SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For Quarter Ended March 31, 1999 Commission file number 0-15981
HILB, ROGAL AND HAMILTON COMPANY
(Exact name of registrant as specified in its charter)
Virginia 54-1194795
------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
P. O. Box 1220, Glen, Allen, VA 23060-1220
- ---------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
(Registrant's telephone number, including area code) (804) 747-6500
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.
Class Outstanding at May 3, 1999
- ---------------------------------- ----------------------------
Common stock, no par value 13,201,314
<PAGE>
HILB, ROGAL AND HAMILTON COMPANY
INDEX
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Page
----
Part I. FINANCIAL INFORMATION
Item 1. Financial Statements
Statement of Consolidated Income
for the three months ended
March 31, 1999 and 1998 3
Consolidated Balance Sheet
March 31, 1999 and December 31,
1998 4
Statement of Consolidated Shareholders'
Equity for the three months ended
March 31, 1999 and 1998 5
Statement of Consolidated Cash Flows
for the three months ended March 31,
1999 and 1998 6
Notes to Consolidated Financial
Statements 7-9
Item 2. Management's Discussion and Analysis
of Financial Condition and
Results of Operations 10-13
Item 3. Qualitative and Quantitative Disclosures
About Market Risk 14
Part II. OTHER INFORMATION
Item 2. Changes in Securities and Use of Proceeds 14
Item 6. Exhibits and Reports on Form 8-K 15-16
<PAGE>
PART I -- FINANCIAL INFORMATION
Item 1. FINANCIAL STATEMENTS
STATEMENT OF CONSOLIDATED INCOME
HILB, ROGAL AND HAMILTON COMPANY AND SUBSIDIARIES
(UNAUDITED)
THREE MONTHS ENDED
MARCH 31, 1999 MARCH 31, 1998
Revenues
Commissions and fees $45,975,124 $46,568,841
Investment income 337,115 375,805
Other income 3,941,376 344,380
----------- -----------
50,253,615 47,289,026
Operating expenses
Compensation and employee
benefits 25,069,940 24,796,899
Other operating expenses 9,941,029 9,921,756
Amortization of intangibles 2,004,499 1,937,231
Interest expense 686,323 563,749
----------- -----------
37,701,791 37,219,635
----------- -----------
INCOME BEFORE INCOME TAXES 12,551,824 10,069,391
Income taxes 5,114,868 4,123,848
----------- -----------
NET INCOME $ 7,436,956 $ 5,945,543
=========== ===========
NET INCOME PER SHARE:
Basic $0.61 $0.47
===== =====
Diluted $0.60 $0.46
===== =====
See notes to consolidated financial statements.
3
<PAGE>
CONSOLIDATED BALANCE SHEET
HILB, ROGAL AND HAMILTON COMPANY AND SUBSIDIARIES
(UNAUDITED)
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
1999 1998
------------ ------------
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents $ 24,044,251 $ 19,394,958
Investments 5,094,983 3,383,742
Receivables:
Premiums, less allowance for doubtful
accounts of $1,335,000 and $1,505,000,
respectively 39,708,664 45,313,620
Other 6,873,699 6,257,370
------------ ------------
46,582,363 51,570,990
Prepaid expenses and other current assets 3,057,245 3,852,095
------------ ------------
TOTAL CURRENT ASSETS 78,778,842 78,201,785
INVESTMENTS 2,978,042 3,068,140
PROPERTY AND EQUIPMENT (NET) 12,814,691 12,387,194
INTANGIBLE ASSETS
Expiration rights 81,390,316 81,074,920
Goodwill 36,435,889 35,985,542
Noncompetition agreements 14,609,266 14,740,145
------------ ------------
132,435,471 131,800,607
Less accumulated amortization 43,842,083 44,329,974
------------ ------------
88,593,388 87,470,633
OTHER ASSETS 6,931,746 6,938,074
------------ ------------
$190,096,709 $188,065,826
============ ============
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Premiums payable to insurance companies $ 58,618,202 $ 65,436,784
Accounts payable and accrued expenses 12,458,883 13,025,426
Premium deposits and credits due customers 10,040,169 7,765,575
Current portion of long-term debt 2,871,354 2,277,479
------------ ------------
TOTAL CURRENT LIABILITIES 83,988,608 88,505,264
LONG-TERM DEBT 43,112,139 43,658,306
OTHER LONG-TERM LIABILITIES 11,028,762 10,191,881
SHAREHOLDERS' EQUITY
Common Stock, no par value;
authorized 50,000,000 shares;
outstanding 12,171,314 and 12,117,412
shares, respectively 4,596,353 3,831,208
Retained earnings 47,370,847 41,879,167
------------ ------------
51,967,200 45,710,375
------------ ------------
$190,096,709 $188,065,826
============ ============
</TABLE>
See notes to consolidated financial statements.
4
<PAGE>
STATEMENT OF CONSOLIDATED SHAREHOLDERS' EQUITY
HILB, ROGAL AND HAMILTON COMPANY AND SUBSIDIARIES
(UNAUDITED)
COMMON RETAINED
STOCK EARNINGS
----------- -----------
Balance at January 1, 1999 $ 3,831,208 $41,879,167
Issuance of 56,014 shares of
Common Stock 765,145
Payment of dividends (1,945,276)
Net income 7,436,956
----------- -----------
Balance at March 31, 1999 $ 4,596,353 $47,370,847
=========== ===========
Balance at January 1, 1998 $16,540,461 $34,798,138
Issuance of 51,600 shares of
Common Stock 717,313
Purchase of 132,000 shares of
Common Stock (2,412,590)
Payment of dividends (1,972,225)
Other 49,733
Net income 5,945,543
----------- -----------
Balance at March 31, 1998 $14,894,917 $38,771,456
=========== ===========
See notes to consolidated financial statements.
5
<PAGE>
STATEMENT OF CONSOLIDATED CASH FLOWS
HILB, ROGAL AND HAMILTON COMPANY AND SUBSIDIARIES
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31, 1999 MARCH 31, 1998
-------------- --------------
<S> <C> <C>
OPERATING ACTIVITIES
Net income $ 7,436,956 $ 5,945,543
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 973,778 851,373
Amortization of intangible assets 2,004,499 1,937,231
----------- -----------
Net income plus amortization and depreciation 10,415,233 8,734,147
Provisions for losses on accounts receivable 62,109 118,845
Gain on sale of assets (3,671,207) (148,505)
Changes in operating assets and liabilities
net of effects from insurance agency
acquisitions:
Decrease in accounts receivable 6,066,245 4,102,365
Decrease in prepaid expenses 808,604 722,911
Decrease in premiums payable to
insurance companies (7,567,194) (3,641,662)
Increase in premium deposits and
credits due customers 2,125,746 1,121,720
Increase (decrease) in accounts payable
and accrued expenses (1,658,419) 322,429
Other operating activities 161,695 18,551
----------- -----------
NET CASH PROVIDED BY OPERATING
ACTIVITIES 6,742,812 11,350,801
INVESTING ACTIVITIES
Proceeds from maturities of held-to-maturity
investments 449,758 1,441,413
Purchase of investments (2,070,901) (81,799)
Purchase of property and equipment (1,589,075) (760,048)
Purchase of insurance agencies, net of
cash acquired (1,446,931) (2,891,212)
Proceeds from sale of assets 4,490,306 499,361
Other investing activities (44) 30,210
----------- -----------
NET CASH USED IN INVESTING ACTIVITIES (166,887) (1,762,075)
FINANCING ACTIVITIES
Principal payments on long-term debt (746,501) (779,887)
Proceeds from issuance of Common Stock 765,145 717,313
Repurchase of Common Stock -- (2,412,590)
Dividends (1,945,276) (1,972,225)
----------- -----------
NET CASH USED IN FINANCING ACTIVITIES (1,926,632) (4,447,389)
----------- -----------
INCREASE IN CASH AND CASH EQUIVALENTS 4,649,293 5,141,337
Cash and cash equivalents at beginning of
period 19,394,958 22,314,860
----------- -----------
CASH AND CASH EQUIVALENTS AT END OF
PERIOD $24,044,251 $27,456,197
=========== ===========
</TABLE>
See notes to consolidated financial statements.
6
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
HILB, ROGAL AND HAMILTON COMPANY AND SUBSIDIARIES
March 31, 1999
(UNAUDITED)
NOTE A--BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements of the Company have
been prepared in accordance with generally accepted accounting principles for
interim financial information and with the instructions to Form 10-Q and Article
10 of Regulation S-X. Accordingly, they do not include all of the information
and footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments (consisting
of normal recurring accruals) considered necessary for a fair presentation have
been included. Operating results for the three month period ended March 31,
1999, are not necessarily indicative of the results that may be expected for the
year ending December 31, 1999. For further information, refer to the
consolidated financial statements and footnotes thereto included in the
Company's Form 10-K for the year ended December 31, 1998.
In accordance with industry practice, the Company has changed its reporting to
state revenues net of commissions paid to outside brokers. Amounts for the prior
period have been reclassified to conform to current year presentation.
NOTE B--INCOME TAXES
The Company files a consolidated federal income tax return. Deferred taxes
result from temporary differences between the carrying amounts of assets and
liabilities for financial statement purposes and the amounts used for income tax
purposes. The Company's effective rate varies from the statutory rate primarily
due to state income taxes.
NOTE C--ACQUISITIONS
During the first three months of 1999, the Company acquired certain assets and
liabilities of one insurance agency for $2,244,000 ($1,450,000 in cash and
$794,000 in guaranteed future payments) in a purchase accounting transaction.
Proforma revenues and net income are not material to the consolidated financial
statements.
7
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
HILB, ROGAL AND HAMILTON COMPANY AND SUBSIDIARIES
March 31, 1999
(UNAUDITED)
NOTE C--ACQUISITIONS-Continued
On March 29, 1999, the Company signed a definitive Stock Purchase Agreement with
PM Holdings, Inc., Phoenix Home Life Mutual Insurance Company and Martin L.
Vaughan, III to acquire all of the issued and outstanding shares of American
Phoenix Corporation, a subsidiary of Phoenix Home Life Mutual Insurance Company
for approximately $49 million in cash, $32 million in 5.25% Convertible
Subordinated Debentures due 2014, with a conversion price of $22.75 per share,
callable in 2009, and 1,000,000 shares of Common Stock of the Company. The
acquisition, which will be accounted for using the purchase method of
accounting, closed on May 3, 1999. The Company has funded the cash portion of
the purchase price with a credit facility obtained in connection with the
acquisition.
American Phoenix Corporation reported total assets of $106.6 million as of
December 31, 1998 and revenues of $72.9 million for the year then ended.
NOTE D--SALE OF ASSETS
During the three months ended March 31, 1999 and 1998, the Company sold certain
insurance accounts and other assets resulting in gains of approximately
$3,700,000 and $149,000, respectively. These amounts are included in other
income in the statement of consolidate income. Revenues, expenses and assets
were not material to the consolidated financial statements.
8
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
HILB, ROGAL AND HAMILTON COMPANY AND SUBSIDIARIES
March 31, 1999
(UNAUDITED)
NOTE E--NET INCOME PER SHARE
The following table sets forth the computation of basic and diluted net income
per share.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
March 31, 1999 March 31, 1998
-------------- --------------
<S> <C> <C>
Numerator for basic and dilutive net income
per share - net income $ 7,436,956 $ 5,945,543
=========== ===========
Denominator
Weighted average shares 12,136,440 12,769,257
Effect of guaranteed future shares to be
issued in connection with agency
acquisitions 118,081 10,101
----------- -----------
Denominator for basic net income per
share 12,254,521 12,779,358
Effect of dilutive securities:
Employee stock options 83,488 206,740
Contingent stock - acquisitions 2,885 --
----------- -----------
Denominator for diluted net income per
share - adjusted weighted average
shares and assumed conversions 12,340,894 12,986,098
=========== ===========
Net Income per Common Share:
Basic $0.61 $0.47
===== =====
Diluted $0.60 $0.46
===== =====
</TABLE>
9
<PAGE>
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Results of Operations:
For the three months ended March 31, 1999, commissions and fees were $46.0
million, a decrease of 1.3% from commissions and fees of $46.6 million during
the comparable period of the prior year. Approximately $2.5 million of
commissions were derived from purchase acquisitions of new insurance agencies.
This increase was offset by decreases of approximately $3.2 million from the
sale of certain offices and accounts in 1999 and 1998 and decreases due to a
change in the amount and timing of certain payments from selected carriers,
which are no longer heavily concentrated in the first quarter. Commissions and
fees from operations owned during both periods increased 1.5%.
Investment income remained relatively level and other income increased $3.6
million from the prior year. Amounts in other income include gains from the sale
of certain insurance accounts and other assets of $3.6 million and $0.2 million
in 1999 and 1998, respectively.
Expenses remained relatively level with the prior year. Increases relate to
increased earnings and purchase acquisitions, offset by the impact of certain
offices sold in 1999 and 1998.
The Company's overall tax rate of 40.8% for the three months ended March 31,
1998, was relatively comparable to the rate of 41.0% for the same period of the
prior year.
The timing of contingent commissions, policy renewals and acquisitions may cause
revenues, expenses and net income to vary significantly from quarter to quarter.
As a result of the factors described above, operating results for the three
months ended March 31, 1999 should not be considered indicative of the results
that may be expected for the entire year ending December 31, 1999.
Liquidity and Capital Resources:
Net cash provided by operations totaled $6.7 million and $11.4 million for the
three months ended March 31, 1999 and 1998, respectively, and is primarily
dependent upon the timing of the collection of insurance premiums from clients
and payment of those premiums to the appropriate insurance underwriters.
The Company has historically generated sufficient funds internally to finance
capital expenditures for personal property and equipment. Cash expenditures for
the acquisition of property and equipment were $1.6 million and $0.8 million for
the three
10
<PAGE>
months ended March 31, 1999 and 1998, respectively. The timing and extent of the
purchase of investments is dependent upon cash needs and yields on alternate
investments and cash equivalents. The purchase of insurance agencies accounted
for under the purchase method of accounting utilized cash of $1.4 million and
$2.9 million in the three months ended March 31, 1999 and 1998, respectively.
Cash expenditures for such insurance agency acquisitions have been primarily
funded through operations and long-term borrowings. In addition, a portion of
the purchase price in such acquisitions may be paid through Common Stock and
deferred cash payments. Cash proceeds form the sale of accounts and other assets
amounted to $4.5 million and $0.5 million in the three months ended March 31,
1999 and 1998, respectively. The Company did not have any material capital
expenditure commitments as of March 31, 1999.
Financing activities utilized cash of $1.9 million and $4.4 million in the three
months ended March 31, 1999 and 1998, respectively, as the Company made
scheduled debt repayments. In addition, during the three months ended March 31,
1998, the Company repurchased 132,000 shares of its Common Stock under a stock
repurchase program. The Company is currently authorized to purchase an
additional 770,000 shares and expects to continue to repurchase shares at a
decreased level from 1998 during the remainder of 1999. The Company anticipates
the continuance of its dividend policy. The Company had a bank credit agreement
for $40.0 million under loans due through 2003. At March 31, 1999, there were
loans of $40.0 million outstanding under the agreement. In May 1999, this
facility was refinanced with a $110 million credit facility obtained in
connection with the acquisition of American Phoenix Corporation.
The Company had a current ratio (current assets to current liabilities) of 0.94
to 1.00 as of March 31, 1999. Shareholders' equity of $52.0 million at March 31,
1999, is improved from $45.7 million at December 31, 1998, and the debt to
equity ratio of 0.83 to 1.00 is decreased from the ratio at December 31, 1998 of
0.96 to 1.00 due to net income.
On March 29, 1999, the Company entered into a Stock Purchase Agreement with PM
Holdings, Inc., Phoenix Home Life Mutual Insurance Company and Martin L.
Vaughan, III to acquire all of the issued and outstanding shares of capital
stock of American Phoenix Corporation. The acquisition closed May 3, 1999. Upon
consummation of the acquisition, the Company incurred debt of approximately $49
million under a credit facility obtained in connection with the acquisition and
issued $32 million principal amount of 5.25% Convertible Subordinated Debentures
due 2014. The Company expects repayment and servicing of the debt to be funded
largely from cash flows of the combined operations. Additionally, management
believes that these cash requirements will be partially offset by federal income
tax benefits related to the interest expense and a portion of the goodwill
amortization. Based upon the historic ability of the Company and American
Phoenix Corporation to generate consistent, positive cash flows, the Company
believes that the combined company will have sufficient liquidity and adequate
capital resources to meet both its short- and long-term capital needs.
11
<PAGE>
Market Risk
The Company has certain investments and utilizes (on a limited basis) derivative
financial instruments which are subject to market risk; however, the Company
believes that exposure to market risk associated with these instruments is not
material.
Impact of Year 2000
Many existing computer programs use only two digits to identify a year in the
date field. These programs were designed and developed without considering the
impact of the upcoming change in the century. If not corrected, this could
result in a system failure or miscalculations causing disruption of operations,
and could conceivably have a material adverse effect on the Company.
The Company's technological operations rely primarily on personal computers
("PC's") and off-the-shelf software applications. As such, management is
monitoring a program to evaluate external software relationships and ready its
computer systems for the year 2000. As part of this process, the Company has
assessed its year 2000 readiness by (1) performing an inventory of its PC's and
applications software; (2) seeking compliance statements from its agency
management system and other third party software vendors; and (3) testing PC
hardware. As a result of this assessment, the Company is upgrading or replacing
portions of its existing software and hardware that were not year 2000
compliant. Generally, these modifications and replacements were contemplated
with normal system enhancements and improvements. The Company substantially
completed the required software replacements during 1998 and expects hardware
replacements to be completed during 1999. The Company is also assessing any
systems that may contain embedded chips or microcontrollers, such as elevators,
office equipment, telephones or security systems. This assessment should be
completed by mid 1999 with replacements or upgrades and limited testing to occur
during the remainder of 1999.
The Company is also evaluating insurance carriers, financial institutions and
other third party vendors. This process is expected to be complete by mid 1999.
Determining the year 2000 readiness of external parties requires the collection
of compliance statements made by those parties, together with factual research.
Although the Company has taken, and will continue to take, reasonable efforts to
gather information to determine the readiness of external parties, often such
information is not provided voluntarily, is not available or is not reliable.
In assessing the material risks to the Company's business arising from the year
2000 problem, the Company considers the year 2000 readiness of agency management
system vendors, insurance carriers, financial institutions and other third
parties (including public utilities and telecommunication service companies) to
be the primary risk to its business. The loss of services from any one of these
entities could disrupt operations and have a material adverse effect on the
Company. The year 2000
12
<PAGE>
readiness of third parties is substantially beyond the Company's knowledge and
control, and there can be no assurances that the Company will not be adversely
affected by the failure of a third party to adequately address the year 2000
problem.
The Company has begun a comprehensive contingency planning effort to ensure that
all critical business functions will continue on January 1, 2000. The plan will
outline the procedures to follow for the most likely areas of risk. The Company
expects its contingency plan to create a business continuity project work group,
define triggers for activating contingency plans, assess business resumption
strategies and establish alternative processes for core business functions,
where commercially reasonable. The Company's contingency planning efforts will
be ongoing throughout 1999.
The Company currently estimates that the total costs for addressing the year
2000 issue, including the necessary enhancements, will be approximately $3.8
million. Software and hardware replacements are being capitalized; whereas, the
costs associated with preparing for the year 2000 are expensed as incurred and
are being funded with cash from operations. As of March 31, 1999, the Company
had spent approximately $2.4 million. The Company does not expect the total cost
of addressing the year 2000 issue with respect to its internal computer systems
and hardware to be material to its consolidated financial condition or results
of operations.
Forward-Looking Statements
The Company cautions readers that the foregoing discussion and analysis includes
"forward-looking statements" within the meaning of Section 21E of the Securities
Exchange Act of 1934, as amended, and are subject to the safe harbor created by
that Act. These forward-looking statements, including but not limited to
statements regarding the impact of the year 2000 issue on the Company's business
and operations, are believed by the Company to be reasonable based upon
management's current knowledge and assumptions about future events, but are
subject to the uncertainties generally inherent in any such forward-looking
statement, including factors discussed above as well as other factors that may
generally affect the Company's business, financial condition or operating
results. Reference is made to the discussion of "Forward-Looking Statements"
contained in "Management's Discussion and Analysis of Financial Condition and
Results of Operations" in the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1998, regarding important risk factors and
uncertainties that could cause actual results, performance or achievements to
differ materially from future results, performance or achievements expressed or
implied in any forward-looking statement made by or on behalf of the Company.
13
<PAGE>
Item 3. QUALITATIVE AND QUANTITATIVE DISCLOSURES ABOUT MARKET RISK
The information required by this item is set forth under the caption
"Market Risk" in Item 2 -- Management's Discussion and Analysis of Financial
Condition and Results of Operations.
PART II - OTHER INFORMATION
Item 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
(a) Not applicable.
(b) Not applicable.
(c) On March 29, 1999, the Company entered into a Stock Purchase
Agreement (the "Stock Purchase Agreement") with PM Holdings, Inc. ("Holdings"),
Phoenix Home Life Mutual Insurance Company ("Phoenix") and Martin L. Vaughan,
III ("Vaughan"). Pursuant to the Stock Purchase Agreement, the Company agreed to
acquire all of the issued and outstanding capital stock of American Phoenix
Corporation ("American Phoenix") (collectively, the "Acquisition") from Holdings
and Vaughan. As part of the consideration to be paid by the Company in
connection with the Acquisition, the Company agreed to issue to Holdings and
Phoenix an aggregate principal amount of $32,000,000 of the Company's 5.25%
Convertible Subordinated Debentures (Due 2014) (the "Subordinated Debentures").
The closing of the Acquisition and the issuance of the Subordinated Debentures
to Holdings and Phoenix occurred on May 3, 1999. The Subordinated Debentures are
convertible at any time at the option of the holder into shares of the Company's
Common Stock at a conversion price of $22.75 per share of Common Stock (or
1,406,593 shares of Common Stock in the aggregate), subject to certain
anti-dilution adjustments as provided in the Indenture, dated as of May 3, 1999,
between the Company and Crestar Bank, as trustee (the "Indenture"), relating to
the Subordinated Debentures. For a description of these and other terms of the
Subordinated Debentures, see the Indenture, which is attached to this report as
Exhibit 10.2.
The offer and sale of the Subordinated Debentures to Holdings and
Phoenix were made pursuant to the exemption from registration under Section 5 of
the Securities Act of 1933, as amended (the "Securities Act"), provided by
Section 4(2) of the Securities Act.
(d) Not applicable.
14
<PAGE>
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
a) Exhibits
Exhibit No. Document
----------- --------
10.1 Credit Agreement dated as of May 3,
1999, among the registrant, as
Borrower, the lenders named therein,
First Union National Bank, as
administrative agent, PNC Bank, as
documentation agent and NationsBanc
Montgomery Securities LLC, as
syndication agent (incorporated by
reference to Exhibit 99.1 to the
Company's Form 8-K dated May 3, 1999,
File No. 0-15981)
10.2 Indenture dated as of May 3, 1999 made
by and among the registrant and Crestar
Bank as Trustee*
10.3 Risk Management Agreement dated as of
May 3, 1999 by and between Phoenix Home
Life Mutual Insurance Company and the
registrant*
10.4 Employment Agreement for Martin L.
Vaughan, III*
10.5 Voting and Standstill Agreement dated
as of May 3, 1999 made by and among the
registrant, PM Holdings, Inc. and
Phoenix Home Life Mutual Insurance
Company*
10.6 Registration Rights Agreement dated as
of May 3, 1999 made between the
registrant, PM Holdings, Inc. and
Phoenix Home Life Mutual Insurance
Company*
27 Financial Data Schedule (filed
electronically only)*
*Filed Herewith
15
<PAGE>
b) Reports on Form 8-K
(i) The Company filed a Current Report on Form 8-K with
the Securities and Exchange Commission on April 1, 1999. The
Form 8-K, which was dated March 30, 1999, reported items 5 and
7 and attached as an exhibit and incorporated by reference a
press release that announced the signing of a definitive
agreement to acquire American Phoenix Corporation (American
Phoenix), the property and casualty brokerage subsidiary of
Phoenix Home Life Mutual Insurance Company, for approximately
$49.0 million in cash, $32.0 million (principal amount) of
convertible notes and 1.0 million shares of Common Stock for
all of American Phoenix's outstanding stock.
(ii) The Company filed a Current Report on Form 8-K with
the Securities and Exchange Commission on May 14, 1999. The
Form 8-K, which was dated May 3, 1999, reported items 2 and 7
and announced the consummation of the acquisition and included
as exhibits (i) the audited financial statements of American
Phoenix and (ii) proforma condensed financial statements of
the Company giving effect to the acquisition, both for the
period ended December 31, 1998.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Hilb, Rogal and Hamilton Company
--------------------------------
(Registrant)
Date May 14, 1999 By: /s/ Andrew L. Rogal
---------------------------------
President and Chief Executive
Officer
(Principal Executive Officer)
Date May 14, 1999 By: /s/ Carolyn Jones
---------------------------------
Senior Vice President-Finance
(Principal Financial Officer)
Date May 14, 1999 By: /s/ Robert W. Blanton, Jr.
---------------------------------
Vice President and Controller
(Chief Accounting Officer)
16
<PAGE>
EXHIBIT INDEX
Exhibit No. Document
- ----------- --------
10.1 Credit Agreement dated as of May 3, 1999, among the
registrant, as Borrower, the lenders named therein,
First Union National Bank, as administrative agent, PNC
Bank, as documentation agent and NationsBanc Montgomery
Securities LLC, as syndication agent (incorporated by
reference to Exhibit 99.1 to the Company's Form 8-K
dated May 3, 1999, File No. 0-15981)
10.2 Indenture dated as of May 3, 1999 made by and among the
registrant and Crestar Bank as Trustee*
10.3 Risk Management Agreement dated as of May 3, 1999 by and
between Phoenix Home Life Mutual Insurance Company and
the registrant*
10.4 Employment Agreement for Martin L. Vaughan, III*
10.5 Voting and Standstill Agreement dated as of May 3, 1999
made by and among the registrant, PM Holdings, Inc. and
Phoenix Home Life Mutual Insurance Company*
10.6 Registration Rights Agreement dated as of May 3, 1999
made between the registrant, PM Holdings, Inc. and
Phoenix Home Life Mutual Insurance Company*
27 Financial Data Schedule (filed electronically only)*
* Filed Herewith
Exhibit 10.2
HILB, ROGAL AND HAMILTON COMPANY
and
CRESTAR BANK,
as Trustee
_____________________
INDENTURE
Dated as of May 3, 1999
_____________________
$32,000,000
5 1/4% Convertible Subordinated Debentures due 2014
<PAGE>
Reconciliation and tie between the Trust Indenture Act of 1939 and Indenture
dated as of May 3, 1999*:
ss. 310(a)(1) ................................................... 609
(a)(2) ................................................ 609
(a)(3) ................................................ Not Applicable
(a)(4) ................................................ Not Applicable
(a)(5) ................................................ 609
(b) ................................................ 608
(c) ................................................ Not Applicable
ss. 311(a) ...................................................... 613
(b) ................................................... 613
(c) ................................................... Not Applicable
ss. 312(a) ...................................................... 701, 702(a)
(b) ................................................... 702(b)
(c) ................................................... 702(c)
ss. 313(a) ...................................................... 703(a)
(b) ................................................... 703(a)
(c) ................................................... 703(a)
(d) ................................................... 703(b)
ss. 314(a) ...................................................... 704
(a)(4) ................................................ 1004
(b) ................................................... Not Applicable
(c)(1) ................................................ 102
(c)(2) ................................................ 102
(c)(3) ................................................ Not Applicable
(d) ................................................... Not Applicable
(e) ................................................... 102
(f) ................................................... Not Applicable
ss. 315(a) ...................................................... 601
(b) ................................................... 602
(c) ................................................... 601
(d) ................................................... 601
(e) ................................................... 514
ss. 316(a)(1)(A) ................................................ 502, 512
(a)(1)(B) ............................................. 513
(a)(2) ................................................ Not Applicable
(b) ................................................... 508
(c) ................................................... 104(c)
ss. 317(a)(1) ................................................... 503
(a)(2) ................................................ 504
(b) ................................................... 1003
ss. 318(a) ...................................................... 107
___________________
*This table shall not, for any purpose, be deemed to be a part of the Indenture.
i
<PAGE>
TABLE OF CONTENTS*
<TABLE>
<CAPTION>
Page
<S> <C>
Parties...........................................................................................................1
Recitals of the Company...........................................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions..........................................................................................1
"Act"..........................................................................................................2
"Affiliate"....................................................................................................2
"Agent Member".................................................................................................2
"Authenticating Agent".........................................................................................2
"Beneficial Owner".............................................................................................2
"Board of Directors"...........................................................................................2
"Board Resolution".............................................................................................2
"Business Day".................................................................................................2
"Certificated Security"or "Certificated Securities"............................................................2
"Commission"...................................................................................................2
"Common Stock".................................................................................................3
"Company"......................................................................................................3
"Company Request"or "Company Order"............................................................................3
"Corporate Trust Office".......................................................................................3
"Corporation"..................................................................................................3
"Current Market Price".........................................................................................3
"DTC"..........................................................................................................3
"Defaulted Interest"...........................................................................................3
"Depositary"...................................................................................................3
"Event of Default".............................................................................................3
"Exchange Act".................................................................................................3
"Global Security"or "Global Securities"........................................................................4
"Global Securities Legend".....................................................................................4
"Holder".......................................................................................................4
"Indenture"....................................................................................................4
"Interest Payment Date"........................................................................................4
"Maturity".....................................................................................................4
"Officers'Certificate".........................................................................................4
___________________
*Note: This table of contents shall not, for any purposes, be deemed to be a part of the Indenture.
i
<PAGE>
"Opinion of Counsel"...........................................................................................4
"Outstanding"..................................................................................................4
"Paying Agent".................................................................................................5
"Payment Blockage Notice"......................................................................................5
"Payment and Remedy Blockage Period"...........................................................................5
"Payment Default"..............................................................................................5
"Person".......................................................................................................5
"Predecessor Security".........................................................................................6
"Record Date"..................................................................................................6
"Redemption Date"..............................................................................................6
"Redemption Price".............................................................................................6
"Regular Record Date"..........................................................................................6
"Repurchase Event".............................................................................................6
"Repurchase Price".............................................................................................6
"Resale Restriction Termination Date"..........................................................................6
"Responsible Officer"..........................................................................................6
"Restricted Securities Legend".................................................................................6
"Rule 144A"....................................................................................................6
"Rule 144A Global Security"....................................................................................6
"Securities Act"...............................................................................................7
"Securities Custodian".........................................................................................7
"Security Register"and "Security Registrar"....................................................................7
"Senior Agent".................................................................................................7
"Senior Credit Agreement"......................................................................................7
"Senior Indebtedness"..........................................................................................7
"Special Record Date"..........................................................................................8
"Stated Maturity"..............................................................................................8
"Subsidiary"...................................................................................................8
"Trust Indenture Act"..........................................................................................8
"Trustee"......................................................................................................8
"Vice President"...............................................................................................8
SECTION 102. Compliance Certificates and Opinions.................................................................8
SECTION 103. Form of Documents Delivered to Trustee...............................................................9
SECTION 104. Acts of Holders; Record Dates........................................................................9
SECTION 105. Notices, Etc., to Trustee and Company...............................................................10
SECTION 106. Notice to Holders; Waiver...........................................................................11
SECTION 107. Conflict with Trust Indenture Act...................................................................11
SECTION 108. Effect of Headings and Table of Contents............................................................12
SECTION 109. Successors and Assigns..............................................................................12
SECTION 110. Separability Clause.................................................................................12
SECTION 111. Benefits of Indenture...............................................................................12
SECTION 112. Governing Law.......................................................................................12
SECTION 113. Legal Holidays......................................................................................12
SECTION 114. No Security Interest Created........................................................................13
SECTION 115. Limitation on Individual Liability..................................................................13
ii
<PAGE>
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.....................................................................................13
SECTION 202. Form of Face of Security............................................................................15
SECTION 203. Form of Reverse of Global Securities and Certificated Security......................................17
SECTION 204. Form of Trustee's Certificate of Authentication.....................................................22
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.....................................................................................23
SECTION 302. Denominations.......................................................................................24
SECTION 303. Execution, Authentication, Delivery and Dating......................................................24
SECTION 304. Registration, Transfer and Exchange.................................................................24
SECTION 305. Temporary Securities................................................................................28
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities....................................................29
SECTION 307. Payment of Interest; Interest Rights Preserved......................................................30
SECTION 308. Persons Deemed Owners...............................................................................31
SECTION 309. Cancellation........................................................................................32
SECTION 310. Computation of Interest.............................................................................32
SECTION 311. CUSIP Number........................................................................................32
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.............................................................32
SECTION 402. Repayment to Company................................................................................33
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default...................................................................................33
SECTION 502. Acceleration of Maturity; Rescission and Annulment..................................................34
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.....................................36
SECTION 504. Trustee May File Proofs of Claim....................................................................36
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.........................................37
SECTION 506. Application of Money Collected......................................................................37
SECTION 507. Limitation on Suits.................................................................................38
SECTION 508. Unconditional Right of Holders to Receive Principal and
Interest and to Convert...........................................................................38
SECTION 509. Restoration of Rights and Remedies..................................................................38
SECTION 510. Rights and Remedies Cumulative......................................................................39
SECTION 511. Delay or Omission Not Waiver........................................................................39
iii
<PAGE>
SECTION 512. Control by Holders..................................................................................39
SECTION 513. Waiver of Past Defaults.............................................................................40
SECTION 514. Undertaking for Costs...............................................................................40
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.................................................................40
SECTION 602. Notice of Defaults..................................................................................41
SECTION 603. Certain Rights of Trustee...........................................................................41
SECTION 604. Not Responsible for Recitals or Issuance of Securities..............................................43
SECTION 605. May Hold Securities.................................................................................43
SECTION 606. Money Held in Trust.................................................................................43
SECTION 607. Compensation and Reimbursement......................................................................43
SECTION 608. Disqualification; Conflicting Interests.............................................................44
SECTION 609. Corporate Trustee Required; Eligibility.............................................................45
SECTION 610. Resignation and Removal; Appointment of Successor...................................................45
SECTION 611. Acceptance of Appointment by Successor..............................................................46
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.........................................46
SECTION 613. Preferential Collection of Claims Against Company...................................................47
SECTION 614. Appointment of Authenticating Agent.................................................................47
ARTICLE SEVEN
HOLDERS'LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders...........................................49
SECTION 702. Preservation of Information; Communications to Holders..............................................49
SECTION 703. Reports by Trustee..................................................................................50
SECTION 704. Reports by Company..................................................................................50
SECTION 705. Rule 144A Information Requirement...................................................................50
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms................................................50
SECTION 802. Successor Substituted...............................................................................51
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders..................................................51
SECTION 902. Supplemental Indentures With Consent of Holders.....................................................52
SECTION 903. Execution of Supplemental Indentures................................................................53
SECTION 904. Effect of Supplemental Indentures...................................................................53
SECTION 905. Conformity with Trust Indenture Act.................................................................53
iv
<PAGE>
SECTION 906. Reference in Securities to Supplemental Indentures..................................................54
SECTION 907. Notice of Supplemental Indenture....................................................................54
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal and Interest..................................................................54
SECTION 1002. Maintenance of Office or Agency....................................................................54
SECTION 1003. Money for Security Payments to Be Held in Trust....................................................55
SECTION 1004. Statement by Officers as to Default................................................................56
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption................................................................................56
SECTION 1102. Applicability of Article...........................................................................56
SECTION 1103. Election to Redeem; Notice to Trustee..............................................................57
SECTION 1104. Selection by Trustee of Securities to be Redeemed..................................................57
SECTION 1105. Notice of Redemption...............................................................................57
SECTION 1106. Deposit of Redemption Price........................................................................58
SECTION 1107. Securities Payable on Redemption Date..............................................................58
SECTION 1108. Securities Redeemed in Part........................................................................59
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
SECTION 1201. Securities Subordinated to Senior Indebtedness.....................................................59
SECTION 1202. Payment Over of Proceeds Upon Dissolution, Etc.....................................................59
SECTION 1203. Prior Payment to Senior Indebtedness upon Acceleration of Securities...............................61
SECTION 1204. No Payment When Senior Indebtedness in Default; Suspension of Remedies.............................61
SECTION 1205. Payment Permitted If No Default....................................................................62
SECTION 1206. Subrogation to Rights of Holders of Senior Indebtedness............................................63
SECTION 1207. Provisions Solely to Define Relative Rights........................................................63
SECTION 1208. Trustee to Effectuate Subordination................................................................63
SECTION 1209. No Waiver of Subordination Provisions..............................................................63
SECTION 1210. Notice to Trustee..................................................................................64
SECTION 1211. Reliance on Judicial Order or Certificate of Liquidating Agent.....................................65
SECTION 1212. Trustee Not Fiduciary for Holders of Senior Indebtedness...........................................65
SECTION 1213. Rights of Trustee as Holder of Senior Indebtedness; Preservation of
Trustee's Rights.................................................................................65
SECTION 1214. Article Applicable to Paying Agents................................................................65
SECTION 1215. Certain Conversions Deemed Payment.................................................................66
v
<PAGE>
ARTICLE THIRTEEN
CONVERSION OF SECURITIES
SECTION 1301. Conversion Privilege and Conversion Price..........................................................66
SECTION 1302. Exercise of Conversion Privilege...................................................................67
SECTION 1303. Fractions of Shares................................................................................67
SECTION 1304. Adjustment of Conversion Price.....................................................................68
SECTION 1305. Notice of Adjustments of Conversion Price..........................................................74
SECTION 1306. Notice of Certain Corporate Action.................................................................74
SECTION 1307. Company to Reserve Common Stock....................................................................75
SECTION 1308. Taxes on Conversions...............................................................................75
SECTION 1309. Covenant as to Common Stock........................................................................76
SECTION 1310. Cancellation of Converted Securities...............................................................76
SECTION 1311. Effect of Consolidation, Merger or Sale of Assets..................................................76
SECTION 1312. Trustee's Disclaimer...............................................................................77
</TABLE>
vi
<PAGE>
INDENTURE, dated as of May 3, 1999, between HILB, ROGAL AND HAMILTON
COMPANY, a corporation duly organized and existing under the laws of Virginia
(herein called the "Company"), having its principal executive offices at 4235
Innslake Drive, P. O. Box 1220, Glen Allen, VA 23060-1220 and CRESTAR BANK, a
duly organized banking institution existing under the laws of the Commonwealth
of Virginia, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 5 1/4%
Convertible Subordinated Debentures due 2014 (herein called the "Securities") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(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, except as otherwise herein
expressly provided, the term "generally accepted accounting
<PAGE>
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted and accepted and adopted by the Company at the date of this
Indenture; 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.
