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Exhibit 2.k.(iii)
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PURCHASE AGREEMENT
Between
NYLIFE LLC,
As Seller
and
EXPRESS SCRIPTS AUTOMATIC EXCHANGE SECURITY TRUST,
As Purchaser
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Dated as of November , 2000
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TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS; INTERPRETATION
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Section 1.1 Defined Terms...................................................................................2
Section 1.2 Interpretation..................................................................................8
ARTICLE II
SALE AND PURCHASE
Section 2.1 Sale and Purchase...............................................................................8
Section 2.2 Purchase Price..................................................................................9
Section 2.3 Payment for and Delivery of Contract Stock.....................................................10
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of Seller.......................................................12
Section 3.2 Representations and Warranties of Purchaser....................................................13
ARTICLE IV
CONDITIONS TO PURCHASER'S OBLIGATIONS
Section 4.1 Condition to Delivery of Firm Purchase Price...................................................13
Section 4.2 Condition to Delivery of Additional Purchase Price.............................................13
ARTICLE V
COVENANTS
Section 5.1 Covenants of Seller............................................................................13
Section 5.2 Further Assurances.............................................................................14
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ARTICLE VI
ADJUSTMENTS TO EXCHANGE RATE, APPRECIATION THRESHOLD PRICE, INITIAL
PRICE AND CLOSING PRICE; REORGANIZATION EVENTS
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Section 6.1 Dilution Adjustments...........................................................................15
Section 6.2 Adjustment for Consolidation, Merger or Other Reorganization Event.............................18
Section 6.3 Spin-Off Distributions.........................................................................19
Section 6.4 Adjustments with Respect to Marketable Securities..............................................20
ARTICLE VII
ACCELERATION UPON AN EVENT OF DEFAULT
Section 7.1 Events of Default..............................................................................20
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Adjustments of Exchange Rate; Selection of Independent Investment Banking Firm.................21
Section 8.2 No Assumption of Liability.....................................................................21
Section 8.3 Notices........................................................................................21
Section 8.4 Governing Law; Severability....................................................................22
Section 8.5 Entire Agreement...............................................................................22
Section 8.6 Amendments; Waivers............................................................................22
Section 8.7 Non-Assignability..............................................................................22
Section 8.8 No Third Party Rights; Successors and Assigns..................................................22
Section 8.9 Counterparts...................................................................................23
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Exhibits
Exhibit A - Form of Certificate for Extension of Exchange Date
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PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of November , 2000, between NYLIFE LLC, a
limited liability company organized under the laws of the State of Delaware
("Seller"), and Express Scripts Automatic Exchange Security Trust, a trust
organized under the laws of the State of New York under and by virtue of an
Amended and Restated Trust Agreement, dated as of November , 2000 (such trust
and the trustees thereof acting in their capacity as such being referred to in
this Agreement as "Purchaser").
WITNESSETH:
WHEREAS, a subsidiary of Seller as of the date hereof owns shares of
Class B Common Stock, par value $.01 per share, of Express Scripts, Inc., a
Delaware corporation (the "Company") which will be exchanged for a like number
of shares of Class A Common Stock, par value $0.01 per share (the "Class A
Common Stock"), of the Company, and Seller will own such shares of Class A
Common Stock as of the First Time of Delivery; and
WHEREAS, Purchaser has filed with the Securities and Exchange
Commission a registration statement on Form N-2 contemplating the offering of up
to 3,450,000 Trust Issued Automatic Exchange Securities (the "Securities"), the
terms of which contemplate delivery by Purchaser to the holders of such
Securities of a number of shares of Class A Common Stock (or, in certain
circumstances, cash in lieu of such Stock) on the Exchange Date referred to
below; and
WHEREAS, Seller has agreed, pursuant to the Collateral Agreement, dated
as of November ______ , 2000 (the "Collateral Agreement"), among Seller, as
Pledgor, The Chase Manhattan Bank, as collateral agent, and Purchaser to grant
to the Collateral Agent, for the benefit of Purchaser, a security interest in
shares of Class A Common Stock and, in certain circumstances, certain other
collateral to secure the obligations of Seller under this Agreement; and
WHEREAS, Purchaser has agreed, effective as of the First Time of
Delivery, pursuant to an underwriting agreement, dated November _______, 2000
(the "Underwriting Agreement"), among Purchaser, Seller, the Company, and
Goldman Sachs & Co. and Credit Suisse First Boston Corporation, as
representatives of the several underwriters named in such agreement (the
"Underwriters"), to issue and sell to the Underwriters an aggregate of 3,000,000
Securities (the "Firm Securities") and, at the Underwriters' option, up to
450,000 additional Securities (such additional Securities as the Underwriters
shall actually purchase pursuant to the Underwriting Agreements, the "Optional
Securities") to cover overallotments;
NOW, THEREFORE, the parties to this Agreement, intending to be bound,
agree as follows:
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ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1 Defined Terms. As used in this Agreement, the following
terms have the following meanings:
"Accelerated Portion" means, in relation to any Cash Merger, the
portion of the Merger Consideration, other than Marketable Securities,
that has a Value equal to the amount determined by multiplying the
Basic Reorganization Event Amount by a fraction, the numerator of which
is the Value of the portion of the Merger Consideration delivered in
exchange for a single share of Class A Common Stock that consists of
assets other than Marketable Securities, and the denominator of which
is the aggregate Transaction Value of the Merger Consideration received
in exchange for a single share of Class A Common Stock.
"Additional Purchase Price" has the meaning specified in Section
2.2(b).
"Additional Share Base Amount" means a number equal to the number of
Optional Securities that the Underwriters elect to purchase under the
Underwriting Agreement.
"Additional Shares" has the meaning specified in Section 2.1(b).
"Additional Treasury Securities" means the U.S. Government Securities
purchased by Purchaser pursuant to section 2.3(b)(ii) of the Trust
Agreement for settlement at the Second Time of Delivery.
"Administrator" means The Chase Manhattan Bank, administrator for
Purchaser under the Administration Agreement, dated as of November __,
2000 between the Administrator and Purchaser, or its successor in such
capacity, or any other Administrator appointed pursuant to the Trust
Agreement.
"Agreement" means this Purchase Agreement.
"Appreciation Threshold Price" has the meaning specified in Section
2.1(c).
"Average Market Price" per share of Class A Common Stock or share of
Marketable Securities on any date means the average Closing Price of a
share of Class A Common Stock or share of Marketable Securities for the
Calculation Period consisting of the 20 Trading Days immediately prior
to but not including such date; provided that if no Closing Price for
the Class A Common Stock or Marketable Securities is determined for one
or more (but not all) of such Trading
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Days, such Trading Days shall be disregarded in the calculation of the
Average Market Price (but no additional Trading Days shall be added to
the Calculation Period). If no Closing Price for the Class A Common
Stock or Marketable Securities may be determined for any of such
Trading Days, the Average Market Price shall be the Closing Price for
the Class A Common Stock or Marketable Securities for the most recent
Trading Day prior to such Calculation Period for which a Closing Price
for the Class A Common Stock or Marketable Securities may be determined
pursuant to the definition of "Closing Price". Notwithstanding the
foregoing, for purposes of determining the payment required upon cash
settlement of this Agreement in connection with a Rollover Offering,
"Average Market Price" means the Closing Price per share of Class A
Common Stock or share of Marketable Securities on the Trading Day
immediately preceding the date that the Rollover Offering is priced
(the "Pricing Date") or, if the Rollover Offering is priced after 4:00
P.M., New York City time, on the Pricing Date, the Closing Price per
share on the Pricing Date.
