "Transferor").
The Transferor has requested the Trustee by written order to exchange
or register the transfer of a Preferred Security or Preferred Securities.
In connection with such request and in respect of each such security,
the Transferor does hereby certify to the Depositor and the Trustee that
Transferor is familiar with the Trust Agreement relating to the above captioned
Preferred Securities and, as provided in Section 5.4 and Section 5.5 of such
Trust Agreement, the transfer of this Preferred Security does not require
registration under the Securities Act (as defined below) because:
[ ] Such Preferred Security is being acquired for the Transferor's
own account, without transfer.
[ ] Such Preferred Security is being transferred pursuant to an
effective registration statement under the Securities Act.
[ ] Such Preferred Security is being transferred to a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act of 1933,
as amended (the "Securities Act")) in reliance on Rule 144A.
[ ] Such Preferred Security is being transferred in reliance on and
in compliance with an exemption from the registration requirements of the
Securities Act pursuant to Regulation S, Rule 144 or otherwise (other than
pursuant to Rule 144A) under the Securities Act. An opinion of counsel to the
effect that such transfer does not require registration under the Securities
Act accompanies this Certificate.
If this certificate is being delivered in connection with a transfer
or exchange of Preferred Securities held by a BHCA Person (as that term is
defined in the Trust Agreement), such BHCA Person certifies that this transfer
or exchange complies with Section 4.3(a) of the Trust Agreement.
You are entitled to rely upon this certificate and you are irrevocably
authorized to produce this certificate or a copy hereof to any interested party
in any administrative or legal proceeding or official inquiry with respect to
the matters covered hereby.
----------------------------
[INSERT NAME OF TRANSFEROR]
By:
-------------------------
Date:
-------------------------------
<PAGE> 9
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have Preferred Securities represented by this
certificate purchased by the Depositor pursuant to Article X of the Trust
Agreement, check the Box: [ ]
If you wish to have a portion of the Preferred Securities represented
by this certificate purchased by the Depositor pursuant to Article X of the
Trust Agreement, state the number of Preferred Securities you wish to have
purchased: ___________________________
Date: Your Signature(s):
--------------------- -------------------------
Tax Identification No.:
(Sign exactly as your name appears on the face of this Security)
Signature Guarantee*:
--------------------------------------
- ---------------------
*(Signature must be guaranteed by an "eligible guarantor institution" that is,
a bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended)
<PAGE> 1
EXHIBIT 4.7
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER HEREOF MAY NOT ENGAGE IN HEDGING TRANSACTIONS IN THIS SECURITY
UNLESS SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
RESELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS THE LATER OF (X) TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH CAREMARK RX,
INC. (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), AND (Y) SUCH LATER DATE, IF
ANY, AS MAY BE REQUIRED BY APPLICABLE LAW ONLY (A) TO THE COMPANY, (B) PURSUANT
TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED
STATES IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (E)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRANSFER AGENT'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. ANY
TRANSFER OF THIS SECURITY IS REQUIRED TO BE MADE IN COMPLIANCE WITH THE
APPLICABLE STATE SECURITIES LAWS AND APPLICABLE SECURITIES LAWS OF OTHER
JURISDICTIONS.
THE HOLDER OF THIS SECURITY AGREES THAT IT WILL DELIVER TO EACH PERSON
TO WHOM THIS CAPITAL SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.
<PAGE> 2
CAREMARK RX, INC.
7.0% Convertible Subordinated Debentures
No. D-1 $206,186,000
CAREMARK RX, INC., a corporation organized and existing under
the laws of the state of Delaware (the "Company," which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Caremark Rx Capital Trust I, or registered
assigns, the principal sum of 206,186,000 Dollars on October 1, 2029; provided
that the Company, subject to certain conditions set forth in Section 3.14 of
the Indenture, may shorten the Stated Maturity of the principal of this
Debenture to a date not earlier than October 1, 2014. The Company further
promises to pay interest on said principal sum from September 29, 1999, or from
the most recent interest payment date (each such date, an "Interest Payment
Date") on which interest has been paid or duly provided for, quarterly (subject
to deferral as set forth herein) in arrears on January 1, April 1, July 1 and
October 1 of each year, commencing January 1, 2000, at the rate of 7.0% per
annum, until the principal hereof shall have become due and payable, plus
Additional Interest, if any, until the principal hereof is paid or duly
provided for or made available for payment and on any overdue principal and
(without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
rate of 7.0% per annum, compounded quarterly. The amount of interest payable
for any period shall be computed on the basis of twelve 30-day months and a
360-day year. The amount of interest payable for any partial period shall be
computed on the basis of the number of days elapsed in a 360-day year of twelve
30-day months. In the event that any date on which interest is payable on this
Debenture is not a Business Day, then a payment of the interest payable on such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on the date the payment was
originally payable. A "Business Day" shall mean any day other than (i) a
Saturday or Sunday or (ii) a day on which banking institutions in The City of
New York or the State of Delaware are authorized or required by law or
executive order to remain closed. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date shall, as
provided in the Indenture, be paid to the Person in whose name this Debenture
(or one or more Predecessor Debentures) is registered at the close of business
on the Regular Record Date for such interest installment, which shall be the
15th day of the month next preceding such Interest Payment Date (whether or not
a Business Day). Any such interest installment not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Debenture
(or one or more Predecessor Debentures) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Debentures not less
than ten days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange or automated quotation system on which the Debentures may be listed or
traded, and upon such notice as may be required by such exchange or
self-regulatory organization, all as more fully provided in the Indenture.
So long as no Event of Default has occurred and is
continuing, the Company shall have the right at any time during the term of
this Debenture to defer payment of interest on this Debenture, at any time or
from time to time, for up to 20 consecutive quarterly interest
<PAGE> 3
payment periods with respect to each deferral period (each an "Extension
Period"), during which Extension Periods the Company shall have the right to
make partial payments of interest on any Interest Payment Date, and at the end
of which the Company shall pay all interest then accrued and unpaid (together
with Additional Interest thereon to the extent permitted by applicable law);
provided, however, that no Extension Period shall extend beyond the Stated
Maturity of the principal of this Debenture; and provided, further, that during
any such Extension Period, the Company shall not, and shall not permit any
Subsidiary of the Company to, (i) declare or pay any dividends or distributions
on or redeem, purchase, acquire or make a liquidation payment with respect to,
any of the Company's capital stock, (ii) make any payment of principal of,
premium, if any, or interest or on or repay, repurchase or redeem any debt
security of the Company that ranks pari passu with or junior in interest to
this Debenture or (iii) make any guarantee payments with respect to any
guarantee by the Company of the debt securities of any Subsidiary of the
Company if such guarantee ranks pari passu with or junior in interest to this
Debenture (other than (a) dividends or distributions in the Company's capital
stock, (b) any declaration of a dividend in connection with the implementation
of a Rights Plan or the redemption or repurchase of any rights distributed
pursuant to a Rights Plan, (c) payments under the Guarantee with respect to
this Debenture and (d) purchases of Common Stock related to the issuance of
Common Stock or rights under any of the Company's benefit plans for its
directors, officers or employees, related to the issuance of Common Stock or
rights under a dividend reinvestment and stock purchase plan or related to the
issuance of Common Stock (or securities convertible or exchangeable for Common
Stock) as consideration in an acquisition transaction that was entered into
prior to the commencement of such Extension Period). Prior to the termination
of any such Extension Period, the Company may further defer the payment of
interest, provided that no Extension Period shall exceed 20 consecutive
quarters or extend beyond the Stated Maturity of the principal of this
Debenture. Upon the termination of any such Extension Period and upon the
payment of all accrued and unpaid interest and any Additional Interest then
due, the Company may elect to begin a new Extension Period, subject to the
above requirements. No interest shall be due and payable during an Extension
Period except at the end thereof. If the Trust is the sole Holder of this
Debenture, the Company shall give the Trustees notice of its selection of such
Extension Period one Business Day prior to the earlier of (i) the next
succeeding date on which Distributions on the Preferred Securities would be
payable but for such deferral or (ii) the date the Administrative Trustees are
required to give notice to any securities exchange or other applicable
self-regulatory organization or to holders of such Preferred Securities of the
record date or the date such Distributions are payable, but in any event not
less than one Business Day prior to such record date. If the Trustee shall not
be the sole Holder of this Debenture, the Company shall give the Holders of
this Debenture notice of its selection of such Extension Period ten Business
Days prior to the earlier of (i) the next Interest Payment Date or (ii) the
date the Company is required to give notice to any applicable securities
exchange or self-regulatory organization or to the Holders of this Debenture of
the record or payment date of such related interest payment.
Payment of principal of, premium, if any, and interest on
this Debenture shall be made at the office or agency of the Company maintained
for that purpose in the United States, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
payment of interest may be made, except in the case of Debentures in global
form (which shall be paid by wire transfer to the Holders thereof), by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Debenture Register.