Certain terms used in Articles Twelve and Thirteen are defined in such
Articles.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"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.
"Agent Member" has the meaning specified in Section 201.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities.
"Beneficial Owner" shall be determined in accordance with Rule 13d-3
promulgated by the Commission under the Exchange Act as in effect on the date
hereof.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"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 and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York, New York or
the city in which the Corporate Trust Office is located are authorized or
obligated by law to close by law or executive order.
"Certificated Security" or "Certificated Securities" has the meaning
specified in Section 201.
"Commission" means the Securities and Exchange Commission as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the
2
<PAGE>
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 Stock" includes any stock of any class of the Company which 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 Company
and which is not subject to redemption by the Company. However, subject to the
provisions of Section 1311, shares issuable on conversion of Securities shall
include only shares of the class designated as Common Stock of the Company at
the date of this Indenture or shares of any class or classes resulting from any
reclassification or reclassifications thereof and which have 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 Company and which are
not subject to redemption by the Company; provided, that if at any time there
shall be more than one such resulting class, the shares of each such class then
so issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the offices of the Trustee in the
Commonwealth of Virginia, at which at any particular time its corporate trust
business shall principally be administered, which initially shall be 919 East
Main Street, Richmond, Virginia 23219.
"Corporation" means a corporation, association, company, joint-stock
company and business trust.
"Current Market Price" has the meaning specified in Section 1304.
"DTC" has the meaning specified in Section 304.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" has the meaning specified in Section 304.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
3
<PAGE>
"Global Security" or "Global Securities" means the Rule 144A Global
Security.
"Global Securities Legend" means the legend set forth in Section 202
under the heading Global Securities Legend.
"Holder" means a Person in whose name a Security is registered in the
Security 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,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity thereof or by declaration of
acceleration, redemption or otherwise.
"Officers' Certificate" means a certificate, in form reasonably
satisfactory to the Trustee, signed by the Chairman of the Board, the Chief
Executive Officer, 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. One of the officers signing an Officers'
Certificate given pursuant to Section 1004 shall be the principal executive,
financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion, in form reasonably
satisfactory to the Trustee, of counsel, who may be counsel for or an employee
of the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount have been
theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided, that if such Securities, or
portions thereof, are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision for such notice
satisfactory to the Trustee has been made;
4
<PAGE>
(iii) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to which there shall have been
presented to the Trustee proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands such Securities are
valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of 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 Securities which the Trustee knows to be so owned shall
be so disregarded. Securities 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 so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of and interest on any Securities on behalf of the Company.
"Payment Blockage Notice" means a notice that a specified default in
respect of any Senior Indebtedness has occurred and is continuing beyond any
applicable grace period that permits holders of the Senior Indebtedness as to
which such default relates to accelerate its maturity and that a Payment and
Remedy Blockage Period is in effect, delivered by the Senior Agent or, with
respect to Senior Indebtedness other than the Senior Credit Agreement, the
holders thereof entitled to provide such notice.
"Payment and Remedy Blockage Period" means, (a) with respect to a
Payment Default, the period commencing upon the occurrence of such Payment
Default and ending upon the date such Payment Default has been cured or waived
or shall have been ceased to exist and (b) with respect to any other default on
any Senior Indebtedness, the period commencing upon the Company's receipt of a
Payment Blockage Notice and ending upon the earlier of the date on which such
default is cured or waived or shall have ceased to exist or 179 days after the
date on which the applicable Payment Blockage Notice is received, unless in each
of case (a) or (b) the maturity of any Senior Indebtedness has been accelerated.
"Payment Default" means the failure, after taking into account any
applicable grace period, to pay principal of or interest on any Senior
Indebtedness when due and payable.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
5
<PAGE>
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Record Date" means either a Regular Record Date or a Special Record
Date, as applicable.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture on the applicable Redemption Date.
"Regular Record Date", for the interest payable on any Interest Payment
Date means March 15, June 15, September 15 or December 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
"Repurchase Event" has the meaning specified in Section 1406.
"Repurchase Price" has the meaning specified in Section 1401.
"Resale Restriction Termination Date" means, with respect to any
Security, the date which is two years after the later of (i) the original issue
date of such Security and (ii) the last date on which the Company or any
Affiliate of the Company was the owner of such Security (or any Predecessor
Security).
"Responsible Officer" means, when used with respect to the Trustee, the
chairman of the Board of Directors, any vice chairman of the Board of Directors,
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the president, any vice president
(whether or not designated by numbers or words added before or after the title
"vice president"), the cashier, the secretary, the treasurer, any trust officer,
any assistant trust officer, any assistant cashier, any assistant secretary, any
assistant treasurer, or any other officers or assistant officers of the Trustee
customarily performing functions similar to those performed by the Persons who
at the time shall be such officers, respectively.
"Restricted Securities Legend" means the legend set forth in Section
202 under the heading Restricted Securities Legend.
"Rule 144A" has the meaning specified in Section 201.
"Rule 144A Global Security" has the meaning specified in Section 201.
6
<PAGE>
"Securities Act" means the Securities Act of 1933, as amended, and all
rules and regulations promulgated thereunder.
"Securities Custodian" means the Trustee, as custodian with respect to
the Securities in global form, or any successor entity thereto.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 304.
"Senior Agent" shall mean, at any time, the administrative agent at
such time under the Senior Credit Agreement.
"Senior Credit Agreement" shall mean the Credit Agreement, dated as of
May 3, 1999, between the Company, the banks and financial institutions from time
to time party thereto, and First Union National Bank, as administrative agent,
as such agreement may be amended, modified, supplemented or restated from time
to time.
"Senior Indebtedness" means the principal of and interest on (a) all
indebtedness (whether secured or unsecured) of the Company for money borrowed
under the Company's revolving credit and term loan facilities, including any
such indebtedness under the Senior Credit Agreement, and any predecessor or
successor credit facilities thereto, whether outstanding on the date of
execution of this Indenture or thereafter created, incurred or assumed, (b) all
indebtedness of the Company for money borrowed, whether outstanding on the date
of execution of this Indenture or thereafter created, incurred or assumed,
except any such other indebtedness that by the terms of the instrument or
instruments by which such indebtedness was created or incurred expressly
provides that it (i) is junior in right of payment to the Securities or (ii)
ranks pari passu in right of payment with the Securities, (c) all obligations to
make payment pursuant to the terms of financial instruments, such as (i)
securities contracts and foreign currency exchange contracts, (ii) derivative
instruments, such as swap agreements (including interest rate and foreign
exchange note swap agreements), cap agreements, floor agreements, collar
agreements, interest rate agreements, foreign exchange agreements, options,
commodity futures contracts and commodity options contracts, and (iii) similar
financial instruments, and (d) any amendments, renewals, extensions,
modifications, refinancings and refundings of the foregoing. For the purposes of
this definition, "indebtedness for money borrowed" when used with respect to the
Company means (i) any obligation of, or any obligation guaranteed by, the
Company for the repayment of borrowed money (including without limitation fees,
penalties or other obligations in respect thereof), whether or not evidenced by
bonds, debentures, notes or other written instruments and reimbursement
obligations for letters of credit, (ii) any deferred payment obligation of, or
any such obligation guaranteed by, the Company for the payment of the purchase
price of property or assets evidenced by a note or similar instrument, and (iii)
any obligation of, or any such obligation guaranteed by, the Company for the
payment of rent or other amounts under a lease of property or assets which
obligation is required to be classified and accounted for as a capitalized lease
on the balance sheet of the Company under generally accepted accounting
principles, but such term shall exclude indebtedness to trade creditors.
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"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"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, or by the Company and one or more other
Subsidiaries. For the 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.
"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.
"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 such successor Trustee.
"Vice President", when used with respect to the Company means any vice
president, whether or not designated by a number or a word or words added before
or after the title "vice president".
SECTION 102. Compliance Certificates 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 shall furnish to
the Trustee such certificate and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual or firm 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;
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(3) a statement that, in the opinion of each such
individual or such firm, he has or they have made such examination or
investigation as is necessary to enable him or them 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 or such firm, such condition or covenant has been
complied with.
SECTION 103. Form 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 knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate of public officials or upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the 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 shall be sufficient for
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any purpose of this Indenture and (subject to Section 601) conclusive in favor
of the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved 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 the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 701)
prior to such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders on such date (or their duly designated proxies)
shall be entitled to give or take, or vote on, the relevant action.
Notwithstanding the foregoing, the Company shall not set a record date for, and
the provisions of this paragraph shall not apply with respect to, any Act by the
Holders pursuant to Section 501, 502 or 512.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer therefor 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 Security.
(f) Without limiting the foregoing, a Holder entitled hereunder to
give or take any action hereunder with regard to any particular Security may do
so with regard to all or any part of the principal amount of such 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 different part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any Act of Holders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
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(1) the Trustee by any Holder or by 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,
Attention: Corporate Trust Administration, or at any other address
previously furnished in writing to the Holders and the Company by the
Trustee; or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) 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. All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail,
registered or certified with postage prepaid, if mailed; when answered
back if telexed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by
nationally recognized overnight air courier guaranteeing next day
delivery.
SECTION 106. 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 made, given, furnished or filed in writing to each Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. 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. All
such notices and communications shall be deemed to have been duly given: at the
time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, registered or certified with postage prepaid, if mailed;
when answered back if telexed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by nationally
recognized overnight air courier guaranteeing next day delivery.
In case, by reason of the suspension of or irregular mail service or by
reason of any other cause it shall be impracticable to give notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture
Act through the operation of Section 318(c) thereof, the imposed duties shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
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SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and the
Trustee shall bind each of their successors and assigns, whether so expressed or
not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities 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 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the Holders of Securities and, with respect to Article Twelve, the
holders of Senior Indebtedness, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia, without regard to the
principles of conflicts of laws thereof.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security or the last date on which a Holder has the right to
convert his Securities shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal or conversion of the Securities need not be made on such date, but may
be made on the next succeeding Business Day with the same force and effect as if
made on the Interest Payment Date or Redemption Date, or at the Stated Maturity,
or on such last day for conversion; provided, that no interest shall accrue for
the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, to the next succeeding Business Day.
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SECTION 114. No Security Interest Created.
Nothing in this Indenture or in the Securities, express or implied,
shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in
effect in any jurisdiction where property of the Company or its Subsidiaries is
or may be located.
SECTION 115. Limitation on Individual Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture or in any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
shareholder, officer or director, as such, past, present or future, of the
Company or any successor corporation, either directly or through the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability whatever shall attach
to, or is or shall be incurred by, the incorporators, shareholders, officers or
directors, as such, of the Company or any successor Person, or any of them,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any Security or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, shareholder, officer or director, as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any
Security or implied therefrom, are hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issuance of such Security.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities and the Trustee's certificate of authentication shall be
in substantially the forms set forth in this Article, 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 any organizational document, any applicable law or with
the rules of any securities exchange on which the Securities are listed or as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
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(a) Global Securities.
If eligible according to DTC rules and procedures and, if the Company
consents, the Securities offered and sold to Qualified Institutional Buyers
("QIBs") in reliance on Rule 144A under the Securities Act ("Rule 144A") shall
be issued in the form of one or more permanent Global Securities in definitive,
fully registered form without interest coupons with the Global Securities Legend
and Restricted Securities Legend set forth in Section 202 hereto (each, a "Rule
144A Global Security"), which shall be deposited on behalf of the purchasers of
the Securities represented thereby with the Trustee, at its Corporate Trust
Office, as Securities Custodian for the Depositary, and registered in the name
of the Depositary or a nominee of the Depositary, duly executed by the Company
and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of the Rule 144A Global Security may from time to time be
increased or decreased by adjustments made on the records of the Trustee and the
Depositary or its nominee, as the case may be, as hereinafter provided.
(b) Book-Entry Provisions. This Section 201(b) shall apply only to
the Rule 144A Global Security (the "Global Securities") deposited with or on
behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 201(b), authenticate and deliver initially one or more Global
Securities that (i) shall be registered in the name of Cede & Co. or other
nominee of such Depositary and (ii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instructions or held by the Trustee
as Securities Custodian for the Depositary.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary or by the Trustee as the custodian of the
Depositary or under such Global Security, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices of such Depositary governing the exercise of the rights of a
holder of a beneficial interest in any Global Security.
(c) Certificated Securities. Except as provided in Section 305,
owners of beneficial interests in Global Securities will not be entitled to
receive physical delivery of certificated Securities. If the Securities are not
issued in the form of a Global Security, purchasers of Securities will receive
certificated Securities bearing the Restricted Securities Legend set forth in
Section 202 hereto ("Certificated Securities"). Certificated Securities will
bear the Restricted Securities Legend set forth in Section 202 unless removed in
accordance with Section 304 hereof.
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SECTION 202. Form of Face of Security.
GLOBAL SECURITIES LEGEND:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT 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 OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO
THE COMPANY 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 DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
RESTRICTED SECURITIES LEGEND:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
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, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATED PERSON OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY) UNLESS SUCH OFFER, SALE OR OTHER TRANSFER IS (A)
TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH 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 THE HOLDER 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
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WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C), (D) OR (E) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION.
HILB, ROGAL AND HAMILTON COMPANY
5 1/4% Convertible Subordinated Debenture due 2014
No.__________ $___________
Hilb, Rogal and Hamilton Company, a corporation duly organized and existing
under the laws of Virginia (herein called the "Company," which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _________________________, or registered
assigns, the principal sum of _____________ Dollars [or such greater or lesser
amount as indicated on the Schedule of Exchanges of Securities on the reverse
hereof] 1 on May 3, 2014, and to pay interest thereon from the date of original
issuance of Securities pursuant to the Indenture or from and including the most
recent Interest Payment Date to which interest has been paid or duly provided
for, quarterly on March 31, June 30, September 30 and December 31 in each year,
commencing June 30, 1999, at the rate of 5 1/4% per annum, until the principal
hereof is paid or made available for payment. The Company shall pay interest on
overdue principal and interest on overdue installments of interest, to the
extent lawful, at the rate per annum borne by the Securities. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be March 15,
June 15, September 15 or December 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will 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 Security (or one or more Predecessor Securities) 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 or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities may be listed and upon such notice as may be required by
such exchange, all as more fully provided in said Indenture. Notice of a Special
Record Date shall be given to Holders of Securities not less than 10 days prior
to such Special Record Date. Payment of the principal and interest on the
Securities shall be made (i) in respect of the Global Securities in immediately
available funds to the accounts specified by the Global Security Holder on or
prior to the respective payment dates and (ii) in respect of Certificated
Securities by wire transfer of
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immediately available funds to the accounts specified by the Holders thereof or,
if no such account is specified, by mailing a check to each such Holder's
registered address.
__________________
1 This phrase should be included only if the Security is issued in global form.
Reference is hereby made to the further provisions of this Security 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 Security 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.
Dated:_________________ HILB, ROGAL AND HAMILTON COMPANY
[SEAL]
By _____________________________
Attest:
_____________________________
SECTION 203. Form of Reverse of Global Securities and Certificated Security.
This Security is one of a duly authorized issue of Securities of the Company
designated as its 5 1/4% Convertible Subordinated Debentures due 2014 (herein
called the "Securities"), limited in aggregate principal amount to $32,000,000,
issued and to be issued under an Indenture, dated as of May 3, 1999 (herein
called the "Indenture"), between the Company and Crestar Bank, as Trustee
(herein called 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 Company, the Trustee, the
holders of Senior Indebtedness and the Holders of the Securities and of the
terms upon which the Securities are, and are to be, authenticated and delivered.
Subject to and upon compliance with the provisions of the Indenture, the Holder
of this Security is entitled, at his option, at any time on or after the 60th
day following the date of original issuance of Securities pursuant to the
Indenture and on or before the close of business on May 3, 2014, or in case this
Security or a portion hereof is called for redemption, then in respect of this
Security or such portion hereof until and including, but (unless the Company
defaults in making the payment due upon redemption) not after, the close of
business on the second business day
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preceding the Redemption Date, to convert this Security (or any portion of the
principal amount hereof which is $1,000,000 or an integral multiple thereof), at
the principal amount hereof, or of such portion, into fully paid and
non-assessable whole shares (calculated as to each conversion to the nearest
share) of Common Stock at a conversion price of $22.75 per share (or at the
current adjusted conversion price if an adjustment has been made as provided in
the Indenture) by surrender of this Security, duly endorsed or assigned to the
Company or in blank, to the Company at its office or agency maintained for that
purpose pursuant to Section 1002 of the Indenture, accompanied by written notice
to the Company in the form provided in this Security (or such other notice as is
acceptable to the Company) that the Holder hereof elects to convert this
Security, or if less than the entire principal amount hereof is to be converted,
the portion hereof to be converted, and, in case such surrender shall be made
during the period from the opening of business on any Regular Record Date next
preceding any Interest Payment Date to the close of business on such Interest
Payment Date (unless this Security or the portion thereof being converted has
been called for redemption), also accompanied by payment in New York Clearing
House funds, or other funds acceptable to the Company of an amount equal to the
interest payable on such Interest Payment Date on the principal amount of this
Security then being converted. Subject to the aforesaid requirement for payment
and, in the case of a conversion after the Regular Record Date next preceding
any Interest Payment Date and on or before such Interest Payment Date, to the
right of the Holder of this Security (or any Predecessor Security) of record at
such Regular Record Date to receive an installment of interest (with certain
exceptions provided in the Indenture), no payment or adjustment is to be made
upon conversion on account of any interest accrued hereon or on account of any
dividends on the Common Stock issued upon conversion. No fractional shares or
scrip representing fractions of shares will be issued on conversion. In
addition, the Indenture provides that in case of certain consolidations or
mergers to which the Company is a party or the sale or transfer of all or
substantially all of the assets of the Company, the Indenture shall be amended,
without the consent of any Holders of Securities, so that this Security, if then
outstanding, will be convertible thereafter, during the period this Security
shall be convertible as specified above, only into the kind and amount of
securities, cash and other property receivable upon the consolidation, merger,
sale or transfer by a holder of the number of shares of Common Stock into which
this Security might have been converted immediately prior to such consolidation,
merger, sale or transfer (assuming such holder of Common Stock failed to
exercise any rights of election and received per share the kind and amount
received per share by a plurality of non-electing shares).
The Securities are subject to redemption upon not less than 30 and not more than
60 days' notice by mail, at any time on or after May 3, 2009, as a whole or in
part, at the election of the Company, at a Redemption Price equal to the
principal amount, plus accrued interest to and including the day before the
Redemption Date (subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on an Interest Payment Date that is
on or prior to the Redemption Date).
In the event of redemption or conversion of this Security in part only, a new
Security or Securities for the unredeemed or unconverted portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.
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<PAGE>
The indebtedness evidenced by this Security is, in all respects, subordinate and
subject in right of payment to the prior payment in full of all Senior
Indebtedness, and this Security is issued subject to the provisions of the
Indenture with respect thereto. Each Holder of this Security, 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 action 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.
If an Event of Default shall occur and be continuing, the principal of all the
Securities may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
Outstanding, and, under certain limited circumstances, by the Company and the
Trustee without the consent of the Holders. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities at the time Outstanding, on behalf of the
Holders of all the Securities, 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 Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security 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 Security.
No reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and interest on this Security at the
times, place and rate, and in the coin or currency, herein prescribed or to
convert this Security as provided in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities are issuable only in fully registered form without coupons in
denominations of $1,000,000 and any integral multiple of $1,000,000 in excess
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
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<PAGE>
No service charge shall be made for any such registration of transfer or
exchange except as provided in the Indenture, and 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 Security 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 Security is registered as the owner hereof for all
purposes, except as provided in this Security, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall have
the meanings assigned to them in the Indenture. The Company will furnish to any
Holder upon written request and without charge a copy of the Indenture.
[FORM OF CONVERSION NOTICE]
TO HILB, ROGAL AND HAMILTON COMPANY
The undersigned registered owner of this Security hereby irrevocably exercises
the option to convert this Security, or the portion hereof (which is $1,000,000
or a multiple of $1,000,000 in excess thereof) designated below, into shares of
Common Stock in accordance with the terms of the Indenture referred to in this
Security, and directs that the shares issuable and deliverable upon the
conversion, together with any check in payment for a fractional share and any
Security representing any unconverted principal amount hereof, be issued and
delivered to the registered owner hereof unless a different name has been
provided below. If this Notice is being delivered on a date after the close of
business on a Regular Record Date and prior to the close of business on the
related Interest Payment Date, this Notice is accompanied by payment in New York
Clearing House funds, or other funds acceptable to the Company, of an amount
equal to the interest payable on such Interest Payment Date on the principal of
this Security to be converted (unless this Security has been called for
redemption). If shares or any portion of this Security not converted 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. Any amount required to be
paid by the undersigned on account of interest accompanies this Security.
Dated:_______________________ __________________________________
Signature(s)
NOTICE: Signature(s) must be guaranteed by
an institution which is a participant in the
Securities Transfer Agent Medallion Program
(STAMP) or similar program.
_____________________________
Signature Guarantee
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<PAGE>
Fill in for registration of shares of Common
Stock if they are to be delivered, or Securities
if they are to be issued, other than to and in
the name of the registered owner:
____________________________________
(Name)
____________________________________
(Street Address)
____________________________________
(City, State and zip code)
(Please print name and address)
Register: Common Stock
Securities
(Check appropriate line(s)).
Principal amount to be converted
(if less than all):
$ 000,000
Social Security or other Taxpayer
Identification Number of owner
[ASSIGNMENT FORM]
If you the holder want to assign this Security, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Security to
________________________________________________________________________________
(Insert assignee's social security or tax ID number)____________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint
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<PAGE>
________________________________________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
________________________________________________________________________________
Date:__________________ Your Signature:__________________________
(Sign exactly as your name appears on the face of this Security)
Signature Guarantee:
_________________________________
NOTICE: Signature(s) must be guaranteed by
an institution which is a participant in the
Securities Transfer Agent Medallion Program
(STAMP) or similar program.
[FORM OF SCHEDULE OF EXCHANGES OF CERTIFICATED SECURITIES]2
The following exchanges of a part of this Global Security for
Certificated Securities have been made:
<TABLE>
<CAPTION>
Principal Signature of
Amount of Amount of Amount of this authorized
decrease in Increase in Global Security signatory of
Principal Principal following such Trustee or
Date of Amount of this Amount of this decrease (or increase) Securities
Exchange Global Security Global Security Custodian
<S><C>
1.
2.
3.
4.
5.
</TABLE>
SECTION 204. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Securities referred to in the within-mentioned Indenture.
22
<PAGE>
_______________________________,
as Trustee
By _____________________________
Authorized Signatory
__________________
2 This Schedule should be included only if the Security is issued in global
form.
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is limited to $32,000,000, except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities pursuant to Section 304, 305, 306,
906, 1108 or 1302.
The Securities shall be known and designated as the "5 1/4% Convertible
Subordinated Debentures due 2014" of the Company. Their Stated Maturity shall be
May 3, 2014 and they shall bear interest at the rate of 5 1/4% per annum, from
the date of original issuance of Securities pursuant to this Indenture 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 on March 31, June 30,
September 30 and December 31, commencing June 30, 1999, until the principal
thereof is paid or made available for payment.
The principal of and interest on the Securities shall be payable (i) in
respect of the Global Securities in immediately available funds to the accounts
specified by the Global Security Holder on or prior to the respective payment
dates and (ii) in respect of Certificated Securities by wire transfer of
immediately available funds to the accounts specified by the Holders thereof or,
if no such account is specified, by mailing a check to each such Holder's
registered address.
The Securities shall be subject to the transfer restrictions set forth
in Section 305.
The Securities shall be redeemable as provided in Article Eleven.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Twelve.
The Securities shall be convertible as provided in Article Thirteen.
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<PAGE>
SECTION 302. Denominations.
The Securities shall be issuable in fully registered form without
coupons and only in denominations of $1,000,000 and any integral multiple of
$1,000,000 in excess thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Chief Executive Officer, its President or one of its
Vice Presidents, under its corporate seal or a facsimile thereof reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or facsimile.
Securities 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 Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall either at one time or from time to time pursuant
to such instructions as may be described therein shall authenticate and deliver
such Securities as in this Indenture provided and not otherwise. Such Company
Order shall specify the amount of Securities to be authenticated and the date on
which the original issue of Securities is to be authenticated, and shall certify
that all conditions precedent to the issuance of such Securities contained in
this Indenture have been complied with. The aggregate principal amount of
Securities Outstanding at any time may not exceed the amount set forth above
except as provided in Section 306.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. The Trustee may appoint an Authenticating Agent
pursuant to the terms of Section 614.
SECTION 304. Registration, Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall
24
<PAGE>
provide for the registration of Securities and of transfers of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided. At all reasonable
times the Security Register shall be open for inspection by the Company.
The Company initially appoints The Depository Trust Company ("DTC") to
act as depositary (the "Depositary") with respect to the Global Security(ies).
The Company initially appoints the Trustee to act as Securities
Custodian with respect to the Global Security(ies).
Where Securities are presented to the Security Registrar or a
co-registrar with a request to register a transfer or to exchange them for an
equal principal amount of Securities of other denominations, the Security
Registrar shall register the transfer or make the exchange if its requirements
for such transactions are met. To permit registrations of transfers and
exchanges, the Company shall issue and deliver to the Trustee and the Trustee
shall authenticate Securities at the Security Registrar's request. No service
charge shall be made for any registration of transfer or exchange (except as
otherwise expressly permitted herein), but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer tax or similar
governmental charge payable upon exchanges pursuant to Sections 305, 906 or 1108
hereof).
The Company shall not be required to (i) issue, register the transfer
of or exchange Securities during a period beginning at the opening of business
fifteen (15) days before the day of any selection of Securities for redemption
under Section 1104 and ending at the close of business on the day of selection
or (ii) register the transfer or exchange of any Securities so selected for
redemption in whole or in part, except the unredeemed portion of any Securities
being redeemed in part.
All Securities issued upon any transfer or exchange of Securities in
accordance with this Indenture shall be the valid and binding obligations of the
Company, evidencing the same debt, and entitled to the same benefits under this
Indenture as the Securities surrendered upon such registration of transfer or
exchange.
(a) Notwithstanding any provisions to the contrary in this
Indenture, so long as a Global Security remains outstanding and is held by or on
behalf of the Depositary, transfers of a Global Security, in whole or in part,
or of any beneficial interest therein, shall only be made in accordance with
Section 201(b) and this Section 304; provided, however, that beneficial
interests in a Global Security may be transferred to persons who take delivery
thereof in the form of a beneficial interest in the same Global Security in
accordance with the transfer restrictions set forth in the Restricted Securities
Legend.
(i) Except for transfers or exchanges made in accordance
with clause (ii) of this Section 304(a), transfers of a Global Security
shall be limited to transfers of such
25
<PAGE>
Global Security in whole, but not in part, to nominees of the
Depositary or to a successor of the Depositary or such successor's
nominee.
(ii) Global Security to Certificated Security. If an owner
of a beneficial interest in a Global Security deposited with the
Depositary or with the Trustee as custodian for the Depositary wishes
at any time to transfer its interest in such Global Security to a
person who desires or is required to take delivery thereof in the form
of a Certificated Security, such owner may, subject to the rules and
procedures of the Depositary, cause the exchange of such interest for
one or more Certificated Securities of any authorized denomination or
denominations and of the same aggregate principal amount at maturity.
Upon receipt by the Trustee, as Security Registrar, at its Corporate
Trust Office of (1) instructions from the Depositary directing the
Trustee, as Security Registrar, to authenticate and deliver one or more
Certificated Securities of the same aggregate principal amount at
maturity as the beneficial interest in the Global Security to be
exchanged, such instructions to contain the name or names of the
designated transferee or transferees, the authorized denomination or
denominations of the Certificated Securities to be so issued and
appropriate delivery instructions, (2) a certificate in the form of
Exhibit A attached hereto given by the owner of such beneficial
interest and stating that the person transferring such interest in such
Global Security reasonably believes that the person acquiring the
Certificated Securities for which such interest is being exchanged is
an institutional "accredited investor" (as defined in Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act) and is
acquiring such Certificated Securities having an aggregate principal
amount of not less than $1,000,000 for its own account or for one or
more accounts as to which the transferee exercises sole investment
discretion, (3) a certificate in the form of Exhibit B attached hereto
given by the person acquiring the Certificated Securities for which
such interest is being exchanged, to the effect set forth therein, and
(4) such other certifications, legal opinions or other information as
the Company may reasonably require to confirm that such transfer is
being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act, then
the Trustee, as Security Registrar, as the case may be, will instruct
the Depositary to reduce or cause to be reduced such Global Security by
the aggregate principal amount at maturity of the beneficial interest
therein to be exchanged and to debit, or cause to be debited from the
account of the person making such transfer the beneficial interest in
the Global Security that is being transferred, and concurrently with
such reduction and debit the Company shall execute, and the Trustee
shall authenticate and deliver, one or more Certificated Securities of
the same aggregate principal amount at maturity in accordance with the
instructions referred to above.