"Basic Reorganization Event Amount" has the meaning provided in Section
6.2(a).
"Business Day" means a day on which the Nasdaq National Market is open
for trading and that is not a day on which commercial banks in The City
of New York are authorized or obligated by law to close.
"Calculation Period" means any period of Trading Days for which an
average security price must be determined pursuant to this Agreement.
"Cash Merger" has the meaning specified in Section 6.2(b).
"Cash Settlement Alternative" has the meaning provided in Section
2.3(d).
"Class A Common Stock" has the meaning specified in the recitals to
this Agreement.
"Class B Common Stock" has the meaning specified in the recitals to
this Agreement.
"Closing Price" of any common equity security on any date of
determination means the closing sale price (or, if no closing sale
price is reported, the last reported sale price) of such common equity
security as reported on the NYSE Consolidated Tape on such date of
determination or, if such common equity security is not listed for
trading on the NYSE on such date, as reported in the composite
transactions for the principal United States national or regional
securities exchange on which such common equity security is so listed,
or if such
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common equity security is not so listed on a United States national or
regional securities exchange on such date, as reported by the Nasdaq
National Market or, if such common equity security is not so reported
on such date, the last quoted bid price for such common equity security
in the over-the-counter market as reported by the National Quotation
Bureau or any similar organization, or if there is no quoted bid price
for such common equity security in the over-the-counter market, the
fair market value of such common equity security shall be determined in
good faith by the Trustees; provided that if any event that results in
an adjustment to the number of shares of Class A Common Stock or
Marketable Securities deliverable under this Agreement pursuant to
Article VI occurs during any Calculation Period, the Closing Price as
determined pursuant to the foregoing for each Trading Day in the
Calculation Period occurring prior to the day on which such adjustment
is effected will be adjusted in accordance with Article VI to reflect
the occurrence of such event.
"Collateral Agent" means The Chase Manhattan Bank, in its capacity as
Collateral Agent under the Collateral Agreement, or its successor in
such capacity, or any other Collateral Agent appointed pursuant to the
Trust Agreement and the Collateral Agreement.
"Collateral Agreement" has the meaning specified in the recitals to
this Agreement.
"common equity security" means any security of any class of capital
stock (whether voting or non-voting) that has no preference in respect
of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the issuer of
such capital stock and that is not subject to redemption by the issuer
of such capital stock.
"Company" has the meaning specified in the recitals to this Agreement.
"Company Successor" has the meaning specified in Section 6.2(a).
"Contract Shares" has the meaning specified in Section 2.1(b).
"Custodian" means The Chase Manhattan Bank, as custodian for Purchaser
under the Custodian Agreement, dated as of November ____, 2000, between
the Custodian and Purchaser, or its successor in such capacity, or any
other Custodian appointed pursuant to the Trust Agreement.
"Dilution Adjustment" means any fraction or number by which the
Exchange Rate shall be multiplied pursuant to Section 6.1(a), (b), (c)
or (d).
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"Event of Default" has the meaning specified in Section 7.1.
"Excess Purchase Payment" means the excess, if any, of (x) the cash and
the value (as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Administrator,
whose determination shall be final) of all other consideration paid by
the Company with respect to one share of Class A Common Stock acquired
in a tender offer or exchange offer by the Company, over (y) the Then-
Current Market Price of the Class A Common Stock.
"Exchange Date" means November _______, 2003, subject to (i) extension
by Seller pursuant to Section 2.3(e) and (ii) subsequent acceleration
by Seller pursuant to Section 2.3(f).
"Exchange Rate" has the meaning specified in Section 2.1(c).
"Firm Purchase Price" has the meaning specified in Section 2.2(a).
"Firm Securities" has the meaning specified in the recitals to this
Agreement.
"Firm Share Base Amount" means 3,000,000 shares of Class A Common
Stock.
"Firm Shares" has the meaning specified in Section 2.1(a).
"First Time of Delivery" means the First Time of Delivery specified
pursuant to Section 2 of the Underwriting Agreement.
"Initial Price" has the meaning specified in Section 2.1(c).
"Liens" means any lien, mortgage, security interest, pledge, charge,
encumbrance or adverse claim of any kind.
"Marketable Securities" means any common equity securities listed on a
U.S. national or regional securities exchange or reported by the NASDAQ
National Market.
"Merger Consideration" has the meaning specified in Section 6.2(a).
"Nasdaq" means the Nasdaq National Market.
"NYSE" means the New York Stock Exchange, Inc.
"Optional Securities" has the meaning specified in the recitals to this
Agreement.
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"Permitted Dividend" means any quarterly cash dividend in respect of
the Class A Common Stock, except to the extent that the per share
amount of such dividend results in an annualized dividend yield on the
Class A Common Stock in excess of [12.5]%.
"Pricing Date" has the meaning specified in the definition of "Average
Market Price".
"Purchaser" has the meaning specified in the preamble to this
Agreement.
"Reorganization Event" has the meaning specified in Section 6.2.
"Rollover Offering" means a reoffering or refinancing of Securities
effected not earlier than November ______, 2003 by means of a completed
public offering or offerings, or another similar offering (which may
include one or more exchange offers), by or on behalf of Seller.
"Second Time of Delivery" means the Second Time of Delivery specified
pursuant to Section 2 of the Underwriting Agreement.
"Securities" has the meaning specified in the recitals to this
Agreement.
"Seller" has the meaning specified in the preamble to this Agreement.
"Spin-Off Distribution" means a distribution by the Company to holders
of Class A Common Stock of Marketable Securities issued by an issuer
other than the Company.
"Then-Current Market Price" of the Class A Common Stock, for purposes
of applying any adjustments pursuant to Section 6.1, means the average
Closing Price per share of Class A Common Stock for the Calculation
Period consisting of five Trading Days immediately prior to the time
such adjustment is effected (or, in the case of an adjustment effected
at the opening of business on the Business Day next following a record
date as described in Section 6.1(f)(i), immediately prior to the
earlier of the time such adjustment is effected and the related
ex-date); provided that if no Closing Price for the Class A Common
Stock is determined for one or more (but not all) of such Trading Days,
such Trading Days shall be disregarded in the calculation of the
Then-Current Market Price (but no additional Trading Days shall be
added to the Calculation Period). If no Closing Price for the Class A
Common Stock may be determined for any of such Trading Days, the
Then-Current Market Price shall be the Closing Price for the Class A
Common Stock for the most recent Trading Day prior to such five Trading
Days for which a Closing Price for the Class A Common Stock may be
determined pursuant to the
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definition of "Closing Price". The "ex-date" with respect to any
dividend, distribution or issuance shall mean the first date on which
the Class A Common Stock trades regular way on their principal market
without the right to receive such dividend, distribution or issuance.