The indebtedness evidenced by this Debenture is, to the
extent provided in the Indenture, subordinate and subject in right of payments
to the prior payment in full of all Senior Indebtedness, and this Debenture is
issued subject to the provisions of the Indenture with respect
<PAGE> 4
thereto. Each Holder of this Debenture, by accepting the same, (a) agrees to
and shall be bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such actions as may be necessary or appropriate to
effectuate the subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes. Each Holder hereof, by his
acceptance hereof, waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder of Senior
Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of this
Debenture set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Debenture shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
CAREMARK RX, INC.
By: /s/ James H. Dickerson, Jr.
----------------------------------------
[President or Vice President]
Attest: /s/ Tina E. Nelson
------------------------------------
[Secretary or Assistant Secretary]
<PAGE> 5
Reverse of Debenture.
This Debenture is one of a duly authorized issue of
securities of the Company, designated as its 7.0% Convertible Subordinated
Debentures (the "Debentures"), limited in aggregate principal amount to
$206,186,000, issued under an Indenture, dated as of September 29, 1999 (the
"Indenture"), between the Company and Wilmington Trust Company, as Trustee (the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Trustee, the Company and the Holders of the
Debentures, and of the terms upon which the Debentures are, and are to be,
authenticated and delivered. All capitalized terms used but not defined in this
Debenture that are defined in the Indenture or in the Amended and Restated
Trust Agreement, dated as of September 29, 1999 (the "Trust Agreement"), among
Caremark Rx, as Depositor, and the Trustees named therein, shall have the
meanings assigned to them in the Indenture or the Trust Agreement, as the case
may be.
The Company may at any time, at its option, on or after October 15, 2002, and
subject to the terms and conditions of Article XI of the Indenture, redeem this
Debenture in whole at any time or in part from time to time at the redemption
prices set forth below, in each case, together with accrued and unpaid
interest, including Additional Interest and liquidated damages pursuant to the
Registration Rights Agreement, if any, to the Redemption Date, upon not less
than 30 nor more than 60 days' prior written notice, if redeemed during the
12-month period commencing on October 1 (October 15 in the case of 2002) of
each of the years set forth below.
<TABLE>
<CAPTION>
Price Per $50
Year Principal Amount
- ---- ----------------
<S> <C>
2002............................................................. $52.00
2003............................................................. $51.50
2004............................................................. $51.00
2005............................................................. $50.50
2006 and thereafter.............................................. $50.00
</TABLE>
Upon the occurrence and during the continuation of a Tax
Event, the Company may, at its option, at any time within 90 days of the
occurrence of such Tax Event redeem this Debenture, in whole or in part,
subject to the provisions of Section 11.7 and the other provisions of Article
XI of the Indenture, at a redemption price equal to 100% of the principal
amount thereof plus accrued and unpaid interest, including Additional Interest
and liquidated damages pursuant to the Registration Rights Agreement, if any,
to the Redemption Date. Upon the occurrence of a Change in Control, the Company
is required to redeem Debentures issued under the Indenture equal in aggregate
principal amount to the Liquidation Amount of Preferred Securities required to
be repurchased by the Trust upon such a Change of Control in accordance with
Article X of the Trust Agreement. In the event of redemption of this Debenture
in part only, a new Debenture or Debentures for the unredeemed portion hereof
shall be issued in the name of the Holder hereof upon the cancellation hereof.
If at any time Debentures are distributed to Holders of Preferred Securities
upon a liquidation of the Trust permitted by the Trust Agreement,
<PAGE> 6
such Holders shall have the right to require the Company to repurchase
Debentures upon a Change of Control in accordance with Article XII of the
Indenture.
The Indenture contains provisions for satisfaction and
discharge of the entire indebtedness of this Debenture upon compliance by the
Company with certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the Company and the Trustee at any time to enter into a supplemental
indenture or indentures for the purpose of modifying in any manner the rights
and obligations of the Company and of the Holders of the Debentures, with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Debentures. The Indenture also contains provisions permitting
Holders of specified percentages in principal amount of the Debentures at the
time Outstanding, on behalf of the Holders of all Debentures, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Debenture shall be conclusive and binding upon
such Holder and upon all future Holders of this Debenture and of any Debenture
issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon
this Debenture.
As provided in and subject to the provisions of the
Indenture, if an Event of Default occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Debentures may declare the principal amount of all the
Debentures to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), provided that, in the case of
the Debentures issued to the Trust, if upon an Event of Default the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Debentures fail to declare the principal of all the Debentures to be
immediately due and payable, the holders of at least 25% in aggregate
Liquidation Amount of the Preferred Securities then outstanding shall have such
right by a notice in writing to the Company and the Trustee; and upon any such
declaration the principal amount of and the accrued interest, including
Additional Interest, if any, on all the Debentures shall become immediately due
and payable, provided that the payment of principal and interest, including
Additional Interest, if any, on such Debentures shall remain subordinated to
the extent provided in Article XIV of the Indenture.
Subject to Section 13.1(a) of the Indenture, the Holder of
any Debenture has the right, exercisable at any time on or before 5:00 p.m.
(New York City time) on the second Business Day immediately preceding the date
of repayment of the Debentures, whether at maturity or upon redemption (either
at the option of the Company or pursuant to a Tax Event), to convert the
principal amount thereof (or any portion thereof that is an integral multiple
of $50) into fully paid and nonassessable shares of Common Stock at an initial
conversion rate of 6.7125 shares of Common Stock for each $50 in aggregate
principal amount of Debentures (equal to a Conversion Price of $7.4488 per
share of Common Stock), subject to adjustment under certain circumstances. The
number of shares issuable upon conversion of a Debenture is determined by
dividing the principal amount of the Debenture to be converted by the
Conversion Price in effect on the Conversion Date. No fractional shares of
Common Stock shall be issued upon conversion and, in lieu thereof, a cash
payment shall be made for any fractional interest. The outstanding principal
amount of any Debenture shall be reduced by the portion of the principal amount
thereof converted into shares of Common Stock.
<PAGE> 7
To convert a Debenture, a Holder shall (i) complete and sign
a Conversion Request substantially in the form attached hereto, (ii) surrender
the Debenture to the Conversion Agent, (iii) furnish appropriate endorsements
or transfer documents if required by the Debenture Registrar or Conversion
Agent and (iv) pay any transfer or similar tax, if required. If a Conversion
Request is delivered on or after the Regular Record Date and prior to the
subsequent Interest Payment Date, the Holder shall be required to pay to the
Company the interest payment to be made on the subsequent Interest Payment
Date, and shall be entitled to receive the interest payable on the subsequent
Interest Payment Date, on the portion of Debentures to be converted
notwithstanding the conversion thereof prior to such Interest Payment Date.
Notwithstanding the foregoing, if, during an Extension Period, a notice of
redemption is mailed pursuant to Section 11.4 of the Indenture and a Debenture
is converted after such mailing but prior to the relevant Redemption Date, all
accrued but unpaid interest (including Additional Payments, if any) through the
date of conversion shall be paid to the holder of such Debenture on the
Redemption Date. Except as otherwise provided in the immediately preceding two
sentences, in the case of any Debenture which is converted, interest with a
Stated Maturity which is after the date of conversion of such Debenture shall
not be payable, and the Company shall not make nor be required to make any
other payment, adjustment or allowance with respect to accrued but unpaid
interest (including Additional Payments, if any) on the Debentures being
converted, which shall be deemed to be paid in full. If any Debenture called
for redemption is converted, any money deposited with the Trustee or with any
Paying Agent or so segregated and held in trust for the redemption of such
Debenture shall (subject to any right of the Holder of such Debenture or any
Predecessor Debenture to receive interest as provided in the last paragraph of
Section 3.7 of the Indenture and this paragraph) be paid to the Company upon
Company Request or, if then held by the Company, shall be discharged from such
trust.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest on this Debenture at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Debenture is registrable in
the Debenture Register, upon surrender of this Debenture for registration of
transfer at the office or agency of the Company maintained under Section 10.2
of the Indenture duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Debenture Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debentures, of authorized denominations and for the
same aggregate principal amount, shall be issued to the designated transferee
or transferees. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Debenture for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Debenture is registered as the
owner hereof for all purposes, whether or not this Debenture be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
The Debentures are issuable only in registered form without
coupons in denominations of $50 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein set forth,
Debentures are exchangeable for a like aggregate principal
<PAGE> 8
amount of Debentures of a different authorized denomination, as requested by
the Holder surrendering the same.
The Company and, by its acceptance of this Debenture or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, this Debenture agree that for United States federal,
state and local tax purposes it is intended that this Debenture constitute
indebtedness.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
<PAGE> 9
CONVERSION REQUEST
To: Caremark Rx, Inc.
The undersigned owner of these Debentures hereby irrevocably
elects to convert these Debentures, or the portion below designated, into
Common Stock of the Company (the "Common Stock") in accordance with the terms
of the Indenture (the "Indenture"), dated as of September 29, 1999, between the
Company and Wilmington Trust Company, as Trustee.