(iii) Certificated Security to Certificated Security. If a
holder of a Certificated Security wishes at any time to transfer such
Certificated Security to a person who is required or who desires to
take delivery thereof in the form of a Certificated Security, such
holder may, subject to the restrictions on transfer set forth herein
and in such Certificated Security, cause the exchange of such
Certificated Security for one or more Certificated Securities of any
authorized denomination or denominations and of the same aggregate
principal amount at maturity. Upon receipt by the Trustee, as Security
26
<PAGE>
Registrar, at its Corporate Trust Office of (1) such Certificated
Security, duly endorsed as provided herein, (2) instructions from such
holder directing the Trustee, as Security Registrar, to authenticate
and deliver one or more Certificated Securities of the same aggregate
principal amount at maturity as the Certificated Security to be
exchanged, such instructions to contain the name or authorized
denomination or denominations of the Certificated Securities to be so
issued and appropriate delivery instructions, (3) a certificate from
the holder of the Certificated Security to be exchanged in the form of
Exhibit A attached hereto, (4) a certificate in the form of Exhibit B
attached hereto given by the person acquiring the Certificated
Securities for which such interest is being exchanged, to the effect
set forth therein, and (5) such other certifications, legal opinions or
other information as the Company may reasonably require to confirm that
such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act, then the Trustee, as Security Registrar, shall cancel
or cause to be canceled such Certificated Security and concurrently
therewith, the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Certificated Securities of the
same aggregate principal amount at maturity, in accordance with the
instructions referred to above.
(iv) Certificated Security for Global Security. If the
Holder of a Security (other than a Global Security) wishes at any time
to transfer all or any portion of such Security to a Person who wishes
to take delivery thereof in the form of a beneficial interest in a
Global Security, such transfer may be effected only in accordance with
the provisions of this clause (a)(iv) and subject to the rules and
procedures of the Depositary. Upon receipt by the Trustee, as Security
Registrar, at its Corporate Trust Office of (1) such Certificated
Security, duly endorsed as provided herein, (2) instructions
satisfactory to the Security Registrar directing that a beneficial
interest in the Global Security in a specified principal amount not
greater than the principal amount of such Security be credited to a
specified Agent Member's account, (3) a certificate from the holder of
the Certificated Security to be exchanged in the form of Exhibit A
attached hereto, (4) a certificate in the form of Exhibit B attached
hereto given by the person acquiring the beneficial interest in a
Global Security for which such Certificated Security is being
exchanged, to the effect set forth therein, and (5) such other
certifications, legal opinions or other information as the Company may
reasonably require to confirm that such transfer is being made pursuant
to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act, then the Trustee, as
Security Registrar, shall cancel or cause to be canceled such
Certificated Security and concurrently therewith issue a new Security
in respect of the untransferred portion thereof, if any, to the holder
of such Certificated Security and increase the aggregate principal
amount of the Global Security as provided in Section 305(b).
(b) If Securities are issued upon the transfer, exchange or
replacement of Securities bearing the Restricted Securities Legend set forth in
Section 202 hereto, or if a request is made to remove such Restricted Securities
Legend on Securities, the Securities so issued shall bear the Restricted
Securities Legend, or the Restricted Securities Legend shall not be removed, as
the case may be, unless there is delivered to the Company such satisfactory
evidence, which may
27
<PAGE>
include an opinion of counsel, as may be reasonably required by the Company,
that neither the legend nor the restrictions on transfer set forth therein are
required to ensure that transfers thereof comply with the provisions of Rule
144A or Rule 144 under the Securities Act or, with respect to Certificated
Securities, that such Securities are not "restricted" within the meaning of Rule
144 under the Securities Act. Upon provision of such satisfactory evidence, the
Trustee, at the direction of the Company, shall authenticate and deliver
Securities that do not bear the legend.
(c) Neither the Company nor the Trustee shall have any
responsibility for any actions taken or not taken by the Depositary.
SECTION 305. Temporary Securities.
(a) Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee, upon receipt of a written order of the
Company as set forth in Section 303, shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of definitive Securities
but may have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Securities in exchange for temporary
Securities. Until so exchanged, the temporary Securities shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities.
(b) A Global Security deposited with the Depositary or with the
Trustee as custodian for the Depositary pursuant to Section 201 shall be
transferred to the beneficial owners thereof in the form of Certificated
Securities only if such transfer complies with Section 304 and (i) the
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or if at any time such Depositary ceases to
be a "clearing agency" registered under the Exchange Act and a successor
depositary is not appointed by the Company within 90 days of such notice, or
(ii) an Event of Default has occurred and is continuing or (iii) pursuant to the
following sentence. All or any portion of a Global Security may be exchanged for
a Security that has a like aggregate principal amount and is not a Global
Security upon 20 days prior request made by the Depositary or its Agent Member
to the Security Registrar. If any Global Security is to be exchanged for
Certificated Securities or canceled in whole, it shall be surrendered by or on
behalf of the Depositary or its nominee to the Security Registrar for exchange
or cancellation as provided in this Section 305. If any Global Security is to be
exchanged for Certificated Securities or canceled in part, or if Certificated
Security is to be exchanged in whole or in part for a beneficial interest in any
Global Security, then either (i) such Global Security shall be so surrendered
for exchange or cancellation as provided in this Section 305 or (ii) the
principal amount thereof shall be reduced, or increased by an amount equal to
the portion thereof to be so exchanged or canceled, or equal to the principal
amount of such Certificated Security to be so exchanged for a beneficial
interest therein, as the case may be, by means of an appropriate adjustment made
on the records of the Security Registrar, whereupon the Trustee shall instruct
the Depositary or its authorized representative to make a corresponding
adjustment to its records. Upon any such surrender or adjustment of a Global
Security by the Depositary, accompanied by registration instructions and, to the
extent required by Section 304, a Restricted Securities Certificate, the Trustee
shall, subject to Section 304 and as otherwise provided in this Article
28
<PAGE>
Three, authenticate and make available for delivery any Securities issuable in
exchange for such Global Security (or any portion thereof) in accordance with
the instructions of the Depositary. The Depositary shall not be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be fully protected in relying on, such instructions.
(c) Any Global Security that is transferable to the beneficial
owners thereof in the form of Certificated Securities pursuant to this Section
305 shall be surrendered by the Depositary to the Trustee at its drop facility
located in the Borough of Manhattan, the City of New York and specified in
Section 1002, to be so transferred, in whole or from time to time in part,
without charge, and the Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Security, an equal aggregate principal
amount at maturity of Securities of authorized denominations in the form of
Certificated Securities. Any portion of a Global Security transferred pursuant
to this Section shall be executed, authenticated and delivered only in
denominations of $1,000,000 and any integral multiple of $1,000,000 in excess
thereof and registered in such names as the Depositary shall direct. Any
Security in the form of Certificated Securities delivered in exchange for an
interest in the Rule 144A Global Security shall, except as otherwise provided by
Section 304(b), bear the Restricted Securities Legend set forth in Section 202.
(d) Subject to the provisions of Section 305(c), the registered
holder of a Global Security may grant proxies and otherwise authorize any
person, including Agent Members and persons that may hold interests through
Agent Members, to take any action which a holder is entitled to take under this
Indenture or the Securities.
(e) In the event of the occurrence of either of the events
specified in Section 305(b), the Company will promptly make available to the
Trustee a reasonable supply of Certificated Securities in definitive, fully
registered form without interest coupons.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor and principal amount and bearing a number not contemporaneously
outstanding. The Trustee may charge the Company for the Trustee's expenses in
replacing such Security.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
29
<PAGE>
Upon the issuance of any new Security under this Section, 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 Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security 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 Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Persons in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest. Payment
of interest on the Securities shall be made (i) in respect of the Global
Securities in immediately available funds to the accounts specified by the
Global Security Holder on or prior to the respective payment dates and (ii) in
respect of Certificated Securities by wire transfer of immediately available
funds to the accounts specified by the Holders thereof or, if no such account is
specified, by mailing a check to each such Holder's registered address.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the 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 Securities (or
their respective Predecessor Securities) 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 Security 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
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<PAGE>
less than 10 days prior to the date of the proposed payment and not
less than 10 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 at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities (or
their respective Predecessor Securities) are registered at the close of
business 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 on which the Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security which is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security whose Maturity is prior to such Interest Payment Date), interest
whose Stated Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date, provided,
however, that Securities so surrendered for conversion shall (except in the case
of Securities or portions thereof called for redemption) be accompanied by
payment in New York Clearing House funds or other funds acceptable to the
Company of an amount equal to the interest payable on such Interest Payment Date
on the principal amount being surrendered for conversion. Except as otherwise
expressly provided in the immediately preceding sentence, in the case of any
Security which is converted, interest whose Stated Maturity is after the date of
conversion of such Security shall not be payable.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject to
Section 307) interest on such Security and for all other purposes whatsoever,
whether or not such Security 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.
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SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer, exchange or conversion shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly canceled by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 310. Computation of Interest.
Interest on the Securities of each series shall be computed on the
basis of a 360- day year of twelve 30-day months.
SECTION 311. CUSIP Number.
The Company in issuing the Securities may use a "CUSIP" number, and if
so, such CUSIP number shall be included in notices of redemption, repurchase or
exchange as a convenience to holders of Securities; provided, however, that any
such notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or on the Securities and that
reliance may be placed only on the other identification numbers printed on the
Securities. The Company will promptly notify the Trustee of any change in the
CUSIP number.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except that the Company's obligations under Sections 607 and 402 hereof shall
survive), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when (A)
all Securities theretofore authenticated and delivered (other than (i)
Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 and (ii) Securities 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 1003) have been delivered to the Trustee for
cancellation; (B) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and (C) 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.
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SECTION 402. Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company upon
request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon request
any money held by them for the payment of principal of or interest on the
Securities that remains unclaimed for two years after the date upon which such
payment shall have become due; provided, however, that the Company shall have
first caused notice of such payment to the Company to be mailed by first-class
mail to each Holder entitled thereto at such Holder's last known address no less
than 30 days prior to such payment. The Company and the Trustee shall have no
further liability or obligation to advise Holder. After payment to the Company,
the Trustee and the Paying Agent shall have no further liability with respect to
such money and Holders entitled to the money must look to the Company for
payment as general creditors unless any applicable abandoned property law
designates another person.
ARTICLE FIVE
REMEDIES
SECTION 501. 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 occasioned by the provisions of Article Twelve or 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);
(1) default in the payment of the principal of any
Security at its Maturity, whether or not such payment is prohibited by
the provisions of Article Twelve; or
(2) default in the payment of any interest on any
Security when it becomes due and payable, whether or not such payment
is prohibited by the provisions of Article Twelve, and continuance of
such default for a period of 30 days; or
(3) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and continuance of
such default or breach for a period of 60 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 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
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(4) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company
in an involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or
(B) a decree or order 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 law, or appointing a custodian,
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 for relief or any such other
decree or order unstayed and in effect for a period of 90 consecutive
days; or
(5) the commencement by the Company of a voluntary case
or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
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 a general 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, or the taking of corporate action by the
Company in furtherance of any such action.
Upon receipt by the Trustee of any Notice of Default pursuant to this
Section 501, a record date shall automatically and without any other action by
any Person be set for the purpose of determining the Holders of Outstanding
Securities entitled to join in such Notice of Default, which record date shall
be the close of business on the day the Trustee receives such Notice of Default.
The Holders of Outstanding Securities on such record date (or their duly
appointed agents), and only such Persons, shall be entitled to join in such
Notice of Default, whether or not such Holders remain Holders after such record
date; provided, that unless such Notice of Default shall have become effective
by virtue of the Holders of the requisite principal amount of Outstanding
Securities on such record date (or their duly appointed agents) having joined
therein on or prior to the 90th day after such record date, such Notice of
Default shall automatically and without any action by any Person be canceled and
of no further force or effect.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than as specified in subparagraph (4) or
(5) of Section 501) 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 Securities may declare the principal of all the Securities to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration the principal of and
interest accrued
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on the Securities to the date of declaration shall become immediately due and
payable. If an Event of Default specified in subparagraph (4) or (5) of Section
501 occurs and is continuing, then the principal of, and accrued and unpaid
interest on all of the Securities shall ipso facto become and be immediately due
and payable without any declaration or other act on the part of the Trustee or
any Holder of Securities.
At any time after such a declaration of acceleration 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 provided, the Holders of a majority
in principal amount of the Outstanding Securities, 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 interest on all Securities,
(B) the principal of any Securities which have
become due otherwise than by such declaration of acceleration
and interest thereon at the rate borne by the Securities,
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate borne by
the Securities, and
(D) all sums paid or advanced by the Trustee and
each predecessor Trustee, their respective agents and counsel
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee and each predecessor
Trustee, their respective agents and counsel;
and
(2) all Events of Default, other than the nonpayment of
the principal of and interest on the Securities that have become due
solely by such declaration of acceleration, have been cured or waived
as provided in Section 513.
No such rescission and waiver shall affect any subsequent default or impair any
right consequent thereon.
Upon receipt by the Trustee of any declaration of acceleration, or any
rescission and annulment of any such declaration, pursuant to this Section 502,
a record date shall automatically and without any other action by any Person be
set for the purpose of determining the Holders of Outstanding Securities
entitled to join in such declaration, or rescission and annulment, as the case
may be, which record date shall be the close of business on the day the Trustee
receives such declaration, or rescission and annulment, as the case may be. The
Holders of Outstanding Securities on such record date (or their duly appointed
agents), and only such Persons, shall be entitled to join in such declaration,
or rescission and annulment, as the case may be, whether or not such Holders
remain Holders after such record date; provided, that unless such declaration,
or
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rescission and annulment, as the case may be, shall have become effective by
virtue of Holders of the requisite principal amount of Outstanding Securities on
such record date (or their duly appointed agents) having joined therein on or
prior to the 90th day after such record date, such declaration, or rescission
and annulment, as the case may be, shall automatically and without any action by
any Person be canceled and of no further force or effect.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
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 any
Security at the Maturity thereof, the Company will, upon demand of the Trustee,
pay to it, for the benefit of the Holders of such Securities, the whole amount
then due and payable on such Securities for principal and interest, and, to the
extent that payment of such interest shall be legally enforceable, interest on
any overdue principal and on any overdue interest, at the rate borne by the
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee and each
predecessor Trustee, their respective agents and counsel, and any other amounts
due the Trustee or any predecessor Trustee under Section 607.
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 sums so due and unpaid and may
prosecute any such proceeding to judgment or final decree, and may enforce the
same against the Company (or any other obligor upon such Securities) and collect
the moneys adjudged or decreed to be payable in the manner provided by law out
of the property of the Company (or any other obligor upon such Securities),
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 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have the claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any
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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 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 it and each predecessor Trustee for the reasonable
compensation, expenses, disbursements and advances of the Trustee and each
predecessor Trustee and their respective agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture 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
Securities 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 may be a member of the
Creditors' Committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities 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 the reasonable compensation, expenses,
disbursements and advances of the Trustee and each predecessor Trustee and their
respective agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article 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 on account of principal or interest,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: Subject to Article 12, to the holders of Senior Indebtedness;
SECOND: To payment of all amounts due the Trustee under Section 607;
THIRD: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities 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 such
Securities for principal and interest, respectively; and
FOURTH: The balance, if any, to the Company or to whomsoever may be
lawfully entitled to receive the same or as a court of competent jurisdiction
may direct.
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SECTION 507. Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, 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 Securities 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 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 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 Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatsoever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal and
Interest and to Convert.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and (subject to Section 307) interest on
such Security on the respective Stated Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date) and to convert such
Security in accordance with Article Thirteen and to institute suit for the
enforcement of any such payment and right to convert, and such rights shall not
be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case,
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subject to any determination in such proceeding, the Company, the Trustee and
the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in Section 306, 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 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any 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 or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of at least a majority in principal amount of the
Outstanding Securities 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; and
(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 601, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall determine that the action so directed would
involve the Trustee in personal liability or would be unduly
prejudicial to Holders not joining in such direction.
Upon receipt by the Trustee of any such direction, a record date shall
automatically and without any other action by any Person be set for the purpose
of determining the Holders of Outstanding Securities entitled to join in such
direction, which record date shall be the close of business on the day the
Trustee receives such direction. The Holders of Outstanding Securities on such
record date (or their duly appointed agents), and only such Persons, shall be
entitled to
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join in such direction, whether or not such Holders remain Holders after such
record date; provided, that unless such direction shall have become effective by
virtue of Holders of the requisite principal amount of Outstanding Securities on
such record date (or their duly appointed agents) having joined therein on or
prior to the 90th day after such record date, such direction shall automatically
and without any action by any Person be canceled and of no further force or
effect.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(1) in the payment of the principal of or interest on any
Security, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security affected.
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 514. Undertaking for Costs.
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, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company, in any suit instituted
by the Trustee, in a suit by a Holder pursuant to Section 508, or in a suit by a
Holder or Holders of more than 10% in principal amount of the outstanding
Securities.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
this Indenture and the Trust Indenture Act for securities issued pursuant to
indentures qualified thereunder. Except as otherwise provided herein,
notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability or risk
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in the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity satisfactory to it against such
risk or liability is not reasonably assured to it. 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. The Trustee shall not be liable (x)
for any error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts or (y) 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 principal
amount of the Securities at the time Outstanding relating to the time, method
and place of conducting any proceeding or any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
indenture. Prior to the occurrence of an Event of Default and after the curing
or waiving of all Events of Default which may have occurred: (i) the duties and
obligations of the Trustee shall be determined solely by the express provisions
of this Indenture and in the Trust Indenture Act, and the Trustee shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Indenture and in the Trust Indenture Act, and no
implied covenants or obligations shall be read in to this Indenture against the
Trustee; and (ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions therein, upon any statements, certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Indenture and believed by the Trustee to be genuine and to have been signed or
presented by the proper party or parties; but in the case of any such
statements, certificates or options 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 on their
face to the requirements of this Indenture. If a default or an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture 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 own affairs.
SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default hereunder
known to it as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(5), no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default. For purposes of this Section 602, the Trustee shall not be
deemed to have knowledge of an Event of Default hereunder unless a corporate
trust officer of the Trustee has actual knowledge thereof, or unless written
notice of any event which is an Event of Default is received by the Trustee and
such notice references the Securities or this Indenture.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
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(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, 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) 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 and the written
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 indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) before the Trustee acts or refrains from acting with
respect to any matter contemplated by this Indenture, it may require an
Officers' Certificate or an Opinion of Counsel, which shall conform to the
provisions of Section 102, and the Trustee shall be protected and shall not be
liable for any action it takes or omits to take in good faith and without gross
negligence in reliance on such certificate or opinion;
(g) the Trustee shall not be required to give any bond or
surety in respect of the performance of its power and duties hereunder;
(h) 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, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney; and
(i) 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
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shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of the
Company, and the Trustee or any Authenticating Agent assumes no responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee or any Paying Agent in trust hereunder need
not be segregated from other funds except to the extent required by law. The
Trustee or any Paying Agent shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (including its
services as Security Registrar or Paying Agent, if so appointed by the
Company) as may be mutually agreed upon in writing by the Company and
the Trustee (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee and each predecessor Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by
or on behalf of it in connection with the performance of its duties
under any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel and all other persons not regularly in its employ) except to
the extent any such expense, disbursement or advance may be
attributable to its negligence or bad faith; and
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(3) to indemnify the Trustee and each predecessor Trustee
and their respective officers, directors, employees and agents (each an
"indemnitee") for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration
of this Indenture or the trusts hereunder and its duties hereunder
(including its services as Security Registrar or Paying Agent, if so
appointed by the Company), including enforcement of this Section 607
and including the costs and expenses of defending itself against or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The Company shall
defend any claim or threatened claim asserted against an indemnitee for
which it may seek indemnity, and the indemnitee shall cooperate in the
defense unless, in the reasonable opinion of the indemnitee's counsel,
the indemnitee has an interest adverse to the Issuer or a potential
conflict of interest exists between the indemnitee and the Company, in
which case the indemnitee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel; provided
that the Company shall only be responsible for the reasonable fees and
expenses of one law firm (in addition to local counsel) in any one
action or separate substantially similar actions in the same
jurisdiction arising out of the same general allegations or
circumstances, such law firm to be designated by the indemnitee.
As security for the performance of the obligations of the Company under
this Section 607, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities, and the
Securities are hereby subordinated to such prior lien. The obligations of the
Company under this Section to compensate and indemnify the Trustee and any
predecessor Trustee and to pay or reimburse the Trustee and any predecessor
Trustee for expenses, disbursements and advances, and any other amounts due the
Trustee or any predecessor Trustee under Section 607, shall constitute an
additional obligation hereunder and shall survive the satisfaction and discharge
of this Indenture.
When the Trustee or any predecessor Trustee incurs expenses or renders
services in connection with the performance of its obligations hereunder
(including its services as Security Registrar or Paying Agent, if so appointed
by the Company) after an Event of Default specified in Section 501(4) or (5)
occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any applicable bankruptcy,
insolvency or other similar federal or state law to the extent provided in
Section 503(b)(5) of Title 11 of the United States Code, as now or hereafter in
effect.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the 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 Indenture.
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SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that (i) is eligible pursuant to the Trust Indenture Act to act as such, (ii)
has (or, in the case of a corporation included in a bank holding company system,
whose related bank holding company has) a combined capacity and surplus of at
least $50,000,000 and (iii) has a Corporate Trust Office, or a designated agent,
in the Borough of Manhattan, The City of New York. If such Person publishes
reports of conditions at least annually, pursuant to law or to the requirements
of a Federal or state supervising or examining authority, then for the purposes
of this Section, 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 Trustee 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.
SECTION 610. 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 shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(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
required by Section 611 shall not have been delivered to the resigning 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 an Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608
after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for the last six months, or
(2) the Trustee shall cease to be eligible under Section
609 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 by a Board Resolution may remove the Trustee, or (ii)
subject to Section 514, any Holder who has been a bona fide Holder of a
Security for at least six months may, on
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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.
(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 and
such successor Trustee shall comply with the applicable requirements of Section
611. 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 Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611 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 required by Section 611, any Holder who has been a
bona fide Holder of a Security 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 Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder 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 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. 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 such rights, powers and
trusts.
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.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with 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 the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
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corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities 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 Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. 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 Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of such claims
against the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents acceptable to
and at the expense of the Company which shall be authorized to act on behalf of
the Trustee to authenticate Securities issued upon original issue and upon
exchange, registration of transfer, partial conversion or partial redemption or
pursuant to Section 306, and Securities 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 Securities 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 and a certificate of authentication executed 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 Person organized and doing
business under the laws of the United States of America, any State thereof 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, 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, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any Person into which an Authenticating Agent 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 Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such Person shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
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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, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail notice of such
appointment by first-class mail, postage prepaid, to all Holders as their names
and addresses appear in the Security Register. Any successor Authenticating
Agent upon acceptance of its appointment under this Section 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 to act as such under the
provisions of this Section.
Any Authenticating Agent by the acceptance of its appointment shall be
deemed to have represented to the Trustee that it is eligible for appointment as
Authenticating Agent under this Section and to have agreed with the Trustee
that: it will perform and carry out the duties of an Authenticating Agent as
herein set forth, including among other things the duties to authenticate
Securities when presented to it in connection with the original issuance and
with exchanges, registrations of transfer or redemptions or conversions thereof
or pursuant to Section 306; it will keep and maintain, and furnish to the
Trustee from time to time as requested by the Trustee, appropriate records of
all transactions carried out by it as Authenticating Agent and will furnish the
Trustee such other information and reports as the Trustee may reasonably
require; and it will notify the Trustee promptly if it shall cease to be
eligible to act as Authenticating Agent in accordance with the provisions of
this Section. Any Authenticating Agent by the acceptance of its appointment
shall be deemed to have agreed with the Trustee to indemnify the Trustee against
any loss, liability or expense incurred by the Trustee and to defend any claim
asserted against the Trustee by reason of any acts or failures to act of such
Authenticating Agent, but such Authenticating Agent shall have no liability for
any action taken by it in accordance with the specific written direction of the
Trustee.
The Trustee shall not be liable for any act or any failure of the
Authenticating Agent to perform any duty either required herein or authorized
herein to be performed by such person in accordance with this Indenture.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Securities 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 Securities described in the within-mentioned
Indenture.
_____________________________________
As Trustee
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By __________________________________
As Authenticating Agent
By __________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each
Regular Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Regular
Record Date, 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.
Notwithstanding the foregoing, so long as the Trustee is the Security Registrar,
no such list shall be required to be furnished.
SECTION 702. 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
701 and the names and addresses of Holders received by the Trustee in
its capacity as Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 701 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
Securities, and the corresponding rights and duties of the Trustee,
shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, 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 any disclosure of information as to the names
and addresses of the Holders made pursuant to the Trust Indenture Act
or otherwise in accordance with this Indenture.
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SECTION 703. Reports by Trustee.
(a) Not later than 60 days following each September 15, 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.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with the Company.
SECTION 704. Reports by Company.
The Company shall file with the Trustee, and transmit to Holders, such
information, documents and other reports, and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act; provided, that any such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act shall be filed with the Trustee within 15 days after the
same is so required to be filed with the Commission.
SECTION 705. Rule 144A Information Requirement.
If at any time prior to the Resale Restriction Termination Date the
Company is no longer subject to Section 13 or 15(d) of the Exchange Act, the
Company will furnish to the Holders or beneficial holders of the Securities and
prospective purchasers of the Securities designated by the Holders of the
Securities, upon their request, information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act until the Resale Restriction
Termination Date.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. 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, unless:
(1) in case the Company shall consolidate with or merge
into another Person or convey, transfer or lease all or substantially
all of its properties and assets 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, all or
substantially all of the properties and assets of the Company shall be
a corporation, partnership or trust, shall be organized and validly
existing under the laws of the United States of America, any State
thereof 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
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Trustee, the due and punctual payment of the principal of and interest
on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed
or observed and shall have provided for conversion rights in accordance
with Section 1311;
(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; and
(3) such consolidation, merger, conveyance, transfer or
lease does not adversely affect the validity or enforceability of the
Securities; and
(4) the Company or the successor Person has delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of all or
substantially all of the properties and assets of the Company in accordance with
Section 801, 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 thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. 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 satisfactory to the
Trustee, for any of the following purposes:
(1) to cause this Indenture to be qualified under the
Trust Indenture Act; or
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(2) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(3) to add to the covenants of the Company for the
benefit of the Holders or an additional Event of Default, or to
surrender any right or power conferred herein or in the Securities upon
the Company; or
(4) to secure the Securities; or
(5) to make provision with respect to the conversion
rights of Holders pursuant to the requirements of Section 1311; or
(6) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities; or
(7) to cure any ambiguity, to correct or supplement any
provision herein or in the Securities which may be defective or
inconsistent with any other provision herein or in the Securities, or
to make any other provisions with respect to matters or questions
arising under this Indenture which shall not be inconsistent with the
provisions of this Indenture; provided, that such action pursuant to
this Clause (7) shall not materially adversely affect the interests of
the Holders in any material respect and the Trustee may rely upon an
opinion of counsel to that effect; or
(8) to cause the Securities to be eligible to be held in
book-entry form by DTC or other nationally recognized securities
depositary.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, 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 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 Security affected thereby,
(1) change the Stated Maturity of the principal of, or
any installment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon, or change the place of
payment where, or the coin or currency in which, any Security or any
premium 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), or adversely affect the right to convert any Security
as provided in Article Thirteen (except as permitted by Section
901(5)), or
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modify the provisions of Article Fourteen, or the provisions of this
Indenture with respect to the subordination of the Securities, in a
manner adverse to the Holders, or
(2) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders 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, or
(3) make any change in Section 513, Section 508 or
Section 902 hereof (including this sentence), or
(4) modify any of the provisions of this Section or
Section 513, 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 Outstanding Security affected
thereby; provided, however, that this Clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section, or
the deletion of this proviso, in accordance with the requirements of
Section 901(6).
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) 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. 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 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
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 Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
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SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and (at the specific direction of the
Company) authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
SECTION 907. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to Section 902, the Company shall transmit to
the Holders a notice setting forth the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal and Interest.
The Company shall pay the principal of and interest (including interest
accruing on or after the filing of a petition in bankruptcy or reorganization
relating to the Company, whether or not a claim for post-filing interest is
allowed in such proceeding) on the Securities on (or prior to) the dates and in
the manner provided in the Securities or pursuant to this Indenture. The Company
shall pay interest on overdue principal and interest on overdue installments of
interest (including interest accruing on or after the filing of a petition in
bankruptcy or reorganization relating to the Company, whether or not a claim for
post-filing interest is allowed in such proceeding), to the extent lawful, at
the rate per annum borne by the Securities, which interest on overdue interest
shall accrue on the date such amounts became overdue.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in New York, New York an office or agency
(which may be a drop facility) where Securities may be presented or surrendered
for payment, where Securities may be surrendered for registration of transfer,
where Securities may be surrendered for exchange or conversion and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of any such office or
agency. If at any time the Company shall fail to maintain any such required
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, or the offices of its Agent, DTC, and
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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 Securities may be presented or surrendered for any
or all 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 New
York, New York for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. The Company hereby designates the
Trustee c/o Harris Trust Company, 88 Pine Street, 19th Floor, New York, New York
10005 as such drop facility in compliance with this Section 1002.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of or interest on any of the
Securities, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents, it will, on
or prior to 11:00 a.m. (New York City time) on each due date of the principal of
and interest on any Securities, deposit with a Paying Agent a sum in same day
funds sufficient to pay the principal and any premium and interest so becoming
due, such sum to be held as provided by the Trust Indenture Act, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee or the
Company 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,
that such Paying Agent will (i) comply with the provisions of the Trust
Indenture Act and this Indenture applicable to it as a Paying Agent and hold all
sums held by it for the payment of principal of or interest on the Securities 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; (ii) give the
Trustee notice of any default by the Company (or any other obligor upon the
Securities) in the making of any payment in respect of the Securities; and (iii)
at any time during the continuance of any default by the Company (or any other
obligor upon the Securities) in the making of any payment in respect of the
Securities, upon the written request of the Trustee, forthwith pay to the
Trustee all sums held in trust by such Paying Agent for payment in respect of
the Securities, and account for any funds disbursed.
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
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Company or such Paying Agent; and, upon such payment by 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 and interest on any
Security and remaining unclaimed for two years after such principal and interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security 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 New York, 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 1004. Statement by Officers as to Default.
The Company will 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 stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption.
The Securities may be redeemed at the election of the Company, in whole
or from time to time in part, at any time on or after May 3, 2009, at the
Redemption Prices specified in the form of Security hereinbefore set forth,
together with accrued interest to the Redemption Date.
SECTION 1102. Applicability of Article.
Redemption of Securities at the election of the Company as permitted by
any provision of this Indenture shall be made in accordance with such provision
and this Article.
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SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all the Securities, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter period shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities to be
redeemed. In case of any redemption at the election of the Company of all of the
Securities, the Company shall, at least 45 days prior to the Redemption Date
fixed by the Company (unless a shorter period shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date.
SECTION 1104. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by lot or 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 portions (equal to $1,000,000 or any integral multiple of
$1,000,000 in excess thereof) of the principal amount of Securities of a
denomination larger than $1,000,000.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed (so
far as may be) to be the portion selected for redemption. Securities which have
been converted during a selection of Securities to be redeemed shall be treated
by the Trustee as Outstanding for the purpose of such selection. In any case
where more than one Security is registered in the same name, the Trustee in its
discretion may treat the aggregate principal amount so registered as if it were
represented by one Security.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, 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 Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to the Trustee and to each Holder of Securities to be redeemed, at his
address appearing in the Security Register.
All notices of redemption shall state:
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(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption of any
Securities, the principal amounts) of the particular Securities to be redeemed,
(d) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and that (unless the
Company shall default in payment of the Redemption Price) interest thereon will
cease to accrue on and after said date,
(e) the conversion price, the date on which the right to convert
the Securities to be redeemed will terminate and the place or places where such
Securities may be surrendered for conversion, and
(f) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request received
by the Trustee at least 45 days prior to the Redemption Date, by the Trustee in
the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
At or prior to 9:00 a.m. (New York City time) on any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in same day funds sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof which
are to be redeemed on that date other than any Securities called for redemption
on that date which have been converted prior to the date of such deposit.
If any Security 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 Security shall (subject to any right of the Holder of
such Security or any Predecessor Security to receive interest as provided in the
last paragraph of Section 307) be paid to the Company upon Company Request or,
if then held by the Company, shall be discharged from such trust.
SECTION 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon
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surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest to the Redemption Date; provided, however, that
installments of interest whose Maturity is on or prior to the Redemption Date
shall be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the Redemption Date at the rate borne by the Security.
SECTION 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Company maintained for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
SECTION 1201. Securities Subordinated to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, at all times and in all
respects, the indebtedness represented by the Securities and the payment of the
principal and interest on each and all of the Securities are hereby expressly
made subordinate and subject in right of payment to the prior payment in full of
all Senior Indebtedness.
SECTION 1202. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding, relative to the Company or to its creditors, as such, or to a
substantial part of its assets, or (b) any proceeding for the liquidation,
dissolution or other winding up of the Company, whether voluntary or involuntary
and whether or not involving insolvency or bankruptcy, or (c) any general
assignment for the benefit of creditors or any other marshalling of assets and
liabilities of the Company, then and in any such event the holders of Senior
Indebtedness shall be entitled to receive payment in full of all amounts due or
to become due on or in respect of all Senior Indebtedness, or provision shall be
made for such
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payment in money or money's worth, before the Holders of the Securities are
entitled to receive any payment or distribution of any kind or character,
whether in cash, property or securities, on account of principal of or interest
on the Securities, 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 such payment or distribution which may be payable or deliverable
by reason of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities, which may be payable or
deliverable in respect of the Securities in any such case, proceeding,
dissolution, liquidation or other winding up or event.
Upon notice from the Senior Agent during a reorganization proceeding
described in (a), (b) or (c) above, the remedy and payment blockages provided
for in Section 1203 and 1204 shall terminate and the Holders shall accelerate
the Subordinated Indebtedness and all distributions and payments to which the
Holders would be entitled but for this Article Twelve shall be paid and applied
to the Senior Indebtedness remaining unpaid, to the extent necessary to pay all
Senior Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security 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 such payment or
distribution which may be payable or deliverable by reason of the payment of any
other indebtedness of the Company being subordinated to the payment of the
Securities, before all Senior Indebtedness is paid in full or payment thereof
provided for, 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, as the case
may be, 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
Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
In the event of any reorganization proceeding described in (a), (b) or
(c) above, the Trustee agrees and each Holder, by its acceptance of the
Securities agrees, to promptly take such action as the Senior Agent may request
to collect any payment with respect to the Subordinated Indebtedness for the
account of the holders of the Senior Indebtedness and to file appropriate claims
or proofs of claim in respect of the Subordinated Indebtedness in such
proceeding. Upon the failure of any Holder to take any such action as of the
tenth (10th) Business Day preceding the bar date therefor, the Senior Agent is
hereby irrevocably authorized and empowered (in its own name or otherwise), but
shall have no obligation, to demand, sue for, collect and receive any payment
referred to in respect of this Indenture or the Securities and to file claims
and proofs of claim and take such other action as it may deem necessary or
advisable for the exercise or enforcement of any of the rights or interests of
the Holders with respect to the Securities.