"Trading Day" in respect of any common equity security means a day on
which such common equity security (A) is not suspended from trading on
any United States national or regional securities exchange or
association or over-the-counter market at the close of business and (B)
has traded at least once on the United States national or regional
securities exchange or association or over-the-counter market that is
the primary market for the trading of such security.
"Transaction Value" means, with respect to any Reorganization Event,
the sum of: (x) for any cash received in such Reorganization Event, the
amount of such cash received per share of Class A Common Stock; (y) for
any property other than cash or Marketable Securities received in such
Reorganization Event, an amount equal to the market value on the date
such Reorganization Event is consummated of such property received per
share of Class A Common Stock (as determined by a nationally recognized
independent investment banking firm retained for this purpose by the
Administrator, whose determination shall be final); and (z) for any
Marketable Securities received in such Reorganization Event, an amount
equal to the average Closing Price per share of such Marketable
Securities for the Calculation Period consisting of 20 Trading Days
immediately prior to the Exchange Date (or, in the case of a Cash
Merger, for the Calculation Period consisting of the 20 Trading Days
immediately prior to the date the Reorganization Event is consummated),
multiplied by the number of such Marketable Securities received for
each share of Class A Common Stock; provided that if no Closing Price
for such Marketable Securities may be determined for one or more (but
not all) of such Trading Days, such Trading Days shall be disregarded
in the calculation of such average Closing Price (but no additional
Trading Days shall be added to the Calculation Period). If no Closing
Price for the Marketable Securities may be determined for any of such
Trading Days, the calculation in the preceding clause (z) shall be
based on the Closing Price for the Marketable Securities for which a
Closing Price for the Marketable Securities may be determined pursuant
to the definition of "Closing Price".
"Transfer Restrictions" has the meaning provided in the Collateral
Agreement.
"Transferred Securities" has the meaning specified in Section 2.3(g).
"Trust Agreement" means the Amended and Restated Trust Agreement, dated
as of November _____, 2000, constituting Express Scripts Automatic
Exchange Security Trust.
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"Underwriters" has the meaning specified in the recitals to this
Agreement.
"Underwriting Agreement" has the meaning specified in the recitals to
this Agreement.
"U.S. Government Securities" means direct obligations of the United
States of America.
"Value" means (i) in respect of cash, the amount of such cash; (ii) in
respect of any property other than cash or Marketable Securities, an
amount equal to the market value on the date the relevant
Reorganization Event is consummated (as determined by a nationally
recognized independent investment banking firm retained for this
purpose by the Administrator, whose determination shall be final); and
(iii) in respect of any share of Marketable Securities, an amount equal
to the average Closing Price per share of such Marketable Securities
for the Calculation Period consisting of the 20 Trading Days
immediately prior to the date the relevant Reorganization Event is
consummated; provided that if no Closing Price for such Marketable
Securities may be determined for one or more (but not all) of such
Trading Days, such Trading Days shall be disregarded in the calculation
of such average Closing Price (but no additional Trading Days shall be
added to the Calculation Period). If no Closing Price for the
Marketable Securities may be determined for any of such Trading Days,
the calculation in the preceding clause (iii) shall be based on the
Closing Price for the Marketable Securities for which a Closing Price
for the Marketable Securities may be determined pursuant to the
definition of "Closing Price".
Section 1.2 Interpretation.
(a) When a reference is made in this Agreement to Articles,
Sections, Exhibits or Schedules, such reference is to Articles or Sections of,
or Exhibits or Schedules to, this Agreement unless otherwise indicated.
(b) The table of contents and headings contained in this Agreement
are for reference purposes only and are not part of this Agreement, and shall
not be deemed to limit or otherwise affect any of the provisions of this
Agreement.
(c) Whenever the words "include", "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation".
(d) Any reference to any statute, regulation or agreement is a
reference to such statute, regulation or agreement as supplemented or amended
from time to time.
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ARTICLE II
SALE AND PURCHASE
Section 2.1 Sale and Purchase.
(a) Firm Shares. Upon the terms and subject to the conditions of
this Agreement, and subject to Seller's cash settlement alternative as provided
in Section 2.3(d), Seller agrees to sell to Purchaser on the Exchange Date, and
Purchaser agrees to purchase from Seller on the Exchange Date, the number of
shares of Class A Common Stock (the "Firm Shares") equal to the product of the
Firm Share Base Amount and the Exchange Rate.
(b) Additional Shares. Upon the terms and subject to the
conditions of this Agreement, if the Underwriters exercise the option to
purchase Optional Securities pursuant to the Underwriting Agreement, Seller
agrees to sell to Purchaser on the Exchange Date, and Purchaser agrees to
purchase from Seller on the Exchange Date, the number of additional shares of
Class A Common Stock (the "Additional Shares") equal to the product of the
Additional Share Base Amount and the Exchange Rate. If the Underwriters exercise
their option to purchase Optional Securities pursuant to the Underwriting
Agreement, Purchaser shall notify Seller in writing that Purchaser will purchase
the Additional Shares on the Exchange Date, which notice shall specify the
Additional Share Base Amount and the Second Time of Delivery. The Firm Shares
and the Additional Shares (if any) are collectively referred to in this
Agreement as the "Contract Shares".
(c) Exchange Rate. The "Exchange Rate" shall be the rate
determined in accordance with the following formula, subject to adjustment as a
result of certain events as provided in Article VI:
(i) if the Average Market Price is less than $_____ (the
"Appreciation Threshold Price") but equal to or greater than $_____
(the "Initial Price"), a fraction (rounded upward or downward to the
nearest 1/10,000th or, if there is not a nearest 1/10,000th, to the
next lower 1/10,000th) equal to the Initial Price divided by the
Average Market Price;
(ii) if the Average Market Price is equal to or greater
than the Appreciation Threshold Price,_______ ; and
(iii) if the Average Market Price is less than the Initial
Price, 1.
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Section 2.2 Purchase Price.
(a) Firm Purchase Price. The purchase price for the Firm Shares
(the "Firm Purchase Price") shall be $_____ in cash.
(b) Additional Purchase Price. The purchase price for the
Additional Shares (the "Additional Purchase Price") shall be an amount equal to
the difference between (i) the aggregate proceeds to Purchaser from the sale of
the Optional Securities and (ii) the aggregate cost to Purchaser, as notified by
Purchaser to Seller at the Second Time of Delivery, of the Additional Treasury
Securities.
Section 2.3 Payment for and Delivery of Contract Stock.
(a) First Time of Delivery. Upon the terms and subject to the
conditions of this Agreement, Purchaser shall deliver to Seller the Firm
Purchase Price at the First Time of Delivery, at the offices of Sullivan &
Cromwell, 125 Broad Street, New York, NY 10004, or at such other place as shall
be agreed upon by Purchaser and Seller, paid by wire transfer to an account
designated by Seller, in Federal (immediately available) funds.