The undersigned owner of these Debentures hereby directs the
Conversion Agent to convert such Debentures on behalf of the undersigned into
Common Stock at the Conversion Price specified in the Indenture. The
undersigned owner of these Debentures also hereby notifies the Conversion Agent
that the shares issuable and deliverable upon conversion, together with any
check in payment for fractional shares, should be issued in the name of and
delivered to the undersigned, unless a different name has been indicated in the
assignment below. If shares are to be issued in the name of a person other than
the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto.
Date:
-----------------------
Principal Amount of Debentures to be converted ($50 or integral multiples
thereof):
-------------------
If a name or names other than the undersigned, please indicate in the spaces
below the name or names in which the shares of Common Stock are to be issued,
along with the address or addresses of such person or persons.
- -----------------------------
- -----------------------------
- -----------------------------
(Sign exactly as your name appears on the other side of this Debenture) (for
conversion only)
Please print or type name and address, including zip code, and social security
or other identifying number:
- -----------------------------
- -----------------------------
- -----------------------------
<PAGE> 10
Signature Guarantee:(1)
-----------------------------------
- ------------------------------------------
(1) Signature must be guaranteed by an "eligible guarantor
institution" that is a bank, stockbroker, savings and loan association or
credit union meeting requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities and Exchange Act of 1934, as amended.
<PAGE> 1
EXHIBIT 4.8
GUARANTEE AGREEMENT
BETWEEN
CAREMARK RX, INC.
(AS GUARANTOR)
AND
WILMINGTON TRUST COMPANY
(AS TRUSTEE)
DATED AS OF
SEPTEMBER 29, 1999
<PAGE> 2
CROSS-REFERENCE TABLE(1)
<TABLE>
<CAPTION>
- ----------------------------------------------- -------------------------
Section of
Section of Trust Indenture Act Of Guarantee
1939, as amended Agreement
- ----------------------------------------------- -------------------------
<S> <C>
310(a) 4.1(a)
310(b) 4.1(c), 2.8
310(c) Inapplicable
311(a) 2.2(b)
311(b) 2.2(b)
311(c) Inapplicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4
314(b) Inapplicable
314(c) 2.5
314(d) Inapplicable
314(e) 1.1, 2.5, 3.2
314(f) 2.1, 3.2
315(a) 3.1(d)
315(b) 2.7
315(c) 3.1
315(d) 3.1(d)
316(a) 1.1, 2.6, 5.4
316(b) 5.3
316(c) 8.2
317(a) Inapplicable
317(b) Inapplicable
318(a) 2.1(b)
318(b) 2.1
318(c) 2.1(a)
</TABLE>
(1) This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation of any of its terms
or provisions.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I. DEFINITIONS
SECTION 1.1. Definitions........................................................................................1
ARTICLE II. TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application...................................................................4
SECTION 2.2. List of Holders....................................................................................4
SECTION 2.3. Reports by Guarantee Trustee.......................................................................4
SECTION 2.4. Periodic Reports to Guarantee Trustee..............................................................4
SECTION 2.5. Evidence of Compliance with Conditions Precedent...................................................5
SECTION 2.6. Events of Default; Waiver..........................................................................5
SECTION 2.7. Event of Default; Notice...........................................................................5
SECTION 2.8. Conflicting Interests..............................................................................5
ARTICLE III. POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of Guarantee Trustee.............................................................6
SECTION 3.2. Certain Rights of Guarantee Trustee................................................................7
SECTION 3.3. Indemnity..........................................................................................8
ARTICLE IV. GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee: Eligibility.....................................................................9
SECTION 4.2. Appointment, Removal and Resignation of Guarantee Trustee..........................................9
ARTICLE V. GUARANTEE
SECTION 5.1. Guarantee.........................................................................................10
SECTION 5.2. Waiver of Notice and Demand.......................................................................10
SECTION 5.3. Obligations Not Affected..........................................................................10
SECTION 5.4. Rights of Holders.................................................................................11
SECTION 5.5. Guarantee of Payment..............................................................................11
SECTION 5.6. Subrogation.......................................................................................11
SECTION 5.7. Independent Obligations...........................................................................12
ARTICLE VI. SUBORDINATION
SECTION 6.1. Subordination.....................................................................................12
ARTICLE VII. TERMINATION
SECTION 7.1. Termination.......................................................................................12
ARTICLE VIII. MISCELLANEOUS
SECTION 8.1. Successors and Assign.............................................................................12
SECTION 8.2. Amendments........................................................................................13
SECTION 8.3. Notice............................................................................................13
SECTION 8.4. Benefit...........................................................................................14
SECTION 8.5. Interpretation....................................................................................14
</TABLE>
i
<PAGE> 4
<TABLE>
<S> <C> <C>
SECTION 8.6. Governing Law.....................................................................................14
SECTION 8.7. Counterparts......................................................................................14
</TABLE>
ii
<PAGE> 5
GUARANTEE AGREEMENT
THIS GUARANTEE AGREEMENT, dated as of September 29, 1999, is executed
and delivered by CAREMARK RX, INC., a Delaware corporation (the "Guarantor"),
having its principal office at 3000 Galleria Tower, Suite 1000, Birmingham,
Alabama 35244, and WILMINGTON TRUST COMPANY, a Delaware corporation, as trustee
(the "Guarantee Trustee"), for the benefit of the Holders (as defined herein)
from time to time of the Preferred Securities and Common Securities (each as
defined herein and together, the "Trust Securities") of CAREMARK RX CAPITAL
TRUST I, a Delaware statutory business trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as
of September 29, 1999 (the "Trust Agreement"), among the Guarantor, as
Depositor, the Property Trustee and the Delaware Trustee named therein, the
Administrative Trustees named therein and the Holders from time to time of
undivided beneficial interests in the assets of the Trust, the Trust is issuing
$200,000,000 aggregate Liquidation Amount (as defined in, and subject to
increase as provided in, the Trust Agreement) of its 7.0% Shared Preference
Redeemable Securities, Liquidation Amount $50 per security (the "Preferred
Securities"), representing preferred undivided beneficial interests in the
assets of the Trust and having the terms set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Trust and the
proceeds thereof, together with the proceeds from the issuance of the Common
Securities of the Trust will be used to purchase the Debentures (as defined in
the Trust Agreement) of the Guarantor which will be deposited with Wilmington
Trust Company, as Property Trustee under the Trust Agreement, as trust assets;
and
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth herein, to pay to the Holders of the Preferred Securities
the Guarantee Payments (as defined herein) and to make certain other payments on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of the
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for
the benefit of the Holders from time to time of the Preferred Securities.
ARTICLE I.
DEFINITIONS
SECTION 1.1. Definitions. As used in this Guarantee Agreement, the
terms set forth below shall, unless the context otherwise requires, have the
following meanings. Capitalized or otherwise defined terms used but not
otherwise defined herein shall have the meanings assigned to such terms in the
Trust Agreement as in effect on the date hereof.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that an Affiliate of the
Guarantor shall not be deemed to be an Affiliate of the Trust. For the purposes
of this definition, "control" when used with respect to any specified Person
means the
<PAGE> 6
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Board of Directors" means either the board of directors of the
Guarantor or any committee of that board duly authorized to act hereunder or any
directors or officers of the Guarantor to whom such board of directors or such
committee shall have duly delegated its authority.
"Common Security" means an undivided common beneficial interest in the
assets of the Trust, having a Liquidation Amount of $50 and having the rights
provided therefor in the Trust Agreement, including the right to convert to
shares of the Common Stock and the right to receive Distributions and a
Liquidation Distribution as provided therein.
"Common Stock" means the common stock of the Guarantor, par value $.001
per share.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement; provided, however,
that, except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default and shall not have cured such
default within 90 days after receipt of such notice.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by or on behalf of the Trust: (i) any accrued and unpaid
Distributions required to be paid on the Preferred Securities, to the extent
that the Trust shall have funds on hand available therefor at such time, (ii)
the redemption price, including all accrued and unpaid Distributions (and
Additional Amounts and/or Liquidated Damages, if applicable) to the date of
redemption (the "Redemption Price"), with respect to any Securities called for
redemption by the Trust, to the extent the Trust shall have funds on hand
available therefor at such time, (iii) the repurchase price, including all
accrued and unpaid Distributions (and Additional Amounts and/or Liquidated
Damages, if applicable) to the date of repurchase (the "Repurchase Price"), with
respect to any Preferred Securities required to be repurchased by the Trust in
the event of a Change in Control (as defined in the Trust Agreement), to the
extent the Trust shall have funds on hand available therefor at such time and
(iv) upon a voluntary or involuntary termination, winding up or liquidation of
the Trust, unless Debentures are distributed to the Holders or all of the
Preferred Securities are redeemed, the lesser of (a) the aggregate of the
Liquidation Amount plus accrued and unpaid Distributions (and Additional Amounts
and/or Liquidated Damages, if applicable) to the date of payment and (b) the
amount of assets of the Trust remaining available for distribution to Holders in
liquidation of the Trust after satisfaction of liabilities to creditors of the
Trust as required by applicable law (in either case, the "Liquidation
Distribution").
"Guarantee Trustee" means Wilmington Trust Company, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement, and thereafter means each such
Successor Guarantee Trustee.