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For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include securities of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, which are subordinated
in right of payment to all Senior Indebtedness which may at the time be
outstanding to substantially the same extent as, or to a greater extent than,
the Securities are so subordinated as provided in this Article. 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 conveyance
or transfer of its properties and assets substantially as an entirety to another
Person upon the terms and conditions set forth in Article Eight shall not be
deemed a dissolution, winding up, liquidation, reorganization, general
assignment for the benefit of creditors or marshalling of assets and liabilities
of the Company for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or which acquires by
conveyance or transfer such properties and assets substantially as an entirety,
as the case may be, shall, as a part of such consolidation, merger, conveyance
or transfer, comply with the conditions set forth in Article Eight.
SECTION 1203. Prior Payment to Senior Indebtedness upon Acceleration of
Securities.
In the event that any Securities are declared due and payable before
their Stated Maturity, then and in such event the holders of Senior Indebtedness
outstanding at the time such Securities 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, or provision shall be made for such payment in money or
money's worth, before the Holders of the Securities are entitled to receive any
payment (including any payment which may be payable by reason of the payment of
any other indebtedness of the Company being subordinated to the payment of the
Securities) by the Company on account of the principal of or interest on the
Securities or on account of the purchase or other acquisition of Securities.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or such Holder, as the
case may be, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1202 would be applicable.
SECTION 1204. No Payment When Senior Indebtedness in Default; Suspension of
Remedies.
Except as provided in Section 1202, (a) in the event and during the
continuation of any Payment Default in respect of any Senior Indebtedness, or
upon receipt by the Company of a Payment Blockage Notice, until the expiration
or termination of the Payment and Remedy Blockage Period relating to such
Payment Default or such Payment Blockage Notice, or (b) in the event any
judicial proceeding shall be pending with respect to any such default in payment
or
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event of default, then no payment (including any payment which may be payable by
reason of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities) shall be made by the Company on
account of the principal of or interest on the Securities or on account of the
purchase or other acquisition of Securities and neither the Trustee nor any
Holder of any Security shall declare or join in any declaration of the
Securities, or any of the indebtedness under the Securities, to be due and
payable by reason of an Event of Default or otherwise take any action against
the Company (including without limitation commencing any legal action against
the Company or filing or joining in the filing of any insolvency petition
against the Company); provided that, unless the Senior Indebtedness under the
Senior Credit Agreement has been accelerated or an Event of Default specified in
subparagraphs (4) or (5) of Section 501 has occurred, in no event shall the
Trustee or any Holder of any Security accelerate the Securities until a period
of five (5) consecutive Business Days has expired after notice of intention to
accelerate on account of the occurrence of such Event of Default shall have been
given by the Trustee to the Company and the Senior Agent. Notwithstanding any
other provision of this Indenture, no Payment and Remedy Blockage Period may be
commenced within 360 days after the receipt by the Company of any prior Payment
Blockage Notice. No nonpayment default that existed or was continuing on the
date of delivery of any Payment Blockage Notice to the Trustee shall be, or be
made to be, the basis for a subsequent Payment Blockage Notice; provided,
however, that a default that arises on account of actions or facts occurring
after the time of delivery of a Payment Blockage Notice to the Trustee shall not
be considered as existing or continuing at the time of delivery of such Payment
Blockage Notice.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or such Holder, as the
case may be, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1202 would be applicable.
SECTION 1205. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except during
the pendency of any case, proceeding, dissolution, liquidation or other winding
up, general assignment for the benefit of creditors or other marshalling of
assets and liabilities of the Company referred to in Section 1202 or under the
conditions described in Section 1203 or 1204, from making payments at any time
of principal of or interest on the Securities, or (b) the application by the
Trustee of any money deposited with it hereunder to the payment of or on account
of the principal of or interest on the Securities or the retention of such
payment by the Holders, if, at the time of such application by the Trustee, it
did not have knowledge that such payment would have been prohibited by the
provisions of this Article.
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SECTION 1206. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all amounts due on or in respect of
Senior Indebtedness, the Holders of the Securities 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 (equally and ratably
with the holders of all indebtedness of the Company which by its express terms
is subordinated to other indebtedness of the Company to substantially the same
extent as the Securities are subordinated and is entitled to like rights of
subrogation) 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 and Interest on the Securities 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 of the Securities or the Trustee would be entitled except for
the provisions of this Article, and no payments over pursuant to the provisions
of this Article to the holders of Senior Indebtedness by Holders of the
Securities or the Trustee, shall, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Securities, be deemed to
be a payment or distribution by the Company to or on account of the Senior
Indebtedness.
SECTION 1207. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Securities, the obligation
of the Company, which is absolute and unconditional, to pay to the Holders of
the Securities the principal of and interest on the Securities as and when the
same shall become due and payable in accordance with their terms; or (b) affect
the relative rights against the Company or the Holders of the Securities and
creditors of the Company other than the holders of Senior Indebtedness; or (c)
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article of the holders of Senior Indebtedness
to receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder.
SECTION 1208. Trustee to Effectuate Subordination.
Each holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1209. 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
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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 any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities 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 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 1210. 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 Securities. Notwithstanding the provisions of this
Article 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 Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from any trustee therefor; and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 601, shall be entitled in all respects to assume that no
such facts exist.
Subject to the provisions of Section 601, 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, 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, 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.
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SECTION 1211. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 601, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or 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 of Securities, 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.
SECTION 1212. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee 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 of Securities
or to the Company or to any other Person cash, property or securities to which
holders of Senior Indebtedness shall be entitled by virtue of this Article or
otherwise. With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Article against the Trustee.
SECTION 1213. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article 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 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1214. Article Applicable to Paying Agents.
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 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 in addition to or in place of the Trustee; provided,
however, that Section 1213 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
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SECTION 1215. Certain Conversions Deemed Payment.
For the purposes of this Article only, (1) the issuance and delivery of
junior securities upon conversion of Securities in accordance with Article
Thirteen shall not be deemed to constitute a payment or distribution on account
of the principal of or interest on Securities or on account of the purchase or
other acquisition of Securities, and (2) the payment, issuance or delivery of
cash, property or securities (other than junior securities) upon conversion of a
Security shall be deemed to constitute payment on account of the principal of
such Security. For the purposes of this Section, the term "junior securities"
means (a) shares of any class of capital stock of the Company and (b) securities
of the Company which are subordinated in right of payment to all Senior
Indebtedness which may be outstanding at the time of issuance or delivery of
such securities to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Securities, the right,
which is absolute and unconditional, of the Holder of any Security to convert
such Security in accordance with Article Thirteen.
ARTICLE THIRTEEN
CONVERSION OF SECURITIES
SECTION 1301. Conversion Privilege and Conversion Price.
Subject to and upon compliance with the provisions of this Article, at
the option of the Holder thereof, any Security or any portion of the principal
amount thereof which equals $1,000,000 or any integral multiple of $1,000,000 in
excess thereof, may be converted at any time after the 60th day following the
date of original issuance of Securities under this Indenture at the principal
amount thereof, or of such portion thereof, into fully paid and nonassessable
shares (calculated as to each conversion to the nearest share) of Common Stock,
at the conversion price, determined as hereinafter provided, in effect at the
time of conversion. Such conversion right shall expire at the close of business
on May 3, 2014. In case a Security or portion thereof is called for redemption,
such conversion right in respect of the Security or portion so called shall
expire at the close of business on the second business day preceding the
applicable Redemption Date, unless the Company defaults in making the payment
due upon redemption.
The price at which shares of Common Stock shall be delivered upon
conversion (herein called the "conversion price") shall be initially $22.75 per
share of Common Stock. The conversion price shall be adjusted in certain
instances as provided in paragraphs (a), (b), (c), (d), (e), (f) and (i) of
Section 1304.
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SECTION 1302. Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of any
Security shall surrender such Security, duly endorsed or assigned to the Company
or in blank, at any office or agency of the Company maintained pursuant to
Section 1002, accompanied by written notice to the Company in the form provided
in the Security (or such other notice as is acceptable to the Company) at such
office or agency that the Holder elects to convert such Security or, if less
than the entire principal amount thereof is to be converted, the portion thereof
to be converted. Securities surrendered for conversion during the period from
the opening of business on any Regular Record Date next preceding any Interest
Payment Date to the close of business on such Interest Payment Date shall
(except in the case of Securities or portions thereof which have been called for
redemption) be accompanied by payment in New York Clearing House funds or other
funds acceptable to the Company of an amount equal to the interest payable on
such Interest Payment Date on the principal amount being surrendered for
conversion. Except as provided in the immediately preceding sentence and subject
to the fourth paragraph of Section 307, no payment or adjustment shall be made
upon any conversion on account of any interest accrued on the Securities
surrendered for conversion or on account of any dividends on the Common Stock
issued upon conversion.
Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for conversion
in accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock as and
after such time. As promptly as practicable on or after the conversion date, the
Company shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of such Security.
Certificates for shares of Common Stock issued pursuant to this Article
Thirteen prior to the Resale Restriction Termination Date shall bear the
Restricted Securities Legend.
SECTION 1303. Fractions of Shares.
No fractional share of Common Stock shall be issued upon conversion of
Securities, but, in lieu thereof, the Company shall pay to the Holder so
surrendering for conversion a cash adjustment in an amount equal to the same
fraction of the "Closing Price" (as defined in Section 1304(h) hereof) as such
fractional interest on the date on which the Securities were duly surrendered to
the Company for conversion, or, if such day is not a "Trading Day" (as defined
in Section 1304(h) hereof), on the next Trading Day. If more than one Security
shall be surrendered for conversion at one time by the same Holder, the number
of full shares which shall be issuable
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upon conversion thereof shall be computed on the basis of the aggregate
principal amount of the Securities (or specified portions thereof) so
surrendered.
SECTION 1304. Adjustment of Conversion Price.
(a) In case the Company shall pay or make a dividend or other
distribution on the Common Stock exclusively in Common Stock or shall pay or
make a dividend or other distribution on any other class of capital stock of the
Company which dividend or distribution includes Common Stock, the conversion
price in effect at the opening of business on the day following the date fixed
for the determination of shareholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such conversion price by a fraction
of which the numerator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total number of
shares constituting such dividend or other distribution, such reduction to
become effective immediately after the opening of business on the day following
the date fixed for such determination. For the purpose of this paragraph (a),
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 pay any
dividend or make any distribution on shares of Common Stock held in the treasury
of the Company.
(b) Subject to paragraph (g) of this Section, in case the Company
shall pay or make a dividend or other distribution on the Common Stock
consisting exclusively of, or shall otherwise issue to all holders of the Common
Stock, rights or warrants entitling the holders thereof (for a period expiring
within 45 days after the record date mentioned in this Section 1304(b)) to
subscribe for or purchase shares of Common Stock at a price per share less than
the Current Market Price (determined as provided in paragraph (h) of this
Section) on the date fixed for the determination of shareholders entitled to
receive such rights or warrants, the conversion price in effect at the opening
of business on the day following the date fixed for such determination shall be
reduced by multiplying such conversion price by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding at the close
of business on the date fixed for such determination plus the number of shares
of Common Stock which the aggregate of the offering price of the total number of
shares of Common Stock so offered for subscription or purchase would purchase at
such Current Market Price and the denominator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for such
determination plus the aggregate number of shares of Common Stock so offered for
subscription or purchase, such reduction to become effective immediately after
the opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (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 shares of Common Stock held in the treasury of the Company. In case
any rights or warrants referred to in this subsection 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.
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(c) In case outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the conversion price in effect
at the opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately reduced, and, conversely,
in case outstanding shares of Common Stock shall be combined into a smaller
number of shares of Common Stock, the conversion price in effect at the opening
of business on the day following the day upon which such combination becomes
effective shall be proportionately increased, such reduction or increase, as the
case may be, to become effective immediately after the opening of business on
the day following the day upon which subdivision or combination becomes
effective.
(d) Subject to the last sentence of this paragraph (d) and to
paragraph (g) of this Section, in case the Company shall, by dividend or
otherwise, distribute to all holders of the Common Stock evidences of its
indebtedness, shares of any class of its capital stock or other assets
(including securities, but excluding any rights or warrants referred to in
paragraph (b) of this Section, excluding any dividend or distribution paid
exclusively in cash and excluding any dividend or distribution referred to in
paragraph (a) of this Section), the conversion price shall be reduced by
multiplying the conversion price in effect immediately prior to the close of
business on the date fixed for the determination of shareholders entitled to
such distribution by a fraction of which the numerator shall be the Current
Market Price (determined as provided in paragraph (h) of this Section) on such
date less the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution) on such
date of the portion of the evidences of indebtedness, shares of capital stock
and other assets to be distributed applicable to one share of Common Stock and
the denominator shall be such Current Market Price, such reduction to become
effective immediately prior to the opening of business on the day following such
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 that
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 paragraph (d) by reference to the actual or when-issued trading
market for any securities comprising part or all of such distribution, it must
in doing so consider the prices in such market over the same period used in
computing the Current Market Price pursuant to paragraph (h) of this Section, to
the extent possible. For purposes of this paragraph (d), any dividend or
distribution that includes shares of Common Stock, rights or warrants to
subscribe for or purchase shares of Common Stock or securities convertible into
or exchangeable for shares of Common Stock shall be deemed to be (x) a dividend
or distribution of the evidences of indebtedness, assets or shares of capital
stock other than such shares of Common Stock, such rights or warrants or such
convertible or exchangeable securities (making any conversion price reduction
required by this paragraph (d)) immediately followed by (y) in the case of such
shares of Common Stock or such rights or warrants, a dividend or distribution
thereof (making any further conversion price reduction required by paragraph (a)
and (b) of this Section, except any shares of Common Stock included in such
dividend or distribution shall not be deemed "outstanding at the close of
business on the date fixed for such determination" within the meaning of
paragraph (a) of this Section), or (z) in the case of such convertible or
exchangeable securities, a dividend or distribution of the number of shares of
Common Stock as would then be issuable upon the conversion or exchange thereof,
whether or not the conversion or exchange of such
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securities is subject to any conditions (making any further conversion price
reduction required by paragraph (a) of this Section, except the shares deemed to
constitute such dividend or distribution shall not be deemed "outstanding at the
close of business on the date fixed for such determination" within the meaning
of paragraph (a) of this Section).
(e) In case the Company shall, by dividend or otherwise, at any
time distribute to all holders of the Common Stock cash (excluding any cash that
is distributed as part of a distribution resulting in an adjustment pursuant to
paragraph (d) of this Section or in connection with a transaction to which
Section 1311 applies) in an aggregate amount that, together with (i) the
aggregate amount of any other distributions to all holders of the Common Stock
of cash within the 12 months preceding the date fixed for the determination of
shareholders entitled to such distribution and in respect of which no conversion
price adjustment pursuant to this paragraph (e) has been made previously and
(ii) the aggregate amount of cash and other consideration paid in respect of any
tender offer by the Company or a Subsidiary for all or any portion of the Common
Stock consummated within the 12 months preceding the date fixed for the
determination of shareholders entitled to such distribution and in respect of
which no conversion price adjustment pursuant to paragraph (f) of this Section
has been made previously, exceeds 20.0% of the product of the Current Market
Price (determined as provided in paragraph (h) of this Section) on such date of
determination times the number of shares of Common Stock outstanding on such
date, the conversion price shall be reduced by multiplying the conversion price
in effect immediately prior to the close of business on such date of
determination by a fraction of which the numerator shall be the Current Market
Price (determined as provided in paragraph (h) of this Section) on such date
less the amount of cash to be distributed at such time applicable to one share
of Common Stock and the denominator shall be such Current Market Price, such
reduction to become effective immediately prior to the opening of business on
the day after such date.
(f) In case a tender offer made by the Company or any Subsidiary
for all or any portion of the Common Stock shall be consummated and such tender
offer shall involve an aggregate consideration having a fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution) as of the last time (the "Expiration Time")
that tenders may be made pursuant to such tender offer (as it shall have been
amended) that, together with (i) the aggregate of the cash plus the fair market
value (as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) as of the Expiration Time of the
other consideration paid in respect of any other tender offer by the Company or
a Subsidiary for all or any portion of the Common Stock consummated within the
12 months preceding the Expiration Time and in respect of which no conversion
price adjustment pursuant to this paragraph (f) has been made previously and
(ii) the aggregate amount of any distributions to all holders of the Common
Stock made exclusively in cash within the 12 months preceding the Expiration
Time and in respect of which no conversion price adjustment pursuant to
paragraph (e) of this Section has been made previously, exceeds 20.0% of the
product of the Current Market Price
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(determined as provided in paragraph (h) of this Section) immediately prior to
the Expiration Time times the number of shares of Common Stock outstanding
(including any tendered shares) at the Expiration Time, the conversion price
shall be reduced by multiplying the conversion price in effect immediately prior
to the Expiration Time by a fraction of which the numerator shall be (x) the
product of the Current Market Price (determined as provided in paragraph (h) of
this Section) immediately prior to the Expiration Time times the number of
shares of Common Stock outstanding (including any tendered shares) at the
Expiration Time minus (y) the fair market value (determined as aforesaid) of the
aggregate consideration payable to shareholders upon consummation of such tender
offer and the denominator shall be the product of (A) such Current Market Price
times (B) such number of outstanding shares at the Expiration Time minus the
number of shares accepted for payment in such tender offer (the "Purchased
Shares"), such reduction to become effective immediately prior to the opening of
business on the day following the Expiration Time; provided, that if the number
of Purchased Shares or the aggregate consideration payable therefor have not
been finally determined by such opening of business, the adjustment required by
this paragraph (f) shall, pending such final determination, be made based upon
the preliminarily announced results of such tender offer, and, after such final
determination shall have been made, the adjustment required by this paragraph
(f) shall be made based upon the number of Purchased Shares and the aggregate
consideration payable therefor as so finally determined.
(g) The reclassification of Common Stock into securities which
include securities other than Common Stock (other than any reclassification upon
a consolidation or merger to which Section 1311 applies) shall be deemed to
involve (i) a distribution of such securities other than Common Stock to all
holders of Common Stock (and the effective date of such reclassification shall
be deemed to be "the date fixed for the determination of shareholders entitled
to such distribution" within the meaning of paragraph (d) of this Section), and
(ii) a subdivision or combination, as the case may be, of the number of shares
of Common Stock outstanding immediately prior to such reclassification into the
number of shares of Common Stock outstanding immediately thereafter (and the
effective date of such reclassification shall be deemed to be "the day upon
which such subdivision becomes effective" or "the day upon which such
combination becomes effective", as the case may be, and "the day upon which such
subdivision or combination becomes effective" within the meaning of paragraph
(c) of this Section).
Rights or warrants issued by the Company to all holders of the Common
Stock entitling the holders thereof to subscribe for or purchase shares of
Common Stock (either initially or under certain circumstances), which rights or
warrants (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 in clauses (i) through (iii) until the occurrence of
a specified event or events (" Trigger Event"), shall for purposes of this
Section 1304 not be deemed issued until the occurrence of the earliest Trigger
Event. If any such rights or warrants, including any such existing rights or
warrants distributed prior to the date of this Indenture are subject to
subsequent events, upon the occurrence of each of which such rights or warrants
shall become exercisable to purchase different securities, evidences of
indebtedness or other assets, then the occurrence of each such event shall be
deemed to be such date of issuance and record date with respect to new rights or
warrants (and a termination or expiration of the existing rights or warrants
without exercise by the holder thereof). In addition, in the event of any
distribution (or deemed distribution) of rights or warrants, or any Trigger
Event with respect thereto, that was counted for purposes of calculating a
distribution amount for which an adjustment to the Conversion Price under this
Section 1304 was made, (1) in the case of any such rights or warrant which shall
all have been redeemed or repurchased without exercise by any holders thereof,
the Conversion Price
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shall be readjusted upon such final redemption or repurchase to give effect to
such distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or repurchase price received by
a holder or holders of Common Stock with respect to such rights or warrants
(assuming such holder had retained such rights or warrants), made to all holders
of Common Stock as of the date of such redemption or repurchase, and (2) in the
case of such rights or warrants which shall have expired or been terminated
without exercise by any holders thereof, the Conversion Price shall be
readjusted as if such rights and warrants had not been issued.
Notwithstanding any other provision of this Section 1304 to the
contrary, rights, warrants, evidences of indebtedness, other securities, cash or
other assets (including, without limitation, any rights distributed pursuant to
any stockholder rights plan) shall be deemed not to have been distributed for
purposes of this Section 1304 if the Company makes proper provision so that each
holder of Securities who converts a Security (or any portion thereof) after the
date fixed for determination of stockholders entitled to receive such
distribution shall be entitled to receive upon such conversion, in addition to
the shares of Common Stock issuable upon such conversions, the amount and kind
of such distributions that such holder would have been entitled to receive if
such holder had, immediately prior to such determination date, converted such
Security into Common Stock.
(h) For the purpose of any computation under this paragraph and
paragraphs (b), (d) and (e) of this Section, the current market price per share
of Common Stock (the "Current Market Price") on any date shall be deemed to be
the average of the daily Closing Prices for the ten (10) consecutive Trading
Days preceding the date in question; provided, however, that (i) if the "ex"
date for any event (other than the issuance or distribution requiring such
computation) that requires an adjustment to the conversion price pursuant to
paragraph (a), (b), (c), (d), (e) or (f) above occurs on or after the 10th
Trading Day prior to the date in question and prior to the "ex" date for the
issuance or distribution requiring such computation, the Closing Price for each
Trading Day prior to the "ex" date for such other event shall be adjusted by
multiplying such Closing Price by the same fraction by which the conversion
price is so required to be adjusted as a result of such other event, (ii) if the
"ex" date for any event (other than the issuance or distribution requiring such
computation) that requires an adjustment to the conversion price pursuant to
paragraph (a), (b), (c), (d), (e) or (f) above occurs on or after the "ex" date
for the issuance or distribution requiring such computation and on or prior to
the date in question, the Closing Price for each Trading Day on and after the
"ex" date for such other event shall be adjusted by multiplying such Closing
Price by the reciprocal of the fraction by which the conversion price is so
required to be adjusted as a result of such other event, and (iii) if the "ex"
date for the issuance or distribution requiring such computation is on or prior
to the date in question, after taking into account any adjustment required
pursuant to clause (ii) of this proviso, the Closing Price for each Trading Day
on or after such "ex" date shall be adjusted by adding thereto the amount of any
cash and the fair market value on the date in question (as determined by the
Board of Directors in a manner consistent with any determination of such value
for purposes of paragraph (d) or (e) of this Section, whose determination shall
be conclusive and described in a Board Resolution) of the evidences of
indebtedness, shares of capital stock or assets being distributed applicable to
one share of Common Stock as of the close of business on the day before
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such "ex" date. For the purpose of any computation under paragraph (f) of this
Section, the Current Market Price on any date shall be deemed to be the average
of the daily Closing Prices for the ten (10) consecutive Trading Days preceding
the latest (the "Commencement Date") of (i) the date 10 Trading Days before the
date in question, (ii) the date of commencement of the tender offer requiring
such computation and (iii) the date of the last amendment, if any, of such
tender offer involving a change in the maximum number of shares for which
tenders are sought or a change in the consideration offered, and ending not
later than the Expiration Time of such tender offer; provided, however, that if
the "ex" date for any event (other than the tender offer requiring such
computation) that requires an adjustment to the conversion price pursuant to
paragraph (a), (b), (c), (d), (e) or (f) above occurs on or after the
Commencement Date and prior to the Expiration Time for the tender offer
requiring such computation, the Closing Price for each Trading Day prior to the
"ex" date for such other event shall be adjusted by multiplying such Closing
Price by the same fraction by which the conversion price is so required to be
adjusted as a result of such other event. The closing price for any Trading Day
(the "Closing Price") shall be the last reported sales price regular way or, in
case no such reported sale takes place on such day, the average of the reported
closing bid and asked prices regular way, in either case on the New York Stock
Exchange or, if the Common Stock is not listed or admitted to trading on such
exchange, on the principal national securities exchange on which the Common
Stock is listed or admitted to trading or, if not listed or admitted to trading
on any national securities exchange, on the Nasdaq Stock Market's National
Market or, if the Common Stock is not listed or admitted to trading on any
national securities exchange or quoted on such National Market, the average of
the closing bid and asked prices in the over-the-counter market as furnished by
any New York Stock Exchange member firm selected from time to time by the
Company for that purpose. For purposes of this paragraph, the term "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 and 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 relevant exchange or in the
relevant market from which the Closing Prices were obtained without the right to
receive such issuance or distribution, (ii) when used with respect to any
subdivision or combination of shares of Common Stock, means the first date on
which the Common Stock trades regular way on such exchange or in such market
after the time at which such subdivision or combination becomes effective, and
(iii) when used with respect to any tender offer means the first date on which
the Common Stock trades regular way on such exchange or in such market after the
last time that tenders may be made pursuant to such tender offer (as it shall
have been amended).
(i) The Company may make such reductions in the conversion price,
in addition to those required by paragraphs (a), (b), (c), (d), (e) and (f) of
this Section, as it considers to be advisable (as evidenced by a Board
Resolution) in order that any event treated for federal income tax purposes as a
dividend of stock or stock rights shall not be taxable to the recipients or, if
that is not possible, to diminish any income taxes that are otherwise payable
because of such event.
(j) No adjustment in the conversion price shall be required unless
such adjustment (plus any other adjustments not previously made by reason of
this paragraph (j) would require an increase or decrease of at least 1% in the
conversion price; provided, however, that any
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adjustments which by reason of this paragraph (j) are not required to be made
shall be carried forward and taken into account in any subsequent adjustment.
(k) Notwithstanding any other provision of this Section 1304, no
adjustment to the conversion price shall reduce the conversion price below the
then par value per share of the Common Stock, and any such purported adjustment
shall instead reduce the conversion price to such par value. The Company hereby
covenants not to take any action to increase the par value per share of the
Common Stock.
SECTION 1305. Notice of Adjustments of Conversion Price.
Whenever the conversion price is adjusted as herein provided:
(a) the Company shall compute the adjusted conversion
price in accordance with Section 1304 and shall prepare an Officers'
Certificate signed by the 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 a copy to the Trustee) at each office or
agency maintained for the purpose of conversion of Securities pursuant
to Section 1002; and
(b) a notice stating that the conversion price has been
adjusted and setting forth the adjusted conversion price shall
forthwith be prepared, and as soon as practicable after it is prepared,
such notice shall be mailed by the Company to all Holders at their last
addresses as they shall appear in the Security Register.
SECTION 1306. Notice of Certain Corporate Action.
In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable (i) otherwise than
exclusively in cash or (ii) exclusively in cash in an amount that would
require a conversion price adjustment pursuant to paragraph (e) of
Section 1304; or
(b) the Company shall authorize the granting to the
holders of its Common Stock of rights or warrants to subscribe for or
purchase any shares of capital stock of any class or of any other
rights (excluding shares of capital stock or option for capital stock
issued pursuant to a benefit plan for employees, officers or directors
of the Company); or
(c) of any reclassification of the Common Stock (other
than a subdivision or combination of the outstanding shares of Common
Stock), or of any consolidation, merger or share exchange to which the
Company is a party and for which approval of any shareholders of the
Company is required, or of the sale or transfer of all or substantially
all of the assets of the Company; or
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(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company; or
(e) the Company or any Subsidiary shall commence a tender
offer for all or a portion of the outstanding shares of Common Stock
(or shall amend any such tender offer to change the maximum number of
shares being sought or the amount or type of consideration being
offered therefor);
then the Company shall cause to be filed at each office or agency maintained
pursuant to Section 1002, and shall cause to be mailed to all Holders at their
last addresses as they shall appear in the Security Register, at least 21 days
(or 11 days in any case specified in clause (a), (b) or (e) above) prior to the
applicable record, effective or expiration date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution or granting of rights or warrants, or, if a record is not
to be taken, the date as of which the holders of Common Stock of record who will
be entitled to such dividend, distribution, rights or warrants are to be
determined, (y) the date on which such reclassification, consolidation, merger,
share exchange, sale, transfer, 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, share exchange, sale, transfer,
dissolution, liquidation or winding up, or (z) the date on which such tender
offer commenced, the date on which such tender offer is scheduled to expire
unless extended, the consideration offered and the other material terms thereof
(or the material terms of any amendment thereto). Neither the failure to give
any such notice nor any defect therein shall affect the legality or validity of
any action described in clauses (a) through (e) of this Section 1306.
SECTION 1307. Company to Reserve Common Stock.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of the authorized but unissued Common Stock or out of the
Common Stock held in treasury, for the purpose of effecting the conversion of
Securities, the full number of shares of Common Stock then issuable upon the
conversion of all outstanding Securities. Shares of Common Stock issuable upon
conversion of outstanding Securities shall be issued out of the Common Stock
held in Treasury to the extent available.
SECTION 1308. Taxes on Conversions.
The Company will pay any and all documentary, stamp or similar issue or
transfer taxes that may be payable in respect of the issue or delivery of shares
of Common Stock on conversion of Securities pursuant hereto. The Company shall
not, however, be required to pay any tax which 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 of the Holder of the Security or Securities to be converted, and
no such issue or delivery shall be made unless and until the Person requesting
such issue has paid to the Company the amount of any such tax, or has
established to the satisfaction of the Company that such tax has been paid.
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SECTION 1309. Covenant as to Common Stock.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be fully paid and
nonassessable and, except as provided in Section 1308, the Company will pay all
taxes, liens and charges with respect to the issue thereof.
SECTION 1310. Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered to the
Trustee to be canceled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 309.
SECTION 1311. Effect of Consolidation, Merger or Sale of Assets.
In case of 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 any reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock) or any sale or
transfer of all or substantially all of the assets of the Company, the Person
formed by such consolidation or resulting from such merger or which acquires
such assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
Outstanding shall have the right thereafter, during the period such Security
shall be convertible as specified in Section 1301, to convert such Security only
into the kind and amount of securities, cash and other property, if any,
receivable upon such consolidation, merger, sale or transfer by a holder of the
number of shares of Common Stock into which such Security might have been
converted immediately prior to such consolidation, merger, sale or transfer,
assuming such holder of Common Stock (i) is not a Person with which the Company
consolidated or into which the Company merged or which merged into the Company
or to which such sale or transfer was made, as the case may be (a "Constituent
Person"), or an Affiliate of a Constituent Person and (ii) failed to exercise
his rights of election, if any, as to the kind or amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer
(provided that if the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer is not the same for
each share of Common Stock held immediately prior to such consolidation, merger,
sale or transfer by other than a Constituent Person or an Affiliate thereof and
in respect of which such rights of election shall not have been exercised
("nonelecting share"), then for the purpose of this Section the kind and amount
of securities, cash and other property receivable upon such consolidation,
merger, sale or transfer by each nonelecting share shall be deemed to be the
kind and amount so receivable per share by a plurality of the nonelecting
shares). Such supplemental indenture shall provide for adjustments which, for
events subsequent to the effective date of such supplemental indenture, shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Article. The above provisions of this Section shall similarly apply to
successive consolidations, mergers, sales or transfers.
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SECTION 1312. Trustee's Disclaimer.
The Trustee has no duty to determine when an adjustment under this
Article 13 should be made, how it should be made or what such adjustment should
be, but may accept as conclusive evidence of the correctness of any such
adjustment, and shall be protected in relying upon, the Officers' Certificate
with respect thereto which the Company is obligated to file with the Trustee
pursuant to Section 1305. The Trustee makes no representation as to the validity
or value of any securities or assets issued upon conversion of Securities, and
the Trustee shall not be responsible for the Company's failure to comply with
any provisions of this Article 13.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 1311, but may accept as conclusive evidence of the
correctness thereof, and shall be protected in relying upon, the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 1311.
This instrument may be executed in any number of counterparts, each of
which when so executed, shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
HILB, ROGAL AND HAMILTON COMPANY
By: /s/ Timothy J. Korman
-----------------------------------------
Name: Timothy J. Korman
Title: Executive Vice President - Finance
Attest:
/s/ Walter L. Smith
- -----------------------------------
Walter L. Smith
Secretary
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CRESTAR BANK, as Trustee
By: /s/ L. B. Bedell
-----------------------------------------
Name: L. B. Bedell
Title: Vice President
Attest:
/s/ Dennis Paul Smith
- -----------------------------------
Dennis Paul Smith
Assistant Secretary
Commonwealth of Virginia )
City of Richmond )
On the 3rd day of May, 1999, before me personally came Timothy J. Korman, to me
known, who, being by me duly sworn, did depose and say that he is Executive Vice
President - Finance of Hilb, Rogal and Hamilton Company, a Virginia corporation,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of the corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority by
the Board of Directors of said corporation; and that he signed his name thereto
by like authority.
/s/ Bonnie O. Cross
-----------------------------------------
Notary Public
My commission expires: 02/28/2002
Commonwealth of Virginia )
City of Richmond )
On the 3rd day of May, 1999, before me personally came L. B. Bedell, to me
known, who, being by me duly sworn, did depose and say that she is Vice
President of Crestar Bank, a duly organized banking institution existing under
the laws of the Commonwealth of Virginia, one of the corporations described in
and which executed the foregoing instrument; that she knows the seal of the
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that she signed her name thereto by like authority.
/s/ Margaret L. Walker
-----------------------------------------
Notary Public
My commission expires Aug. 31, 2001
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EXHIBIT A
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
FROM GLOBAL SECURITY OR CERTIFICATED
SECURITY TO CERTIFICATED SECURITY
(Transfers pursuant to ss. 304(a)(ii)
or ss. 304(a)(iii) of the Indenture)
[Name and address of trustee]
Attention: Corporate Trust Administration
Re: Hilb, Rogal and Hamilton Company
5 1/4% Convertible Subordinated Debentures due 2014
(the "Securities")
Reference is hereby made to the Indenture dated as of _________ __, 1999 (the
"Indenture") between Hilb, Rogal and Hamilton Company, as Issuer, and
_____________________, as Trustee. Capitalized terms used but not defined herein
shall have the meanings given them in the Indenture.