(b) Second Time of Delivery. Upon the terms and subject to the
conditions of this Agreement, Purchaser shall deliver to Seller the Additional
Purchase Price at the Second Time of Delivery at the offices of Sullivan &
Cromwell, 125 Broad Street, New York, NY 10004, or at such other place as shall
be agreed upon by Purchaser and Seller, paid by wire transfer to an account
designated by Seller, in Federal (immediately available) funds.
(c) Sale and Delivery of Contract Shares. Seller agrees to sell
and deliver, except as otherwise provided in this Agreement on the Exchange
Date, the Contract Shares to Purchaser on the Exchange Date. Unless Seller
elects the Cash Settlement Alternative as provided in Section 2.3(d), sale and
delivery shall be effected by delivery by the Collateral Agent to the Custodian,
for the account of Purchaser, of shares of Class A Common Stock then held by the
Collateral Agent as collateral under the Collateral Agreement, in an amount
equal to the number of Contract Shares, rounded down to the nearest whole
number. Seller agrees to make a cash payment in respect of any fractional shares
included in the Contract Shares at the Exchange Date, in an amount equal to the
value of such fractional shares at the Average Market Price. In addition, if the
difference between (A) the aggregate proceeds of any sale (net of any brokerage
or related expenses) of any Class A Common Stock or Marketable Securities sold
by Purchaser pursuant to Section 2.4(g)(ii) of the Trust Agreement and (B) the
product of the number of shares of Class A Common Stock or Marketable Securities
so sold and the Average Market Price, is negative, Seller shall pay such
difference to Purchaser; if such difference is positive, Purchaser shall pay the
difference to Seller. Notwithstanding the foregoing, if a Reorganization Event
shall have occurred prior to the Exchange Date then, in lieu of the foregoing,
delivery shall be effected as follows: (i) in the case of any cash required to
be delivered on the Exchange Date as provided in Section 6.2, by wire transfer
to an account designated by Purchaser, in Federal (immediately
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available) funds; (ii) in the case of any Marketable Securities to be delivered
in lieu of cash as provided in Section 6.2, by delivery by the Collateral Agent
to the Custodian, for the account of Purchaser, of the applicable number of
Marketable Securities then held as collateral under the Collateral Agreement, as
provided in Section 5.7 of the Collateral Agreement; and (iii) in the case of
any cash included in the Accelerated Portion as provided in Section 6.2(b), by
wire transfer as provided in clause (i) above or in the case of any non-cash
assets included in such Accelerated Portion, by delivery of such assets to the
Custodian, for the account of Purchaser.
(d) Cash Settlement Alternative. At its option, Seller may deliver
to Purchaser on the Exchange Date (whether or not extended pursuant to Section
2.3(e) or accelerated pursuant to Section 2.3(f)), in lieu of the Contract
Shares, an amount in cash equal to the Average Market Price of the Contract
Shares (the "Cash Settlement Alternative"), paid by wire transfer to an account
designated by Purchaser, in Federal (immediately available) funds; provided that
if Seller elects the Cash Settlement Alternative in connection with a Rollover
Offering, as provided below, and such Rollover Offering has been consummated on
or before the Exchange Date, such cash payment shall be made not later than the
fifth Trading Day after the Exchange Date. Seller may elect the Cash Settlement
Alternative in respect of all, but not less than all, Contract Shares and may do
so by notice to Purchaser, the Collateral Agent and the Custodian not less than
35 days prior to the Exchange Date as then in effect (specifying whether such
cash settlement is being made in connection with a Rollover Offering). Any
notice of cash settlement in connection with a Rollover Offering may be
conditioned upon the consummation of such Rollover Offering. If Seller elects
the Cash Settlement Alternative, Purchaser shall provide notice of such election
(specifying whether such cash settlement is being made in connection with a
Rollover Offering) to the holders of the Securities, not less than 30 nor more
than 90 days prior to the Exchange Date as then in effect.
(e) Extension of Exchange Date at Election of Purchaser. Seller
may, at its option, by notice to Purchaser not earlier than September ____,2003
and not later than September ____, 2003, elect to extend the Exchange Date to
February _____, 2004, and the number of Contract Shares and amount of cash to be
delivered pursuant to Section 2.3(c) shall be calculated as of such extended
Exchange Date; provided that such extension shall be effective only if, on or
before the date of such notice, Seller shall have:
(i) delivered to the Custodian, for the account of and
subject to the exclusive control of Purchaser, free and clear of any
Liens and Transfer Restrictions, U.S. Government Securities that,
through the scheduled payment of principal and interest in accordance
with their terms, will provide, not later than one Business Day before
November ____, 2003, cash in an amount equal to not less than the
product of (1) $____ and (2) the sum of the Firm Share Base Amount and
the Additional Share Base Amount; and
(ii) delivered to Purchaser (1) a certificate of Seller
substantially in the form of Exhibit A and dated the date of such
delivery (A) identifying the U.S.
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Government Securities being transferred, (B) certifying that with
respect to such U.S. Government Securities the representations and
warranties contained in Exhibit A are true and correct on and as of the
date of such transfer, and (C) certifying that such U.S. Government
Securities satisfy the conditions set forth in Section 2.3(e)(i); and
(2) an opinion, dated the date of such delivery, of counsel addressed
to Purchaser confirming the representations contained in the second
sentence of paragraph 2(c) of Exhibit A.
In addition, Seller hereby covenants and agrees to take all other actions
necessary to cause Purchaser to be a protected purchaser of such U.S. Government
Securities, within the meaning of Article 8 of the New York Uniform Commercial
Code.
If Seller elects to extend the Exchange Date, Purchaser shall provide
notice of such election to the holders of the Securities not later than
September ___, 2003.
(f) Acceleration of Exchange Date at Election of Purchaser. At any
time after the Exchange Date has been extended pursuant to Section 2.3(e),
Seller may, at its option in connection with the consummation of a Rollover
Offering, accelerate the Exchange Date to any date on or after November ___,
2003, by notice to Purchaser not later than 10:00 a.m. on the date to which the
Exchange Date is accelerated, and the number of Contract Shares and amount of
cash to be delivered pursuant to Section 2.3(c) shall be calculated as of such
accelerated Exchange Date; provided that such acceleration shall be effective
only if, at or prior to 10:00 a.m. on such accelerated Exchange Date, Seller
shall have paid to Purchaser, by wire transfer to an account designated by the
Custodian, in Federal (immediately available) funds, an amount equal to the
product of (i) the aggregate accrued and unpaid quarterly distributions on each
Security (computed on the basis of a quarterly distribution of $_____ and a
360-day year comprised of twelve 30-day months) and (ii) the sum of the Firm
Share Base Amount and the Additional Share Base Amount. Upon receipt of such
amount in Federal (immediately available) funds, Purchaser shall promptly
deliver to Seller, free and clear of any Liens and Transfer Restrictions, the
U.S. Government Securities previously delivered by Seller to Purchaser pursuant
to Section 2.3(e)(i) (together with any payments received by Purchaser before
the date of such transfer in respect of such U.S. Government Securities).
If Seller elects to accelerate the Exchange Date and so notifies
Purchaser, Purchaser shall provide notice of such election to the holders of the
Securities not later than the accelerated Exchange Date.