"Holder" means any holder, as registered on the books and records of
the Trust, of any Preferred Securities; provided, however, that in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder,
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"Holder" shall not include the Guarantor, the Guarantee Trustee or any Affiliate
of the Guarantor or the Guarantee Trustee.
"Indenture" means the Indenture dated as of September 29, 1999, between
the Guarantor and Wilmington Trust Company, as trustee, as amended or
supplemented from time to time..
"Majority in Aggregate Liquidation Amount of the Preferred Securities"
means, except as provided by the Trust Indenture Act, a vote by the Holders,
voting separately as a class, of more than 50% of the aggregate Liquidation
Amount of all then outstanding Preferred Securities issued by the Trust.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman or a Vice Chairman of the Board of Directors
of such Person or the President, a Managing Director or a Vice President of such
Person, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of such Person, and delivered to the Guarantee Trustee. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each officer, such
condition or covenant has been complied with.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Responsible Officer" when used with respect to the Guarantee Trustee
means any officer of the Guarantee Trustee assigned by the Guarantee Trustee
from time to time to administer its corporate trust matters.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
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ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement shall be subject to the provisions of the
Trust Indenture Act whether or not such provisions are required or deemed to be
a part of this Guarantee Agreement and shall, to the extent applicable, be
governed by such provisions.
(b) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is or would be required or deemed to be included in this
Guarantee Agreement by any of the provisions of the Trust Indenture Act, such
required or deemed provision shall control. If any provision of this Guarantee
Agreement modifies or excludes any provision of the Trust Indenture Act which
may be so modified or excluded, the latter provision shall be deemed to apply to
this Guarantee Agreement as so modified or excluded, as the case may be.
SECTION 2.2. List of Holders.
(a) The Guarantor will furnish or cause to be furnished to the
Guarantee Trustee:
(i) semi-annually, not more than 15 days after January 15
and July 15 in each year, a list in such form as the Guarantee Trustee
may reasonably require, of the names and addresses of the Holders as of
such January 1 and July 1, and
(ii) at such other times as the Guarantee Trustee may
request in writing, within 30 days after the receipt by the Guarantor
of any such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished,
excluding from any such list names and addresses received by the
Guarantee Trustee in its capacity as Securities Registrar.
(b) The Guarantee Trustee shall comply with its obligations under
Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by Guarantee Trustee.
The Guarantee Trustee shall transmit to Holders such reports concerning
the Guarantee Trustee and its actions under this Guarantee Agreement as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto. If required by Section 313(a) of the Trust Indenture
Act, the Guarantee Trustee shall, within 60 days after each May 15 following the
date of this Guarantee Agreement deliver to Holders a brief report, dated as of
such May 15, which complies with the provisions of such Section 313(a).
SECTION 2.4. Periodic Reports to Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee such documents,
reports and information, if any, as required by Section 314 of the Trust
Indenture Act and the compliance certificate required by Section 314 of the
Trust Indenture Act, in the form, in the manner and at the
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times required by Section 314 of the Trust Indenture Act. Delivery of such
reports, information and documents to the Guarantee Trustee shall be for
informational purposes only and the Guarantee Trustee's receipt of such shall
not constitute constructive notice of any information contained therein,
including the Guarantor's compliance with any of its covenants hereunder (as to
which the Guarantee Trustee shall be entitled to rely exclusively on Officers'
Certificates).
SECTION 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
SECTION 2.6. Events of Default; Waiver.
The Holders of a Majority in Aggregate Liquidation Amount of the
Preferred Securities may, by vote, on behalf of the Holders, waive any past
Event of Default and its consequences. Upon such waiver, any such Event of
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Guarantee Agreement, but
no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent therefrom.
SECTION 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of
an Event of Default, transmit by mail, first class postage prepaid, to the
Holders, notices of all Events of Default actually known to the Guarantee
Trustee, unless such defaults have been cured before the giving of such notice,
provided, that, except in the case of a default in the payment of a Guarantee
Payment, the Guarantee Trustee shall be protected in withholding such notice if
and so long as the Board of Directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Guarantee Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer charged with the administration of this
Guarantee Agreement shall have obtained written notice, of such Event of
Default.
SECTION 2.8. Conflicting Interests.
The Trust Agreement shall be deemed to be specifically described in
this Guarantee Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
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ARTICLE III.
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for
the benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except a Holder exercising his or her rights
pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, upon acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the
Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6), the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Guarantee Agreement, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the express provisions of this
Guarantee Agreement, and the Guarantee Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Guarantee Agreement; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the
Guarantee Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or opinions that by
any provision hereof or of the Trust Indenture Act are specifically
required to be furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Guarantee Agreement;
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(ii) the Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the Guarantee Trustee
was negligent in ascertaining the pertinent facts upon which such
judgment was made;
(iii) the Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of not less than a
Majority in Aggregate Liquidation Amount of the Preferred Securities
relating to the time, method and place of conducting any proceeding for
any remedy available to the Guarantee Trustee, or exercising any trust
or power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and
(iv) no provision of this Guarantee Agreement shall
require the Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers, if the
Guarantee Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably assured to it
under the terms of this Guarantee Agreement or adequate indemnity
against such risk or liability is not reasonably assured to it.
SECTION 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document reasonably believed by it to be
genuine and to have been signed, sent or presented by the proper party
or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or omitting to take
any action hereunder, the Guarantee Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on its
part, request and rely upon an Officers' Certificate which, upon
receipt of such request from the Guarantee Trustee, shall be promptly
delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel
of its selection, and the advice or opinion of such legal counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in accordance with such advice
or opinion. Such legal counsel may be legal counsel to the Guarantor or
any of its Affiliates and may be one of its employees. The Guarantee
Trustee shall have the right at any time to seek instructions
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concerning the administration of this Guarantee Agreement from any
court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless such Holder
shall have provided to the Guarantee Trustee such adequate security and
indemnity, as would satisfy a reasonable person in the position of the
Guarantee Trustee, against the costs, expenses (including attorneys'
fees and expenses) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable
advances as may be requested by the Guarantee Trustee; provided that,
nothing contained in this Section 3.2(a)(v) shall be taken to relieve
the Guarantee Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers vested in it by this
Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or
by or through its agents or attorneys, and the Guarantee Trustee shall
not be responsible for any misconduct or negligence on the part of any
such agent or attorney appointed with due care by it hereunder.
(viii) Whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to receive
written instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Guarantee Trustee (A) may
request instructions from the Holders, (B) may refrain from enforcing
such remedy or right or taking such other action until such written
instructions are received and (C) shall be protected in acting in
accordance with such written instructions.
(ix) The Guarantee Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Guarantee Agreement.
(b) No provision of this Guarantee Agreement shall be deemed to impose
any duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
SECTION 3.3. Indemnity. The Guarantor agrees to indemnify the Guarantee
Trustee for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Guarantee Trustee,
arising out of or in connection with the acceptance or
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administration of this Guarantee Agreement, including the costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder. The Guarantee Trustee
will not claim or exact any lien or payment on any Guarantee Payments as a
result of any amount due to it under this Guarantee Agreement.
ARTICLE IV.
GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee: Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of
at least $50,000,000, and shall be a corporation meeting the
requirements of Section 310(a) of the Trust Indenture Act. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining
authority, then, for the purposes of this Section 4.1 and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to
so act under Section 4. 1(a), the Guarantee Trustee shall immediately resign in
the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 4.2. Appointment, Removal and Resignation of Guarantee Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed
or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee and delivered to
the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
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(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of removal or resignation, the
resigning Guarantee Trustee may petition, at the expense of the Guarantor, any
court of competent jurisdiction for appointment of a Successor Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Guarantee Trustee.
ARTICLE V.
GUARANTEE
SECTION 5.1. Guarantee. The Guarantor irrevocably and unconditionally
agrees to pay in full to the Holders the Guarantee Payments (without duplication
of amounts theretofore paid by or on behalf of the Trust), as and when due,
regardless of any defense, right of set-off or counterclaim which the Trust may
have or assert. The Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Trust to pay such amounts to the Holders.
SECTION 5.2. Waiver of Notice and Demand. The Guarantor hereby waives
notice of acceptance of the Guarantee Agreement and of any liability to which it
applies or may apply, presentment, demand for payment, any right to require a
proceeding first against the Guarantee Trustee, the Trust or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and demands.
SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Trust;
(b) the extension of time for the payment by the Trust of all or any
portion of the Distributions (other than an extension of time for payment of
Distributions that results from the extension of any interest payment period on
the Debentures as provided in the Indenture), Redemption Price, Repurchase
Price, Liquidation Distribution or any other sums payable (including Additional
Amounts and/or Liquidated Damages, if applicable) under the terms of the
Preferred Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Preferred
Securities;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Trust granting indulgence or extension of any
kind;
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(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a Majority in Aggregate
Liquidation Amount of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee in respect of this Guarantee Agreement or exercising any
trust or power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) any Holder may institute a legal proceeding directly against
the Guarantor to enforce its rights under this Guarantee Agreement, without
first instituting a legal proceeding against the Guarantee Trustee, the Trust or
any other Person.