This letter relates to U.S. $_________________ aggregate principal amount of
Securities which are held [in the form of the [Rule 144A Global] [Certificated]
Security (CUSIP No. ________________________ with the Depositary]1 in the name
of _____________________ [name of transferor] (the "Transferor") to effect the
transfer of the Securities.
In connection with such request, and in respect of such Securities, the
Transferor does hereby certify that such Securities are being transferred (i) in
accordance with the transfer restrictions set forth in the Securities and (ii)
to a transferee that the Transferor reasonably believes is an institutional
"accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act of 1933) and is acquiring at least
$1,000,000 principal amount of Securities for its own account or for one or more
accounts as to which the transferee exercises sole investment discretion and
(iii) in accordance with applicable securities laws of any state of the United
States or any other jurisdiction. You and the Company are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
[Name of Transferor]
By: ___________________________________
Name:
Title:
Date:
___________________
1 Insert, if appropriate.
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EXHIBIT B
FORM OF ACCREDITED INVESTOR TRANSFEREE CERTIFICATE
(Transfers pursuant to ss. 304(a)(ii) and ss. 304(a)(iii))
[Insert name and address of trustee]
Attention: Corporate Trust Administration
Re: Hilb, Rogal and Hamilton Company
5 1/4% Convertible Subordinated Debentures due 2014
(the "Securities")
Reference is hereby made to the Indenture dated as of _________ __, 1999 (the
"Indenture") between Hilb, Rogal and Hamilton Company, as Issuer, and
____________________________, as Trustee. Capitalized terms used but not defined
herein shall have the meanings given them in the Indenture.
This letter relates to U.S. $_________________ aggregate principal amount of
Securities which are held [in the form of the [Rule 144A Global] [Certificated]
Security (CUSIP No.____________) with the Depositary] 1 in the name of
______________________ [name of transferor] (the "Transferor") to effect the
transfer of the Securities to the undersigned.
In connection with such request, and in respect of such Securities we confirm
that:
1. We understand that the Securities were originally offered in a
transaction not involving any public offering in the United States within the
meaning of the United States Securities Act of 1933, as amended (the "Securities
Act"), that the Securities have not been registered under the Securities Act and
that (A) the Securities may be offered, resold, pledged or otherwise transferred
only (i) to a person who the seller reasonably believes is a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act) in a
transaction meeting the requirements of Rule 144A under the Securities Act,
outside the United States to a foreign person in a transaction meeting the
requirements of Rule 904 under the Securities Act or in accordance with another
exemption from the registration requirements of the Securities Act (and based
upon an opinion of counsel if the Company so requests), (ii) to the Company or
(iii) pursuant to an effective registration statement, and, in each case, in
accordance with any applicable securities laws of any State of the United States
or any other applicable jurisdiction and (B) the purchaser will, and each
subsequent holder is required to, notify any subsequent purchaser from it of the
resale restrictions set forth in (A) above.
2. We are a corporation, partnership or other entity having such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Securities, and we are
(or any account for which we are purchasing under
______________________
1 Insert and modify, if appropriate.
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paragraph 4 below is) an institutional accredited investor as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act, able to bear the economic
risk of our proposed investment in the Securities.
3. We are acquiring the Securities for our own account (or for
accounts as to which we exercise sole investment discretion and have authority
to make, and do make, the statements contained in this letter) and not with a
view to any distribution of the Securities, subject, nevertheless, to the
understanding that the disposition of our property shall at all times be and
remain within our control.
4. We are, and each account (if any) for which we are purchasing
Securities is, purchasing Securities having an aggregate principal amount of not
less than $1,000,000.
5. We understand that (a) the Securities will be delivered to us
in registered form only and that the certificate delivered to us in respect of
the Securities will bear a legend substantially to the following effect:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
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, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATED PERSON OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY)
UNLESS SUCH OFFER, SALE OR OTHER TRANSFER IS (A) TO THE COMPANY, (B) PURSUANT TO
A REGISTRATION STATEMENT WHICH 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 THE HOLDER 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 TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSES (C), (D) OR (E) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
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INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS SECURITY IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE THEN HOLDER OF THIS SECURITY AFTER THE RESALE RESTRICTION
TERMINATION DATE.
and (b) such certificates will be reissued without the foregoing legend only in
accordance with the terms of the Indenture.
6. We agree that in the event that at some future time we wish to
dispose of any of the Securities, we will not do so unless:
(a) the Securities are sold to the Company or any
Subsidiary thereof;
(b) the Securities are sold to a qualified institutional
buyer in compliance with Rule 144A under the Securities Act;
(c) the Securities are sold to an institutional
accredited investor, as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act, acquiring at least $1,000,000 principal
amount of the Securities that, prior to such transfer, furnishes to the
Trustee a signed letter containing certain representations and
agreements relating to the restrictions on transfer of the Securities
(the form of which letter can be obtained from such Trustee);
(d) the Securities are sold to non-U.S. persons outside
the United States in compliance with Rule 903 or Rule 904 under the
Securities Act;
(e) the Securities are sold by us pursuant to Rule 144
under the Securities Act; or
(f) the Securities are sold pursuant to an effective
registration statement under the Securities Act.
Very truly yours,
[PURCHASER]
By: ________________________________
Name:_______________________________
Title:______________________________
Date:
Exhibit 10.3
RISK MANAGEMENT AGREEMENT
THIS RISK MANAGEMENT AGREEMENT (this "Agreement") is made and entered
into this 3rd day of May, 1999, by and between PHOENIX HOME LIFE MUTUAL
INSURANCE COMPANY, a New York life insurance company ("PHL"), and HILB, ROGAL
AND HAMILTON COMPANY, a Virginia corporation ("HRH").
Recitals:
WHEREAS, PHL desires to engage HRH to perform certain insurance
brokerage and related services in connection with PHL's insurance coverages; and
WHEREAS, HRH desires to perform such services for PHL on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises
made by the parties herein, the parties agree as follows:
1. Appointment. PHL hereby appoints and designates HRH as its
agent, and HRH hereby accepts such appointment and designation subject to the
terms and conditions of this Agreement.
2. Services. During the term of this Agreement, HRH shall provide
to PHL, with respect to those insurance coverages and programs maintained by PHL
that are listed on Schedule A attached hereto (collectively, with such other
coverages and programs as PHL or its subsidiaries may from time to time elect to
place through HRH or its affiliates, the "Insurance Coverages"), those services
customarily provided by an insurance broker (collectively, the "Services"),
including, without limitation, the following:
(a) At least annually, analyzing PHL's Insurance
Coverages and making recommendations to PHL for improvements therein;
(b) Working with PHL to update underwriting data
concerning exposures relative to the Insurance Coverages;
(c) Assisting PHL in the preparation of underwriting
submissions from data gathered pursuant to paragraph (b) above, with such
submissions being reviewed and approved by PHL prior to submission to
underwriters;
(d) Working with PHL prior to coverage placement or
renewal to develop a strategy for negotiations with underwriters, such strategy
to address markets to be solicited, insurance coverage requirements, insurance
limits and pricing of coverage;
<PAGE>
(e) Conducting policy placement and renewal negotiations
on behalf of PHL with underwriters, in which negotiations PHL may be involved at
its discretion;
(f) Preparing comparative analyses of all quotations and
proposals submitted by underwriters and properly providing such to PHL;
(g) Placing coverages with underwriters as requested and
approved by PHL;
(h) Meeting with PHL when reasonably requested by PHL to
describe coverages placed by HRH;
(i) Receiving and transmitting claims information as
directed by PHL and providing those claims processing and administrative
services currently provided by PHL's current primary broker;
(j) Identifying, assessing and analyzing risks of PHL;
(k) Working with PHL to develop risk and loss control
programs;
(l) Implementing an account servicing plan satisfactory
to PHL, including coverage interpretation, certificates of insurance, claims
tracking and analysis and related services;
(m) Providing premium/claim cost projections for
budgeting purposes;
(n) Monitoring the effectiveness of each Insurance
Coverage and making appropriate recommendations with respect thereto to PHL; and
(o) Maintaining appropriate records as described below.
HRH will maintain, for six (6) years, the written records customarily
maintained in the brokerage business, including, but not limited to, records and
copies of policies, premium payments, premium audits, correspondence, loss data,
underwriting submissions, coverage interpretations provided by HRH, and risk
analysis, evaluations and identification. All such records will be the property
of PHL and will, unless otherwise directed in writing by PHL, be delivered to
PHL, at PHL's expense, at the earlier of the end of six (6) years, or within
twenty (20) days of termination of this Agreement. HRH shall be permitted to
retain copies of such records, subject to the confidentiality provisions of this
Agreement. The foregoing notwithstanding, PHL shall have the right to obtain and
retain the originals of all policies issued to it or its subsidiaries, all
related forms, and all related correspondence addressed to it or such
subsidiaries.
3. Standard of Care. In providing the Services hereunder, HRH
shall perform in a fashion that at least meets the standard of care exercised by
PHL's current insurance broker.
2
<PAGE>
4. Responsibilities of PHL. In addition to its other obligations
contained herein, PHL agrees as a condition to the performance by HRH of its
obligations hereunder, to be responsible for:
(a) Making final decisions with respect to underwriting
submissions and all matters relating to the Insurance Coverages and risk
management;
(b) Rendering to HRH promptly complete and accurate
information as to PHL's loss experience, risk exposures (including any changes
in the analysis or scope of PHL's risk exposures) and any other information in
PHL's possession reasonably requested by HRH except that loss experience reports
for PHL's workers compensation, property and general liability coverages shall
be promptly prepared by HRH and provided to PHL;
(c) Advising HRH promptly of any changes in PHL's
business operations that may affect the Services provided or the Insurance
Coverages procured hereunder;
(d) Promptly paying all invoices for premiums, fees,
charges and taxes due on any Insurance Coverages placed by HRH for PHL; and
(e) Designating one or more representatives to be
responsible for providing all instructions, data, information and assistance
reasonably required of PHL by HRH hereunder.
5. Compensation.
(a) In consideration for the Services to be provided by
HRH hereunder with respect to the Insurance Coverages, compensation will be
targeted at PHL's current payments for agency services (which are described in
Schedule 5 hereto) plus inflation costs. Whenever reasonably possible, the
compensation shall be fee-based. All commissions and fees shall be disclosed in
writing to PHL on or before the time of billing.
(b) The parties agree to renegotiate the compensation
provided in paragraph (a) above in the event of any merger, acquisition,
consolidation, divestiture or dissolution involving PHL or any of its
subsidiaries or such other substantial change in PHL's or such subsidiaries'
businesses as results in a material increase or decrease in the responsibilities
of and time required by HRH in the performance of the Services hereunder.
(c) Any sales, use, excise, value added or similar taxes
incurred in connection with this Agreement shall be the responsibility of PHL,
whether or not billed by HRH.
(d) PHL acknowledges and agrees that unaffiliated
wholesalers, intermediaries and other parties may be used by HRH in the
placement and servicing of Insurance Coverages for PHL, provided, however, that
no such use by HRH of wholesalers, intermediaries or other parties shall relieve
HRH of any liability under this Agreement for performance of the Services in
accordance with the terms and conditions of this Agreement. PHL acknowledges
that such persons' compensation for Services will sometimes be separate and not
included in the
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<PAGE>
compensation of HRH provided for in paragraph (a) above or otherwise governed by
the terms of this Agreement. HRH agrees that to the extent such persons are so
compensated, PHL will not also be required to compensate HRH for provision of
such Services.
6. Certain Limitations.
(a) The Services to be provided by HRH are not of a legal
nature, and HRH shall in no event give, or be required to give, any legal
opinions or provide any legal representation to PHL.
(b) With PHL's prior approval, HRH may assign performance
of the Services under this Agreement to any of its personnel and to assign to
its subsidiaries any part or all of HRH's rights and duties hereunder. HRH
reserves the right to subcontract to any third party where such subcontracting
is necessary to comply with any state insurance or other applicable law. The
foregoing notwithstanding, no such assignment or subcontract shall relieve HRH
of liability hereunder for performance of the Services or otherwise.
Furthermore, HRH shall cause such subsidiaries and third parties to abide by the
terms of this Agreement to the same extent as if they were parties hereto and
HRH shall be liable to PHL for all actions by such persons which, if they were
parties hereto, would constitute breaches of this Agreement.
(c) PHL acknowledges and agrees that HRH is not the
insurer of any exposure, and that HRH does not guarantee the availability of any
form of insurance coverage, the reasonableness of any terms and conditions
thereof nor the financial solvency of the insurer.
(d) The Services provided by HRH hereunder are provided
for the exclusive use of PHL and its subsidiaries, and such Services, data,
recommendations, proposals, reports and similar information provided by HRH, are
not to be distributed to, used or relied upon by other parties.
(e) Nothing in this Agreement or any other document shall
be construed to require PHL to place the following coverages through HRH: (i)
any coverages now or hereafter obtained for any subsidiary in which PHL owns,
directly or indirectly, shares representing less than eighty percent (80%) of
the voting power held by all shareholders of such entity; (ii) those coverages
for agents of PHL or its affiliates which are currently obtained through AON
Financial Group; or (iii) any coverages now or hereafter maintained with respect
to any real property owned by a separate account of PHL or any of its
Subsidiaries. The foregoing notwithstanding, PHL will encourage those of its
subsidiaries encompassed under clause (i) to place their insurance through HRH.
7. Confidentiality.
(a) HRH acknowledges that in the course of performance of
this Agreement, it will acquire Confidential Information (as defined below)
regarding the business of PHL and its subsidiaries and that unauthorized
disclosure of such Confidential Information could irreparably harm PHL or its
subsidiaries. As used in this Agreement, the term "Confidential
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Matters" includes, but is not limited to, the following items, whether existing
now or created in the future: (i) all knowledge or information concerning the
business, operations and assets of PHL or its subsidiaries which is not readily
available to the public such as: internal operating procedures; investment
strategies; sales data and customer lists; financial plans, projections and
reports; and insurance and investment company programs, plans and products; (ii)
all property owned, licensed and/or developed by or for PHL or its subsidiaries
and not readily available to the public, such as computer systems, programs,
software devices, plus information about the design, methodology and
documentation therefor; (iii) information about or personal to PHL's or its
subsidiaries' insureds, clients and investors, as well as applicants; (iv)
information, materials, product or any other tangible or intangible assets in
PHL's or its subsidiaries' possession or under its control which is proprietary
to, or confidential about, any other person or entity; and (v) records and
repositories of all of the foregoing, in whatever form maintained.
The foregoing notwithstanding, the following shall not be
considered Confidential Matters: (aa) general skills and experience gained by
HRH in providing Services to PHL or its subsidiaries; (bb) information publicly
available or generally known within the insurance or data processing industries;
(cc) information known to HRH prior to disclosure hereunder; (dd) information
independently developed by HRH; and (ee) information which becomes available to
HRH on a non-confidential basis from sources other than PHL or its subsidiaries,
provided HRH does not know or have reason to know that such sources are
prohibited by contractual, legal or fiduciary obligation from transmitting the
information. Failure to mark any material or information "confidential" shall
not affect the confidential nature thereof.
(b) Notwithstanding anything herein to the contrary, HRH
shall not be deemed to be in breach of the provisions of this Section 7 in the
event it is legally required to disclose any Confidential Information pursuant
to an order or other legal process issued by any governmental or judicial
authority having jurisdiction over it. In the event HRH, its subsidiaries or any
of its permitted subcontractors is requested or required (by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or process) to disclose any Confidential Matters, HRH
agrees that it will provide PHL with prompt notice of any such request or
requirement (written, if applicable) so PHL may seek an appropriate protective
order or waive compliance with the provisions of this Agreement. If, failing the
entry of a protective order or the receipt of a waiver hereunder, HRH, any of
its subsidiaries or any of its permitted subcontractors is, in the opinion of
its counsel, compelled to disclose Confidential Matters, HRH, such subsidiary or
such permitted subcontractor, as the case may be, may disclose that portion of
the Confidential Matters which its counsel advises that it is compelled to
disclose and will exercise reasonable efforts to obtain assurance that
confidential treatment will be accorded to that portion of the Confidential
Matters which is being disclosed. In any event, HRH and its subsidiaries will
not oppose any action by PHL to obtain an appropriate protective order or other
reliable assurance that confidential treatment will be accorded the Confidential
Matters.
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(c) HRH stipulates that breach of the provisions of this
Agreement concerning Confidential Matters could cause PHL, or the rightful owner
or subject of such matters, irreparable injury inadequately compensable through
monetary damages, and accordingly, agrees that PHL shall be entitled to
injunctive relief against any such breach or threatened breach in addition to
any other available remedies.
(d) The obligations of HRH under this Section 7 shall
survive any termination of this Agreement and shall remain in full force and
effect thereafter.
8. Exclusion of Liability. HRH shall at all times act in good
faith use its reasonable commercial efforts to ensure the accuracy and
completeness of all Services performed under this Agreement, but assumes no
responsibility and shall not be liable for any loss or damage incurred by PHL
and its affiliates due to errors or omissions unless such errors or omissions
are caused by the gross negligence, bad faith or reckless or willful misconduct
of HRH or its employees, subcontractors and agents. Notwithstanding anything
herein to the contrary, neither HRH nor PHL shall be liable to the other for any
consequential, incidental, exemplary, indirect, punitive or special damages,
including, without limitation, loss of anticipated profits.
9. Relationship of Parties. The parties hereto agree that the
relationship between them is one between independent contractors and that all
personnel supplied by HRH in providing the Services to PHL shall at all times be
employees of HRH, under its supervision and control, and shall not be deemed
employees of PHL for any purposes whatsoever.
10. Term and Termination.
(a) General. The term of this Agreement shall be for a
period commencing on the date of this Agreement and ending, as to each Insurance
Coverage then maintained by PHL or its subsidiaries through HRH, on such
coverages' respective dates of termination in 2005 (such period being the
"Initial Term"), unless sooner terminated as provided hereunder. Upon the
expiration of the Initial Term, this Agreement may be renewed by PHL for
additional one (1) year periods upon written notice given to HRH not less than
ninety (90) days prior to the expiration of the Initial Term or any renewal
term, each of which renewal terms will, unless further renewed, end in their
years of termination with respect to each coverage separately, as provided above
for the Initial Term. HRH's compensation for Services rendered during any
renewal term shall be as agreed upon in writing by the parties.
(b) By PHL for Cause. If HRH shall: (i) breach Section
7(a) of this Agreement; (ii) breach any material provision of this Agreement,
and shall fail to cure such breach within fifteen (15) days after receipt of
written notice from PHL; or (iii) make an assignment for the benefit of
creditors or file, or have filed against it, a petition in bankruptcy, or
petition or apply to any tribunal for any receiver, custodian or any trustee of
any substantial part of its property, or commence any proceeding relating to it
under any reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, whether now or hereafter in
effect, then PHL may terminate this Agreement immediately. In the event of such
termination under this paragraph (b) by PHL, PHL shall pay all sums earned by
HRH hereunder through the
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date of termination. Upon PHL's payment of all such sums earned, if any, PHL
shall have no further obligation hereunder.
(c) By HRH for Cause. If PHL shall (i) breach any
material provision of this Agreement, and shall fail to cure such breach within
fifteen (15) days after receipt of written notice from HRH, or (ii) make an
assignment for the benefit of creditors or file, or have filed against it, a
petition in bankruptcy, or petition or apply to any tribunal for any receiver,
custodian or any trustee of any substantial part of its property, or commence
any proceeding relating to it under any reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect, then HRH may terminate this
Agreement. In such event, PHL shall pay to HRH on the effective date of such
termination, in full settlement of all claims by HRH hereunder, one lump sum
payment in an amount equal to [To be discussed], and any other accrued charges
in accordance with this Agreement.
11. Entire Agreement. This Agreement expresses the entire
understanding of the parties with respect to the subject matter hereof and there
are no oral or written agreements or understandings with respect to such subject
matter which are not set forth herein.
12. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Virginia, without
giving effect to any choice or conflict of law provision or rule that would
cause the application of the law of any other jurisdiction.
13. Name, Captions. The name assigned to this Agreement and the
section captions used herein are for convenience of reference only and shall not
affect the interpretation or construction thereof.
14. No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
15. Notices. Any notices or other communications required or
permitted hereunder shall be sufficiently given if in writing (including
telecopy or similar teletransmission), addressed as follows:
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If to HRH, to it at: Hilb, Rogal and Hamilton Company
4235 Innslake Drive
P.O. Box 1220
Glen Allen, Virginia 23060
Telecopier: (804) 747- 3138
Attn: Walter L. Smith, Esquire
With a copy to: Williams Mullen Christian & Dobbins
1021 East Cary Street, 16th Floor
Richmond, Virginia 23219
Telecopier: (804) 783-6507
Attention: Theodore L. Chandler, Jr., Esquire
If to PHL, Phoenix Home Life Mutual Insurance Company
to it at: One American Row
Hartford, Connecticut 06102-5056
Telecopier: (860) 403-7116
Attention: Dorothy K. Dropick
With a copy to: Phoenix Home Life Mutual Insurance Company
One American Row
Hartford, Connecticut 06102-5056
Telecopier: (860) 403-5182
Attention: Carole A. Masters, Esquire
Unless otherwise specified herein, such notices or other communications shall be
deemed received (a) in the case of any notice or communication sent other than
by mail, on the date actually delivered to such address (evidenced, in the case
of delivery by overnight courier, by confirmation of delivery from the overnight
courier service making such delivery, and in the case of a telecopy, by receipt
of a transmission confirmation form or the addressee's confirmation of receipt),
or (b) in the case of any notice or communication sent by mail, three (3)
business days after being sent, if sent by registered or certified mail, with
first-class postage prepaid. Each of the parties hereto shall be entitled to
specify a different address by giving notice as aforesaid to each of the other
parties hereto.
16. Successors and Assigns; Assignment. Except as otherwise
provided in this Agreement, this Agreement shall be binding upon and shall inure
to the benefit of and be enforceable by the parties and their respective
permitted successors and assigns. Neither this Agreement nor any rights or
obligations hereunder may be assigned by either party without the prior written
consent of the other party hereto.
17. Cumulative Remedies. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise or beginning of
the exercise of any thereof by any party shall not
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preclude the simultaneous or later exercise of any other such right, power or
remedy by such party.
18. Third Party Beneficiaries. Except as otherwise provided in
Section 7, this Agreement is not intended to be for the benefit of and shall not
be enforceable by any person or entity who or which is not a party hereto.
19. Consent to Jurisdiction. Each party to this Agreement, by its
execution hereof, (i) hereby irrevocably submits to the exclusive jurisdiction
of the federal courts located either in the City of Richmond, Virginia, or in
the City of Hartford Connecticut, and in the event that such federal courts
shall not have subject matter jurisdiction over the relevant proceeding, then of
the state courts located in the City of Richmond, Virginia, or in the City of
Hartford, Connecticut, for the purpose of any claim, action, cause of action or
suit (in contract or tort or otherwise), arbitration, proceeding or
investigation by or before any governmental ("Action") arising out of or based
upon this Agreement or relating to the subject matter hereof, (ii) hereby
waives, to the extent not prohibited by applicable law, and agrees not to
assert, by way of motion, as a defense or otherwise, in any such Action, any
claim that it is not subject personally to the jurisdiction of the above-named
courts, that its property is exempt or immune from attachment or execution, that
any such proceeding brought in one of the above-named courts is improper, or
that this Agreement or the subject matter hereof, may not be enforced in or by
such court and (iii) hereby agrees not to commence any Action arising out of or
based upon this Agreement or relating to the subject matter hereof other than
before one of the above-named courts nor to make any motion or take any other
Action seeking or intending to cause the transfer or removal of any such Action
to any court other than one of the above-named courts whether on the grounds of
inconvenient forum or otherwise. Each party hereby consents to service of
process in any such proceeding in any manner permitted by Virginia or
Connecticut law, as the case may be, and agrees that service of process by
registered or certified mail, return receipt requested, at its address specified
pursuant to Section 11.7 hereof is reasonably calculated to give actual notice.
20. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all, the
parties hereto.
21. Expenses. Each of the parties hereto shall bear its own
expenses incurred in connection with this Agreement, except that in the event of
a dispute concerning the terms or enforcement of this Agreement, the prevailing
party in any such dispute shall be entitled to reimbursement of reasonable legal
fees and disbursements from the other party or parties to such dispute.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
HILB, ROGAL AND HAMILTON COMPANY
By: /s/ Andrew L. Rogal
---------------------------------------
Name: Andrew L. Rogal
Its: President and Chief Executive Officer
PHOENIX HOME LIFE MUTUAL INSURANCE COMPANY
By: /s/ David W. Searfoss
---------------------------------------
Name: David W. Searfoss
Its: Executive Vice President and Chief
Financial Officer
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SCHEDULE 5
Compensation
In consideration of HRH's provision of the Services, as described in
Section 2, compensation to HRH will be targeted at a ten percent (10%)
commission rate. PHL's and its subsidiaries' current coverages are as described
in the exhibit hereto [omitted]. Compensation will be earned and billed on a pro
rata basis. The property-casualty program will be downsized upon the sale of
American Phoenix Corporation; PHL anticipates a corresponding decrease in
premiums and fees.
Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into this 29th day of March, 1999,
by and between MARTIN L. VAUGHAN, III, an individual residing in Deland, Florida
(the "Executive"), and HILB, ROGAL AND HAMILTON COMPANY, a Virginia corporation
with corporate offices located at 4235 Innslake Drive, Glen Allen, Virginia (the
"Company").
WHEREAS, the Company and the Executive, among others, have entered into
that certain Stock Purchase Agreement of even date herewith (the "Stock Purchase
Agreement"), pursuant to which the Company acquired all of the capital stock of
American Phoenix Corporation from PM Holdings, Inc. and the Executive; and
WHEREAS, upon the closing of the transactions contemplated by the Stock
Purchase Agreement, the Board of Directors of the Company (the "Board") desires
that the Company employ the Executive as the Chief Operating Officer of the
Company, and the Executive desires to accept such position with the Company, all
on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
I. Term Of Employment.
(A) The term of the employment of the Executive under this
Agreement shall commence on the date of the closing of the transactions
contemplated by the Stock Purchase Agreement, and shall continue thereafter for
a three (3) year period. Notwithstanding anything in this Agreement to the
contrary, this Agreement shall, automatically and without further action by the
parties hereto being required, have no effect, and neither party shall have any
liability or obligation hereunder, in the event that the Stock Purchase
Agreement is terminated.
(B) Upon the commencement of this Agreement as set forth above,
and notwithstanding the three (3) year term provided in provision (A) of this
Section I, the term of employment of the Executive under this Agreement shall be
subject to earlier termination by:
(1) the determination of disability of the Executive
pursuant to Section IV; or
(2) the dismissal of the Executive from his position as
Chief Operating Officer pursuant to resolution by the Board, or failure
or refusal of the Board to re-elect the Executive to the position of
Chief Operating Officer; or
(3) the death of the Executive;
provided, however, that
(i) in the event of termination for
determination of disability pursuant to Paragraph (1) above,
Section IV shall apply;
(ii) in the event of termination pursuant to
Paragraph (2) above for "Proper Cause" (as defined in Section
V(A)), Section V(B) shall apply;
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(iii) in the event of termination pursuant to
Paragraph (2) above without "Proper Cause" (as defined in
Section V(A)), Section VI shall apply; and
(iv) in the event of termination due to the death
of the Executive pursuant to Paragraph (3) above, Section VII
shall apply.
II. Services To Be Rendered.
The Company agrees to employ the Executive as the Chief Operating
Officer of the Company, subject to the terms, conditions and provisions of this
Agreement, and the Executive hereby accepts such employment. The Executive shall
report to and be subject to the direction of the Board. The Executive agrees
that his employment as Chief Operating Officer of the Company pursuant to this
Agreement is a full time position. Notwithstanding the foregoing, the Executive
may devote a reasonable amount of his time to serving as an officer and director
of other companies affiliated with the Company; to his personal investments and
business affairs, including service as a director of unaffiliated companies; and
to civic, political and charitable activities; provided however, the Executive
shall not accept any position as a director of any unaffiliated for-profit
business organization, other than positions presently held by him, without prior
approval of the Board (which approval will not be unreasonably withheld).
III. Compensation.
In consideration for the services rendered to the Company under this
Agreement, the Company shall pay and provide to the Executive the following
compensation and benefits:
(A) Salary.
The Company shall pay the Executive an annual base salary of
$350,000.00, payable in twelve (12) equal monthly installments on the last
business day of each calendar month. This annual base salary shall be reviewed
annually by the Compensation Committee of the Board (the "Compensation
Committee") to consider appropriate increases, but in no event shall the amount
of the base salary be reduced.
(B) Annual Incentive Bonus.
In addition to the base salary to be paid to the Executive under
Section III(A), the Executive may also be entitled to an annual incentive bonus
as established and modified, from time to time, by the Compensation Committee.
(C) Ancillary Benefits.
The Executive shall also be entitled to vacations, participation in the
Company's Profit Sharing Savings Plan (401K) and Supplemental Executive
Retirement Plan, sick leave benefits, post-retirement benefit plan, and all
other ancillary benefits provided by the Company, including, but not limited to,
group life, health and disability insurance coverages, consistent with the
compensation policies and practices of the Company from time to time prevailing
with respect to persons who are executive officers of the Company.
(D) The Executive shall receive such stock option awards each year
as determined by the Compensation Committee in its sole discretion.
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IV. Disability.
(A) The term of employment of the Executive may be terminated at
the election of the Company upon a determination by the Board, made based upon a
qualified medical opinion, that the Executive will be unable, by reason of
physical or mental incapacity, to perform the reasonably expected or customary
duties of Chief Operating Officer of the Company on a full-time basis for a
period longer than three (3) consecutive months or more than six (6) months in
any consecutive twelve (12)-month period. In the exercise of its determination,
the Board shall give due consideration to the opinion of the Executive's
personal physician or physicians and to the opinion of any physician or
physicians selected by the Board for these purposes. If the Executive's personal
physician disagrees with the physician retained by the Company, the Board will
retain an impartial physician selected by the Executive's personal physician and
the Company's physician and the opinion of the impartial physician shall be
binding upon the Company and the Executive. The Executive shall submit to
examination by any physician or physicians so selected by the Board, and shall
otherwise cooperate with the Board in making the determination contemplated
hereunder, such cooperation to include, without limitation, consenting to the
release of information by any such physician(s) to the Board.
(B) In the event of such termination for disability, the Company
shall thereupon be relieved of its obligations to pay any compensation and
benefits under Section III, except for accrued and unpaid items, but shall, in
addition, pay to the Executive such disability compensation as set forth in any
disability plan established by the Company for its executive officers.
V. Termination For Proper Cause.
(A) The occurrence of any of the following events shall constitute
"Proper Cause" for termination of the employment of the Executive under this
Agreement, at the election of the Board:
(1) the Executive shall voluntarily resign as a director,
officer or employee of the Company or any of its affiliates without the
written consent of the Board;
(2) the Executive shall breach this Agreement in any
material respect and fail to cure such breach within sixty (60)
calendar days after receiving written notice of such breach from the
Company;
(3) the commission of a fraud, or other criminal act, by
the Executive directly involving the Company or any of its affiliates
which would constitute a felony if prosecuted under criminal law; or
(4) the Executive fails to resign from the Board upon the
terms and conditions of Section 2.5(b) of the Voting and Standstill
Agreement (as defined in the Stock Purchase Agreement);
provided, however, the inability of the Executive to achieve
favorable results of operations shall clearly not be deemed Proper
Cause for termination hereunder.
(B) In the event of termination of the Executive's employment
pursuant to Section I(B)(2) for Proper Cause, the Company shall thereupon be
relieved of its obligations to pay any compensation and benefits under Section
III, except for accrued and unpaid items.
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VI. Termination Without Proper Cause.
(A) In the event of termination of the Executive pursuant to
Section I(B)(2) without Proper Cause (as defined in Section V(A) above), the
Company shall thereafter be and remain obligated to pay to the Executive (or his
estate or designated beneficiary), on a prorated basis if such termination is
mid-month or mid-year, the compensation and benefits provided under Section
III(A) and III(B) and such benefits under III(C) as are payable to a terminated
employee until expiration of the three (3) year term of employment established
by Section I(A). In the event of a dispute as to whether the Executive was
terminated for or without "Proper Cause," or regarding the amount of
compensation the Executive is entitled to receive under this Section VI, the
Company shall be obligated to continue to pay to the Executive (or his estate or
designated beneficiary) all of the compensation and benefits reserved under
Section III until the dispute is resolved by an arbitrator pursuant to Section
XVIII hereof.
(B) For purposes of calculating the annual incentive bonus payable
under Section III(B), for the remainder of the term of this Agreement, the
Company shall make to the Executive (or his estate or designated beneficiary) an
annual (prorated on a calendar year basis for any partial year) payment equal to
the greater of the (i) highest annual incentive bonus payment received by
Executive pursuant to Section III(B) during the term of this Agreement, or (ii)
fifty percent (50%) of his annual base salary.
VII. Death.
In the event of termination of the Executive's employment pursuant to
Section I(B)(3) above, the Company shall pay the Executive's estate or
designated beneficiary such death benefits as may be set forth in any life
insurance plan established by the Company for its executive officers, and shall
have no further obligation hereunder thereafter.
VIII. Confidentiality.
For purposes of this Agreement, "Confidential Information" shall mean
any information of a proprietary or confidential nature and trade secrets of the
Company and its affiliates relating to the business of the Company and its
affiliates that have not previously been publicly released by duly authorized
representatives of the Company. The Executive agrees to regard and preserve as
confidential all Confidential Information pertaining to the Company's business
that has been or may be obtained by the Executive in the course of his
employment with the Company, whether he has such information in his memory or in
writing or other physical form. The Executive shall not, without written
authority from the Company to do so, use for his personal benefit or his
personal purposes, unrelated to business of the Company, nor disclose to others,
either during the term of his employment hereunder or for three (3) years
thereafter, except as required by the conditions of his employment hereunder,
any Confidential Information of the Company. This provision shall not apply
after the Confidential Information has been voluntarily disclosed to the public
by a duly authorized representative of the Company, independently developed and
disclosed by others, or otherwise enters the public domain through lawful means.
