<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
THE GOLDMAN SACHS GROUP, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
DELAWARE 13-4019460
<S> <C>
(State of incorporation or organization) (I.R.S. Employer Identification No.)
</TABLE>
85 BROAD STREET, NEW YORK, NEW YORK 10004
(Address of Principal Executive Offices)
(Zip Code)
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. /X/
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. / /
Securities Act registration statement file number to which this form relates:
333-75321 (If applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
<TABLE>
<S> <C>
Title of each class Name of each exchange on which
to be so registered each class is to be registered
2.00% EXCHANGEABLE NOTE DUE 2006 NEW YORK STOCK EXCHANGE, INC.
(EXCHANGEABLE FOR COMMON STOCK OF
WELLS FARGO & COMPANY)
</TABLE>
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
<PAGE> 2
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The material set forth in (i) the section captioned "Description
of Notes We May Offer" in the registrant's registration statement on Form S-1
(No. 333-75321) and (ii) the section "Specific Terms of Your Note" in the
Prospectus Supplement No. 5, dated June 24, 1999 to the registrant's Prospectus,
dated May 18, 1999, are each incorporated herein by reference.
ITEM 2. EXHIBITS.
1. Certificate of Incorporation of The Goldman Sachs Group, Inc.,
incorporated herein by reference to Exhibit 3.1 to the
registrant's registration statement on Form S-1 (No. 333-74449).
2. Amended and Restated Certificate of Incorporation of The Goldman
Sachs Group, Inc., incorporated herein by reference to Exhibit 3.1
to the registrant's registration statement on Form S-1 (No.
333-75213).
3. Amended and Restated By-Laws of The Goldman Sachs Group, Inc.,
incorporated herein by reference to Exhibit 3.2 to the
registrant's registration statement on Form S-1 (No. 333-75213).
4. Specimen of certificate representing The Goldman Sachs Group,
Inc.'s common stock, par value $0.01 per share, incorporated
herein by reference to Exhibit 4.1 to the registrant's
registration statement on Form S-1 (No. 333-74449).
5. Stockholder Protection Rights Agreement, dated as of April 5,
1999, between The Goldman Sachs Group, Inc. and ChaseMellon
Shareholder Services, L.L.C., as Rights Agent.
6. Indenture, dated as of May 19, 1999, between The Goldman Sachs
Group, Inc. and The Bank of New York, as trustee.
7. Form of The Goldman Sachs Group, Inc.'s 2.00% Exchangeable Note
due 2006 (Exchangeable for Common Stock of Wells Fargo & Company).
<PAGE> 3
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the registrant has duly caused this registration statement to be signed on
its behalf by the undersigned, thereto duly authorized.
Date: June 29, 1999 THE GOLDMAN SACHS GROUP, INC.
By: /s/ Dan H. Jester
-----------------
Name: Dan H. Jester
Title: Vice President and Treasurer
<PAGE> 1
EXHIBIT 5
================================================================================
STOCKHOLDER PROTECTION RIGHTS AGREEMENT
dated as of
April 5, 1999
between
THE GOLDMAN SACHS GROUP, INC.
and
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.,
as Rights Agent
================================================================================
<PAGE> 2
STOCKHOLDER PROTECTION RIGHTS AGREEMENT
Table of Contents
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I
DEFINITIONS
1.1 Definitions .................................................. 2
ARTICLE II
THE RIGHTS
2.1 Legend on Common Share Certificates .......................... 13
2.2 Exercise of Rights; Separation of Rights ..................... 14
2.3 Adjustments to Exercise Price; Number of Rights .............. 17
2.4 Date on Which Exercise is Effective .......................... 20
2.5 Execution, Authentication, Delivery and Dating of Rights
Certificates ................................................. 20
2.6 Registration, Registration of Transfer and Exchange .......... 21
2.7 Mutilated, Destroyed, Lost and Stolen Rights Certificates .... 23
2.8 Persons Deemed Owners ........................................ 24
2.9 Delivery and Cancellation of Certificates .................... 24
2.10 Agreement of Rights Holders .................................. 25
ARTICLE III
ADJUSTMENTS TO THE RIGHTS IN
THE EVENT OF CERTAIN TRANSACTIONS
3.1 Flip-in ...................................................... 26
3.2 Flip-over .................................................... 30
ARTICLE IV
THE RIGHTS AGENT
4.1 General ...................................................... 31
4.2 Merger or Consolidation or Change of Name of Rights Agent .... 33
4.3 Duties of Rights Agent ....................................... 34
4.4 Change of Rights Agent ....................................... 38
</TABLE>
-i-
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE V
MISCELLANEOUS
5.1 Redemption ................................................... 39
5.2 Expiration ................................................... 40
5.3 Issuance of New Rights Certificates .......................... 40
5.4 Supplements and Amendments ................................... 41
5.5 Fractional Shares ............................................ 42
5.6 Rights of Action ............................................. 42
5.7 Holder of Rights Not Deemed a Stockholder .................... 43
5.8 Notice of Proposed Actions ................................... 43
5.9 Notices ...................................................... 44
5.10 Suspension of Exercisability ................................. 45
5.11 Costs of Enforcement ......................................... 45
5.12 Successors ................................................... 45
5.13 Benefits of this Agreement ................................... 46
5.14 Determination and Actions by the Board of Directors, etc ..... 46
5.15 Descriptive Headings ......................................... 46
5.16 GOVERNING LAW; EXCLUSIVE JURISDICTION ........................ 46
5.17 Counterparts ................................................. 48
5.18 Severability ................................................. 48
</TABLE>
EXHIBITS
Exhibit A Form of Rights Certificate For
Common Stock
(Together with Form of
Election to Exercise)
Exhibit B Form of Rights Certificate For
Nonvoting Common Stock
(Together with Form of Election to Exercise)
Exhibit C Form of Certificate of Designation and Terms of Series A
Participating Preferred Stock of The Goldman Sachs Group, Inc.