SECTION 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment of
the Guarantee Payments in full (without duplication of amounts theretofore paid
by the Trust) or upon distribution of Debentures to Holders as provided in the
Trust Agreement.
SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Trust in respect of any amounts paid to the Holders by the Guarantor
under this Guarantee Agreement and shall have the right to waive payment by the
Trust pursuant to Section 5.1; provided, however, that the Guarantor shall not
(except to the extent required by mandatory provisions of law) be entitled to
enforce or exercise any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of payment
under this Guarantee Agreement, if, at the time of any such payment, any amounts
are due and unpaid under this Guarantee Agreement. If any amount shall be paid
to the Guarantor in violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such
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amount to the Holders. Any amounts paid over to the Holders pursuant to this
Guarantee Agreement and not subsequently recovered from the Holders pursuant to
any insolvency law shall be deemed to have been applied by the Holders to the
Guarantee Payments
SECTION 5.7. Independent Obligations. The Guarantor acknowledges that
its obligations hereunder are independent of the obligations of the Trust with
respect to the Preferred Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.3 hereof,
but subject to Section 6.1 hereof.
ARTICLE VI.
SUBORDINATION
SECTION 6.1. Subordination.
The obligations of the Guarantor under this Guarantee Agreement will
constitute unsecured obligations of the Guarantor and will rank subordinate and
junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Guarantor, except those made pari passu or subordinate to such
obligations expressly by their terms in the same manner as set forth in Article
XIII of the Indenture.
ARTICLE VII.
TERMINATION
SECTION 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect upon (i) full payment of the Redemption Price (including Additional
Amounts and any Liquidated Damages) of all Preferred Securities, (ii) the
distribution of Debentures to the Holders in exchange for all of the Preferred
Securities or (iii) full payment of the amounts payable in accordance with the
Trust Agreement upon liquidation of the Trust. Notwithstanding the foregoing,
this Guarantee Agreement will continue to be effective or will be reinstated, as
the case may be, if at any time any Holder must restore payment of any sums paid
with respect to Preferred Securities or this Guarantee Agreement.
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.1. Successors and Assign.
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under Article VIII of the
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Indenture and pursuant to which the successor or assignee agrees in writing to
perform the Guarantor's obligations hereunder, the Guarantor shall not assign
its obligations hereunder.
SECTION 8.2. Amendments.
Except with respect to any changes which do not materially adversely
affect the rights of the Holders (in which case no consent of the Holders will
be required), this Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than a Majority in Aggregate Liquidation
Amount of the Preferred Securities and of the Guarantee Trustee. The provisions
of Article VI of the Trust Agreement concerning meetings of the Holders shall
apply to the giving of such approval.
SECTION 8.3. Notice.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such
other address, facsimile number or to the attention of such other Person as the
Guarantor may give notice to the Holders:
Caremark Rx, Inc.
3000 Galleria Tower
Suite 1000
Birmingham, Alabama 35244
Attention: Chief Financial Officer
(b) if given to the Trust, in care of the Guarantee Trustee, at the
Trust's (and the Guarantee Trustee's) address set forth below or such other
address as the Guarantee Trustee on behalf of the Trust may give notice to the
Holders:
Caremark Rx Capital Trust I
c/o Caremark Rx, Inc.
3000 Galleria Tower
Suite 1000
Birmingham, Alabama 35244
Attention: Chief Financial Officer
(c) if given to any Holder, at the address set forth on the books and
records of the Securities Registrar.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
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SECTION 8.4. Benefit. This Guarantee Agreement is solely for the
benefit of the Holders (subject to the benefits inuring to the holders of Senior
Indebtedness pursuant to the subordination provisions hereof) and is not
separately transferable from the Preferred Securities.
SECTION 8.5. Interpretation. In this Guarantee Agreement, unless the
context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined
in the preamble hereto have the respective meanings assigned to them in Section
1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections
are to Articles and Sections of this Guarantee Agreement unless otherwise
specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine or neuter genders used herein shall include
the masculine, feminine and neuter genders.
SECTION 8.6. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
Section 8.7. Counterparts. This instrument may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
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THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
CAREMARK RX, INC.
By: /s/ James H. Dickerson, Jr.
---------------------------------------
Name: James H. Dickerson, Jr.
Title: Executive Vice President and
Chief Financial Officer
WILMINGTON TRUST COMPANY,
as Guarantee Trustee
By: /s/ Patricia A. Evans
---------------------------------------
Name: Patricia A. Evans
Title: Financial Services Officer
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EXHIBIT 10.6
REGISTRATION RIGHTS AGREEMENT
4,000,000 PREFERRED SECURITIES
CAREMARK RX CAPITAL TRUST I
7% SHARED PREFERENCE REDEEMABLE SECURITIES ("SPURS(SM)")
(LIQUIDATION PREFERENCE $50 PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED BY
AND CONVERTIBLE INTO THE COMMON STOCK OF
CAREMARK RX, INC.
September 29, 1999
WARBURG DILLON READ LLC
299 Park Avenue
New York, New York 10171
Dear Sirs:
This Registration Rights Agreement is made and entered into as
of the date first above written (the "Closing Date") by and among CAREMARK RX
CAPITAL TRUST I, a statutory business trust organized under the laws of the
State of Delaware (the "Trust"), CAREMARK RX, INC., a Delaware corporation
(formerly MedPartners, Inc.) (the "Company" and, together with the Trust, the
"Offerors"), and WARBURG DILLON READ LLC (the "Initial Purchaser"). The Trust
has agreed to issue and sell to the Initial Purchaser, upon the terms set forth
in a purchase agreement dated as of September 24, 1999, by and among the
Company, the Trust and the Initial Purchaser (the "Purchase Agreement"),
4,000,000 of its 7% Shared Preference Redeemable Securities (SPuRS(SM)),
liquidation preference $50 per security (the "Preferred Securities").
The Preferred Securities are convertible into shares of common
stock of the Company, par value $.001 per share (the "Common Stock"). The
Preferred Securities will be guaranteed by the Company on a subordinated basis
with respect to distributions and payments upon liquidation, redemption or
otherwise (the "Preferred Securities Guarantee") pursuant to the Preferred
Securities Guarantee Agreement dated as of September 29, 1999 between the
Company and The Wilmington Trust Company, as trustee. The Preferred Securities
will be issued pursuant to the terms of a trust agreement, dated as of September
10, 1999, as amended and restated as of September 29, 1999 (the "Trust
Agreement"), among the Company, as sponsor, The Wilmington Trust Company, as
property trustee and Delaware Trustee (the "Property Trustee"), the
administrative trustees named therein (the "Administrative Trustees") and the
holders from time to time of undivided beneficial interests in the assets of the
Trust.
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As an inducement to the Initial Purchaser to enter into the
Purchase Agreement, the Company and the Trust jointly and severally agree with
the Initial Purchaser, (i) for its benefit as Initial Purchaser and (ii) for the
benefit of the beneficial owners from time to time of the Preferred Securities
(including, without limitation, the Initial Purchaser) and the beneficial owners
from time to time of the underlying Common Stock (the "Shares") issuable upon
conversion of the Preferred Securities and the Company's 7% Convertible
Subordinated Debentures due 2029 (the "Convertible Subordinated Debentures")
(collectively, the "Securityholders"), as follows:
1. Shelf Registration.
(a) The Offerors shall prepare and file with the
Securities and Exchange Commission (the "Commission") within 90 days after the
Closing Date a registration statement (the "Shelf Registration Statement") on
Form S-1 or Form S-3, if the use of such form is then available, to cover
resales of Transfer Restricted Securities (as defined herein) by the Holders (as
defined herein). The Offerors shall use their reasonable best efforts to cause
the Shelf Registration Statement to be declared effective by the Commission on
or prior to 180 days from the Closing Date. "Transfer Restricted Securities"
means the Preferred Securities (or, if Convertible Subordinated Debentures are
distributed to holders of Preferred Securities, Convertible Subordinated
Debentures) and the Shares until the earlier of (x) the date on which such
security or securities have been effectively registered under the Securities Act
of 1933, as amended (the "Securities Act"), and disposed of in accordance with
the Shelf Registration Statement, or (y) the date on which such security or
securities are distributed to the public pursuant to Rule 144 under the
Securities Act or may be distributed to the public pursuant to Rule 144(k) under
the Securities Act (or any similar provisions then in force).
(b) The Offerors shall use their reasonable best efforts
to cause the Shelf Registration Statement to be effective for a period of two
years (or for such longer period if extended pursuant to Section 2(i) below)
from the effective date thereof or such shorter period that will terminate when
each Transfer Restricted Security covered by the Shelf Registration Statement
ceases to be a Transfer Restricted Security (in either case, such period is
referred to as the "Shelf Registration Period"). The Offerors shall be deemed
not to have used their reasonable best efforts to keep the Shelf Registration
Statement effective during the requisite period if the Company or the Trust
voluntarily takes any action that would result in Holders of Transfer Restricted
Securities covered thereby not being able to offer and sell such Transfer
Restricted Securities during that period, unless such action is required by
applicable law or otherwise permitted hereunder, including, without limitation,
by Section 2(i) hereof.