IX. Removal Of Documents Or Objects.
The Executive agrees not to remove from the premises of the Company,
except as an employee of the Company in pursuit of the business of the Company
or any of its affiliates, or except as specifically permitted in writing by the
Company, any document or object containing or reflecting any Confidential
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Information of the Company. The Executive recognizes that all documents or
material containing Confidential Information developed by him or by someone else
in the course of employment by the Company, are the exclusive property of the
Company.
X. Nonpiracy Covenants.
(A) For the purpose of this Agreement, the following terms shall
have the following meanings:
(1) "Customers" shall be limited to those customers of
the Company or its affiliates for whom there is an insurance policy or
bond in force or to or for whom the Company or its affiliates are
rendering services as of the date of termination of the Executive's
employment;
(2) "Affiliates of the Company" shall mean each of the
direct and indirect subsidiary corporations of Hilb, Rogal and Hamilton
Company as of the date of termination of the Executive's employment;
(3) "Prohibited Services" shall mean services in the
fields of insurance performed by the Company or its affiliates, their
agents or employees, and services in any other business engaged in by
the Company or its affiliates on the date of termination of the
Executive's employment. "Fields of Insurance" does not include title
insurance, but does include all lines of insurance sold by the Company
or its affiliates, including, without limitation, property and
casualty, life, group, accident, health, disability, and annuities, and
premium financing related thereto;
(4) "Prospective Customers" shall be limited to those
persons and entities known by the Executive to have been solicited for
business with respect to any Prohibited Service within the twelve (12)
month period preceding the date of termination of the Executive's
employment, and with or from whom, within the twelve (12) month period
preceding the date of termination of the Executive's employment,
someone acting on behalf of the Company or its affiliates either had
met for the purpose of offering any Prohibited Service or had received
a written response to an earlier solicitation to provide a Prohibited
Service; and
(5) "Restricted Period" shall mean the period of three
(3) years immediately following the date of termination of the
Executive's employment.
(B) The Executive recognizes that over a period of many years the
Company has developed, at considerable expense, relationships with, and
knowledge about, Customers and Prospective Customers which constitute a major
part of the value of the Company. During the course of his employment by the
Company, the Executive will have substantial contact with, and/or obtain
substantial knowledge about, these Customers and Prospective Customers. In order
to protect the value of the Company's business, the Executive covenants and
agrees that, in the event of the termination of his employment, but only if said
termination is voluntary or for Proper Cause, he shall not, directly or
indirectly, for his own account or for the account of any other person or
entity, as an owner, stockholder, director, employee, partner, agent, broker,
consultant or other participant during the Restricted Period:
(1) solicit a Customer for the purpose of providing
Prohibited Services to such Customer;
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(2) accept an invitation from a Customer for the purpose
of providing Prohibited Services to such Customer;
(3) solicit a Prospective Customer for the purpose of
providing Prohibited Services to such Prospective Customer; and
(4) accept an invitation from a Prospective Customer for
the purpose of providing Prohibited Services to such Prospective
Customer.
Subsections (1), (2), (3), and (4) are separate and divisible
covenants; if for any reason any one covenant is held to be illegal, invalid or
unenforceable, in whole or in part, the remaining covenants shall remain valid
and enforceable and shall not be affected thereby. Further, the periods and
scope of the restrictions set forth in any such subsection shall be reduced by
the minimum amount necessary to reform such subsection to the maximum level of
enforcement permitted to the Company by the law governing this Agreement.
Additionally, the Executive agrees that no separate geographic limitation is
needed for the foregoing nonpiracy covenants as such are not a prohibition on
the Executive's employment in the insurance agency business and are already
limited to only those entities which are included within the definition of
"Customer" and "Prospective Customer."
XI. Nonraiding of Employees.
The Executive covenants that during his employment hereunder and the
Restricted Period specified in Section X hereof, but only if said termination is
voluntary or for Proper Cause, he will not solicit, induce or encourage for the
purposes of employing or offering employment to any individuals who, as of the
date of termination of the Executive's employment, are employees of the Company
or its affiliates, nor will he directly or indirectly solicit, induce or
encourage any of the Company's or its affiliates' employees to seek employment
with any other business, whether or not the Executive is then affiliated with
such business.
XII. Noncompetition Covenant.
The Executive agrees that, for the five (5) year period immediately
following the closing of the Stock Purchase Agreement, but only if the
Executive's termination of employment is voluntary or for Proper Cause, without
the prior written consent of the Company, the Executive shall not, directly or
indirectly through a corporation, partnership, limited liability company,
consulting arrangement or any other form of business entity, in any capacity,
engage in or have any interest in whatsoever, the Prohibited Services (other
than ownership of less than three percent (3%) of the outstanding capital stock
of a publicly traded company) within a twenty-five (25) mile radius of any
office of American Phoenix Corporation. The Executive acknowledges that the
Company and its affiliates will be irrevocably damaged if all of the provisions
of this Section XII are not specifically enforced. Accordingly, the Executive
agrees that, in addition to any other relief to which the Company and its
affiliates may be entitled, the Company and its affiliates will be entitled to
seek and obtain injunctive relief in accordance with the arbitration provisions
of Section XVII below for the purpose of restraining the Executive from any
actual or threatened breach of this Section XII. The Executive agrees that all
of the covenants contained in this Section XII are reasonably necessary to
protect the legitimate interests of the Company, are reasonable with respect to
time and territory and do not interfere with the interests of the public and
that the descriptions of the covenants contained in this Section XII are
sufficiently accurate and definite to inform the Executive of the scope of the
covenants. The Executive agrees that the consideration to be received by the
Executive hereunder and under the Stock Purchase Agreement will be full, fair
and adequate to support the obligations of the Executive hereunder.
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XIII. Remedies Upon Employee Breach of Agreement.
(A) If the Executive materially breaches any provision of this
Agreement and fails to cure any such material breach within thirty (30) days
after written notice of said material breach is received from the Company, the
Company reserves the right to avail itself of any reasonable remedy available to
it at law or in equity; provided that, such thirty (30)-day notice period shall
not be required under a breach by the Executive of Section XII hereof. Further,
if the Executive fails to cure any such material breach after thirty (30) days
(except with respect to Section XII) from receipt of written notice of the
material breach, the Company may, at its sole option, employ reasonable
disciplinary procedures against the Executive for any material breach, up to and
including discharge. The Executive acknowledges and agrees that the Company
shall be entitled to injunctive relief against the Executive for any material
violation by the Executive of Sections VIII, IX, X, XI, or XII of this
Agreement. The Executive agrees that the foregoing remedies shall be cumulative
and not exclusive, shall not be waived by any partial exercise or nonexercise
thereof and shall be in addition to any other remedies available to the Company
at law or in equity.
(B) Notwithstanding the foregoing, if the Executive materially
breaches Section X of this Agreement, the Company may, at its sole option, seek
liquidated damages with respect to each Customer or Prospective Customer
procured by or through the Executive, directly or indirectly, in violation of
Section X of this Agreement (with such Customers being hereafter referred to as
"Lost Customers" and with such Prospective Customers being hereafter referred to
as "Lost Prospects"). The Executive acknowledges that it would be difficult to
calculate damages incurred by the Company in the event of such a material breach
and that the following liquidated damages clause, when so elected by the
Company, is necessary and reasonable for the protection of the Executive. The
Company agrees that, if it elects to exercise the liquidated damages provision
with respect to a Lost Customer or Lost Prospect, it shall not seek an
injunction with respect thereto if the Executive pays such liquidated damages.
The Executive also acknowledges that the Company may or may not choose to
exercise this liquidated damages provision and that the Company may, at its sole
option, seek injunctive relief with respect to some Lost Customers and Lost
Prospects and liquidated damages with respect to other Lost Customers and Lost
Prospects. Finally, the Executive acknowledges that he has no right whatsoever
to force the Company to exercise this liquidated damages provision, and that
such choice remains entirely the Company's. Liquidated damages shall be
calculated as follows:
(1) A Lost Customer shall be valued at 150% of the gross
revenue to the Company in the most recent twelve (12) month period
preceding the date of loss of such account. If such Lost Customer had
not been a Customer of the Company for an entire twelve (12) month
period, such liquidated damages shall be 150% of the gross revenue
which would have been, in the absence of a material breach by the
Executive, realized by the Company in the initial twelve (12) month
period of such Customer being served by the Company. A Lost Prospect
shall be valued at 150% of the gross revenue realized in the initial
twelve (12) month period of such Lost Prospect being served by any one
or more persons or entities receiving such revenue as a direct result
of the Executive's material breach.
(2) The Executive acknowledges that the foregoing damage
amounts are fair and reasonable, that an industry rule of thumb for the
valuation of any agency is 150% of revenue and that, on the margin,
selected accounts may be worth much more than 150% of their annual
revenue to an agency.
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(C) The Executive shall pay such liquidated damages to the Company
within ninety (90) calendar days after a final order is entered by an arbitrator
and received by the Executive ordering the Executive to make such payment.
Thereafter, such liquidated damages shall bear interest at the prime rate of
interest in effect at NationsBank, N.A. The Executive acknowledges that a broker
of record letter granted during the Restricted Period, if applicable, by a
Customer or Prospective Customer in favor of the Executive or any person or
entity with whom or which the Executive is directly affiliated shall be prima
facie evidence of violations of Sections X and XII (if applicable) of this
Agreement and establishes a rebuttable presumption in favor of the Company that
Sections X and XII (if applicable) of this Agreement have been violated by the
Executive. Further, the Executive acknowledges that if the Restricted Period is
applicable to him, he has an affirmative duty to inform such Customer or
Prospective Customer that he cannot accept its business until after the
Restricted Period and that he must minimize all contact with such Customer or
Prospective Customer.
XIV. Tolling of Restrictive Covenants During Violation.
If a material breach by the Executive of any of the restrictive
covenants of this Agreement occurs, the Executive agrees that the restrictive
period of each such covenant so materially violated shall be extended by a
period of time equal to the period of such material violation by the Executive.
It is the intent of this Section that the running of the restricted period of a
restrictive covenant shall be tolled during any period of material violation of
such covenant so that the Company shall get the full and reasonable protection
for which it contracted and so that the Executive may not profit by his material
breach.
XV. Notices.
All notices and other communications which are required or may be given
under this Agreement shall be in writing and shall be deemed to have been given
if delivered personally or sent by registered or certified mail, return receipt
requested, postage prepaid:
(A) If to the Company, to it at the following address:
4235 Innslake Drive
Glen Allen, Virginia 23060
Attn: Chairman of the Board
(B) If to the Executive, to him at the following address:
1450 Lakeview Drive
Deland, Florida 32720
or to such other place as either party shall have specified by notice in writing
to the other. A copy of any notice or other communication given under this
Agreement shall also be sent to the Secretary and the Treasurer of the Company
addressed to such officers at the then principal office of the Company.
XVI. Governmental Regulation.
Nothing contained in this Agreement shall be construed so as to require
commission of any act contrary to law and whenever there is any conflict between
any provision of this Agreement and any statute, law, ordinance, order or
regulation, the latter shall prevail, but in such event any such provision of
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this Agreement shall be curtailed and limited only to the extent necessary to
bring it within the legal requirements.
XVII. Arbitration.
Any dispute or controversy as to the interpretation, construction,
application or enforcement of, or otherwise arising under or in connection with
this Agreement, shall be submitted at the request of either party hereto for
mandatory, final and binding arbitration in the City of Richmond, Virginia, in
accordance with the commercial arbitration rules then prevailing of the American
Arbitration Association. The Company and Executive waive the right to submit any
controversy or dispute to a court and/or a jury. The arbitrator shall have the
authority to grant any equitable, including, without limitation, injunctive
relief, and any other legal remedies that would be available in any judicial
proceeding, and any award rendered therein shall be final and binding on each of
the parties hereto and their heirs, executors, administrators, successors and
assigns and judgment may be entered thereon in any court having jurisdiction.
The prevailing party in any such arbitration shall be entitled to an award by
the arbitrator of all reasonable attorneys' fees and expenses incurred in
connection with the arbitration. The arbitration provisions of this Agreement
shall survive any termination or expiration of this Agreement.
XVIII. Indemnification by the Company.
The Company shall defend, indemnify and hold harmless the Executive
against any and all claims, causes of actions, damages and expenses (including
all legal fees and expenses) in any threatened, pending or completed action
arising out of or relating in any way to action or conduct by the Executive by
reason of the fact that he was a representative of the Company or was serving at
the request of the Company or acts or conduct within the course of his
employment pursuant to this Agreement or in his capacity as a director of the
Company. If the Company contends that any action or conduct by the Executive was
not within the course of his employment or is otherwise not subject to this
provision, the Company shall pay to the Executive all defense costs and expenses
to defend such an action and shall only be entitled to reimbursement of such
fees and expenses if after a final adjudication, including all available
appeals, there is a holding that the Executive was not entitled to the defense
and indemnification under this provision.
IX. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Virginia.
XX. Severability.
Should an arbitrator declare any provision of this Agreement to be
invalid, such declaration shall not affect the validity of the remaining portion
of any such provision or the validity of any other term or provision of this
Agreement as a whole or any part thereof, other than the specific portion
declared to be invalid.
XXI. Headings.
The headings to the Sections and Paragraphs of this Agreement are for
convenience of reference only and in case of any conflict, the text of this
Agreement, rather than the headings, shall control.
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XXII. Successors and Assigns.
This Agreement is binding upon and shall inure to the benefit of the
successors and assigns of the Company and the heirs, executors and legal
representatives of the Executive.
XXIII. Entire Agreement.
This Agreement and the Stock Purchase Agreement contain the entire
understanding of the parties with respect to the subject matter contained herein
and supersedes all prior agreements, arrangements and understandings relating to
the subject matter and may only be amended by a written agreement signed by the
parties hereto or their duly authorized representatives.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
WITNESS:
/s/ Theodore L. Chandler, Jr. /s/ Martin L. Vaughan, III
- ------------------------------------ ------------------------------------
Martin L. Vaughan, III
ATTEST: HILB, ROGAL and HAMILTON
COMPANY
/s/ Theodore L. Chandler, Jr. By: /s/ Andrew L. Rogal
- ------------------------------------ --------------------------------
Andrew L. Rogal
Its: President and Chief Executive
Officer
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Exhibit 10.5
VOTING AND STANDSTILL AGREEMENT
THIS VOTING AND STANDSTILL AGREEMENT (the "Agreement"), dated as of May
3, 1999, is made by and among Hilb, Rogal and Hamilton Company, a Virginia
corporation (the "Company"), PM Holdings, Inc., a Connecticut corporation
("Holdings"), and Phoenix Home Life Mutual Insurance Company, a New York life
insurance company ("PHL").
W I T N E S S E T H:
WHEREAS, the Company, Holdings, PHL and Martin L. Vaughan, III entered
into a Stock Purchase Agreement dated March 29, 1999 (the "Stock Purchase
Agreement"), under which the Company agreed to acquire from Holdings and Martin
L. Vaughan, III all of the issued and outstanding shares of the capital stock of
American Phoenix Corporation, a Connecticut corporation ("APC"); and
WHEREAS, pursuant to the Stock Purchase Agreement, (i) Holdings
acquired 865,042 shares of the Company's Common Stock (as hereinafter defined)
and $22,000,000 principal amount of the Company's Subordinated Debentures (as
hereinafter defined), and (ii) PHL acquired $10,000,000 principal amount of the
Company's Subordinated Debentures; and
WHEREAS, the Subordinated Debentures acquired by Holdings and PHL
pursuant to the Stock Purchase Agreement are convertible into shares of Common
Stock pursuant to the terms of the Subordinated Debentures; and
WHEREAS, the parties to this Agreement desire to establish certain
rights and obligations in connection with the relationship of Holdings and PHL
to the Company.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and in the Stock Purchase Agreement, the Company, Holdings and
PHL hereby agree as follows:
ARTICLE I
Definitions; Representations and Warranties
Section 1.1. Definitions. Except as otherwise specified herein,
capitalized terms used in this Agreement shall have the respective meanings
assigned to such terms in the Stock Purchase Agreement. For purposes of this
Agreement, the following terms have the following meanings:
(a) "Adjusted Outstanding Shares" shall mean, at any time and with
respect to the determination of (i) the Holdings Ownership Percentage as it
relates to Holdings and its Affiliates, (ii) the Standstill Percentage as it
relates to Holdings and its Affiliates, and (iii) any other percentage of the
beneficial ownership of Common Stock as it relates to a Person or Group, the
total number of shares of Common Stock then issued and outstanding together with
the total
<PAGE>
number of shares of Common Stock not then issued and outstanding that would be
outstanding if all then existing Subordinated Debentures had been converted.
(b) "Affiliate" shall have the meaning ascribed to such term in
Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as in effect on the date of this Agreement, and shall include, with
respect to a determination of the Affiliates of Holdings, any Affiliate of PHL;
provided, however, that (i) PXP and its subsidiaries and (ii) any Person
registered as an investment company under the Investment Company Act of 1940, as
amended, which might otherwise be deemed to be an "affiliate" of Holdings or PHL
within the meaning of Rule 12b-2 under the Exchange Act (a "Related Investment
Company"), shall not be deemed to be Affiliates of Holdings or PHL for purposes
of this Agreement to the extent their respective businesses consist principally
of investing in securities, investment management and/or advisory services, and
any shares of Common Stock or other equity securities of the Company acquired,
or caused to be acquired, by PXP and its subsidiaries or such Related Investment
Company in the conduct of their respective businesses in the ordinary course for
the account of, or for the benefit of, clients of PXP or its subsidiaries,
policyholders or investors (other than Holdings, PHL or their Affiliates), and
not with the purpose of avoiding the provisions of Section 3.1 below, shall not
be deemed, for purposes of this Agreement, to be beneficially owned by Holdings,
PHL or their Affiliates.
(c) "Beneficial ownership," "beneficial owner" and "beneficially
own" shall have the meanings ascribed to such terms in Rule 13d-3 under the
Exchange Act as in effect on the date of this Agreement; provided that Holdings
and each of its Affiliates and any Person or Group shall be deemed to be the
beneficial owners of any shares of Common Stock that Holdings or such Affiliate,
Person and/or Group, as the case may be, has the right to acquire within sixty
(60) days after the determination date pursuant to any other agreement,
arrangement or understanding or upon the exercise of conversion or exchange
rights, warrants, options or otherwise, including but not limited to any right
to acquire shares of Common Stock through the conversion of the Subordinated
Debentures.
(d) "Board of Directors" shall mean the Board of Directors of the
Company.
(e) "Business Day" shall mean any day on which banking
institutions in New York, New York are customarily open for the purpose of
transacting business.
(f) "Common Stock" shall mean the Common Stock, without par value,
of the Company.
(g) "Continuing Directors" shall mean the members of the Board of
Directors of the Company immediately prior to the Closing Date and any future
members of the Board of Directors nominated by the Board of Directors; provided,
however, that no Holdings Director shall constitute a Continuing Director or be
counted in determining the presence of a quorum of Continuing Directors.
(h) "Control" shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
a Person, whether through the ownership of voting securities, by contract or
otherwise.
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(i) "Group" shall have the meaning comprehended by Section
13(d)(3) of the Exchange Act as in effect on the date of this Agreement.
(j) "Holdings Designee" shall mean a member of the Board of
Directors of the Company who was designated by Holdings for nomination pursuant
to this Agreement, but shall not include Robert W. Fiondella or Martin L.
Vaughan, III.
(k) "Holdings Directors" shall mean Robert W. Fiondella and the
Holdings Designee.
(l) "Holdings Ownership Percentage" shall mean, at any time, the
percentage of the Adjusted Outstanding Shares that is beneficially owned in the
aggregate by Holdings, PHL and their Affiliates. Immediately following the
consummation of the transactions contemplated by the Stock Purchase Agreement,
the Holdings Ownership Percentage was 15.6%.
(m) "Holdings Securities" shall mean collectively (i) the 865,042
shares of Common Stock that Holdings acquired pursuant to the terms of the Stock
Purchase Agreement, (ii) the Subordinated Debentures acquired by Holdings and
PHL pursuant to the terms of the Stock Purchase Agreement, (iii) the shares of
Common Stock into which the Subordinated Debentures are convertible pursuant to
the terms of the Subordinated Debentures and (iv) any other shares of Common
Stock that Holdings, PHL and their Affiliates may acquire from time to time,
including without limitation such additional shares of Common Stock that the
Company may issue with respect to such shares pursuant to any stock splits,
stock dividends, recapitalizations, restructurings, reclassifications or similar
transactions.
(n) "HRH Designee" shall mean a member of the Board of Directors
of the Company who was designated by the Continuing Directors for appointment or
nomination pursuant to this Agreement.
(o) "Indenture" shall mean the Indenture, dated May 3, 1999,
executed by the Company and Crestar Bank, as Trustee, in connection with the
issuance of the Subordinated Debentures.
(p) "NYSE Rules" shall mean the rules and regulations of the New
York Stock Exchange as in effect from time to time.
(q) "Person" shall have the meaning set forth in Section 3(a)(9)
of the Exchange Act as in effect on the date of this Agreement, and shall
include, without limitation, corporations, partnerships, limited liability
companies and trusts.
(r) "PXP" shall mean Phoenix Investment Partners, Ltd., a Delaware
corporation, approximately 60% of the common stock of which is currently owned
by Holdings.
(s) "Registration Rights Agreement" shall mean the Registration
Rights Agreement, dated May 3, 1999, executed by the Company, Holdings and PHL
in connection with the Stock Purchase Agreement.
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<PAGE>
(t) "Subordinated Debentures" shall mean the Company's 5.25%
Convertible Subordinated Debentures (Due 2014), in the aggregate principal
amount of $32,000,000, acquired by Holdings and PHL pursuant to the Stock
Purchase Agreement.
(u) "Standstill Percentage" shall mean, at any time, 20.0% of the
Adjusted Outstanding Shares.
(v) "Transfer" shall mean sell, transfer, assign, pledge,
hypothecate, give away or in any manner dispose of any Common Stock or
Subordinated Debentures.
Section 1.2. Representations and Warranties of Holdings. Holdings
represents and warrants to the Company as follows:
(a) Holdings is a corporation duly organized, validly existing and
in good standing under the laws of the State of Connecticut.
(b) Except for the Holdings Securities, neither Holdings nor any
of its Affiliates beneficially owns any Common Stock or any options, warrants or
rights of any nature (including conversion and exchange rights) to acquire
beneficial ownership of any Common Stock.
(c) Holdings has full legal right, power and authority to enter
into and perform this Agreement, and the execution and delivery of this
Agreement by Holdings have been duly authorized by all necessary corporate
action on behalf of Holdings. This Agreement is enforceable against Holdings in
accordance with its terms, subject to bankruptcy, reorganization, insolvency and
other similar laws affecting the enforcement of creditors' rights generally and
to general principles of equity (regardless of whether considered in a
proceeding in equity or an action at law).
(d) The execution, delivery and performance of this Agreement by
Holdings does not and will not conflict with or constitute a violation of or
default under the Charter or Bylaws (or comparable documents) of Holdings, or
any statute, law, regulation, order or decree applicable to Holdings, or any
contract, commitment, agreement, arrangement or restriction of any kind to which
Holdings is a party or by which Holdings is bound, other than such violations as
would not prevent or materially delay the performance by Holdings of its
obligations hereunder or otherwise subject the Company to any material claim or
liability.
Section 1.3. Representations and Warranties of PHL. PHL represents and
warrants to the Company as follows:
(a) PHL is a life insurance company duly organized, validly
existing and in good standing under the laws of the State of New York.
(b) PHL has full legal right, power and authority to enter into
and perform this Agreement, and the execution and delivery of this Agreement by
PHL have been duly authorized by all necessary corporate action on behalf of
PHL. This Agreement is enforceable against PHL in accordance with its terms,
subject to bankruptcy, reorganization, insolvency and other similar
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<PAGE>
laws affecting the enforcement of creditors' rights generally and to general
principles of equity (regardless of whether considered in a proceeding in equity
or an action at law).
(c) The execution, delivery and performance of this Agreement by
PHL does not and will not conflict with or constitute a violation of or default
under the Charter or Bylaws (or comparable documents) of PHL, or any statute,
law, regulation, order or decree applicable to PHL, or any contract, commitment,
agreement, arrangement or restriction of any kind to which PHL is a party or by
which PHL is bound, other than such violations as would not prevent or
materially delay the performance by PHL of its obligations hereunder or
otherwise subject the Company to any material claim or liability.
Section 1.4. Representations and Warranties of the Company. The Company
hereby represents and warrants to Holdings and PHL as follows:
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the Commonwealth of Virginia.
(b) The Company has full legal right, power and authority to enter
into and perform this Agreement, and the execution and delivery of this
Agreement by the Company have been duly authorized by all necessary corporate
action on behalf of the Company. This Agreement is enforceable against the
Company in accordance with its terms, subject to bankruptcy, reorganization,
insolvency and other similar laws affecting the enforcement of creditors' rights
generally and to general principles of equity (regardless of whether considered
in a proceeding in equity or an action at law).
(c) The execution, delivery and performance of this Agreement by
the Company does not and will not conflict with or constitute a violation of or
default under the Charter or Bylaws of the Company, or any statute, law,
regulation, order or decree applicable to the Company, or any contract,
commitment, agreement, arrangement or restriction of any kind to which the
Company is a party or by which the Company is bound, other than such violations
as would not prevent or materially delay the performance by the Company of its
obligations hereunder or otherwise subject Holdings or PHL to any material claim
or liability.
ARTICLE II
Board Representation
Section 2.1. Initial Board Representation. On the later of the Closing
Date or the date of the Company's 1999 annual meeting of shareholders, the
Company will (a) take such action as may be necessary to increase the size of
the Board of Directors from nine (9) to thirteen (13) directors, (b) upon
receipt of executed letter agreements regarding resignation in the form attached
to this Agreement as Exhibit A, fill two (2) of the vacancies created thereby
with Martin L. Vaughan, III and the Holdings Designee in accordance with the
applicable provisions of the Charter and Bylaws of the Company, and (c) fill the
remaining two (2) vacancies created thereby with Robert W.
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Fiondella and the HRH Designee in accordance with the applicable provisions of
the Company's Charter and Bylaws. With respect to the four (4) directors
appointed to the Board of Directors pursuant to this Section 2.1, the Company
will (i) appoint Robert W. Fiondella and Martin L. Vaughan, III to the Class
whose current term expires in 2000, the Holdings Designee to the Class whose
current term expires in 2001 and the HRH Designee to the Class whose current
term expires in 2002, and (ii) subject to the right of Holdings to designate a
new Holdings Designee as a substitute for the initial Holdings Designee,
nominate and recommend each for election as a director to the respective Class
designated above at the next annual meeting of the Company's shareholders
following such appointments; provided that, if any such director is not elected
by the shareholders of the Company, the Company shall have no further
obligations under this Section 2.1 for the applicable year; and provided further
that the Company shall be under no obligation to appoint or recommend for
election the Holdings Designee or Martin L. Vaughan, III to the Board of
Directors unless and until it has received from such director an executed letter
agreement regarding resignation in the form attached to this Agreement as
Exhibit A. The HRH Designee shall be an executive officer of the Company at the
time of appointment or nomination by the Company. Any person designated by
Holdings to be the Holdings Designee shall be reasonably acceptable to the
Continuing Directors, and, if found unacceptable by the Continuing Directors (i)
the Company shall not be obligated to appoint or recommend for election any such
person to the Board of Directors and (ii) Holdings shall be entitled to
designate a replacement that is reasonably acceptable to the Continuing
Directors.
Section 2.2. Continuing Board Representation.
(a) Except as otherwise expressly provided by the provisions of
this Article II, the Company agrees that, during the term of this Agreement, it
will not take or recommend to its shareholders any action that would cause the
Board of Directors to consist of any number of directors other than thirteen
(13) directors; provided, however, that the Company may increase the number of
directors on the Board of Directors (i) in connection with the consummation of
business combination transactions wherein the Company has agreed to increase the
size of the Board of Directors or (ii) with the consent of Holdings, which will
not be unreasonably withheld; and provided further, that the Company may reduce
the number of directors on the Board of Directors in the event of the death,
resignation or removal of any director pursuant to the Company's Bylaws or this
Agreement (unless such death, resignation or removal relates to the Holdings
Designee and Holdings has the right under this Article II to designate a
replacement).
(b) Subject to the provisions of Sections 2.2(a), 2.2(c) and 2.5
hereof regarding reductions in the size of the Board of Directors and any
required resignation of the Holdings Designee, during the term of this Agreement
the Company will nominate and recommend the Holdings Directors for election in
the applicable year in which their respective Class terms expire; provided that,
if any such Holdings Director is not elected by the shareholders of the Company,
the Company shall have no further obligations under this Section 2.2(b) for the
applicable year; and provided further that the Company shall be under no
obligation to nominate or recommend for election the Holdings Designee to the
Board of Directors unless and until it has received from such director an
executed letter agreement regarding resignation in the form attached to this
Agreement as Exhibit A. Any person designated by Holdings to be a Holdings
Designee shall be reasonably acceptable to the Continuing Directors, and, if
found unacceptable by the Continuing Directors (i) the Company shall not be
obligated to appoint or recommend for election any such person to the Board of
Directors and (ii) Holdings shall be entitled to designate a replacement that is
reasonably acceptable to the Continuing Directors.
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(c) The Company shall have no obligation to nominate or recommend
a Holdings Director for election to the Board of Directors after the termination
of this Agreement pursuant to Article VI hereof or upon the occurrence of the
following events:
(i) With respect to the Holdings Designee, upon the
earlier of (x) the date when the Holdings Ownership Percentage is less
than ten percent (10%), or (y) subject to the right of Holdings to
designate a replacement Holdings Designee pursuant to Section 2.7
hereof, his death, disability or attainment of the age of seventy (70)
years; or
(ii) With respect to Robert W. Fiondella, upon the earlier
of his death, disability or attainment of the age of seventy (70)
years; or
(iii) With respect to each of the Holdings Directors, upon
a final determination by a court of competent jurisdiction that this
Agreement has been breached by PHL, Holdings or their Affiliates.
For purposes of this Section 2.2(c) and Section 2.5(b) below, the term
"disability" shall mean the inability to perform the duties of a director as a
result of a physical or mental incapacity (or combination thereof) for a period
longer than three (3) consecutive months or for more than six (6) months in any
consecutive twelve (12) month period, in each case determined by the written
opinion of such director's regular attending physician.
The Company may take such action as may be necessary to reduce the size
of the Board of Directors upon the occurrence of the events set forth in (c)(i)
and (c)(iii) above or in the event of Mr. Fiondella's death or disability. Upon
attaining the age of seventy (70) years, Mr. Fiondella may continue to serve as
a director for the remainder of his then current term on the Board of Directors
and thereafter the Company may take such action as may be necessary to reduce
the size of the Board of Directors by one director.
(d) Until the earlier to occur of (i) the date on which there are
no Holdings Directors serving on the Board of Directors pursuant to this
Agreement or (ii) the expiration of this Agreement, the Company agrees that it
will not take or recommend to its shareholders any action that would result in
any amendment to the Company's Bylaws in effect on the date hereof that would
impose any qualifications on the eligibility of directors of the Company to
serve on any committee of the Board of Directors, except as may be required by
the NYSE Rules, the rules and regulations under the Internal Revenue Code of
1986, as amended, relating to the qualification of employee stock benefit plans
and the deductibility of compensation paid to executive officers, the rules and
regulations under Section 16(b) of the Exchange Act, including Rule 16b-3
thereunder or any successor rule, and the Company's Bylaws.
Section 2.3. Committee Representation. Until the earlier to occur of
(i) the date on which there are no Holdings Directors serving on the Board of
Directors pursuant to this Agreement or (ii) the expiration of this Agreement,
to the extent that, and for so long as, but only insofar as required by
applicable law or NYSE Rules, any of the Holdings Directors is qualified under
the then-current NYSE Rules, the rules and regulations under the Internal
Revenue Code of 1986, as amended, relating to the qualification of employee
stock benefit plans and the deductibility of compensation paid to executive
officers, the rules and regulations under Section 16(b)
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of the Exchange Act, including Rule 16b-3 thereunder or any successor rule, the
Board of Directors shall designate, as it deems appropriate, each of the
Holdings Directors to serve on at least one committee of the Board of Directors
(whether existing on the date hereof or formed or constituted after the date
hereof).
Section 2.4. Resignations at the Request of Holdings; Vacancies.
Holdings shall have the right to request the resignation from the Board of
Directors of the Holdings Designee pursuant to the terms of Exhibit A. In the
event that the Holdings Designee for any reason ceases to serve as a member of
the Board of Directors during his or her term of office and at such time
Holdings would have the right to a designation hereunder if an election for the
resulting vacancy were to be held, Holdings may designate a person to fill such
vacancy (a "Holdings Designee Vacancy"); provided that, the person so designated
shall be reasonably acceptable to the Continuing Directors. Subject to the
foregoing and Section 2.2 hereof, the Company agrees to (i) appoint Holdings'
designee to the Board of Directors to fill the Holdings Designee Vacancy and to
serve until the next annual meeting of the Company's shareholders and (ii)
nominate and recommend the Holdings' designee for election to the Board of
Directors at the next annual meeting of the Company's shareholders to fill the
remaining term of the class of directors to which such designee was appointed;
provided further that the Company shall be under no obligation to appoint,
nominate or recommend for election any such designee to fill an Holdings
Designee Vacancy unless and until it has received from such designee an executed
letter agreement regarding resignation in the form attached to this Agreement as
Exhibit A. Other than with respect to the foregoing provisions relating to a
Holdings Designee Vacancy, the Board of Directors shall have the sole and
exclusive right to designate a replacement director in the event of any vacancy
on the Board of Directors.
Section 2.5. Required Resignations.