(g) Satisfaction of Obligations. Notwithstanding any other
provision of this Agreement, if on or prior to the Exchange Date as then in
effect, Seller transfers Securities to Purchaser, free and clear of any Liens
and Transfer Restrictions, for cancellation (any Securities so transferred being
referred to in this Agreement as the "Transferred Securities") then the number
of Contract Shares deliverable by Seller pursuant to this Agreement shall be
reduced by a number equal to the product of (i) the number of Contract Shares
before giving effect to any such
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<PAGE> 16
transfers and (ii) a fraction, the numerator of which is the number of
Transferred Securities and the denominator of which is the sum of the Firm Share
Base Amount and the Additional Share Base Amount (rounded down to the nearest
whole share).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of Seller. Seller represents
and warrants to Purchaser that each representation and warranty made by Seller
pursuant to section 2(a) of the Underwriting Agreement is true and correct on
the date of this Agreement.
Section 3.2 Representations and Warranties of Purchaser. Purchaser
represents and warrants to Seller that each representation and warranty made by
Purchaser pursuant to section 2(b) of the Underwriting Agreement is true and
correct on the date of this Agreement.
ARTICLE IV
CONDITIONS TO PURCHASER'S OBLIGATIONS
Section 4.1 Condition to Delivery of Firm Purchase Price. The
obligation of Purchaser to deliver the Firm Purchase Price at the First Time of
Delivery is subject to the condition that the purchase by the Underwriters of
the Firm Securities pursuant to the Underwriting Agreement shall have been
consummated as contemplated under the Underwriting Agreement.
Section 4.2 Condition to Delivery of Additional Purchase Price. The
obligation of Purchaser to deliver the Additional Purchase Price at the Second
Time of Delivery is subject to the condition that the purchase by the
Underwriters of the Optional Securities shall have been consummated as
contemplated under the Underwriting Agreement.
ARTICLE V
COVENANTS
Section 5.1 Covenants of Seller.
(a) Taxes. Seller shall pay any and all documentary, stamp,
transfer or similar taxes and charges that may be payable in respect of the
execution of this Agreement and the
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<PAGE> 17
transfer and delivery of the Contract Shares (or any cash or Marketable
Securities in lieu of the Contract Shares) pursuant to this Agreement.
(b) Forward Contract. Seller hereby agrees that: (i) it will not
treat this Agreement, any portion of this Agreement, or any obligation under
this Agreement as giving rise to any interest income or other inclusions of
ordinary income; (ii) it will not treat the delivery of any portion of the
Contract Shares, cash, Marketable Securities or other property to be delivered
pursuant to this Agreement as the payment of interest or ordinary income; (iii)
it will treat this Agreement in its entirety as a forward contract for the
delivery of such Contract Shares, cash, Marketable Securities or other property;
and (iv) it will not take any action (including filing any tax return or form or
taking any position in any tax proceeding) that is inconsistent with the
obligations contained in clauses (i) through (iii) of this Section 5.1(b).
Notwithstanding the preceding sentence, Seller may take any action or position
required by law, provided that Seller delivers to Purchaser an unqualified
opinion of counsel, nationally recognized as expert in Federal tax matters, to
the effect that such action or position is required by a statutory change,
Treasury regulation, or applicable court decision published after the date of
this Agreement.
(c) Limitations on Trading During Certain Days. Seller hereby
agrees that it will not buy Class A Common Stock for its own account during the
60 days prior to the Exchange Date.
(d) Notices. Seller will cause to be delivered to Purchaser:
(i) Immediately upon the occurrence of any Event of
Default, or upon Seller's obtaining knowledge that any of the
conditions or events described in Section 7.1(a) or (b) shall have
occurred with respect to the Company, notice of such occurrence; and
(ii) If at any time prior to the Exchange Date Seller
receives notice, or otherwise obtains knowledge, that any event
requiring an adjustment to be effected pursuant to Article VI shall
have occurred or be pending, then Seller shall promptly cause to be
delivered to Purchaser a notice identifying such event and stating, if
known to Seller, the date on which such event occurred or is to occur
and, if applicable, the record date relating to such event. Seller
shall cause further notices to be delivered to Purchaser if Seller
shall subsequently receive notice, or otherwise obtain knowledge, of
any further or revised information regarding the terms or timing of
such event or any record date relating to such event.
Section 5.2 Further Assurances. From time to time on and after the date
of this Agreement through the Exchange Date, each of the parties to this
Agreement shall use its reasonable best efforts to take, or cause to be taken,
all action and to do, or cause to be done, all things reasonably necessary,
proper or advisable to consummate and make effective as promptly as practicable
the transactions contemplated by this Agreement in accordance with the terms and
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<PAGE> 18
conditions of this Agreement, including (i) using reasonable best efforts to
remove any legal impediment to the consummation of such transactions and (ii)
the execution and delivery of all such deeds, agreements, assignments and
further instruments of transfer and conveyance necessary, proper or advisable to
consummate and make effective the transactions contemplated by this Agreement in
accordance with the terms and conditions of this Agreement.
ARTICLE VI
ADJUSTMENTS TO EXCHANGE RATE, APPRECIATION THRESHOLD
PRICE, INITIAL PRICE AND CLOSING PRICE; REORGANIZATION EVENTS
Section 6.1 Dilution Adjustments. The Exchange Rate, Appreciation
Threshold Price and Initial Price shall be subject to adjustment from time to
time as follows:
(a) Stock Dividends, Splits, Reclassifications, Etc. If the
Company shall, after the date of this Agreement,
(i) pay a stock dividend or make a distribution with
respect to the Class A Common Stock in the form of Class A Common
Stock;
(ii) subdivide or split the outstanding Class A Common
Stock into a greater number of shares of Class A Common Stock;
(iii) combine the outstanding Class A Common Stock into a
smaller number of shares of Class A Common Stock; or
(iv) issue by reclassification of Class A Common Stock any
other shares of Class A Common Stock of the Company;
then, in each such case, the Exchange Rate shall be multiplied by a Dilution
Adjustment equal to the number of shares of Class A Common Stock (or in the case
of a reclassification referred to in clause (iv) above, the number of other
shares of stock of the Company issued pursuant to such reclassification), or the
fraction of such shares, that a shareholder who held one share of Class A Common
Stock immediately prior to such event would be entitled solely by reason of such
event to hold immediately after such event. The Appreciation Threshold Price and
Initial Price shall also be adjusted in the manner described in Section 6.1(e).