Exhibit D Form of Certificate of
Designation and Terms of
Series B Participating Preferred
Stock of The Goldman Sachs Group, Inc.
-ii-
<PAGE> 4
STOCKHOLDER PROTECTION RIGHTS AGREEMENT
STOCKHOLDER PROTECTION RIGHTS AGREEMENT (as amended from time to
time, this "Agreement"), dated as of April 5, 1999, between The Goldman Sachs
Group, Inc., a Delaware corporation (the "Company"), and ChaseMellon Shareholder
Services, L.L.C., a New Jersey limited liability company, as Rights Agent (the
"Rights Agent", which term shall include any successor Rights Agent hereunder).
WITNESSETH:
WHEREAS, the Board of Directors of the Company has, as provided in
Section 2.3, authorized the issuance of one voting class right ("Voting Class
Right") in respect of each share of Common Stock (as hereinafter defined) and
one nonvoting class right ("Nonvoting Class Right") in respect of each share of
Nonvoting Common Stock (as hereinafter defined) initially issued by the Company
or thereafter issued by the Company and prior to the Separation Time (as
hereinafter defined) and, to the extent provided in Section 5.3, each share of
Common Stock and Nonvoting Common Stock issued after the Separation Time;
WHEREAS, subject to the terms and conditions hereof, each Right (as
hereinafter defined) entitles the holder thereof, after the Separation Time, to
purchase securities or assets of the Company (or, in certain cases, securities
of certain other entities) pursuant to the terms and subject to the conditions
set forth herein; and
WHEREAS, the Company desires to appoint the Rights Agent to act on
behalf of the Company, and the Rights Agent is willing so to act, in connection
with the
<PAGE> 5
issuance, transfer, exchange and replacement of Rights Certificates (as
hereinafter defined), the exercise of Rights and other matters referred to
herein;
NOW THEREFORE, in consideration of the premises and the respective
agreements set forth herein, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. For purposes of this Agreement, the following terms
have the meanings indicated:
"Acquiring Person" shall mean any Person who is a Beneficial Owner
of 15% or more of the outstanding shares of Common Stock; provided, however,
that the term "Acquiring Person" shall not include any Person (i) who shall
become the Beneficial Owner of 15% or more of the outstanding shares of Common
Stock solely as a result of an acquisition by the Company of shares of Common
Stock, until such time hereafter or thereafter as any such Person shall become
the Beneficial Owner (other than by means of a stock dividend or stock split) of
any additional shares of Common Stock, (ii) who becomes the Beneficial Owner of
15% or more of the outstanding shares of Common Stock but who acquired
Beneficial Ownership of shares of Common Stock without any plan or intention to
seek or affect control of the Company, if such Person promptly divests (without
exercising or retaining any power, including voting, with respect to such
shares), or promptly enters into an agreement with the Company satisfactory to
the Company, in its sole discretion, to divest sufficient Common Shares so that
such Person ceases to be the Beneficial Owner of 15% or
-2-
<PAGE> 6
more of the outstanding shares of Common Stock or (iii) who Beneficially Owns
shares of Common Stock consisting solely of one or more of (A) shares of Common
Stock Beneficially Owned pursuant to the grant or exercise of an option granted
to such Person (an "Option Holder") by the Company in connection with an
agreement to merge with, or acquire, the Company entered into prior to a Flip-in
Date, (B) shares of Common Stock Beneficially Owned by such Option Holder or its
Affiliates or Associates at the time of grant of such option and (C) Common
Shares acquired by Affiliates or Associates of such Option Holder after the time
of such grant which, in the aggregate, amount to less than 1% of the outstanding
shares of Common Stock. In addition, the Company, The Goldman Sachs Corporation,
any Subsidiary of the Company and any employee stock ownership or other employee
benefit plan of the Company or a Subsidiary of the Company shall not be an
Acquiring Person (each an "Excluded Person").
"Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 under the Exchange Act, as such Rule is in
effect on the date of this Agreement; provided, however, that no Excluded Person
shall be considered an Affiliate or Associate of any Person who is a director,
officer, partner or trustee of such Excluded Person.
"Agreement" shall have the meaning set forth in the Preamble.