(a) On the earlier of (i) the date when the Holdings Ownership
Percentage is less than ten percent (10%), or (ii) the date of any final
determination by a court of competent jurisdiction that this Agreement has been
breached by PHL, Holdings or their Affiliates, Holdings shall, within five (5)
Business Days, use its best efforts to cause the Holdings Designee to resign
from the Board of Directors. In the event of any decrease in the Holdings
Ownership Percentage to below such ten percent (10%) threshold, any subsequent
increase in the Holdings Ownership Percentage to or above such ten percent (10%)
threshold shall not entitle Holdings to reinstate, elect or designate any
Holdings Designee to the Board of Directors. If Holdings does not cause the
resignation of the Holdings Designee within such five (5) Business Day period,
the Company may seek such resignation or, in the alternative, the Continuing
Directors may seek the removal of the Holdings Designee.
(b) In the event of the disability or termination of employment of
Martin L. Vaughan, III under the Employment Agreement between the Company and
Martin L. Vaughan, III dated May 3, 1999, the Company may request Martin L.
Vaughan, III to resign from the Board of Directors. If such resignation is not
received by the Company within five (5) Business Days from the date of the
Company's request for resignation, the Company may seek his removal in
accordance with the letter agreement attached hereto as Exhibit A.
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(c) Upon any shareholder vote relating to the removal of a
director for failure to resign pursuant to this Section 2.5, Holdings and its
Affiliates shall (i) attend any meeting either in person or by proxy and (ii)
vote in favor of such removal. At such time as a director becomes subject to
resignation pursuant to this Section 2.5, the Board of Directors may amend its
Bylaws or take such other action as it deems appropriate to reduce the number of
directors constituting the Board of Directors proportionately or fill the
vacancy caused by such resignation(s) with its own nominee in accordance with
the applicable provisions of the Charter and Bylaws of the Company.
Section 2.6. No Voting Trust. This Agreement does not create or
constitute, and shall not be construed as creating or constituting, a voting
trust agreement under the Virginia Stock Corporation Act or any other applicable
corporation law.
Section 2.7. Notification of Designation. Holdings shall notify the
Company in writing not later than March 1st of the year in which the Holdings
Designee's term on the Board of Directors expires as to the designation of the
person to be nominated for election as the Holdings Designee at the annual
meeting of the Company's shareholders for such year; provided that, if Holdings
should fail to so notify the Company of its Holdings Designee by such date,
Holdings shall be deemed to have designated the then current Holdings Designee
for nomination to the Board of Directors at the next annual meeting of
shareholders. Holdings shall cause the Holdings Designee to provide promptly
information that may be required under the Exchange Act for inclusion in the
Company's proxy statement for such annual meeting and shall cooperate with the
Company in obtaining any such information, including but not limited to the
prompt completion of any director questionnaires applicable to the directors
generally. Holdings shall have the sole and exclusive right to designate the
Holdings Designee under this Article II and the Company shall not be required to
accept a designation from any Person other than Holdings; provided, however,
that to the extent that Holdings Transfers all of the Holdings Securities
beneficially owned by Holdings to (i) an Affiliate of Holdings or PHL in
compliance with Section 4.1(g) hereof or (ii) a Person surviving a merger or
formed by a consolidation pursuant to Section 4.1(h) hereof, such Affiliate or
Person shall have the sole and exclusive right to designate the Holdings
Designee under this Article II from and after the date of such Transfer.
Section 2.8. No Duty to Designate; Reduction of Board Representation.
Nothing contained in this Article II shall be construed as requiring Holdings to
designate any Holdings Designee or as requiring any Holdings Director, once
elected, to continue to serve in office if such Holdings Director elects to
resign. Until the earlier to occur of (i) the date on which there are no
Holdings Directors serving on the Board of Directors pursuant to this Agreement
or (ii) the expiration of this Agreement, in the event of any vacancy created by
the death, resignation or removal of the Holdings Designee or the failure of
Holdings to designate an Holdings Designee, other than a vacancy created by the
resignation or removal of an Holdings Designee pursuant to Section 2.5 above,
Holdings may notify the Company in writing that it does not intend to designate
a person to fill such vacancy, and the Company thereafter may take such action
as may be necessary either to reduce the size of the Board of Directors by one
director or fill the vacancy with its own designee.
ARTICLE III
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Standstill Restrictions; Voting Matters
Section 3.1. Standstill Restrictions.
(a) During the term of this Agreement, PHL and Holdings covenant
and agree that PHL and Holdings shall not, and shall not permit any of their
Affiliates to, either individually or as part of a Group, directly or
indirectly:
(i) acquire (other than acquisitions resulting from
corporate action taken by the Board of Directors with respect to any pro rata
distribution of shares of Common Stock in connection with any stock split, stock
dividend, recapitalization, reclassification or similar transaction), propose to
acquire (or publicly announce or otherwise disclose an intention to propose to
acquire), offer to acquire, or agree to acquire any Common Stock (or any
options, warrants, rights or other securities exercisable for, or convertible or
exchangeable into, Common Stock, including without limitation the Subordinated
Debentures) if the effect of such acquisition would cause the Holdings Ownership
Percentage to equal or exceed the Standstill Percentage (other than as a result
of any stock purchases or repurchases by the Company); provided that this
Section 3.1(a)(i) shall not apply to (a) any acquisition of Common Stock or of
options, warrants, rights or other securities exercisable for, or convertible or
exchangeable into, Common Stock granted to any Person, including without
limitation Holdings Directors, pursuant to any benefit plan of the Company or
any of its Affiliates or the exercise, conversion or exchange of any such
option, warrant, right or other security or (b) any acquisition of Common Stock
upon the exercise by PHL, Holdings or their Affiliates of rights pursuant to any
Rights Agreement that may be adopted by the Company for the purpose of deterring
coercive takeover activities with respect to the Company, provided that all of
the shares of Common Stock so acquired upon the exercise of the rights shall be
subject to all of the terms of this Agreement;
(ii) propose (or publicly announce or otherwise disclose
an intention to propose), solicit, offer, seek or take any action to effect,
negotiate with or provide any confidential information relating to the Company
or its business to any other Person with respect to, any tender or exchange
offer, merger, consolidation, share exchange, business combination,
restructuring, recapitalization or similar transaction involving the Company
(other than (x) any of the foregoing that has been approved by the Board of
Directors or (y) in connection with any tender or exchange offer in which the
Board of Directors has (a) recommended that its shareholders accept such offer
or (b) after ten (10) business days (as defined in Rule 14d-1 under the Exchange
Act as in effect on the date of this Agreement) from the date of commencement of
such offer, expressed no opinion, remained neutral, was unable to take a
position or otherwise did not oppose or recommend that its shareholders reject
such offer);
(iii) make, or in any way participate in, any
"solicitation" of "proxies" to vote (as such terms are defined in Rule 14a-1
under the Exchange Act), solicit any consent or communicate with or seek to
advise or influence any person or entity with respect to the voting of any
Common Stock or become a "participant" in any "election contest" (as such terms
are defined or used in Rule 14a-11 under the Exchange Act) with respect to the
Company; provided that nothing in this Section 3.1(a)(iii) shall apply to any
deemed solicitation of proxies by the Holdings Directors that may result from
such Holdings Directors' position or status as a director
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of the Company at the time of any general solicitation of proxies by the
management of the Company;
(iv) form, participate in or join any Person or Group with
respect to any Common Stock or Subordinated Debentures, or otherwise act in
concert with any Person for the purpose of (x) acquiring beneficial ownership of
any Common Stock or Subordinated Debentures or (y) holding or disposing of
Common Stock or Subordinated Debentures for any purpose prohibited by this
Section 3.1(a);
(v) except as specifically provided in Section 3.2 below,
deposit any Common Stock or Subordinated Debentures into a voting trust or
subject any Common Stock or Subordinated Debentures to any arrangement or
agreement with respect to the voting thereof;
(vi) initiate, propose or otherwise solicit shareholders
for the approval of any shareholder proposal with respect to the Company as
described in Rule 14a-8 under the Exchange Act, or induce or attempt to induce
any other Person to initiate, propose or otherwise solicit any such shareholder
proposal;
(vii) except as specifically provided in Article II of this
Agreement, seek election to or seek to place a representative on the Board of
Directors, or seek the removal of any member of the Board of Directors (other
than a Holdings Director);
(viii) call or seek to have called any meeting of the
shareholders of the Company for any purpose;
(ix) take any other action to seek to Control the
management or policies of the Company;
(x) demand, request or propose to amend, waive or
terminate the provisions of this Section 3.1(a); or
(xi) agree to do any of the foregoing, or advise, assist,
encourage or persuade any third party to take any action with respect to any of
the foregoing.
(b) PHL and Holdings agree that they will notify the Company
promptly if any inquiries or proposals are received by, any information is
exchanged with respect to, or any negotiations or discussions are initiated or
continued by or with, PHL, Holdings or any of their Affiliates regarding any
matter described in Section 3.1(a) above. PHL and the Company shall mutually
agree upon an appropriate response to be made to any such proposals received by
PHL, Holdings or any of their Affiliates.
(c) Nothing contained in this Article III shall be deemed to
restrict the manner in which the Holdings Directors may participate in
deliberations or discussions of the Board of Directors or individual
consultations with any member of the Board of Directors, so long as such actions
do not otherwise violate any provision of Section 3.1(a) above.
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(d) Each of Holdings and PHL covenants and agrees that, during the
term of this Agreement and so long as Holdings, PHL or their Affiliates Control
(i) PXP and its subsidiaries (or any successor of PXP and its subsidiaries) or
(ii) any Person registered as an investment company under the Investment Company
Act of 1940, as amended, which might otherwise be deemed to be an "affiliate" of
Holdings or PHL within the meaning of Rule 12b-2 under the Exchange Act (a
"Related Investment Company"), it will not, and will not permit any of its
Affiliates to, cause or permit PXP and its subsidiaries (or any such successor
of PXP and its subsidiaries) or such Related Investment Company, directly or
indirectly, to (i) attempt to exercise Control or influence over the business
and affairs of the Company, (ii) act in concert with Holdings, PHL or their
Affiliates to violate the provisions of this Agreement or (iii) act in concert
with any other Person for the purposes of violating the provisions of this
Agreement or otherwise effecting a change of Control of the Company. Each of
Holdings and PHL also covenants and agrees that, during the term of this
Agreement, it will not direct or influence, or attempt to direct or influence,
the voting or disposition of shares of Common Stock owned of record or
beneficially by PXP and its subsidiaries (or any successor of PXP and its
subsidiaries).
Section 3.2. Voting Matters.
(a) During the term of this Agreement, PHL and Holdings will take
all such action as may be required so that the Common Stock beneficially owned
and entitled to be voted by PHL, Holdings and their Affiliates, as a Group, are
voted or caused to be voted (in person or by proxy):
(i) with respect to the Continuing Director's nominees to
the Board of Directors, in accordance with the recommendation of the Board of
Directors, or a nominating or similar committee of the Board of Directors, if
any such committee exists and makes a recommendation; and
(ii) in accordance with the recommendation of the Board of
Directors with respect to any transaction to be effected with the Company or its
Affiliates in connection with an unsolicited tender or exchange offer, any
"election contest" (as such term is defined or used in Rule 14a-11 under the
Exchange Act as in effect on the date of this Agreement) with respect to the
Board of Directors of the Company or any other attempt to acquire Control of the
Company or the Board of Directors.
(b) For a period of five (5) years from the date of this
Agreement, PHL and Holdings will take all such action as may be required so that
the Common Stock beneficially owned and entitled to be voted by PHL, Holdings
and their Affiliates, as a Group, are voted or caused to be voted (in person or
by proxy) in accordance with the recommendation of the Board of Directors of the
Company with respect to negotiated mergers, acquisitions, divestitures,
consolidations, sale of assets, share exchanges or other similar transactions
for which shareholder approval is sought.
(c) With respect to all matters brought before the Company's
shareholders for a vote not otherwise provided for in Section 2.5(c) or Section
3.2(a) and (b) above, PHL, Holdings and their Affiliates may vote in accordance
with their independent judgment without regard to any request or recommendation
of the Board of Directors.
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(d) PHL, Holdings and their Affiliates who beneficially own any of
the Common Stock shall be present, in person or by proxy, at all duly held
meetings of shareholders of the Company so that the Common Stock held by PHL,
Holdings and their Affiliates may be counted for the purposes of determining the
presence of a quorum at such meetings.
ARTICLE IV
Transfers of Holdings Securities
Section 4.1. Transfer Restrictions. During the term of this Agreement,
PHL, Holdings and their Affiliates, shall not, directly or indirectly, Transfer
any of the Holdings Securities beneficially owned by PHL, Holdings and their
Affiliates to any Person or Group without the prior written consent of the
Company (which consent may be withheld in the Company's sole discretion), if (i)
as a result of such Transfer, such Person or Group would have beneficial
ownership of Common Stock representing in the aggregate more than 9.9% of the
issued and outstanding shares of Common Stock, such determination to be based
upon (x) the most recent publicly available information as to the number of
shares of Common Stock beneficially owned by such Person or Group (to the extent
such information is available) or the transferor's actual knowledge, after due
inquiry, as to such beneficial ownership, (y) the number or amount of Holdings
Securities proposed to be Transferred and (z) the number of issued and
outstanding shares of Common Stock on the date of Transfer (as adjusted pursuant
to Rule 13d-3(d)(1)(i) under the Exchange Act), or (ii) prior to such Transfer,
such Person or Group has beneficial ownership of Common Stock representing in
the aggregate more than 9.9% of the issued and outstanding shares of Common
Stock, such determination to be based upon (x) the most recent publicly
available information as to the number of shares of Common Stock beneficially
owned by such Person or Group (to the extent such information is available) or
the transferor's actual knowledge, after due inquiry, as to such beneficial
ownership and (y) the number of issued and outstanding shares of Common Stock on
the date of Transfer (as adjusted pursuant to Rule 13d-3(d)(1)(i) under the
Exchange Act). Subject to the foregoing limitation (except in the case of
subparagraphs (g) and (h) of this Section 4.1) and, with respect to any Transfer
of the Subordinated Debentures, the provisions of the Indenture, PHL, Holdings
and their Affiliates may Transfer the Holdings Securities beneficially owned by
PHL, Holdings and their Affiliates in the following manner:
(a) to the Company or any Affiliate of the Company;
(b) pursuant to an effective registration statement under the
Securities Act as provided in the Registration Rights Agreement; provided that
such registration statement shall apply only to sales of the Common Stock of the
Company and not to sales of the Subordinated Debentures;
(c) pursuant to Rule 144, Rule 144A, Regulation S or any other
applicable exemption from registration under the Securities Act;
(d) pursuant to a distribution (including any such distribution
pursuant to any liquidation or dissolution) by PHL or Holdings to its
shareholders; provided that, upon a change
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in Control of PHL or Holdings occurring after the date of this Agreement, PHL or
Holdings shall not distribute any of the Holdings Securities to its Affiliates
pursuant to this Section 4.1(d) or otherwise unless PHL or Holdings has received
the prior written consent of the Company (which consent may be withheld in the
Company's sole discretion) and obtained an agreement in writing by the
distributee to be bound by the terms and conditions of this Agreement, such
agreement to be substantially in the form of Exhibit B attached hereto;
(e) pursuant to a merger or consolidation of the Company or
pursuant to a plan of liquidation of the Company, which has been approved by the
affirmative vote of a majority of the members of the Board of Directors then in
office;
(f) pursuant to a tender or exchange offer in which more than 67%
of the issued and outstanding shares of Common Stock have been tendered by
Persons who are not Affiliates of Holdings, PHL or its Affiliates or in which
the Board of Directors has (i) recommended that its shareholders accept such
offer or (ii) after ten (10) business days (as defined in Rule 14d-1 under the
Exchange Act as in effect on the date of this Agreement) from the date of
commencement of such offer, expressed no opinion, remained neutral, was unable
to take a position or otherwise did not oppose or recommend that its
shareholders reject such offer;
(g) to any Affiliate of Holdings or PHL; provided that such
Affiliate has delivered to the Company an agreement in writing by such Affiliate
to be bound by the terms and conditions of this Agreement, such agreement to be
substantially in the form of Exhibit B attached hereto;
(h) pursuant to a merger or consolidation of Holdings or PHL or
any Affiliate to which the Holdings Securities have theretofore been
Transferred; provided that the Person surviving such merger or formed by such
consolidation shall have delivered to the Company an agreement in writing by
such Person to be bound by the terms and conditions of this Agreement, such
agreement to be substantially in the form of Exhibit B attached hereto.
In connection with any permitted Transfer pursuant to this Section 4.1,
the rights of PHL and Holdings under this Agreement shall not transfer to any
transferee(s) of the Holdings Securities, except to the extent provided in
Section 2.7 hereof or upon express assignment of such rights to the extent
permitted by Section 7.3 hereof.
Section 4.2. Transfers to Affiliates. In the event of any Transfer of
the Holdings Securities to an Affiliate of PHL or Holdings under Section 4.1
above, or such Affiliate otherwise becomes the beneficial owner of any of the
Holdings Securities, PHL shall use its best efforts to cause such Affiliate to
comply with all of the provisions of this Agreement, including without
limitation this Article IV.
Section 4.3. Confidential Information. In connection with any permitted
Transfer of the Holdings Securities pursuant to this Article IV, neither PHL,
Holdings nor their Affiliates shall disclose any confidential information
relating to the Company or its business to any Person except as required by
applicable law, including without limitation Section 10(b) of the Exchange Act
and Rule 10b-5 thereunder, but only to the extent that any required disclosure
of such confidential information has been preceded by the execution of a
confidentiality agreement by PHL, Holdings or their Affiliates, as the case may
be, and such Person substantially in the form
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attached hereto as Exhibit C. Such confidentiality agreement shall be promptly
forwarded to the Company for its execution, which execution by the Company may
be subsequent to the permitted Transfer or disclosure to such Person; provided
that the failure of the Company to so execute such confidentiality agreement
shall in no way be construed to be a failure on the part of PHL, Holdings or
their Affiliates, as the case may be, to fulfill its obligations under this
paragraph or to limit or affect the validity of such confidentiality agreement
as between PHL, Holdings or their Affiliates, as the case may be, and such
Person.
ARTICLE V
Further Assurances
Each party shall execute and deliver such additional instruments and
other documents and shall take such further actions as may be necessary or
appropriate to effectuate, carry out and comply with all of its respective
obligations under this Agreement. Holdings shall deliver to the Company,
concurrently with the filing thereof with the Securities and Exchange
Commission, copies of all Forms 3, 4 and 5, Form 144 and Schedules 13D or 13G,
and each amendment thereto, filed by Holdings, PHL or its Affiliates pursuant to
the Exchange Act. Holdings and PHL agree to provide any additional information
requested by the Company regarding Transfers of the Holdings Securities for the
purpose of determining compliance with this Agreement. Holdings shall notify the
Company promptly of any proposed Transfer of the Holdings Securities pursuant to
Sections 4.1(g) and (h) hereof. If reasonably requested by the Company at any
time during the term of this Agreement, Holdings agrees to confirm in writing to
the Company the number of Holdings Securities held, beneficially and of record,
by Holdings and its Affiliates as of the latest practicable date.
ARTICLE VI
Termination
Unless earlier terminated by written agreement of the parties hereto,
this Agreement shall terminate on the expiration of ten (10) years from the date
hereof. Any termination of this Agreement as provided herein shall be without
prejudice to the rights of any party arising out of the breach by any other
party of any provisions of this Agreement that occurred prior to the
termination.
ARTICLE VII
Miscellaneous
Section 7.1. Notices. Any notices or other communications required or
permitted hereunder shall be sufficiently given if in writing (including
telecopy or similar teletransmission), addressed as follows:
If to the Company, Hilb, Rogal and Hamilton Company
to it at: 4235 Innslake Drive
Glen Allen, Virginia 23060
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Telecopier: (804) 747-3138
Attention: Andrew L. Rogal
With a copy to: Williams Mullen Christian & Dobbins
1021 East Cary Street, 16th Floor
Richmond, Virginia 23219
Telecopier: (804) 783-6507
Attention: Theodore L. Chandler, Jr., Esquire
If to Holdings PM Holdings, Inc.
or PHL, One American Row
to them at: Hartford, Connecticut 06115
Telecopier: (860) 403-5182
Attention: Carole A. Masters, Esquire
Phoenix Home Life Mutual Insurance Company
One American Row
Hartford, Connecticut 06115
Telecopier: (860) 403-5182
Attention: David W. Searfoss
Executive Vice President and
Chief Financial Officer
With a copy to: Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York 10038-4982
Telecopier: (212) 806-6006
Attention: David L. Finkelman, Esquire
Unless otherwise specified herein, such notices or other communications shall be
deemed received (a) in the case of any notice or communication sent other than
by mail, on the date actually delivered to such address (evidenced, in the case
of delivery by overnight courier, by confirmation of delivery from the overnight
courier service making such delivery, and in the case of a telecopy, by receipt
of a transmission confirmation form or the addressee's confirmation of receipt),
or (b) in the case of any notice or communication sent by mail, three (3)
Business Days after being sent, if sent by registered or certified mail, with
first-class postage prepaid. Each of the parties hereto shall be entitled to
specify a different address by giving notice as aforesaid to each of the other
parties hereto.
Section 7.2. Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated
except by an instrument in writing signed by Holdings, PHL and the Company
following approval thereof by a majority of the Continuing Directors.
Section 7.3. Successors and Assigns. Except as otherwise provided
herein, this Agreement shall be binding upon and shall inure to the benefit of
and be enforceable by the parties and their respective successors and assigns,
including without limitation in the case of
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any corporate party hereto any corporate successor by merger or otherwise;
provided that no party may assign this Agreement without the other party's prior
written consent, which consent will not be required in the event of the Transfer
of the Holdings Securities in accordance with Sections 4.1(g) or 4.1(h) hereof.
Notwithstanding the foregoing, during the term of this Agreement, as long as
Holdings, PHL or any of their Affiliates beneficially own any of the Holdings
Securities, no assignment of this Agreement by Holdings, PHL or any of their
Affiliates shall relieve the assignor from its obligation to fully perform or
comply with the terms of this Agreement and, unless otherwise expressly agreed
in writing by the Company, such assignor shall remain bound by all of the
provisions hereof.
Section 7.4. Entire Agreement. This Agreement, the Stock Purchase
Agreement, the Indenture and the Registration Rights Agreement embody the entire
agreement and understanding among the parties relating to the subject matter
hereof and supersede all prior agreements and understandings relating to such
subject matter. There are no covenants by the parties hereto relating to such
subject matter other than those expressly set forth in this Agreement, the Stock
Purchase Agreement, the Indenture and the Registration Rights Agreement.
Section 7.5. Specific Performance. The parties acknowledge that money
damages are not an adequate remedy for violations of this Agreement and that any
party may, in its sole discretion, apply to a court of competent jurisdiction
for specific performance or injunctive or such other relief as such court may
deem just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief.
Section 7.6. Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise or beginning
of the exercise of any thereof by any party shall not preclude the simultaneous
or later exercise of any other such right, power or remedy by such party.
Section 7.7. No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
Section 7.8. No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of and shall not be enforceable by any Person who
or which is not a party hereto.
Section 7.9. Consent to Jurisdiction. Each party to this Agreement, by
its execution hereof, hereby (i) irrevocably submits, and agrees to cause each
of its Affiliates to submit, to the jurisdiction of the federal courts located
either in the City of Richmond, Virginia, or in the City of Hartford,
Connecticut, and in the event that such federal courts shall not have subject
matter jurisdiction over the relevant proceeding, then of the state courts
located either in the City of Richmond, Virginia, or in the City of Hartford,
Connecticut, for the purpose of any Action
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arising out of or based upon this Agreement or relating to the subject matter
hereof or the transactions contemplated hereby, (ii) waives, and agrees to cause
each of its Affiliates to waive, to the extent not prohibited by applicable law,
and agrees not to assert, and agrees not to allow any of its Affiliates to
assert, by way of motion, as a defense or otherwise, in any such Action, any
claim that it is not subject personally to the jurisdiction of the above-named
courts, that its property is exempt or immune from attachment or execution, that
any such proceeding brought in one of the above-named courts is improper, or
that this Agreement or the subject matter hereof may not be enforced in or by
such court and (iii) hereby agrees not to commence or to permit any of its
Affiliates to commence any Action arising out of or based upon this Agreement or
relating to the subject matter hereof other than before one of the above-named
courts nor to make any motion or take any other action seeking or intending to
cause the transfer or removal of any such Action to any court other than one of
the above-named courts whether on the grounds of inconvenient forum or
otherwise. Each party hereby consents to service of process in any such
proceeding in any manner permitted by Virginia or Connecticut law, as the case
may be, and agrees that service of process by registered or certified mail,
return receipt requested, at its address specified pursuant to Section 7.1 above
is reasonably calculated to give actual notice. Notwithstanding anything
contained in this Section 7.9 to the contrary with respect to the parties' forum
selection, if an Action is filed against a party to this Agreement, including
its Affiliates, by a Person who or which is not a party to this Agreement, an
Affiliate of a party to this Agreement, or an assignee thereof (a "Third Party
Action"), in a forum other than the federal district court or a state court
located in the City of Richmond, Virginia, or in the City of Hartford,
Connecticut, and such Third Party Action is based upon, arises from, or
implicates rights, obligations or liabilities existing under this Agreement or
acts or omissions pursuant to this Agreement, then the party to this Agreement,
including its Affiliates, joined as a defendant in such Third Party Action shall
have the right to file cross-claims or third-party claims in the Third Party
Action against the other party to this Agreement, including its Affiliates, and
even if not a defendant therein, to intervene in such Third Party Action with or
without also filing cross-claims or third-party claims against the other party
to this Agreement, including its Affiliates.
Section 7.10. Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic substantive law of the Commonwealth of
Virginia, without giving effect to any choice or conflict of law provision or
rule that would cause the application of the law of any other jurisdiction.
Section 7.11. Name, Captions. The name assigned to this Agreement and
the section captions used herein are for convenience of reference only and shall
not affect the interpretation or construction hereof.
Section 7.12. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one instrument. Each counterpart may consist
of a number of copies each signed by fewer than all, but together signed by all,
the parties hereto.
Section 7.13. Expenses. Each of the parties hereto shall bear their own
expenses incurred in connection with this Agreement and the transactions
contemplated hereby, except that in the event of a dispute concerning the terms
or enforcement of this Agreement, the
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prevailing party in any such dispute shall be entitled to reimbursement of
reasonable legal fees and disbursements reasonably incurred from the other party
or parties to such dispute.
Section 7.14. Severability. In the event that any provision hereof
would, under applicable law, be invalid or unenforceable in any respect, such
provision shall (to the extent permitted under applicable law) be construed by
modifying or limiting it so as to be valid and enforceable to the maximum extent
compatible with, and possible under, applicable law. The provisions hereof are
severable, and in the event any provision hereof should be held invalid or
unenforceable in any respect, it shall not invalidate, render unenforceable or
otherwise affect any other provision hereof.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Voting and Standstill Agreement to be executed, as of
the date first above written by their respective officers thereunto duly
authorized.
HILB, ROGAL AND HAMILTON COMPANY
By: /s/ Andrew L. Rogal
---------------------------------------------
Name: Andrew L. Rogal
Title: President and Chief Executive Officer
PM HOLDINGS, INC.
By: /s/ David W. Searfoss
--------------------------------------------
Name: David W. Searfoss
Title: Vice President/Chief Financial Officer
PHOENIX HOME LIFE MUTUAL INSURANCE
COMPANY
By: /s/ David W. Searfoss
--------------------------------------------
Name: David W. Searfoss
Title: Executive Vice President and
Chief Financial Officer
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Exhibit A
Form of Resignation Agreement
Hilb, Rogal and Hamilton Company
4235 Innslake Drive
Glen Allen, Virginia 23060
Ladies and Gentlemen:
I hereby acknowledge that my position on the Board of Directors of
Hilb, Rogal and Hamilton Company ("the Company") is subject to the provisions of
a Voting and Standstill Agreement (the "Agreement"), dated May 3, 1999, between
the Company, PM Holdings, Inc., a Connecticut corporation ("Holdings"), and
Phoenix Home Life Mutual Insurance Company, a New York life insurance company
("PHL"). Accordingly, I hereby agree to resign immediately from such Board of
Directors under the terms of Article II of the Agreement in the event that the
Company or Holdings (with respect to the Holdings Designee) requests such
resignation in accordance with such terms. I understand that, if I do not resign
as requested within five (5) Business Days (as defined in the Agreement), the
Company may seek specific performance of this letter agreement through court
proceedings or otherwise may seek to remove me from office. I agree that any
failure to resign upon request shall be deemed to be "cause" for my removal from
the Board of Directors.
Date: May 3, 1999
_________________________________
Name
Agreed to and Accepted:
Hilb, Rogal and Hamilton Company
By:_____________________________
Name:
Title:
<PAGE>
Exhibit B
Form of Assumption Agreement
Hilb, Rogal and Hamilton Company
4235 Innslake Drive
Glen Allen, Virginia 23060
Ladies and Gentlemen:
Pursuant to Section 4.1[(d), (g) or (h)] of the Voting and Standstill
Agreement (the "Agreement"), dated May 3, 1999, between Hilb, Rogal and Hamilton
Company ("the Company"), PM Holdings, Inc., a Connecticut corporation
("Holdings"), and Phoenix Home Life Mutual Insurance Company, a New York life
insurance company ("PHL"), the undersigned hereby agrees to be bound by all of
the terms and conditions of the Agreement to the same extent as if it were a
party thereto and assumes all of the obligations of [Holdings, PHL or their
Affiliate] under the Agreement with respect to the Holdings Securities (as
defined in the Agreement).
[HOLDINGS, PHL or AFFILIATE]
Date: _________________ By: _______________________________
Name:
Title:
[TRANSFEREE]
Date: _________________ By: _______________________________
Name:
Title:
Agreed to and Accepted:
Hilb, Rogal and Hamilton Company
By:___________________________
Name:
Title:
<PAGE>
Exhibit C
Form of Confidentiality Agreement
________ __, 19__
CONFIDENTIAL
[Name]
[Address]
Re: Confidentiality Agreement
Ladies and Gentlemen:
In connection with our [soliciting, offering, seeking to effect or
negotiating] with you with respect to the [sale, transfer, assignment, pledge,
etc.] of [shares of Common Stock, without par value, or 5.25% Convertible
Subordinated Debentures], of Hilb, Rogal and Hamilton Company (the "Company"),
we are prepared to make available to you certain confidential information
relating to the Company and its business (the "Confidential Information"). As a
condition to your being furnished the Confidential Information, you agree to
comply with the terms and conditions of this letter agreement (this
"Agreement").
For the purposes of this Agreement, the term "Representatives" shall
mean your employees, agents and advisors and the directors, officers, employees
and agents of any of your advisors. The term "Third Party" shall be broadly
interpreted to include without limitation any corporation, company, group,
partnership, other entity or individual. The term "Confidential Information"
shall not include information that (i) was or becomes generally available to the
public other than as a result of a disclosure by you or your Representatives, or
(ii) was or becomes available to you on a non-confidential basis from a source
other than the Company or its advisors.
You hereby agree to treat the Confidential Information as confidential
and, unless required by applicable law, you shall not, and shall direct your
Representatives not to, use in any way or to disclose, directly or indirectly,
the Confidential Information to any Third Party without the written consent of
the Company.
It is understood and agreed that money damages would not be a
sufficient remedy for any breach of this Agreement by you and that the Company
shall be entitled to specific performance and injunctive or other equitable
relief as a remedy for any such breach, and you further agree to waive any
requirement for the securing or posting of any bond in connection with such
remedy.
<PAGE>
Such remedy shall not be deemed to be the exclusive remedy for your breach of
this Agreement, but shall be in addition to all other remedies available at law
or equity to the Company.
If you are in agreement with the foregoing, please so indicate by
signing and returning one copy of this Agreement, whereupon it will constitute
our agreement with respect to the subject matter hereof.
Very truly yours,
[Name]
Officer of [Holdings or Affiliate]
CONFIRMED AND AGREED as of
the date first written above:
[NAME]
By:_________________________________
Name:
Title:
Hilb, Rogal and Hamilton Company
By:_________________________________
Name:
Title:
-2-
Exhibit 10.6
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of May
3, 1999, is made between Hilb, Rogal and Hamilton Company, a Virginia
corporation (the "Company"), PM Holdings, Inc., a Connecticut corporation
("Holdings"), and Phoenix Home Life Mutual Insurance Company, a New York life
insurance company ("PHL").
W I T N E S S E T H:
WHEREAS, the Company, Holdings, PHL and Martin L. Vaughan, III entered
into a Stock Purchase Agreement dated March 29, 1999 (the "Stock Purchase
Agreement"), under which the Company agreed to acquire from Holdings and Martin
L. Vaughan, III all of the issued and outstanding shares of the capital stock of
American Phoenix Corporation, a Connecticut corporation ("APC"); and
WHEREAS, pursuant to the Stock Purchase Agreement, (i) Holdings
acquired 865,042 shares of the Company's Common Stock (as hereinafter defined)
and $22,000,000 principal amount of the Company's Subordinated Debentures (as
hereinafter defined), and (ii) PHL acquired $10,000,000 principal amount of the
Company's Subordinated Debentures; and
WHEREAS, the Subordinated Debentures acquired by Holdings and PHL
pursuant to the Stock Purchase Agreement are convertible into shares of Common
Stock pursuant to the terms of the Subordinated Debentures; and
WHEREAS, the Company has agreed to enter into this Agreement to provide
certain registration rights to Holdings in order to facilitate the distribution
of the shares of Common Stock acquired by Holdings pursuant to the Stock
Purchase Agreement and any shares of Common Stock that may be acquired by
Holdings, PHL or their Affiliates upon conversion of the Subordinated
Debentures.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and in the Stock Purchase Agreement, the Company, Holdings and
PHL hereby agree as follows:
ARTICLE I
Definitions
Except as otherwise specified herein, capitalized terms used in this
Agreement shall have the respective meanings assigned to such terms in the Stock
Purchase Agreement. For purposes of this Agreement, the following terms have the
following meanings:
(a) "Affiliate" shall mean, as to any specified Person, each other
Person directly or indirectly controlling, controlled by or under direct or
indirect common control with that specified
<PAGE>
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, or by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. Notwithstanding the
foregoing, the following shall not be deemed to be an Affiliate of Holdings or
PHL for purposes of this Agreement: (i) Phoenix Investment Partners, Ltd., a
Delaware corporation, and its subsidiaries (or any successor thereof), and (ii)
any Person registered as an investment company under the Investment Company Act
of 1940, as amended.