(b) Right or Warrant Issuances. If the Company shall, after the
date of this Agreement, issue, or declare a record date in respect of an
issuance of, rights or warrants to all holders of Class A Common Stock entitling
them to subscribe for or purchase Class A Common Stock at a price per share less
than the Then-Current Market Price of the Class A Common Stock (other than
rights to purchase Class A Common Stock pursuant to a plan for the reinvestment
of
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<PAGE> 19
dividends or interest), then, in each such case, the Exchange Rate shall be
multiplied by a Dilution Adjustment equal to a fraction, (i) the numerator of
which shall be the number of shares of Class A Common Stock outstanding
immediately prior to the time the adjustment resulting from the issuance of such
rights or warrants is effected, plus the number of additional shares of Class A
Common Stock offered for subscription or purchase pursuant to such rights or
warrants, and (ii) the denominator of which shall be the number of shares of
Class A Common Stock outstanding immediately prior to the time such adjustment
is effected plus the number of additional shares of Class A Common Stock that
the aggregate offering price of the total number of shares of Class A Common
Stock so offered for subscription or purchase pursuant to such rights or
warrants would purchase at the Then-Current Market Price of the Class A Common
Stock, which shall be determined by multiplying the total number of shares so
offered for subscription or purchase by the exercise price of such rights or
warrants and dividing the product so obtained by such Then-Current Market Price.
To the extent that, after the expiration of such rights or warrants, any of the
Class A Common Stock offered thereby shall not have been delivered, the Exchange
Rate shall be further adjusted to equal the Exchange Rate which would have been
in effect had such adjustment for the issuance of such rights or warrants been
made upon the basis of delivery of only the number of shares of Class A Common
Stock actually delivered. The Appreciation Threshold Price and Initial Price
shall also be adjusted in the manner described in Section 6.1(e).
(c) Distributions of Other Assets. If the Company shall, after the
date of this Agreement, declare or pay a dividend or make a distribution to all
holders of Class A Common Stock, in either case, consisting of evidences of its
indebtedness or other non-cash assets (excluding (A) any dividends or
distributions referred to in Section 6.1(a) and (B) any Spin-Off Distributions)
or shall issue to all holders of Class A Common Stock rights or warrants to
subscribe for or purchase any of its securities (other than rights or warrants
referred to in Section 6.1(b)), then, in each such case, the Exchange Rate shall
be multiplied by a Dilution Adjustment equal to a fraction, the numerator of
which shall be the Then-Current Market Price per Share of Class A Common Stock,
and the denominator of which shall be such Then-Current Market Price per share
less the fair market value (as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Administrator, whose
determination shall be final) as of the time the adjustment is effected of the
portion of the evidences of indebtedness or assets so distributed or of such
subscription rights or warrants so issued applicable to one share of Class A
Common Stock. The Appreciation Threshold Price and Initial Price shall also be
adjusted in the manner described in Section 6.1(e).
(d) Cash Dividends; Excess Purchase Payments. If the Company
shall, after the date of this Agreement, declare a record date in respect of a
distribution of cash (other than any Permitted Dividend, any cash distributed in
consideration of fractional shares of Class A Common Stock and any cash
distributed in a Reorganization Event), by dividend or otherwise, to all holders
of Class A Common Stock, or make an Excess Purchase Payment, then the Exchange
Rate will be multiplied by a Dilution Adjustment equal to a fraction, the
numerator of which shall be the Then-Current Market Price of the Class A Common
Stock on such record date, and
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<PAGE> 20
the denominator of which shall be such Then- Current Market Price less the
amount of such distribution applicable to one share of Class A Common Stock
which would not be a Permitted Dividend or, in the case of an Excess Purchase
Payment, less the aggregate amount of such Excess Purchase Payment for which
adjustment is being made at such time divided by the number of shares of Class A
Common Stock outstanding on such record date. The Appreciation Threshold Price
and Initial Price shall also be adjusted in the manner described in Section
6.1(e).
(e) Corresponding Adjustments to Initial Price, Appreciation
Threshold Price and Closing Price.
(i) If any adjustment is made to the Exchange Rate
pursuant to Section 6.1(a), (b), (c) or (d), the Appreciation Threshold
Price and the Initial Price shall also be adjusted by dividing each of
the Appreciation Threshold Price and the Initial Price by the
applicable Dilution Adjustment.
(ii) If, during any Calculation Period used in calculating
the Average Market Price, the Then-Current Market Price or the
Transaction Value, there shall occur any event requiring an adjustment
to be effected pursuant to this Section 6.1, then the Closing Price for
each Trading Day in the Calculation Period occurring prior to the day
on which such adjustment is effected shall be adjusted by being divided
by the relevant Dilution Adjustment.
(f) Timing of Dilution Adjustments. Each Dilution Adjustment shall
be effected:
(i) in the case of any dividend, distribution or
issuance, as of the opening of business on the Business Day next
following the record date for determination of holders of Class A
Common Stock entitled to receive such dividend, distribution or
issuance or, if the announcement of any such dividend, distribution or
issuance is after such record date, at the time such dividend,
distribution or issuance is announced by the Company;
(ii) in the case of any subdivision, split, combination or
reclassification, on the effective date of such transaction;
(iii) in the case of any Excess Purchase Payment for which
the Company shall announce, at or prior to the time it commences the
relevant share repurchase, the repurchase price per share for shares
proposed to be repurchased, on the date of such announcement; and
(iv) in the case of any other Excess Purchase Payment, on
the date that the holders of the repurchased shares become entitled to
payment of such Excess Purchase Payment.
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<PAGE> 21
(g) General; Failure of Dilution Event to Occur. All Dilution
Adjustments shall be rounded upward or downward to the nearest 1/10,000th or, if
there is not a nearest 1/10,000th, to the next lower 1/10,000th. No adjustment
in the Exchange Rate shall be required unless such adjustment would require an
increase or decrease of at least one percent in the Exchange Rate; provided,
however, that any adjustments that by reason of this sentence are not required
to be made shall be carried forward and taken into account in any subsequent
adjustment. If any announcement or declaration of a record date in respect of a
dividend, distribution, issuance or repurchase requiring an adjustment pursuant
to this Section 6.1 shall subsequently be canceled by the Company or shall fail
to occur for any other reason, then, upon such cancellation or failure to occur,
the Exchange Rate shall be further adjusted to the Exchange Rate that would then
have been in effect had adjustment for such event not been made. If, after an
announcement of a share repurchase requiring an adjustment pursuant to this
Section 6.1, the Company reduces the repurchase price or repurchases fewer
shares than announced, then upon completion of such share repurchase the
Exchange Rate shall be further adjusted to equal the Exchange Rate that would
have been in effect had the adjustment for such repurchase been based on the
actual price and amount repurchased. If a Reorganization Event shall occur after
the occurrence of one or more events requiring an adjustment pursuant to this
Section 6.1, the Dilution Adjustments previously applied to the Exchange Rate in
respect of such events shall not be rescinded but shall be applied to the new
Exchange Rate provided for under Section 6.2.
Section 6.2 Adjustment for Consolidation, Merger or Other
Reorganization Event.