A Person shall be deemed the "Beneficial Owner", and to have
"Beneficial Ownership" of, and to "Beneficially Own", any securities as to which
such Person or any of such Person's Affiliates or Associates is or may be deemed
to be the beneficial owner of
-3-
<PAGE> 7
pursuant to Rule 13d-3 and 13d-5 under the Exchange Act, as such Rules are in
effect on the date of this Agreement, as well as any securities as to which such
Person or any of such Person's Affiliates or Associates has the right to become
Beneficial Owner (whether such right is exercisable immediately or only after
the passage of time or the occurrence of conditions) pursuant to any agreement,
arrangement or understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide public
offering of securities), or upon the exercise of conversion rights, exchange
rights, rights (other than the Rights), warrants or options, or otherwise;
provided, however, that a Person shall not be deemed the "Beneficial Owner" or
to have "Beneficial Ownership" of, or to "Beneficially Own", any security (i)
solely because such security has been tendered pursuant to a tender or exchange
offer made by such Person or any of such Person's Affiliates or Associates until
such tendered security is accepted for payment or exchange, (ii) solely because
such Person or any of such Person's Affiliates or Associates has or shares the
power to vote or direct the voting of such security pursuant to a revocable
proxy given in response to a public proxy or consent solicitation made to more
than ten holders of shares of a class of stock of the Company registered under
Section 12 of the Exchange Act and pursuant to, and in accordance with, the
applicable rules and regulations under the Exchange Act, except if such power
(or the arrangements relating thereto) is then reportable under Item 6 of
Schedule 13D under the Exchange Act (or any similar provision of a comparable or
successor report), or (iii) solely because such Person (x) is a party to the
Shareholders' Agreement or is a member of the Shareholders' Committee or a
designated proxy or attorney in fact
-4-
<PAGE> 8
thereunder or (y) is a party to the Voting Agreements or is a designated proxy
or attorney in fact thereunder or because the vote of such Person together with
other Persons determines the manner in which shares of Common Stock are voted
pursuant to the Voting Agreements). Notwithstanding the foregoing, no officer or
director of the Company shall be deemed to Beneficially Own any securities of
any other Person by virtue of any actions such officer or director takes in such
capacity. For purposes of this Agreement, in determining the percentage of the
outstanding shares of Common Stock with respect to which a Person is the
Beneficial Owner, all shares as to which such Person is deemed the Beneficial
Owner shall be deemed outstanding.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which banking institutions in The City of New York are generally
authorized or obligated by law or executive order to close.
"Close of Business" on any given date shall mean 5:00 p.m. New York
City time on such date or, if such date is not a Business Day, 5:00 p.m. New
York City time on the next succeeding Business Day.
"Common Shares" shall mean the shares of Nonvoting Common Stock and
Common Stock of the Company.
"Common Stock" shall mean the shares of Common Stock, par value
$0.01 per share, of the Company.
"Company" shall have the meaning set forth in the preamble.
-5-
<PAGE> 9
"Election to Exercise" shall have the meaning set forth in Section
2.2(d) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Ratio" shall have the meaning set forth in Section 3.1(c)
hereof.
"Exchange Time" shall mean the time at which the right to exercise
the Rights shall terminate pursuant to Section 3.1(c) hereof.
"Excluded Person" shall have the meaning set forth in the definition
of Acquiring Person.
"Exercise Price" shall mean, as of any date, the price at which a
holder may purchase the securities issuable upon exercise of one whole Right.
Until adjustment thereof in accordance with the terms hereof, the Exercise Price
shall equal $250.00.
"Expansion Factor" shall have the meaning set forth in Section
2.3(a) hereof.
"Expiration Time" shall mean the earliest of (i) the Exchange Time,
(ii) the Redemption Time, (iii) the Close of Business on the tenth anniversary
of the date of this Agreement, unless extended by action of the Board of
Directors, and (iv) immediately prior to the effective time of a consolidation,
merger or share exchange of the Company (A) into another corporation or (B) with
another corporation in which the Company is the surviving corporation but Common
Shares are converted into cash and/or securities of another corporation, in
either case pursuant to an agreement entered into by the Company prior to a
Stock Acquisition Date.
-6-
<PAGE> 10
"Flip-in Date" shall mean any Stock Acquisition Date or such later
date and time as the Board of Directors of the Company may from time to time fix
by resolution adopted prior to the occurrence of any Stock Acquisition Date or,
thereafter, prior to the Flip-in Date that would otherwise have occurred.
"Flip-over Entity," for purposes of Section 3.2, shall mean (i) in
the case of a Flip-over Transaction or Event described in clause (i) of the
definition thereof, the Person issuing any securities into which Common Shares
are being converted or exchanged and, if no such securities are being issued,
the other party to such Flip-over Transaction or Event and (ii) in the case of a
Flip-over Transaction or Event referred to in clause (ii) of the definition
thereof, the Person receiving the greatest portion of the (A) assets or (B)
operating income or cash flow being transferred in such Flip-over Transaction or
Event, provided in all cases if such Person is a subsidiary of a corporation,
the parent corporation shall be the Flip-Over Entity.
"Flip-over Stock" shall mean (i) with respect to the Voting Class
Rights, the capital stock (or similar equity interest) with the greatest voting
power in respect of the election of directors (or other persons similarly
responsible for direction of the business and affairs) of the Flip-Over Entity,
and (ii) with respect to the Nonvoting Class Rights, an equity security
identical to the Flip-over Stock described in clause (i) above with voting
provisions identical to that of the Nonvoting Common Stock.