(c) Notwithstanding any other provisions of this
Agreement to the contrary, the Offerors shall cause the Shelf Registration
Statement and the related prospectus, and any amendment or supplement thereto,
as of the effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a material
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<PAGE> 3
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading.
2. Registration Procedures. In connection with the
proposed offer and sale of the Transfer Restricted Securities in accordance with
the methods of distribution set forth in the Shelf Registration Statement (the
"Shelf Registration"), the following provisions apply:
(a) The Offerors shall prepare and mail to each
Securityholder identified by the Initial Purchaser a questionnaire
substantially in the form attached as Annex A to the Offering
Memorandum dated September __, 1999 relating to the Preferred
Securities and requesting such information regarding such
Securityholder and the distribution of Transfer Restricted Securities
as the Offerors may reasonably require for inclusion in the Shelf
Registration Statement and asking each such Securityholder to confirm
that it will comply with applicable securities laws, including the
Securities Act. The Offerors will include in the Shelf Registration
Statement as a selling security holder each Securityholder that returns
its questionnaire by the date specified therein (which shall be no
earlier than fifteen days after the date of mailing) and will use their
reasonable best efforts to include in the Shelf Registration Statement
any Securityholder which fails to provide the Offerors with a completed
questionnaire by the date specified therein but otherwise provides the
requested information and confirmation prior to the commencement of the
Shelf Registration Period. The Offerors shall have no obligation to
include in the Shelf Registration Statement (whether by post-effective
amendment, by prospectus supplement or otherwise) a Securityholder
which fails to provide the Company with a completed questionnaire prior
to the commencement of the Shelf Registration Period. "Holder" means
each Securityholder who (i) is so identified by the Initial Purchaser
pursuant to a written request by the Offerors and (ii) delivers to the
Offerors a completed questionnaire containing the required information
and confirmation by the date specified therein or is otherwise included
as a selling security holder in the Shelf Registration Statement.
(b) The Offerors shall (i) furnish to the Initial
Purchaser, prior to the filing thereof with the Commission, a copy of
the Shelf Registration Statement and each amendment thereof and each
supplement, if any, to the prospectus included therein and, in the
event that the Initial Purchaser (with respect to any portion of an
unsold allotment from the original offering) is participating in the
Shelf Registration, the Offerors shall use their best efforts to
reflect in each such document, when so filed with the Commission, such
comments as the Initial Purchaser reasonably may propose; and (ii)
include in such Shelf Registration Statement (or amendment or
supplements) the names of the Holders who propose to sell Transfer
Restricted Securities pursuant to the Shelf Registration Statement as
selling securityholders.
(c) The Offerors shall give written notice to the Initial
Purchaser and Holders of the Transfer Restricted Securities (which
notice pursuant to clauses (ii)
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<PAGE> 4
through (v) hereof shall be accompanied by an instruction to suspend
the use of the prospectus and any sales pursuant to such prospectus
until the requisite changes have been made):
(i) when the Shelf Registration Statement or any
amendment thereto has been filed with the Commission and when
the Shelf Registration Statement or any post-effective
amendment thereto has become effective;
(ii) of any request by the Commission for
amendments or supplements to the Shelf Registration Statement
or the prospectus included therein or for additional
information;
(iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Shelf
Registration Statement or the initiation of any proceedings
for that purpose;
(iv) of the receipt by either of the Offerors or
their legal counsel of any notification with respect to the
suspension of the qualification of the Transfer Restricted
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening during the Shelf
Registration Period of any event that requires the Offerors to
make changes in the prospectus which forms a part of the Shelf
Registration Statement in order that the prospectus does not
contain an untrue statement of a material fact nor omits to
state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(d) The Offerors shall make every reasonable effort to
obtain the withdrawal at the earliest possible time, of any order
suspending the effectiveness of the Shelf Registration Statement.
(e) The Offerors shall furnish to each Holder of Transfer
Restricted Securities included within the coverage of the Shelf
Registration, without charge, at least one copy of the Shelf
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder so
requests in writing, all exhibits thereto (including those, if any,
incorporated by reference).
(f) The Offerors shall, during the Shelf Registration
Period, deliver to each Holder of Transfer Restricted Securities
included within the coverage of the Shelf Registration, without charge,
as many copies of the prospectus (including each preliminary
prospectus) included in the Shelf Registration Statement and any
amendment or supplement thereto as such person may reasonably request.
The Offerors consent, subject to the provisions of this Agreement, to
the use of the
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<PAGE> 5
prospectus or any amendment or supplement thereto by each of the
selling Holders of the Transfer Restricted Securities in connection
with the offering and sale of the Transfer Restricted Securities
covered by the prospectus, or any amendment or supplement thereto,
included in the Shelf Registration Statement.
(g) Prior to any public offering of the Transfer
Restricted Securities pursuant to any Shelf Registration Statement, the
Offerors shall register or qualify or cooperate with the Holders of the
Transfer Restricted Securities included therein and their respective
counsel in connection with the registration or qualification of the
Transfer Restricted Securities for offer and sale under the securities
or "blue sky" laws of such states of the United States as any Holder of
the Transfer Restricted Securities reasonably requests in writing and
do any and all other acts or things necessary or advisable to enable
the offer and sale in such states of the Transfer Restricted Securities
covered by such Shelf Registration Statement; provided, however, that
neither of the Offerors shall be required to (i) qualify generally to
do business in any jurisdiction where it is not then so qualified or
(ii) take any action which would subject it to general service of
process or to taxation in any jurisdiction where it is not then so
subject.
(h) The Offerors shall cooperate with the Holders of the
Transfer Restricted Securities to facilitate the timely preparation and
delivery of certificates representing the Transfer Restricted
Securities to be sold pursuant to any Shelf Registration Statement free
of any restrictive legends and in such denominations and registered in
such names as the Holders may request a reasonable period of time prior
to sales of the Transfer Restricted Securities pursuant to such Shelf
Registration Statement and prior to settlement of such sales.
(i) Upon the occurrence of any event contemplated by
paragraphs (ii) through (v) of Section 2(c) above during the Shelf
Registration Period, the Offerors shall promptly prepare and file a
post-effective amendment to the Shelf Registration Statement or a
supplement to the related prospectus and any other required document so
that, as thereafter delivered to Holders of the Transfer Restricted
Securities or purchasers of Transfer Restricted Securities, the
prospectus will not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that the
Offerors may delay preparing, filing and distributing any such
supplement or amendment (such period of delay, a "Suspension Period")
if the Company determines that compliance with the disclosure
obligations necessary to maintain the effectiveness of the Shelf
Registration Statement at such time could reasonably be expected to
have an adverse effect on the Company or a pending corporate
transaction involving the Company or any of its subsidiaries; provided,
further, that such delay shall not extend for a period of more than 60
days in any twelve-month period. If the Offerors notify the Initial
Purchaser and the Holders of the Transfer Restricted Securities in
accordance with paragraphs (ii) through (v) of Section 2(c) above to
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<PAGE> 6
suspend the use of the prospectus and any sales pursuant to such
prospectus until the requisite changes to the prospectus have been
made, then the Initial Purchaser and the Holders of the Transfer
Restricted Securities shall suspend use of such prospectus and any
sales pursuant to such prospectus, and the period of effectiveness of
the Shelf Registration Statement provided for in Section 1(b) above
shall be extended by the number of days from and including the date of
the giving of such notice to and including the date when the Initial
Purchaser and the Holders of the Transfer Restricted Securities shall
have received such amended or supplemented prospectus pursuant to this
Section 2(i).
(j) Not later than the effective date of the Shelf
Registration Statement, the Offerors will provide CUSIP numbers for the
Transfer Restricted Securities registered under the Shelf Registration
Statement and provide the Property Trustee with a certificate for the
Transfer Restricted Securities, in a form eligible for deposit with The
Depository Trust Company.
(k) The Offerors will comply with all rules and
regulations of the Commission to the extent and so long as they are
applicable to the Shelf Registration and will make generally available
to their security holders (or otherwise provide in accordance with
Section 11(a) of the Securities Act) an earnings statement satisfying
the provisions of Section 11(a) of the Securities Act, no later than 45
days after the end of a 12-month period (or 90 days, if such period is
a fiscal year) beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of the Shelf
Registration Statement, which statement shall cover such 12-month
period.
(l) The Offerors shall cause the Trust Agreement, the
Preferred Securities Guarantee and the Indenture to be qualified under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), in a timely manner and containing such changes, if any, as shall
be necessary for such qualification. In the event that such
qualification would require the appointment of a new trustee under any
of such documents, the Offerors shall appoint a new trustee thereunder
pursuant to the applicable provisions of the relevant document.