(a) In the event of (i) any consolidation, amalgamation or merger
of the Company, or any surviving entity or subsequent surviving entity of the
Company (a "Company Successor"), with or into another entity (other than a
consolidation, amalgamation or merger in which the Company is the continuing
corporation and in which the shares of Class A Common Stock outstanding
immediately prior to the consolidation, amalgamation or merger are not exchanged
for cash, securities or other property of the Company or another corporation),
(ii) any sale, transfer, lease or conveyance to another corporation of the
property of the Company or any Company Successor as an entirety or substantially
as an entirety, (iii)(x) any statutory exchange of securities of the Company or
any Company Successor with another corporation or (y) any sale of all or
substantially all of the outstanding equity securities of the Company or any
Successor Company, including pursuant to any plan of arrangement or similar
scheme with the Company's shareholders under any applicable law, rule or
regulation or order of any court or governmental authority (in the case of each
of the preceding clauses (x) and (y), other than in connection with a
consolidation, amalgamation or merger referred to in clause (i) immediately
above), or (iv) any liquidation, dissolution or winding up of the Company or any
Company Successor (any such event described in clause (i), (ii), (iii) or (iv),
a "Reorganization Event"), Seller shall deliver on the Exchange Date, in lieu of
the Contract Shares, cash in an amount (the "Basic Reorganization Event Amount")
equal to the Dilution Adjustment (or successive Dilution Adjustments), if any,
that have been applied to the Exchange Rate pursuant to Section 6.1 at or prior
to the time of such Reorganization Event, multiplied by the product of (x) the
Firm Share Base Amount plus
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<PAGE> 22
the Additional Share Base Amount and (y)(i) if the Transaction Value is less
than the Appreciation Threshold Price but equal to or greater than the Initial
Price, the Initial Price, (ii) if the Transaction Value is equal to or greater
than the Appreciation Threshold Price, _____ multiplied by the Transaction
Value, and (iii) if the Transaction Value is less than the Initial Price, the
Transaction Value. Notwithstanding the foregoing, if the consideration received
by the holders of the Class A Common Stock in the Reorganization Event (the
"Merger Consideration") includes any Marketable Securities, Seller may, at its
option, in lieu of delivering cash as described above, deliver an equivalent
amount (based on the value determined in accordance with clause (z) of the
definition of Transaction Value) of such Marketable Securities, but not
exceeding, as a percentage of the total consideration required to be delivered,
the percentage of the total Transaction Value attributable to such Marketable
Securities.
(b) Notwithstanding Section 6.2(a), if at least 30% of the Merger
Consideration in any Reorganization Event consists of cash or cash equivalents
(a "Cash Merger"), then Seller shall be required (i) within five Business Days
after Seller receives the Merger Consideration, to deliver the Accelerated
Portion to Purchaser, provided that to the extent the Accelerated Portion
consists of property other than cash or cash equivalents, Seller may, at its
option, deliver, in lieu of such other property, cash in an amount equal to the
Value of such other property; and (ii) on the Exchange Date, to deliver to
Purchaser the number of Marketable Securities equal to the product of (x) the
sum of the Firm Share Base Amount and the Additional Share Base Amount and (y)
the Exchange Rate, adjusted as described in the next sentence, and the
provisions of Section 2.3(c) shall apply mutatis mutandis to such Marketable
Securities, provided that Seller may exercise the Cash Settlement Alternative in
respect of such Marketable Securities, in which case Section 2.3(d) shall apply
to such election mutatis mutandis to such Marketable Securities. For purposes of
calculating such Exchange Rate, (A) the Initial Price and Appreciation Threshold
Price shall each be adjusted by multiplying the Initial Price or Appreciation
Threshold Price, as applicable, as then in effect, by a fraction, the numerator
of which is the Value of a share of the Marketable Securities included in the
Merger Consideration on the date the Cash Merger is closed, and the denominator
of which shall be the aggregate Transaction Value; and (B) the Exchange Rate
shall be adjusted by multiplying the Exchange Rate (computed on the basis of the
adjusted Initial Price and Appreciation Threshold Price and the Average Market
Price of the Marketable Securities) by a fraction, the numerator of which is the
aggregate Value of the Marketable Securities included in the Merger
Consideration received in exchange for a single share of Class A Common Stock,
and the denominator of which is the Value of a share of the Marketable
Securities included in the Merger Consideration on the date the Cash Merger is
closed.
Section 6.3 Spin-Off Distributions. If the Company shall, after the
date of this Agreement, effect a Spin-Off Distribution, then for all purposes of
this Agreement, from and after the record date in respect of such Spin-Off
Distribution, (i) the Contract Shares shall be deemed to include both (A) that
number of shares of Class A Common Stock equal to the product of (x) the sum of
the Firm Share Base Amount and the Additional Share Base Amount and (y) the
Exchange Rate, and (B) that number of Marketable Securities of the class
distributed
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<PAGE> 23
in respect of the Contract Shares in such Spin-Off Distribution equal to the
product of (x) the sum of the Firm Share Base Amount and the Additional Share
Base Amount, (y) the Exchange Rate, and (z) the number of shares of such
Marketable Securities distributed per share of Class A Common Stock in the Spin-
Off Distribution; (ii) Seller's obligations under Section 2.3 shall include
delivery of such Marketable Securities together with the Class A Common Stock
comprising the Contract Shares and the provisions of Section 2.3(c) shall apply
mutatis mutandis to such Marketable Securities; and (iii) the "Closing Price" of
the Class A Common Stock shall thereafter be deemed to be equal to the sum of
(A) the Closing Price per share of Class A Common Stock and (B) the product of
(x) the Closing Price per share of the spun-off Marketable Securities and (y)
the number of shares of such Marketable Securities distributed per share of
Class A Common Stock in the Spin-Off Distribution.
Section 6.4 Adjustments with Respect to Marketable Securities. The
number of shares of any Marketable Securities included in any calculation
pursuant to this Agreement shall be subject to adjustment if any event that
would, had it occurred with respect to the Class A Common Stock or the Company,
have required an adjustment pursuant to Section 6.1 or Section 6.2, shall occur
with respect to such Marketable Securities or the issuer of such Marketable
Securities between the time of the Spin-Off Distribution or Reorganization Event
(or, in the case of any adjustment occurring during a Calculation Period, the
first day of such Calculation Period) and the Exchange Date. Adjustment for such
subsequent events shall be as nearly equivalent as practicable to the
adjustments provided for in Section 6.1 or Section 6.2.
ARTICLE VII
ACCELERATION UPON AN EVENT OF DEFAULT
Section 7.1 Events of Default. If one or more of the following events
(each an "Event of Default") shall occur:
(a) Seller shall commence a voluntary case or other
proceeding seeking a liquidation, reorganization or other relief with
respect to Seller or Seller's debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar official
of Seller or any substantial part of Seller's property, or shall
consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other
proceeding commenced against Seller, or shall make a general assignment
for the benefit of creditors, or shall take any action to authorize any
of the foregoing; or
(b) an involuntary case or other proceeding shall be
commenced against Seller seeking liquidation, reorganization or other
relief with respect to Seller or Seller's debts under any bankruptcy,
insolvency or other similar law now
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<PAGE> 24
or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of Seller or
any substantial part of Seller's property, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period of
60 days; or an order for relief shall be entered against Seller under
the federal bankruptcy laws as now or hereafter in effect; or
(c) a Collateral Event of Default within the meaning of
the Collateral Agreement shall occur;
then, upon the occurrence of any such event, Seller shall become obligated to
deliver the Contract Shares (or the Marketable Securities or cash or combination
of Marketable Securities and cash deliverable in respect of such Contract
Shares), or any U.S. Government Securities then pledged under the Collateral
Agreement in respect of such Contract Shares. Purchaser and Seller agree that
such amount is a reasonable preestimate of loss and not a penalty. Such amount
is payable for the loss of bargain and Purchaser will not be entitled to recover
additional damages as a consequence of any loss resulting from an Event of
Default.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Adjustments of Exchange Rate; Selection of Independent
Investment Banking Firm. Purchaser shall be responsible for the effectuation and
calculation of any adjustment pursuant to Article VI and shall furnish Seller
notice of any such adjustment and shall provide Seller reasonable opportunity to
review the calculations pertaining to any such adjustment. If, pursuant to the
terms and conditions of this Agreement, the Administrator shall be required to
retain a nationally recognized independent investment banking firm for any
purpose provided in this Agreement, such nationally recognized independent
investment banking firm shall be selected and retained by the Administrator only
after consultation with Seller.