"Flip-over Transaction or Event" shall mean a transaction or series
of transactions on or after a Flip-in Date in which, directly or indirectly, (i)
the Company shall
-7-
<PAGE> 11
consolidate or merge or participate in a statutory share exchange with any other
Person if, at the time of the consolidation, merger or statutory share exchange
or at the time the Company enters into any agreement with respect to, or
consummates, any such consolidation, merger or statutory share exchange, the
Acquiring Person is the Beneficial Owner of 90% or more of the outstanding
shares of Common Stock or controls the Board of Directors of the Company and
either (A) any term of or arrangement concerning the treatment of shares of
Common Stock or Nonvoting Common Stock, as the case may be, in such
consolidation, merger or statutory share exchange relating to the Acquiring
Person is not identical to the terms and arrangements relating to other holders
of the Common Stock or Nonvoting Common Stock, as the case may be, or (B) the
Person with whom the transaction or series of transactions occurs is the
Acquiring Person or an Affiliate or Associate of the Acquiring Person or (ii)
the Company shall sell or otherwise transfer (or one or more of its Subsidiaries
shall sell or otherwise transfer) assets (A) aggregating more than 50% of the
assets (measured by either book value or fair market value) or (B) generating
more than 50% of the operating income or cash flow, of the Company and its
Subsidiaries (taken as a whole) to any Person (other than the Company or one or
more of its wholly owned Subsidiaries) or to two or more such Persons which are
Affiliates or Associates or otherwise acting in concert, if, at the time of the
entry by the Company (or any such Subsidiary) into an agreement with respect to
such sale or transfer of assets, the Acquiring Person controls the Board of
Directors of the Company. An Acquiring Person shall be deemed to control the
Company's Board of Directors when, following a Flip-in Date, the
-8-
<PAGE> 12
persons who were directors of the Company (or persons nominated and/or appointed
as directors by vote of a majority of such persons) before the Stock Acquisition
Date of such Acquiring Person shall cease to constitute a majority of the
Company's Board of Directors.
"Market Price" per share of any securities on any date shall mean
the average of the daily closing prices per share of such securities (determined
as described below) on each of the 20 consecutive Trading Days through and
including the Trading Day immediately preceding such date; provided, however,
that if any event described in Section 2.3 hereof, or any analogous event, shall
have caused the closing prices used to determine the Market Price on any Trading
Days during such period of 20 Trading Days not to be fully comparable with the
closing price on such date, each such closing price so used shall be
appropriately adjusted in order to make it fully comparable with the closing
price on such date. The closing price per share of any securities on any date
shall be the last reported sale price, regular way, or, in case no such sale
takes place or is quoted on such date, the average of the closing bid and asked
prices, regular way, for each share of such securities, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange, Inc.
or, if the securities are not listed or admitted to trading on the New York
Stock Exchange, Inc., as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which the securities are listed or admitted to trading
or, if the securities are not listed or admitted to trading on any national
securities exchange, as reported by the National Association of Securities
Dealers, Inc. Auto-
-9-
<PAGE> 13
mated Quotation System or such other system then in use, or, if on any such date
the securities are not listed or admitted to trading on any national securities
exchange or quoted by any such organization, the average of the closing bid and
asked prices as furnished by a professional market maker (other than Goldman,
Sachs & Co.) making a market in the securities selected by the Board of
Directors of the Company; provided, however, that if on any such date the
securities are not listed or admitted to trading on a national securities
exchange or traded in the over-the-counter market, the closing price per share
of such securities on such date shall mean the fair value per share of
securities on such date as determined in good faith by the Board of Directors of
the Company, after consultation with a nationally recognized investment banking
firm other than Goldman, Sachs & Co., and set forth in a certificate delivered
to the Rights Agent. For purposes of this Agreement, if the Nonvoting Common
Stock is not listed or admitted to trading on a national securities exchange or
traded in the over-the-counter market, the "Market Price" per share of the
Nonvoting Common Stock on any date shall be the same as the "Market Price" per
share of the Common Stock on such date.
"Nonvoting Class Right" shall have the meaning set forth in the
Recitals.
"Nonvoting Common Stock" shall mean the Nonvoting Common Stock, par
value $0.01 per share, of the Company.
"Option Holder" shall have the meaning set forth in the definition
of Acquiring Person.
-10-
<PAGE> 14
"Person" shall mean any individual, firm, partnership, limited
liability company, association, group (as such term is used in Rule 13d-5 under
the Exchange Act, as such Rule is in effect on the date of this Agreement),
corporation or other entity; provided, however, that the Shareholders' Committee
formed pursuant to the Shareholders' Agreement and any group or association that
may exist or be deemed to exist as a result of entering into, or the operation
of, the Shareholders' Agreement or the Voting Agreements shall not be considered
a Person for purposes of this Agreement.
"Preferred Stock" shall mean in the case of the Voting Class Rights,
the Series A Participating Preferred Stock, par value $0.01 per share, of the
Company created by a Certificate of Designation and Terms in substantially the
form set forth in Exhibit C hereto appropriately completed, and in the case of
the Nonvoting Class Rights, the Series B Participating Preferred Stock, par
value $0.01 per share, of the Company created by a Certificate of Designation
and Terms in substantially the form set forth in Exhibit D hereto appropriately
completed.
"Redemption Price" shall mean an amount equal to one cent, $0.01.
"Redemption Time" shall mean the time at which the right to exercise
the Rights shall terminate pursuant to Section 5.1 hereof.