(m) The Offerors may require each Holder of Transfer
Restricted Securities to be sold pursuant to the Shelf Registration
Statement to furnish to the Offerors such information regarding the
Holder and the distribution of the Transfer Restricted Securities as
the Offerors may from time to time reasonably require for inclusion in
the Shelf Registration Statement, and the Offerors may exclude from
such registration the Transfer Restricted Securities of any Holder that
fails to furnish such information within a reasonable time after
receiving such request.
(n) The Offerors shall enter into such customary
agreements (including, if requested, an underwriting agreement in
customary form) and take all such other action, if any, as any Holder
which, together with its "affiliates" (as defined in the Securities
Act), holds $40 million or greater in aggregate liquidation amount (or,
if applicable, principal amount) of the Transfer Restricted Securities
and which, together with its affiliates, intends to sell at least $40
million in aggregate
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<PAGE> 7
liquidation amount (or, if applicable, principal amount) of Transfer
Restricted Securities in an underwritten offering (with holders of
Common Stock constituting Transfer Restricted Securities being deemed
to be Holders of the aggregate liquidation amount of Preferred
Securities (or, if applicable, principal amount of Convertible
Subordinated Debentures) converted into Common Stock for such
calculation), shall reasonably request in order to facilitate the
disposition of the Transfer Restricted Securities pursuant to any Shelf
Registration; provided, that in no event shall the Offerors be required
to cause any of their representatives to attend any informational or
roadshow presentations or pay any expenses related thereto.
(o) The Offerors shall (i) make reasonably available for
inspection by the Holders, any underwriter participating in any
disposition pursuant to the Shelf Registration Statement and any
attorney, accountant or other agent retained by the Holders or any such
underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Offerors and (ii) cause the
Company's officers, directors, employees, accountants and auditors and
the Trust's Administrative Trustees to supply all relevant information
reasonably requested by the Holders or any such underwriter, attorney,
accountant or agent in connection with the Shelf Registration
Statement, in each case, as shall be reasonably necessary to enable
such persons, to conduct a reasonable investigation within the meaning
of Section 11 of the Securities Act; provided, however, that the
foregoing inspection and information gathering shall be coordinated on
behalf of the Initial Purchaser and the other parties, by one firm of
counsel, which firm shall be Dewey Ballantine LLP until another firm
shall be designated as described in Section 3 hereof.
(p) In connection with any underwritten offering pursuant
to paragraph (n) of this Section, each of the Offerors shall (i) make
such representations and warranties, subject to the Offerors' ability
to do so, to the Holders of such Registrable Securities and the
managing underwriters with respect to the business of the Trust and of
the Company and its subsidiaries, the Registration Statement, the
prospectus and documents incorporated by reference or deemed
incorporated by reference, if any, in each case, in form, substance and
scope as are customarily made by issuers to underwriters in
underwritten offerings (provided that the scope and substance shall not
be materially different than those contained in the Purchase Agreement)
and confirm the same if and when requested; (ii) use their reasonable
best efforts to obtain opinions of counsel to the Trust and the Company
and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriters and the Holders of a majority of the Registrable
Securities being sold) addressed to each of the underwriters covering
the matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by the
managing underwriters; (iii) use their reasonable best efforts to
obtain "cold comfort" letters and updates thereof from the independent
certified
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public accountants of the Company (and, if necessary, any other
certified public accountants of any business acquired or to be acquired
by the Company for which financial statements and financial data are,
or are required to be, included in the Registration Statement),
addressed to the managing underwriters, such letters to be in customary
form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings; and (iv)
deliver such documents and certificates as may be reasonably requested
by the Holders of a majority of the Registrable Securities being sold
and the managing underwriters, to evidence the continued validity of
the representations and warranties of the Trust and the Company made
pursuant to clause (i) above and to evidence compliance with any
customary conditions contained in the underwriting agreement or other
agreement entered into by the Trust and the Company.
(q) In the event that any broker-dealer registered under
the Exchange Act shall underwrite any Transfer Restricted Securities or
participate as a member of an underwriting syndicate or selling group
or "assist in the distribution" (within the meaning of the Conduct
Rules (the "Rules") of the National Association of Securities Dealers,
Inc.) thereof, whether as a Holder of such Transfer Restricted
Securities or as an underwriter, a placement or sales agent or a broker
or dealer in respect thereof, or otherwise, the Offerors, if requested
by such broker-dealer, will assist such broker-dealer in complying with
the requirements of such Rules, including, without limitation, by (i)
if such Rules, including Rule 2720, shall so require, engaging a
"qualified independent underwriter" (as defined in Rule 2720) to
participate in the preparation of the Shelf Registration Statement
relating to such Transfer Restricted Securities, to exercise usual
standards of due diligence in respect thereto and, if any portion of
the offering contemplated by such Shelf Registration Statement is an
underwritten offering or is made through a placement or sales agent, to
recommend the price of such Transfer Restricted Securities, (ii)
indemnifying any such qualified independent underwriter to the extent
of the indemnification of underwriters provided in Section 4 hereof and
(iii) providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the
requirements of the Rules.
(r) The Offerors shall use their reasonable best efforts
to take all other steps necessary to effect the registration of the
Transfer Restricted Securities covered by the Shelf Registration
Statement contemplated hereby.
3. Registration Expenses. The Offerors shall jointly and
severally bear all fees and expenses incurred in connection with the performance
of their obligations under Sections 1 and 2 hereof whether or not a Shelf
Registration is filed or becomes effective, shall bear or reimburse the Holders
of the Transfer Restricted Securities covered thereby for the reasonable fees
(which fees shall not exceed $50,000 without the written consent of the Company,
which consent shall not be unreasonably withheld) and disbursements of one firm
of counsel, which firm shall be Dewey Ballantine LLP until another firm shall be
designated by the Holders of a majority in principal amount of the Preferred
Securities covered thereby to act as counsel for the Holders in connection
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therewith. The Holders shall be responsible for all other fees and expenses,
such as brokerage fees and commissions.
4. Indemnification.
(a) To the extent permitted by law, the Company and the
Trust jointly and severally agree to indemnify and hold harmless each Holder of
the Transfer Restricted Securities and each person, if any, who controls such
Holder within the meaning of the Securities Act or the Exchange Act (each Holder
and such controlling persons are referred to collectively as the "Indemnified
Parties") from and against any losses, claims, damages or liabilities, joint or
several, or any actions in respect thereof (including, but not limited to, any
losses, claims, damages, liabilities or actions relating to purchases and sales
of the Transfer Restricted Securities) to which each Indemnified Party may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Shelf Registration Statement or prospectus or in any amendment
or supplement thereto or in any preliminary prospectus relating to the Shelf
Registration, or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse, as
incurred, the Indemnified Parties for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action in respect thereof; provided, however, that
(i) the Offerors shall not be liable in any such case to any Holder of Transfer
Restricted Securities, or any person controlling such Holder, to the extent that
such loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
the Shelf Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to the Shelf Registration in
reliance upon and in conformity with written information furnished to the
Offerors by or on behalf of such Holder specifically for inclusion therein and
(ii) with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus relating to the Shelf
Registration Statement, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Holder from whom the person asserting any
such losses, claims, damages or liabilities purchased the Transfer Restricted
Securities concerned, to the extent that a prospectus relating to such Transfer
Restricted Securities was required to be delivered by such Holder under the
Securities Act in connection with such purchase and any such loss, claim, damage
or liability of such Holder results from the fact that there was not sent or
given to such person, at or prior to the written confirmation of the sale of
such Transfer Restricted Securities to such person, a copy of the final
prospectus if the Offerors had previously furnished copies thereof to such
Holder; provided further, however, that this indemnity agreement will be in
addition to any liability which the Offerors may otherwise have to such
Indemnified Party. The Offerors shall also indemnify underwriters, their
officers and directors and each person who controls such underwriters within the
meaning of the Securities Act or the Exchange Act to the same extent as provided
above with respect to the indemnification of the Holders of the Transfer
Restricted Securities if requested by such Holders.
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(b) To the extent permitted by law, each Holder of the
Transfer Restricted Securities, severally and not jointly, will indemnify and
hold harmless the Offerors and each person, if any, who controls either of the
Offerors within the meaning of the Securities Act or the Exchange Act from and
against any losses, claims, damages or liabilities or any actions in respect
thereof, to which the Offerors or any such controlling person may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Shelf Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to the Shelf Registration, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or omission or alleged
untrue statement or omission was made in reliance upon and in conformity with
written information furnished to the Offerors by or on behalf of such Holder
specifically for inclusion therein; and, subject to the limitation set forth
immediately preceding this clause, shall reimburse, as incurred, the Offerors
for any legal or other expenses reasonably incurred by the Offerors or any such
controlling person in connection with investigating or defending any loss,
claim, damage, liability or action in respect thereof. This indemnity agreement
will be in addition to any liability which such Holder may otherwise have to the
Offerors or any of their controlling persons.
(c) Promptly after receipt by an indemnified party under
this Section 4 of notice of the commencement of any action or proceeding
(including a governmental investigation), such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 4, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 4 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action. An indemnifying party will not be liable for any settlement of
any action or claim effected without its written consent; provided, however,
that such consent will not be reasonably withheld.