Section 8.2 No Assumption of Liability. By executing this Agreement,
none of the Trustees assumes any personal liability under this Agreement.
Section 8.3 Notices.
(a) All notices and other communications provided for in this
Agreement, unless otherwise specified, shall be in writing and shall be given at
the addresses set forth in the following sentence or at such other addresses as
may be designated by notice duly given in accordance with this Section 8.3 to
each other party to this Agreement. Until such notice is given, (i) notices to
Purchaser shall be directed to it in care of the Administrator, The Chase
Manhattan Bank, 450 West 33rd Street, New York, New York 10001, Telecopier No.
(212) 946-3638,
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<PAGE> 25
Attention: Pledge Asset Control Services; and (ii) notices to Seller shall be
directed to it at , Telecopier No. .
(b) Each notice given pursuant to Section 8.3(a) shall be
effective (i) if sent by certified mail (return receipt requested), 72 hours
after being deposited in the United States mail, postage prepaid; (ii) if given
by telex or telecopier, when such telex or telecopied notice is transmitted
(with electronic confirmation of transmission or verbal confirmation of
receipt); or (iii) if given by any other means, when delivered at the address
specified in this Section 8.3.
Section 8.4 Governing Law; Severability. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
To the extent permitted by law, the unenforceability or invalidity of any
provision or provisions of this Agreement shall not render any other provision
or provisions contained in this Agreement unenforceable or invalid.
Section 8.5 Entire Agreement. Except as expressly set forth in this
Agreement, this Agreement constitutes the entire agreement among the parties
with respect to the subject matter of this Agreement and supersedes all prior
agreements, understandings and negotiations, both written and oral, among the
parties with respect to the subject matter of this Agreement.
Section 8.6 Amendments; Waivers. Any provision of this Agreement may be
amended or waived (either generally or in a particular instance and either
retrospectively or prospectively) if, and only if, such amendment or waiver is
in writing and signed, in the case of an amendment, by Purchaser and Seller or,
in the case of a waiver, by the party against whom the waiver is to be
effective. Purchaser agrees that it will not, without Seller's written consent,
agree to amend or waive any provision of the Trust Agreement in any manner that
materially and adversely affects the rights or obligations of Seller hereunder.
No failure or delay by either party in exercising any right, power or privilege
under this Agreement shall operate as a waiver of such right, power or privilege
nor shall any single or partial exercise of any such right, power or privilege
preclude any other or further exercise of such right, power or privilege or the
exercise of any other right, power or privilege. The rights and remedies
provided in this Agreement shall be cumulative and not exclusive of any rights
or remedies provided by law.
Section 8.7 Non-Assignability. This Agreement and the rights and
obligations of the parties under this Agreement may not be assigned or delegated
by either party without the prior written consent of the other party, and any
purported assignment without such consent shall be void.
Section 8.8 No Third Party Rights; Successors and Assigns. This
Agreement is not intended and shall not be construed to create any rights in any
person other than Seller and Purchaser and their respective successors and
assigns and no person shall assert any rights as third party beneficiary under
this Agreement. Whenever any of the parties to this Agreement is referred to,
such reference shall be deemed to include the successors and assigns of such
party.
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<PAGE> 26
All the covenants and agreements contained in this Agreement by or on behalf of
Seller and Purchaser shall bind and be enforceable by, and inure to the benefit
of, their respective successors and assigns whether so expressed or not, and
shall be enforceable by and inure to the benefit of Purchaser and its successors
and assigns.
Section 8.9 Counterparts. This Agreement may be executed, acknowledged
and delivered in any number of counterparts, each of which shall be an original,
but all of which shall constitute a single agreement, with the same effect as if
the signatures on each such counterpart were upon the same instrument.
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<PAGE> 27
IN WITNESS WHEREOF, the parties have caused this Purchase Agreement to
be duly executed and delivered as of the first date set forth above.
SELLER:
NYLIFE LLC
By:
-----------------------------------
Name:
Title:
PURCHASER:
EXPRESS SCRIPTS AUTOMATIC
EXCHANGE SECURITY TRUST
By:
-----------------------------------
Donald J. Puglisi,
as Trustee
By:
-----------------------------------
William R. Latham III,
as Trustee
By:
-----------------------------------
James B. O'Neill,
as Trustee
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<PAGE> 28
Exhibit A
to
Purchase Agreement
CERTIFICATE FOR EXTENSION OF EXCHANGE DATE
The undersigned, NYLIFE LLC ("Seller"), hereby certifies, pursuant to
Section 2.3(e) of the Purchase Agreement, dated as of November , 2000 (the
"Contract"), between Seller and Express Scripts Automatic Exchange Security
Trust, that:
1. Seller is transferring the following U.S. Government
Securities to Purchaser:
[INSERT LIST OF TRANSFERRED U.S. GOVERNMENT SECURITIES]
2. Seller hereby represents and warrants to Purchaser that:
(a) Consents to Transfer. No Transfer Restrictions exist with
respect to or otherwise apply to the transfer by Seller of such U.S. Government
Securities to Purchaser.
(b) Delivery. Seller has delivered to the Custodian, for the
account of and subject to the exclusive control of Purchaser, free and clear of
any Liens and Transfer Restrictions, U.S. Government Securities that, through
the scheduled payment of principal and interest in accordance with their terms,
will provide, not later than one Business Day before February , 2004, cash in an
amount equal to not less than the product of (1) and (2) the sum of the Firm
Share Base Amount and the Additional Share Base Amount.
(c) Title. Seller has good and marketable title to such U.S.
Government Securities, free and clear of all Liens and Transfer Restrictions.
Upon delivery of such U.S. Government Securities to Purchaser, Purchaser will
obtain good and marketable title to such U.S. Government Securities free and
clear of all Liens and Transfer Restrictions.
3. Such U.S. Government Securities satisfy the conditions set
forth in Section 2.3(e)(i) of the Contract.
Capitalized terms defined in the Contract are used in this Certificate
as defined in the Contract.
<PAGE> 29
IN WITNESS WHEREOF, the undersigned has executed this certificate this
____ day of ____________, _____.
NYLIFE LLC
By:
--------------------------------
Name:
as Trustee