"Right" shall mean in the case of the Common Stock, a Voting Class
Right, and in the case of the Nonvoting Common Stock, a Nonvoting Class Right.
"Rights Agent" shall have the meaning set forth in the Preamble.
"Rights Certificate" shall have the meaning set forth in Section
2.2(c) hereof.
-11-
<PAGE> 15
"Rights Register" shall have the meaning set forth in Section 2.6(a)
hereof.
"SBCM" shall have the meaning set forth in the definition of Voting
Agreements.
"Separation Time" shall mean the earlier of (i) the Close of
Business on the tenth Business Day (or such later date as the Board of Directors
of the Company may from time to time fix by resolution adopted prior to the
Separation Time that would otherwise have occurred) after the date on which any
Person commences a tender or exchange offer which, if consummated, would result
in such Person's becoming an Acquiring Person and (ii) the Flip-in Date;
provided, that if any tender or exchange offer referred to in clause (i) of this
paragraph is canceled, terminated or otherwise withdrawn prior to the Separation
Time without the purchase of any Common Shares in connection therewith, such
offer shall be deemed, for purposes of this paragraph, never to have been made.
"Shareholders' Agreement" shall mean the Shareholders' Agreement to
be entered into among the Company and certain of its stockholders, as the same
may be amended from time to time.
"Stock Acquisition Date" shall mean the first date of public
announcement by the Company expressly stating that a Person has become an
Acquiring Person or the date on which any Acquiring Person becomes the
Beneficial Owner of 90% or more of the outstanding shares of Common Stock after
the Close of Business on the date of consummation of the initial public offering
by the Company of its Common Stock.
-12-
<PAGE> 16
"Subsidiary" of any specified Person shall mean any corporation or
other entity of which a majority of the voting power of the equity securities or
a majority of the equity or membership interest is Beneficially Owned, directly
or indirectly, by such Person.
"Trading Day," when used with respect to any securities, shall mean
a day on which the New York Stock Exchange, Inc. is open for the transaction of
business or, if such securities are not listed or admitted to trading on the New
York Stock Exchange, Inc., a day on which the principal national securities
exchange on which such securities are listed or admitted to trading is open for
the transaction of business or, if such securities are not listed or admitted to
trading on any national securities exchange, a Business Day.
"Voting Agreements" shall mean (i) the Voting Agreement, dated as of
April 30, 1999, by and among the Company, on the one hand, and The Sumitomo
Bank, Limited, a corporation organized under the laws of Japan, and Sumitomo
Bank Capital Markets, Inc., a Delaware corporation ("SBCM"), on the other hand,
and (ii) the Voting Agreement, dated as of April 30, 1999, by and among the
Company, on the one hand, and The Trustees of the Estate of Bernice Pauahi
Bishop, a private educational charitable trust organized under the laws of the
State of Hawaii, and Kamehameha Activities Association, a Hawaii non-profit
corporation, on the other hand.
"Voting Class Right" shall have the meaning set forth in the
Recitals.
-13-
<PAGE> 17
ARTICLE II
THE RIGHTS
-14-
<PAGE> 18
2.1 Legend on Common Share Certificates. Certificates for the Common
Shares issued after the date of this Agreement but prior to the Separation Time
shall evidence one Right for each Common Share represented thereby and shall
have impressed on, printed on, written on or otherwise affixed to them the
following legend (which legend may be modified as necessary on the certificates
for the Common Stock or Nonvoting Common Stock, as the case may be, to reflect
the application of this Agreement to the Common Stock or the Nonvoting Common
Stock, as the case may be):
Until the Separation Time (as defined in the Rights Agreement referred to
below), this certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Rights Agreement, dated as of April 1999
(as such may be amended from time to time, the "Rights Agreement"),
between The Goldman Sachs Group, Inc. (the "Corporation") and the Rights
Agent named therein, the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal executive
offices of the Corporation. Under certain circumstances, as set forth in
the Rights Agreement, such Rights may be redeemed, may become exercisable
for securities or assets of the Corporation or securities of another
entity, may be exchanged for Common Shares or other securities or assets
of the Corporation, may expire, may become void (if they are "Beneficially
Owned" by an "Acquiring Person" or an Affiliate or Associate thereof, as
such terms are defined in the Rights Agreement, or by any transferee of
any of the foregoing) or may be evidenced by separate certificates and may
no longer be evidenced by this certificate. The Corporation will mail or
arrange for the mailing of a copy of the Rights Agreement to the holder of
this certificate without charge after the receipt of a written request
therefor.
If the Common Shares issued after the date of this Agreement but
prior to the Separation Time shall be uncertificated, the registration of such
Common Shares on the stock transfer books of the Company shall evidence one
Right for each Common Share represented thereby and the Company will mail to
every Person that holds such Common Shares a confirmation of the registration of
such Common Shares on the stock
-15-
<PAGE> 19
transfer books of the Company, which confirmation will have impressed, printed,
written or stamped thereon or otherwise affixed thereto the above legend. The
Company will mail or arrange for the mailing of a copy of this Agreement to any
Person that holds Common Shares, as evidenced by the registration of the Common
Shares in the name of such Person on the stock transfer books of the Company,
without charge after the receipt of a written request therefor.