(b) "Blue Sky Filing" shall mean a filing made in connection with
the registration or qualification of the Registrable Shares under a particular
state's securities or blue sky laws.
(c) "Common Shares" shall mean the 865,042 shares of Common Stock
that Holdings acquired from the Company pursuant to the Stock Purchase Agreement
and such additional shares of Common Stock that the Company may issue with
respect to such shares pursuant to any stock splits, stock dividends,
recapitalizations, restructurings, reclassifications or similar transactions.
(d) "Common Stock" shall mean the Common Stock, without par value,
of the Company.
(e) "Effective Period," with respect to the Registrable Shares,
shall mean the period from the date of effectiveness of the Registration
Statement relating to the Registrable Shares under Section 2.3 below to the date
that is two years from the date of such effectiveness; provided, that, for each
Holdback Period required by the Company under Article III of this Agreement and
for each Discontinuance Period (as defined in Section 2.5(k) below), the
Effective Period shall be extended by the number of days during which the
applicable Holdback Period or Discontinuance Period was in effect.
(f) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
(g) "NYSE" shall mean the New York Stock Exchange.
(h) "Person" shall have the meaning set forth in Section 3(a)(9)
of the Exchange Act as in effect on the date of this Agreement, and shall
include, without limitation, corporations, partnerships, limited liability
companies and trusts.
(i) "Prospectus" shall mean the prospectus included in a
Registration Statement (including a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Shares covered by such Registration
Statement, and all other amendments and supplements to such prospectus,
including post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in any such prospectus.
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<PAGE>
(j) "Registrable Shares" shall mean collectively (i) the Common
Shares and (ii) the aggregate number of shares of Common Stock into which the
Subordinated Debentures are convertible pursuant to the terms of the
Subordinated Debentures and such additional shares of Common Stock that the
Company may issue with respect to such shares pursuant to any stock splits,
stock dividends, recapitalizations, restructurings, reclassifications or similar
transactions.
(k) "Registration Statement" shall mean a registration statement
of the Company under the Securities Act that covers the resale of the
Registrable Shares pursuant to the terms of this Agreement, including the
related Prospectus, all amendments and supplements to such registration
statement, including pre-and post-effective amendments, all exhibits thereto and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
(l) "SEC" shall mean the Securities and Exchange Commission.
(m) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(n) "Subordinated Debentures" shall mean the Company's 5.25%
Convertible Subordinated Debentures (Due 2014), in the aggregate principal
amount of $32,000,000.
(o) "Voting and Standstill Agreement" shall mean the Voting and
Standstill Agreement, dated May 3, 1999, executed by the Company, Holdings and
PHL in connection with the Stock Purchase Agreement.
ARTICLE II
Registration of Securities
Section 2.1. Securities Subject to this Agreement. The securities
entitled to the benefits of this Agreement are the Registrable Shares. For the
purposes of this Agreement, one or more of the Registrable Shares will no longer
be subject to this Agreement when and to the extent that (i) a Registration
Statement covering such Registrable Shares has been declared effective under the
Securities Act and such Registrable Shares have been sold pursuant to such
effective Registration Statement, (ii) such Registrable Shares are distributed
to the public pursuant to Rule 144 under the Securities Act, (iii) such
Registrable Shares shall have been otherwise transferred or disposed of, new
certificates therefor not bearing a legend restricting further transfer or
disposition shall have been delivered by the Company and, at such time,
subsequent transfer or disposition of such securities shall not require
registration or qualification of such Registrable Shares under the Securities
Act or any similar state law then in force, or (iv) such Registrable Shares have
ceased to be outstanding.
Section 2.2. Registration Rights. Holdings may exercise the demand and
piggy-back registration rights to which it is entitled under this Agreement only
at a time at which the Holdings Ownership Percentage (as such term is defined in
the Voting and Standstill Agreement) exceeds
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<PAGE>
10% or Holdings is otherwise deemed by the Company to be an Affiliate of the
Company. Holdings may not exercise any such rights after May 3, 2014.
Section 2.3. Demand Registration.
(a) Holdings shall have the right, subject to Section 2.2 above,
to make one written request to the Company for the registration of all of the
Registrable Shares subject to this Agreement that are beneficially owned by
Holdings, PHL and their Affiliates at the time of the request. The Company shall
not be obligated to register any of the Registrable Shares held by an Affiliate
of Holdings or PHL unless and until such Affiliate shall have agreed in writing
to indemnify the Company pursuant to Section 4.2 of this Agreement.
(b) Upon the receipt of the request described in Section 2.3(a)
above, the Company shall (i) within 45 days of such request, file a Registration
Statement with the SEC under the Securities Act to register the resale of the
Registrable Shares as set forth in such request and (ii) use its best efforts to
cause such Registration Statement to become effective as soon as practicable
after the filing thereof with the SEC. On or before the Closing Date, the
Company shall have listed on the NYSE, on a when issued basis, the Registrable
Shares.
(c) The Company shall use its best efforts to maintain the
effectiveness of the Registration Statement relating to the Registrable Shares,
and maintain the listing of such shares, as applicable, on the NYSE or any
exchange or automated interdealer quotation system on which the Common Stock is
then listed or quoted, during the Effective Period.
(d) If the Company is required to effect a Registration Statement
pursuant to this Section 2.3, the Company may, in its discretion, include
securities, other than Registrable Shares, among the securities covered by such
registration.
(e) The Company shall not be required to effect more than one
registration under this Section 2.3.
Section 2.4 Piggy-Back Registration.
(a) In the event that the Company shall propose to file a
registration statement under the Securities Act relating to a public offering by
or through one or more underwriters of shares of Common Stock for the Company's
own account or for the account of any holder of shares of Common Stock other
than Holdings, PHL or any of their Affiliates (a "Selling Shareholder") and on a
form and in a manner that would permit the registration of any of the
Registrable Shares for sale to the public under the Securities Act, the Company
shall (i) give written notice to Holdings of its intention to do so and of the
right of Holdings, subject to Section 2.2 above, to have any or all of the
Registrable Shares subject to this Agreement that are beneficially owned by
Holdings, PHL and their Affiliates at the time of such notice included among the
securities to be covered by such registration statement and (ii) at the written
request of Holdings given to the Company within 20 days after the Company
provides such notice, use its best efforts to include among the securities
covered by such registration statement the number of such Registrable Shares
that
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<PAGE>
Holdings shall have requested be so included (subject, however, to reduction in
accordance with Section 2.4(b) below). None of Holdings, PHL and their
Affiliates, however, shall be entitled to participate in any offering pursuant
to this Section 2.4(a) unless and until Holdings, PHL, if participating, and any
participating Affiliate have entered into an underwriting or other agreement
with such underwriter or underwriters for such offering in such customary form
as such underwriter or underwriters shall reasonably determine.
(b) Holdings may include Registrable Shares in any registration
statement relating to any offering pursuant to Section 2.4(a) above to the
extent that the inclusion of such shares shall not reduce the number of shares
of Common Stock to be offered and sold by the Company or the Selling
Shareholder, as the case may be. If the lead managing underwriter selected by
the Company for any such offering determines that marketing factors require a
limitation on the number of Registrable Shares to be offered and sold by
Holdings, PHL and their Affiliates in such offering, there shall be included in
such offering only that number of Registrable Shares, if any, that such lead
managing underwriter reasonably and in good faith believes will not jeopardize
the success of the offering of all shares of Common Stock that the Company or
the Selling Shareholder, as the case may be, desires to sell for its own
account. In such event and provided that the lead managing underwriter has so
notified the Company in writing, the shares of Common Stock to be included in
such offering shall consist of (i) the securities that the Company or the
Selling Shareholder, as the case may be, proposes to sell, and (ii) the number,
if any, of Registrable Shares requested to be included in such registration
that, in the opinion of such lead managing underwriter, can be sold without
jeopardizing the success of the offering of the shares of Common Stock that the
Company or the Selling Shareholder, as the case may be, desires to sell for its
own account.
(c) Nothing in this Section 2.4 shall create any liability on the
part of the Company to Holdings, PHL or any of their Affiliates if the Company
for any reason should decide not to file a registration statement proposed to be
filed under Section 2.4(a) above or to withdraw such registration statement
subsequent to its filing, regardless of any action whatsoever that Holdings may
have taken, whether as a result of the issuance by the Company of any notice
hereunder or otherwise.
Section 2.5. Registration Procedures. In order to comply with the
requirements of Sections 2.3 and 2.4 above, the Company will:
(a) prepare and file with the SEC a Registration Statement
covering the Registrable Shares on any form or forms for which the Company then
qualifies and that counsel for the Company shall deem appropriate, and which
form shall be available for the sale of the Registrable Shares
(i) in connection with the registration of the
Registrable Shares pursuant to Section 2.3 above, on a delayed or
continuous basis in accordance with Rule 415 under the Securities Act
(or any successor rule); provided, however, that the methods of
distribution permitted by such Registration Statement shall not include
underwritten offerings; or
-5-
<PAGE>
(ii) in connection with a registration that includes any
Registrable Shares pursuant to Section 2.4 above, in accordance with
the intended methods of distribution thereof.
(b) prepare and file with the SEC pre- and post-effective
amendments to the Registration Statement and such amendments and supplements to
the Prospectus used in connection therewith as may be required by the rules,
regulations or instructions applicable to the registration form utilized by the
Company, or by the Securities Act or the rules and regulations thereunder, and
cause the Prospectus as so supplemented to be filed pursuant to Rule 424 under
the Securities Act, and otherwise comply with the provisions of the Securities
Act with respect to the disposition of the Registrable Shares;
(c) furnish to Holdings such number of copies of the Registration
Statement and each pre- and post-effective amendment thereto, any Prospectus or
Prospectus supplement and each amendment thereto and such other documents as
Holdings may reasonably request in order to facilitate the transfer or
disposition of the Registrable Shares by Holdings;
(d) make such Blue Sky Filings, if necessary, to register or
qualify the Registrable Shares under such state securities or blue sky laws of
such jurisdictions as Holdings may reasonably request, and do any and all other
acts that may be reasonably necessary or advisable to enable Holdings to
consummate the transfer or disposition in such jurisdictions of the Registrable
Shares, except that the Company shall not for any such purpose be required (i)
to qualify generally to do business as a foreign corporation in any jurisdiction
where, but for the requirements of this Section 2.5(d), it would not be
obligated to be so qualified, (ii) to subject itself to taxation in any such
jurisdiction, or (iii) to consent to general service of process in any such
jurisdiction;
(e) notify Holdings, at any time when a Prospectus is required to
be delivered under the Securities Act with respect to one or more of the
Registrable Shares, of the Company's becoming aware that a Prospectus included
in the Registration Statement, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, and prepare and furnish to Holdings a reasonable number of
copies of an amendment to such Prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Shares, such
Prospectus shall not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(f) notify Holdings
(1) when any Prospectus or Prospectus supplement or pre-
or post-effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when such Registration
Statement or post-effective amendment has become effective;
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<PAGE>
(2) of any request by the SEC or any other applicable
regulatory authority for amendments or supplements to the Registration Statement
or Prospectus or for additional information;
(3) of the issuance by the SEC or any other applicable
regulatory authority of any stop order of which the Company or its counsel is
aware suspending the effectiveness of the Registration Statement or any order
preventing the use of a related Prospectus, or the initiation or any threats of
any proceedings for such purpose; and
(4) of the receipt by the Company of any written
notification of the suspension of the registration or qualification of any of
the Registrable Shares for sale in any jurisdiction, or the initiation or any
threats of any proceeding for such purpose;
(g) make generally available to the Company's shareholders, as
soon as reasonably practicable, an earnings statement that shall satisfy the
provisions of Section 11(a) of the Securities Act, provided that the Company
shall be deemed to have complied with this Section 2.5(g) if it has complied
with Rule 158 under the Securities Act;
(h) use its best efforts to provide a transfer agent and registrar
for the Registrable Shares covered by the Registration Statement no later than
the effective date of such Registration Statement;
(i) cooperate with Holdings to facilitate the timely preparation
and delivery of certificates (not bearing any restrictive legends) representing
the securities to be sold under the Registration Statement, and enable such
securities to be in such denominations and registered in such names as Holdings
may reasonably request;
(j) provide Holdings and any attorney, accountant or other agent
retained by Holdings (collectively, the "Inspectors") with reasonable access
during normal business hours to appropriate officers of the Company and its
subsidiaries to ask questions and to obtain information that any such Inspector
may reasonably request and make available for inspection all financial and other
records, pertinent corporate documents and properties of any of the Company and
its subsidiaries (collectively, the "Records"), as shall be reasonably necessary
to enable them to exercise their due diligence responsibility; provided,
however, that the Records that the Company determines, in good faith, to be
confidential and that it notifies the Inspectors in writing are confidential
shall not be disclosed to any Inspector unless such Inspector signs or is
otherwise bound by a confidentiality agreement reasonably satisfactory to the
Company; and
(k) in the event of the issuance of any stop order of which the
Company or its counsel is aware suspending the effectiveness of the Registration
Statement or any order suspending or preventing the use of any related
Prospectus or suspending the registration or qualification of any Registrable
Shares for sale in any jurisdiction, the Company promptly will use its best
efforts to obtain its withdrawal.
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<PAGE>
Holdings shall furnish to the Company in writing such information
regarding Holdings, PHL and their Affiliates as is required to be disclosed
pursuant to the Securities Act. Holdings agrees to notify the Company promptly
of any inaccuracy or change in information previously furnished by Holdings to
the Company or of the happening of any event in either case as a result of which
the Registration Statement, a Prospectus, or any amendment or supplement thereto
contains an untrue statement of a material fact regarding Holdings, PHL or any
of their Affiliates or omits to state a material fact regarding Holdings, PHL or
any of their Affiliates required to be stated therein or necessary to make the
statements therein not misleading and to furnish promptly to the Company any
additional information required to correct and update any previously furnished
information or required so that such Registration Statement, Prospectus, or
amendment or supplement, shall not contain, with respect to Holdings, PHL or any
of their Affiliates, an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
Holdings agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Sections 2.5(e) or (k)
above, Holdings will forthwith discontinue (and cause any Affiliate, and PHL and
any of its Affiliates, to discontinue) the transfer or disposition of any
Registrable Shares pursuant to the Prospectus relating to the Registration
Statement covering such Registrable Shares until Holdings' receipt of the copies
of the amended or supplemented Prospectus contemplated by Section 2.5(e) or the
withdrawal of any order contemplated by Section 2.5(k), and, if so directed by
the Company, Holdings will deliver to the Company all copies, other than
permanent file copies then in Holdings' possession, of the Prospectus covering
such Registrable Shares at the time of receipt of such notice. The period during
which any discontinuance under this paragraph is in effect is referred to herein
as a "Discontinuance Period."
Section 2.6. Registration Expenses.
(a) In connection with the registration of the Registrable Shares
pursuant to Section 2.3 above, the Company will pay any and all out-of-pocket
expenses incident to the Company's performance of or compliance with this
Agreement, including, without limitation, (i) all registration and filing fees
with the SEC relating to the shares of Common Stock into which the Subordinated
Debentures are convertible pursuant to the terms of the Subordinated Debentures,
(ii) all fees and expenses of complying with state securities or blue sky laws,
(iii) all printing and delivery expenses, (iv) all fees and expenses incurred in
connection with the listing of the Registrable Shares on the NYSE, or any other
exchange or automated interdealer quotation system as then applicable, (v) the
fees and disbursements of the Company's counsel and of its independent public
accountants, and (vi) the fees and expenses of any special experts retained by
the Company in connection with the requested registration, and Holdings shall
pay any and all out-of-pocket expenses incurred by Holdings, including, without
limitation, (x) all registration and filing fees with the SEC relating to the
Common Shares, (y) all fees or disbursements of counsel to Holdings and (z) all
brokerage commissions, fees and expenses and all transfer taxes and documentary
stamp taxes, if any, relating to the sale or disposition of the Registrable
Shares.
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<PAGE>
(b) In connection with a registration that includes any
Registrable Shares pursuant to Section 2.4 above, Holdings will pay any and all
out-of-pocket expenses attributable to such Registrable Shares, including,
without limitation, (i) all registration and filing fees with the SEC and the
National Association of Securities Dealers, Inc., (ii) all fees and expenses
associated with qualifying the Registrable Shares with state securities or blue
sky laws, (iii) any fees or disbursements of counsel to Holdings, and (iv) any
brokerage commissions and fees, underwriting discounts and commissions, transfer
taxes and documentary stamp taxes, if any, relating to the sale or disposition
of the Registrable Shares.
ARTICLE III
Holdback Period
If one or more underwritten public offerings of shares of Common Stock
(other than the Registrable Shares) by the Company occur during the Effective
Period, then, in connection with each such public offering, the Company may
require Holdings, PHL and their Affiliates to refrain from, and Holdings, PHL
and their Affiliates will refrain from, selling any of the Registrable Shares
for a period determined by the Company but not to exceed 120 days (or such
lesser period as the Company may require its officers and directors or other
holders of shares of Common Stock to so refrain) (each such period referred to
as a "Holdback Period") so long as the Company delivers written notice to
Holdings of the Company's requirement of a Holdback Period and the length of
such Holdback Period prior to commencement of the Holdback Period.
ARTICLE IV
Indemnification; Contribution
Section 4.1. Indemnification by the Company. The Company will, and
hereby agrees to, indemnify and hold harmless, to the fullest extent permitted
by law, and, subject to Section 4.3 below, defend Holdings, PHL, each of their
Affiliates (i) to whom Holdings or PHL transferred Registrable Shares in a
manner permitted by the Voting and Standstill Agreement and (ii) who is listed
as a selling shareholder in the Prospectus, and their respective officers,
directors, employees, agents, representatives and each other Person, if any, who
controls Holdings within the meaning of the Securities Act (each, a "Company
Indemnitee"), against any and all losses, claims, damages, liabilities and
expenses, joint or several, to which they or any of them may become subject
under the Securities Act or any other statute or common law, including any
amount paid in settlement of any action or proceeding, commenced or threatened,
and to reimburse them for any reasonable legal or other expenses incurred by
them in connection with investigating any claims and defending any actions
(collectively, "Losses"), with respect to sales of Registrable Shares under the
Registration Statement, insofar as any Losses arise out of or are based upon (i)
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any pre- or post-effective amendment thereto or in
any Blue Sky Filing, or 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 or (ii) any untrue statement or alleged untrue statement
of a material fact contained in the Prospectus or any amendment or supplement
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<PAGE>
thereto, or the omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the indemnification agreement contained herein shall not (i) apply to
Losses arising out of, or based upon, any such untrue statement or alleged
untrue statement, or any such omission or alleged omission, if such statement or
omission was made in reliance upon and in conformity with information furnished
in writing to the Company by such Company Indemnitee from time to time
specifically for use in the Registration Statement, the Prospectus or any such
amendment or supplement thereto or any Blue Sky Filing or (ii) inure to the
benefit of any Person, to the extent that any such Loss arises out of such
Person's failure to send or give a copy of the Prospectus, as the same may be
then supplemented or amended, to the Person asserting an untrue statement or
alleged untrue statement, or omission or alleged omission, at or prior to the
written confirmation of the sale of the Registrable Shares to such Person if
such statement or omission was corrected in the Prospectus or any amendment or
supplement thereto prior to the written confirmation of the sale. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of such Company Indemnitee or any other Person and shall survive the
transfer of such securities by such Company Indemnitee.
Section 4.2. Indemnification by Holdings. Holdings and PHL will, and
hereby agree to, indemnify and hold harmless and, subject to Section 4.3 below,
defend (in the same manner and to the same extent as set forth in Section 4.1
above), and cause each of their Affiliates who is listed as a selling
shareholder in the Prospectus to so indemnify, hold harmless and defend, the
Company and the Company's officers, directors, employees, agents,
representatives and each other Person, if any, who controls the Company within
the meaning of the Securities Act, with respect to any such untrue statement or
alleged untrue statement in, or any such omission or alleged omission from, the
Registration Statement, any Prospectus, or any amendment or supplement thereto,
if such statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by Holdings, PHL or any of their
Affiliates from time to time specifically for use in the Registration Statement,
the Prospectus, and any such amendment or supplement thereto. Such indemnity
shall remain in full force and effect, regardless of any investigation made by
or on behalf of the Company or any such director, officer or any other Person
and shall survive the transfer of such securities by Holdings and PHL. The
liability of an indemnifying party under this Section 4.2 shall be limited to
the amount of the net proceeds received by such indemnifying party upon the
resale of any Registrable Shares pursuant to the Registration Statement creating
such liability.
Section 4.3. Notices of Claims. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in Sections 4.1 and 4.2 above, such indemnified
party will give, if a claim in respect thereof is to be made against an
indemnifying party, written notice to the latter of the commencement of such
action, provided that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
under this Article IV, except to the extent that the indemnifying party is
actually prejudiced in any material respect by such failure to give notice. In
case any such action is brought against an indemnified party, the indemnifying
party shall be entitled to participate in and, unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, to
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<PAGE>
assume the defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably satisfactory to
such indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of reasonable investigation. If the
indemnifying party advises an indemnified party that it will contest a claim for
indemnification hereunder, or fails, within 30 days of receipt of any
indemnification notice to notify, in writing, such Person of its election to
defend, settle or compromise, at its sole cost and expense, any action,
proceeding or claim (or discontinues its defense at any time after it commences
such defense), then the indemnified party may, at its option, defend, settle or
otherwise compromise or pay such action or claim in each case at the
indemnifying party's expense. In any event, unless and until the indemnifying
party elects in writing to assume and does so assume the defense of any such
claim, proceeding or action, the indemnified party's reasonable costs and
expenses arising out of the defense, settlement or compromise of any such
action, claim or proceeding shall be losses subject to indemnification
hereunder. The indemnified party shall cooperate fully with the indemnifying
party in connection with any negotiation or defense of any such action or claim
by the indemnifying party and shall furnish to the indemnifying party all
information reasonably available to the indemnified party that relates to such
action or claim. The indemnifying party shall keep the indemnified party fully
informed at all times as to the status of the defense or any settlement
negotiations with respect thereto. If the indemnifying party elects to defend
any such action or claim, then the indemnified party shall be entitled to
participate in such defense with counsel of its choice at its sole cost and
expense, except that the indemnifying party shall be liable for such reasonable
costs and expenses if, in such indemnified party's reasonable judgment, a
conflict of interest between such indemnified and indemnifying parties may exist
as described above. If the indemnifying party does not assume such defense, the
indemnified party shall keep the indemnifying party informed at all times as to
the status of the defense; provided, however, that the failure to keep the
indemnifying party so informed shall not affect the obligations of the
indemnifying party hereunder. No indemnifying party shall be liable for any
settlement of any action, claim or proceeding effected without its written
consent; provided, however, that the indemnifying party shall not unreasonably
withhold, delay or condition its consent. No indemnifying party shall, without
the written consent of the indemnified party, consent to entry of any judgment
or enter into any settlement that does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
general written release from all liability with respect to such claim or
litigation.
Section 4.4. Indemnification Payments. The indemnification required by
this Article IV shall be made by periodic payments of the amount thereof during
the course of the investigation or defense as and when bills are received or
Losses are incurred, subject to the receipt of such documentary support therefor
as the indemnifying party may reasonably request.
Section 4.5. Contribution. If the indemnification provided for in this
Article IV is unavailable to or insufficient to hold harmless a party otherwise
entitled to be indemnified thereunder in respect to any Losses referred to
therein, then the parties required to provide indemnification under this Article
IV shall contribute to the amount paid or payable by such party
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<PAGE>
as a result of Losses in such proportion as is appropriate to reflect the
relative fault of each such indemnifying party in connection with the statements
or omissions that resulted in such Losses. The relative fault of each
indemnifying party shall be determined by reference to whether the untrue
statement 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
indemnifying party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, Holdings and PHL agree that it would not be just and equitable if
contributions pursuant to this Section 4.5 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to above in this Section 4.5. 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 is not
guilty of such fraudulent misrepresentation.
Section 4.6. Other Rights and Liabilities. The indemnity and
contribution agreements contained herein shall be in addition to (i) any cause
of action or similar right of the indemnified party against the indemnifying
party or others and (ii) any liabilities the indemnifying party may be subject
to pursuant to the law.
ARTICLE V
Rule 144 Representations
The Company covenants that, for the time that the Holdings Ownership
Percentage (as such term is defined in the Voting and Standstill Agreement)
exceeds 10% or Holdings is otherwise deemed by the Company to be an Affiliate of
the Company, it will use its best efforts to:
(i) file with the SEC all reports and other documents
required to be filed by the Company under the Exchange Act and the
rules and regulations promulgated thereunder;
(ii) if not required to file such reports and documents
referred to in subsection (i) above, keep publicly available certain
information regarding the Company, as contemplated by Rule 144(c)(2)
under the Securities Act; and
(iii) take all other actions reasonably necessary to enable
Holdings, PHL and their Affiliates to sell the Registrable Shares
without registration under the Securities Act within the limitation of
the exemption provided by Rule 144 under the Securities Act.
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<PAGE>
ARTICLE VI
Miscellaneous
Section 6.1. Notices. Any notices or other communications required or
permitted hereunder shall be sufficiently given if in writing (including
telecopy or similar teletransmission), addressed as follows:
If to the Company, Hilb, Rogal and Hamilton Company
to it at: 4235 Innslake Drive
Glen Allen, Virginia 23060
Telecopier: (804) 747-3138
Attention: Andrew L. Rogal
With a copy to: Williams Mullen Christian & Dobbins
1021 East Cary Street, 16th Floor
Richmond, Virginia 23219
Telecopier: (804) 783-6507
Attention: Theodore L. Chandler, Jr., Esquire
If to Holdings PM Holdings, Inc.
or PHL, to them at: One American Row
Hartford, Connecticut 06115
Telecopier: (860) 403-5182
Attention: Carole A. Masters, Esquire
Phoenix Home Life Mutual Insurance Company
One American Row
Hartford, Connecticut 06115
Telecopier: (860) 403-5182
Attention: David W. Searfoss
Executive Vice President and
Chief Financial Officer
With a copy to: Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York 10038-4982
Telecopier: (212) 806-6006
Attention: David L. Finkelman, Esquire
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<PAGE>
Unless otherwise specified herein, such notices or other communications shall be
deemed received (a) in the case of any notice or communication sent other than
by mail, on the date actually delivered to such address (evidenced, in the case
of delivery by overnight courier, by confirmation of delivery from the overnight
courier service making such delivery, and in the case of a telecopy, by receipt
of a transmission confirmation form or the addressee's confirmation of receipt),
or (b) in the case of any notice or communication sent by mail, three Business
Days after being sent, if sent by registered or certified mail, with first-class
postage prepaid. Each of the parties hereto shall be entitled to specify a
different address by giving notice as aforesaid to each of the other parties
hereto.
Section 6.2. Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated
except by an instrument in writing signed by Holdings and by the Company
following approval thereof by a majority of the Continuing Directors (as such
term is defined in the Voting and Standstill Agreement).
Section 6.3. Successors and Assigns. Except as otherwise provided
herein, this Agreement shall be binding upon and shall inure to the benefit of
and be enforceable by the parties and their respective successors and assigns,
including without limitation in the case of any corporate party hereto any
corporate successor by merger or otherwise; provided that no party may assign
this Agreement without the other party's prior written consent, which consent
will not be required in the event of the transfer of all of the Registrable
Shares beneficially owned by Holdings in accordance with Sections 4.1(g) or
4.1(h) of the Voting and Standstill Agreement.
Section 6.4. Entire Agreement. This Agreement embodies the entire
agreement and understanding among the parties relating to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter. There are no representations, warranties or covenants by the
parties hereto relating to such subject matter other than those expressly set
forth in this Agreement and the Stock Purchase Agreement.
Section 6.5. Specific Performance. The parties acknowledge that money
damages are not an adequate remedy for violations of this Agreement and that any
party may, in its sole discretion, apply to a court of competent jurisdiction
for specific performance or injunctive or such other relief as such court may
deem just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief.
Section 6.6. Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise or beginning
of the exercise of any thereof by any party shall not preclude the simultaneous
or later exercise of any other such right, power or remedy by such party.
Section 6.7. No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and
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<PAGE>
any custom or practice of the parties at variance with the terms hereof, shall
not constitute a waiver by such party of its right to exercise any such or other
right, power or remedy or to demand such compliance.
Section 6.8. No Third Party Beneficiaries. Except as provided in
Article IV above, this Agreement is not intended to be for the benefit of and
shall not be enforceable by any Person who or which is not a party hereto.
Section 6.9. Consent to Jurisdiction. Each party to this Agreement, by
its execution hereof, (i) hereby irrevocably submits, and agrees to cause each
of its Affiliates to submit, to the jurisdiction of the federal courts located
either in the City of Richmond, Virginia, or in the City of Hartford,
Connecticut, and in the event that such federal courts shall not have subject
matter jurisdiction over the relevant proceeding, then of the state courts
located either in the City of Richmond, Virginia, or in the City of Hartford,
Connecticut, for the purpose of any Action (as such term is defined in the Stock
Purchase Agreement) arising out of or based upon this Agreement or relating to
the subject matter hereof or the transactions contemplated hereby, (ii) hereby
waives, and agrees to cause each of its Affiliates to waive, to the extent not
prohibited by applicable law, and agrees not to assert, and agrees not to allow
any of its Affiliates to assert, by way of motion, as a defense or otherwise, in
any such Action, any claim that it is not subject personally to the jurisdiction
of the above-named courts, that its property is exempt or immune from attachment
or execution, that any such proceeding brought in one of the above-named courts
is improper, or that this Agreement or the subject matter hereof may not be
enforced in or by such court and (iii) hereby agrees not to commence or to
permit any of its Affiliates to commence any Action arising out of or based upon
this Agreement or relating to the subject matter hereof other than before one of
the above-named courts nor to make any motion or take any other action seeking
or intending to cause the transfer or removal of any such Action to any court
other than one of the above-named courts whether on the grounds of inconvenient
forum or otherwise. Each party hereby consents to service of process in any such
proceeding in any manner permitted by Virginia or Connecticut law, as the case
may be, and agrees that service of process by registered or certified mail,
return receipt requested, at its address specified pursuant to Section 6.1 above
is reasonably calculated to give actual notice. Notwithstanding anything
contained in this Section 6.9 to the contrary with respect to the parties' forum
selection, if an Action is filed against a party to this Agreement, including
its Affiliates, by a person who or which is not a party to this Agreement, an
Affiliate of a party to this Agreement, or an assignee thereof (a "Third Party
Action"), in a forum other than the federal district court or a state court
located in the City of Richmond, Virginia, or in the City of Hartford,
Connecticut, and such Third Party Action is based upon, arises from, or
implicates rights, obligations or liabilities existing under this Agreement or
acts or omissions pursuant to this Agreement, then the party to this Agreement,
including its Affiliates, joined as a defendant in such Third Party Action shall
have the right to file cross-claims or third-party claims in the Third Party
Action against the other party to this Agreement, including its Affiliates, and
even if not a defendant therein, to intervene in such Third Party Action with or
without also filing cross-claims or third-party claims against the other party
to this Agreement, including its Affiliates.
-15-
<PAGE>
Section 6.10. Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic substantive law of the Commonwealth of
Virginia, without giving effect to any choice or conflict of law provision or
rule that would cause the application of the law of any other jurisdiction.
Section 6.11. Name, Captions. The name assigned to this Agreement and
the section captions used herein are for convenience of reference only and shall
not affect the interpretation or construction hereof.
Section 6.12. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one instrument. Each counterpart may consist
of a number of copies each signed by less than all, but together signed by all,
the parties hereto.
Section 6.13. Expenses. Each of the parties hereto shall bear their own
expenses incurred in connection with this Agreement and the transactions
contemplated hereby, except that in the event of a dispute concerning the terms
or enforcement of this Agreement, the prevailing party in any such dispute shall
be entitled to reimbursement of reasonable legal fees and disbursements from the
other party or parties to such dispute.
Section 6.14. Severability. In the event that any provision of this
Agreement would, under applicable law, be invalid or unenforceable in any
respect, such provision shall (to the extent permitted under applicable law) be
construed by modifying or limiting it so as to be valid and enforceable to the
maximum extent compatible with, and possible under, applicable law. The
provisions of this Agreement are severable, and in the event that any provision
hereof should be held invalid or unenforceable in any respect, it shall not
invalidate, render unenforceable or otherwise affect any other provision hereof.
[SIGNATURES ON NEXT PAGE]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Registration Rights Agreement to be executed, as of the
date first above written by their respective officers thereunto duly authorized.
HILB, ROGAL AND HAMILTON COMPANY
By: /s/ Andrew L. Rogal
--------------------------------------------
Name: Andrew L. Rogal
Title: President and Chief Executive Officer
PM HOLDINGS, INC.
By: /s/ David W. Searfoss
---------------------------------------------
Name: David W. Searfoss
Title: Vice President/Chief Financial Officer
PHOENIX HOME LIFE MUTUAL INSURANCE
COMPANY
By: /s/ David W. Searfoss
---------------------------------------------
Name: David W. Searfoss
Title: Executive Vice President and
Chief Financial Officer
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE FORM
10-Q FOR HILB, ROGAL AND HAMILTON COMPANY FOR THE QUARTER ENDED MARCH 31, 1999
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> MAR-31-1999
<CASH> 24,044,251
<SECURITIES> 5,094,983
<RECEIVABLES> 47,913,316
<ALLOWANCES> 1,334,953
<INVENTORY> 0
<CURRENT-ASSETS> 78,778,842
<PP&E> 34,567,575
<DEPRECIATION> 21,752,884
<TOTAL-ASSETS> 190,096,709
<CURRENT-LIABILITIES> 83,988,608
<BONDS> 43,112,139
0
0
<COMMON> 4,596,353
<OTHER-SE> 47,370,847
<TOTAL-LIABILITY-AND-EQUITY> 190,096,709
<SALES> 0
<TOTAL-REVENUES> 50,253,615
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 37,015,468
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 686,323
<INCOME-PRETAX> 12,551,824
<INCOME-TAX> 5,114,868
<INCOME-CONTINUING> 7,436,956
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 7,436,956
<EPS-PRIMARY> 0.61
<EPS-DILUTED> 0.60
</TABLE>