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(d) If the indemnification provided for in this Section 4
is unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party on the other from the sale of the Transfer
Restricted Securities, pursuant to the Shelf Registration, or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified party on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof) as well
as any other relevant equitable considerations. The relative fault of the
parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Offerors on the one hand or such Holder or such other indemnified party, as the
case may be, on the other, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any action
or claim which is the subject of this subsection (d). Notwithstanding any other
provision of this Section 4(d), the Holders of the Transfer Restricted
Securities shall not be required to contribute any amount in excess of the
amount by which the net proceeds received by such Holders from the sale of the
Transfer Restricted Securities pursuant to a Shelf Registration Statement
exceeds the amount of damages which such Holders have otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this paragraph (d), each person, if any, who controls an indemnified party
within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party and each person, if any, who
controls the Company or the Trust within the meaning of the Securities Act or
the Exchange Act shall have the same rights to contribution as the Company or
the Trust, as the case may be.
(e) The agreements contained in this Section 4 shall
survive the sale of the Transfer Restricted Securities pursuant to the Shelf
Registration Statement and shall remain in full force and effect, regardless of
any termination or cancellation of this Agreement or any investigation made by
or on behalf of any indemnified party.
5. Liquidated Damages Under Certain Circumstances.
(a) If (i) the Shelf Registration Statement is not filed
with the Commission on or prior to 90 days after the Closing Date, (ii) the
Shelf Registration
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Statement has not been declared effective by the Commission within 180 days
after the Closing Date or (iii) the Shelf Registration Statement is filed and
declared effective but shall thereafter during the Shelf Registration Period
cease to be effective (without being succeeded immediately by an additional
registration statement filed and declared effective) or usable for the offer and
sale of Transfer Restricted Securities for a period of time (excluding any
Suspension Period) which shall exceed 60 days in the aggregate in any 12-month
period (each such event referred to in clauses (i) through (iii), a
"Registration Default"), the Offerors will pay liquidated damages to each Holder
of Transfer Restricted Securities. The amount of liquidated damages payable
during any period during which a Registration Default shall have occurred and be
continuing shall be that amount which is equal to one-quarter of one percent (25
basis points) per annum per $50 liquidation preference of Preferred Securities
or $1,000 principal amount of Convertible Subordinated Debentures or $.125 per
annum per 6.7125 shares of Common Stock (subject to adjustment in the event of
stock splits, stock recombinations, stock dividends and the like) constituting
Transfer Restricted Securities for the first 90 days during which one or more
Registration Defaults exist and one-half of one percent (50 basis points) per
annum per $50 liquidation preference of Preferred Securities or $1,000 principal
amount of Convertible Subordinated Debentures or $.25 per annum per 6.7125
shares (subject to adjustment as set forth above) of Common Stock constituting
Transfer Restricted Securities for all additional days during which a
Registration Default has occurred and is continuing. The Company shall notify
the Trustee and the Initial Purchaser within three business days after each and
every date on which a Registration Default occurs. All accrued liquidated
damages shall be paid to Holders of record on the regular payment date for
distributions on Preferred Securities and interest on Convertible Subordinated
Debentures in the same manner as payments of distributions on Preferred
Securities and interest on Convertible Subordinated Debentures are made.
Following the cure of all Registration Defaults or, if earlier, the termination
of the Shelf Registration Period, liquidated damages will cease to accrue with
respect to such Registration Default.
All of the Offerors obligations in respect of the payment of
liquidated damages set forth in the preceding paragraph which are outstanding
with respect to any Transfer Restricted Security at the time such security
ceases to be a Transfer Restricted Security shall survive until such time as all
such liquidated damages with respect to such security shall have been paid in
full.
The parties hereto agree that the liquidated damages provided
in this Section 5 constitute a reasonable estimate of the damages that will be
incurred by Holders of Transfer Restricted Securities by reason of the failure
of the Shelf Registration Statement to be filed, declared effective or to remain
effective, as the case may be.
6. Rules 144 and 144A. Each of the Company and the Trust
shall use its reasonable best efforts to file any reports required to be filed
by it under the Securities Act and the Exchange Act in a timely manner and, if
at any time the Company is not required to file such reports, it will, upon the
request of any Holder of Preferred Securities (or Convertible Subordinated
Debentures, if Convertible Subordinated Debentures are distributed to holders of
Preferred Securities), make publicly available other information so long as
necessary to permit sales of such securities pursuant to
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<PAGE> 13
Rules 144 and 144A. The Offerors covenant that they will take such further
action as any Holder of Preferred Securities (or Convertible Subordinated
Debentures, if Convertible Subordinated Debentures are distributed to holders of
Preferred Securities) may reasonably request, all to the extent required from
time to time to enable such Holder to sell Preferred Securities (or, if
applicable, Convertible Subordinated Debentures) without registration under the
Securities Act within the limitation of the exemptions provided by Rules 144 and
144A (including the requirements of Rule 144A(d)(4)). The Offerors will provide
a copy of this Agreement to prospective purchasers of Preferred Securities (or,
if applicable, Convertible Subordinated Debentures) identified to the Offerors
by the Initial Purchaser upon request. Upon the request of any Holder of
Preferred Securities (or, if applicable, Convertible Subordinated Debentures)
the Offerors shall deliver to such Holder a written statement as to whether they
have complied with such requirements. Notwithstanding the foregoing, nothing in
this Section 6 shall be deemed to require the Offerors to register any of their
securities pursuant to the Exchange Act.
7. Underwritten Registrations. If any of the Transfer
Restricted Securities covered by any Shelf Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering ("Managing Underwriters") will be
selected by the Offerors; provided, that such selection is consented to by the
Holders of a majority in aggregate principal amount of Transfer Restricted
Securities to be included in such offering, which consent shall not be
unreasonably withheld or delayed.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Securities on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. Miscellaneous.
(a) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, except by the written
agreement of the Company, the Trust and the Holders of a majority in liquidation
amount (or, if applicable, principal amount) of the Transfer Restricted
Securities affected by such amendment, modification, supplement, waiver or
consents (with holders of Common Stock constituting Transfer Restricted
Securities being deemed to be Holders of the aggregate liquidation amount of
Preferred Securities (or, if applicable, principal amount of Convertible
Subordinated Debentures) converted into Common Stock for such calculation).
(b) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand delivery,
first-class mail, facsimile transmission, or overnight air courier:
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(1) if to a Holder of the Transfer Restricted Securities,
at the most current address given by such Holder to the Offerors.
(2) if to the Initial Purchaser:
Warburg Dillon Read LLC
299 Park Avenue
New York, NY 10171
Attention: Syndicate Department
with a copy to:
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019-6092
Attention: Frederick W. Kanner
(3) if to the Company, at the address as follows:
Caremark Rx, Inc.
3000 Galleria Tower
Suite 1000
Birmingham, Alabama 35244
Attention: Chief Financial Officer
with a copy to:
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303
Attention: William Spalding
(4) if to the Trust, at the address as follows:
Caremark Rx Capital Trust I
c/o Caremark Rx, Inc.
3000 Galleria Tower
Suite 1000
Birmingham, Alabama 35244
Attention: Chief Financial Officer
All such notices and communications shall be deemed
to have been duly given: at the time delivered by hand, if personally delivered;
three business days after being deposited in the mail, postage prepaid, if
mailed; when receipt is acknowledged by recipient's facsimile machine operator,
if sent by facsimile transmission; and on the day delivered, if sent by
overnight air courier.
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(c) No Inconsistent Agreements. The Offerors have not, as
of the date hereof, entered into, nor shall they, on or after the date hereof,
enter into, any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders herein or otherwise conflicts with the
provisions hereof.
(d) Successors and Assigns. This Agreement shall be
binding upon the Offerors and their successors and assigns.
(e) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
(h) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(i) Transfer Restricted Securities Held by the Trust or
the Company. Whenever the consent or approval of Holders of a specified
percentage of principal amount of Transfer Restricted Securities is required
hereunder, Transfer Restricted Securities held by the Trust or the Company or
their affiliates (other than subsequent Holders of Transfer Restricted
Securities if such subsequent Holders are deemed to be affiliates solely by
reason of their holdings of such Transfer Restricted Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Trust and the Company a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement on the Initial Purchaser and the Trust and the Company in
accordance with its terms.
Very truly yours,
CAREMARK RX, INC.
By: /s/ James H. Dickerson, Jr.
-------------------------------
Name: James H. Dickerson, Jr.
Title: Executive Vice President and
Chief Financial Officer
CAREMARK RX CAPITAL TRUST I
By: /s/ James H. Dickerson, Jr.
-------------------------------
Name: James H. Dickerson, Jr.
As Administrative Trustee
By: /s/ Howard A. McLure
-------------------------------
Name: Howard A. McLure
As Administrative Trustee
Accepted and agreed to as
of the date first above written
WARBURG DILLON READ LLC
By: /a/ William C. McGahan
-----------------------------
Name:
Title:
By: /s/
-----------------------------
Name:
Title:
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