2.2 Exercise of Rights; Separation of Rights. (a) Subject to
Sections 3.1, 5.1 and 5.10 and subject to adjustment as herein set forth, each
Right will entitle the holder thereof, after the Separation Time and prior to
the Expiration Time, to purchase, for the Exercise Price, one one-hundredth of a
share of Preferred Stock.
(b) Until the Separation Time, (i) no Right may be exercised and
(ii) each Right will be evidenced by the certificate for the associated Common
Share (or, if the Common Shares shall be uncertificated, by the registration of
the associated Common Share on the stock transfer books of the Company) and will
be transferable only together with, and will be transferred by a transfer of,
such associated share.
(c) Subject to the terms and conditions hereof, after the Separation
Time and prior to the Expiration Time, the Rights (i) may be exercised and (ii)
may be transferred independent of the Common Shares. Promptly following the
Separation Time and receipt by the Rights Agent of notice thereof as well as
receipt of all other relevant information, the Rights Agent will mail to each
holder of record of a Common Share as of the Separation Time (other than any
Person whose Rights have become void pursuant
-16-
<PAGE> 20
to Section 3.1(b)), at such holder's address as shown by the records of the
Company (the Company hereby agreeing to furnish copies of such records to the
Rights Agent for this purpose), (x) a certificate in substantially the form of
Exhibit A hereto, in the case of the Common Stock, or in substantially the form
of Exhibit B hereto, in the case of the Nonvoting Common Stock (in each case, a
"Rights Certificate"), appropriately completed, representing the number of
Rights held by such holder at the Separation Time and having such marks of
identification or designation and such legends, summaries or endorsements
printed thereon as the Company may deem appropriate which do not affect the
duties or responsibilities of the Rights Agent and as are not inconsistent with
the provisions of this Agreement, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any rule or
regulation of any national securities exchange or quotation system on which the
Rights may from time to time be listed or traded, or to conform to usage, and
(y) a disclosure statement describing the Rights.
(d) Subject to the terms and conditions hereof, Rights may be
exercised on any Business Day after the Separation Time and prior to the
Expiration Time by submitting to the Rights Agent the Rights Certificate
evidencing such Rights with an Election to Exercise (an "Election to Exercise")
substantially in the form attached to the Rights Certificate duly and properly
completed, accompanied by payment in cash, or by certified or official bank
check or money order payable to the order of the Company, of a sum equal to the
Exercise Price multiplied by the number of Rights being
-17-
<PAGE> 21
exercised and a sum sufficient to cover any tax or charge which may be payable
in respect of any transfer involved in the transfer or delivery of the Rights
Certificates or the issuance or delivery of certificates (or, if uncertificated,
the registration on the stock transfer books of the Company) for shares or
depositary receipts (or both) in a name other than that of the holder of the
Rights being exercised.
(e) Upon receipt of a Rights Certificate, with an Election to
Exercise accompanied by payment as set forth in Section 2.2(d), and subject to
the terms and conditions hereof, the Rights Agent will thereupon promptly (i)(A)
requisition from a transfer agent stock certificates evidencing such number of
shares or other securities to be purchased or, in the case of uncertificated
shares or other securities, requisition from a transfer agent a notice setting
forth such number of shares or other securities to be purchased for which
registration will be made on the stock transfer books of the Company (the
Company hereby irrevocably authorizing its transfer agents to comply with all
such requisitions), and (B) if the Company elects pursuant to Section 5.5 not to
issue certificates (or effect registrations on the stock transfer books of the
Company) representing fractional shares, requisition from the depositary
selected by the Company depositary receipts representing the fractional shares
to be purchased or requisition from the Company the amount of cash to be paid in
lieu of fractional shares in accordance with Section 5.5 and (ii) after receipt
of such certificates, depositary receipts, notices and/or cash, deliver the same
to or upon the order of the registered holder of such Rights
-18-
<PAGE> 22
Certificate, registered (in the case of certificates, depositary receipts or
notices) in such name or names as may be designated by such holder.
(f) In case the holder of any Rights shall exercise less than all
the Rights evidenced by such holder's Rights Certificate, a new Rights
Certificate evidencing the Rights remaining unexercised will be issued by the
Rights Agent to such holder or to such holder's duly authorized assigns.
(g) The Company covenants and agrees that it will (i) take all such
action as may be necessary to ensure that all shares delivered (or evidenced by
registration on the stock transfer books of the Company) upon exercise of Rights
shall, at the time of delivery of the certificates (or registration) for such
shares (subject to payment of the Exercise Price), be duly and validly
authorized, executed, issued and delivered (or registered) and fully paid and
nonassessable; (ii) take all such action as may be necessary to comply with any
applicable requirements of the Securities Act of 1933 or the Exchange Act, and
the rules and regulations thereunder, and any other applicable law, rule or
regulation, in connection with the issuance of any shares upon exercise of
Rights; and (iii) pay when due and payable any and all federal and state taxes
and charges which may be payable in respect of the original issuance or delivery
of the Rights Certificates or of any shares issued upon the exercise of Rights,
provided, that the Company shall not be required to pay any tax or charge which
may be payable in respect of any transfer involved in the transfer or delivery
of Rights Certificates or the issuance or delivery of
-19-
<PAGE> 23
certificates (or the registration) for shares in a name other than that of the
holder of the Rights being transferred or exercised.
2.3 Adjustments to Exercise Price; Number of Rights. (a) In the
event the Company shall at any time after the date of this Agreement and prior
to the Separation Time (i) declare or pay a dividend on any class of Common
Shares payable in Common Stock or Nonvoting Common Stock, as the case may be,
(ii) subdivide any outstanding class of Common Shares or (iii) combine any
outstanding class of Common Shares into a smaller number of shares of Common
Stock or Nonvoting Common Stock, as the case may be, (x) the Exercise Price in
effect after such adjustment will be equal to the Exercise Price in effect
immediately prior to such adjustment divided by the number of shares of Common
Stock or Nonvoting Common Stock (the "Expansion Factor"), that a holder of one
share of Common Stock or Nonvoting Common Stock, as the case may be, immediately
prior to such dividend, subdivision or combination would hold thereafter as a
result thereof and (y) each Right held prior to such adjustment will become that
number of Rights equal to the Expansion Factor, and the adjusted number of
Rights will be deemed to be distributed among the shares of Common Stock or
Nonvoting Common Stock, as the case may be, with respect to which the original
Rights were associated (if they remain outstanding) and the shares issued in
respect of such dividend, subdivision or combination, so that each such share of
Common Stock or Nonvoting Common Stock, as the case may be, will have exactly
one Right associated with it. Each adjustment made
-20-
<PAGE> 24
pursuant to this paragraph shall be made as of the payment or effective date for
the applicable dividend, subdivision or combination.
In the event the Company shall at any time after the date of this
Agreement and prior to the Separation Time issue any Common Shares otherwise
than in a transaction referred to in the preceding paragraph, each such Common
Share so issued shall automatically have one new Right associated with it, which
Right shall be evidenced by the certificate representing such share (or, if the
Common Shares shall be uncertificated, such Right shall be evidenced by the
registration of such Common Shares on the stock transfer books of the Company).
Rights shall be issued by the Company in respect of Common Shares that are
issued or sold by the Company after the Separation Time only to the extent
provided in Section 5.3.
(b) In the event the Company shall at any time after the date of
this Agreement and prior to the Separation Time issue or distribute any
securities or assets in respect of, in lieu of or in exchange for Common Shares
(other than pursuant to any non-extraordinary periodic cash dividend or a
dividend paid solely in Common Shares) whether by dividend, in a
reclassification or recapitalization (including any such transaction involving a
merger, consolidation or share exchange), or otherwise, the Company shall make
such adjustments, if any, in the Exercise Price, number of Rights and/or
securities or other property purchasable upon exercise of Rights as the Board of
Directors of the Company, in its sole discretion, may deem to be appropriate
under the circumstances in order to adequately protect the interests of the
holders of Rights
-21-
<PAGE> 25
generally, and the Company and the Rights Agent shall amend this Agreement as
necessary to provide for such adjustments.
(c) Each adjustment to the Exercise Price made pursuant to this
Section 2.3 shall be calculated to the nearest cent. Whenever an adjustment to
the Exercise Price is made pursuant to this Section 2.3, the Company shall (i)
promptly prepare a certificate setting forth such adjustment and a brief
statement of the facts accounting for such adjustment and (ii) promptly file
with the Rights Agent and with each transfer agent for the Common Shares a copy
of such certificate. The Rights Agent shall be fully protected in relying on any
such certificate and on any adjustment therein contained and shall have no duty
with respect to and not be deemed to have knowledge of any adjustment unless and
until it shall have received such a certificate.
(d) Rights Certificates shall represent the securities purchasable
under the terms of this Agreement, including any adjustment or change in the
securities purchasable upon exercise of the Rights, even though such
certificates may continue to express the securities purchasable at the time of
issuance of the initial Rights Certificates.
2.4 Date on Which Exercise is Effective. Each Person in whose name
any certificate for shares is issued (or registration on the stock transfer
books is effected) upon the exercise of Rights shall for all purposes be deemed
to have become the holder of record of the shares represented thereby on the
date upon which the Rights Certificate evidencing such Rights was duly
surrendered and payment of the Exercise Price for such Rights (and any
applicable taxes and other governmental charges payable by the exercis-
-22-
<PAGE> 26
ing holder hereunder) was made; provided, however, that if the date of such
surrender and payment is a date upon which the stock transfer books of the
Company are closed, such Person shall be deemed to have become the record holder
of such shares on, and such certificate (or registration) shall be dated, the
next succeeding Business Day on which the stock transfer books of the Company
are open.
2.5 Execution, Authentication, Delivery and Dating of Rights
Certificates. (a) The Rights Certificates shall be executed on behalf of the
Company by one of its Chairmen of the Board, one of its Chief Executive
Officers, one of its Presidents or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by one of its Secretaries or one of
its Assistant Secretaries. The signature of any of these officers on the Rights
Certificates may be manual or facsimile.
Rights Certificates 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 countersignature and delivery of such Rights
Certificates.
Promptly after the Separation Time, the Company will notify the
Rights Agent of such Separation Time and will deliver Rights Certificates
executed by the Company to the Rights Agent for counter-signature, and, subject
to Section 3.1(b), the Rights Agent shall manually countersign and deliver such
Rights Certificates to the holders of the Rights pursuant to Section 2.2(c)
hereof. No Rights Certificate shall be valid for any purpose unless manually
countersigned by the Rights Agent.
-23-
<PAGE> 27
(b) Each Rights Certificate shall be dated the date of
countersignature thereof.
2.6 Registration, Registration of Transfer and Exchange. (a) After
the Separation Time, the Company will cause to be kept a register (the "Rights
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company will provide for the registration and transfer of Rights. The Rights
Agent is hereby appointed "Rights Registrar" for the purpose of maintaining the
Rights Register for the Company and registering Rights and transfers of Rights
after the Separation Time as herein provided. In the event that the Rights Agent
shall cease to be the Rights Registrar, the Rights Agent will have the right to
examine the Rights Register at all reasonable times after the Separation Time.
After the Separation Time and prior to the Expiration Time, upon
surrender for registration of transfer or exchange of any Rights Certificate,
and subject to the provisions of Section 2.6(c) and (d), the Company will
execute, and the Rights Agent will countersign and deliver, in the name of the
holder or the designated transferee or transferees, as required pursuant to the
holder's instructions, one or more new Rights Certificates evidencing the same
aggregate number of Rights as did the Rights Certificate so surrendered.
(b) Except as otherwise provided in Section 3.1(b), all Rights
issued upon any registration of transfer or exchange of Rights Certificates
shall be the valid
-24-
<PAGE> 28
obligations of the Company, and such Rights shall be entitled to the same
benefits under this Agreement as the Rights surrendered upon such registration
of transfer or exchange.
(c) Every Rights Certificate surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company or the Rights Agent,
as the case may be, duly executed by the holder thereof or such holder's
attorney duly authorized in writing. As a condition to the issuance of any new
Rights Certificate under this Section 2.6, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto.
(d) The Company shall not register the transfer or exchange of any
Rights after such Rights have become void under Section 3.1(b), been exchanged
under Section 3.1(c) or been redeemed under Section 5.1.
2.7 Mutilated, Destroyed, Lost and Stolen Rights Certificates. (a)
If any mutilated Rights Certificate is surrendered to the Rights Agent prior to
the Expiration Time, then, subject to Sections 3.1(b), 3.1(c) and 5.1, the
Company shall execute and the Rights Agent shall countersign and deliver in
exchange therefor a new Rights Certificate evidencing the same number of Rights
as did the Rights Certificate so surrendered.
(b) If there shall be delivered to the Company and the Rights Agent
prior to the Expiration Time (i) evidence to their satisfaction of the
destruction, loss or theft of any Rights Certificate and (ii) such security or
indemnity as may be required by them to save each of them and any of their
agents harmless, then, subject to Sections
-25-
<PAGE> 29
3.1(b), 3.1(c) and 5.1 and in the absence of notice to the Company or the Rights
Agent that such Rights Certificate has been acquired by a bona fide purchaser,
the Company shall execute and upon its request the Rights Agent shall
countersign and deliver, in lieu of any such destroyed, lost or stolen Rights
Certificate, a new Rights Certificate evidencing the same number of Rights as
did the Rights Certificate so destroyed, lost or stolen.
(c) As a condition to the issuance of any new Rights Certificate
under this Section 2.7, 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 Rights
Agent) connected therewith.
(d) Every new Rights Certificate issued pursuant to this Section 2.7
in lieu of any destroyed, lost or stolen Rights Certificate shall evidence an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Rights Certificate shall be at any time enforceable by
anyone, and, subject to Section 3.1(b) shall be entitled to all the benefits of
this Agreement equally and proportionately with any and all other Rights duly
issued hereunder.
2.8 Persons Deemed Owners. Prior to due presentment of a Rights
Certificate (or, prior to the Separation Time, the associated Common Share
certificate or notice of transfer, if uncertificated) for registration of
transfer, the Company, the Rights Agent and any agent of the Company or the
Rights Agent may deem and treat the person in whose name such Rights Certificate
(or, prior to the Separation Time, such Common
-26-
<PAGE> 30
Share certificate or Common Share registration, if uncertificated) is registered
as the absolute owner thereof and of the Rights evidenced thereby for all
purposes whatsoever, including the payment of the Redemption Price and neither
the Company nor the Rights Agent shall be affected by any notice to the
contrary. As used in this Agreement, unless the context otherwise requires, the
term "holder" of any Rights shall mean the registered holder of such Rights (or,
prior to the Separation Time, the associated Common Shares).
2.9 Delivery and Cancellation of Certificates. All Rights
Certificates surrendered upon exercise or for registration of transfer or
exchange shall, if surrendered to any person other than the Rights Agent, be
delivered to the Rights Agent and, in any case, shall be promptly canceled by
the Rights Agent. The Company may at any time deliver to the Rights Agent for
cancellation any Rights Certificates previously countersigned and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Rights Certificates so delivered shall be promptly cancelled by the Rights
Agent. No Rights Certificates shall be countersigned in lieu of or in exchange
for any Rights Certificates cancelled as provided in this Section 2.9, except as
expressly permitted by this Agreement. The Rights Agent shall destroy all
cancelled Rights Certificates and deliver a certificate of destruction to the
Company.
2.10 Agreement of Rights Holders. Every holder of Rights by
accepting the same consents and agrees with the Company and the Rights Agent and
with every other holder of Rights that:
-27-
<PAGE> 31
(a) prior to the Separation Time, each Right will be transferable
only together with, and will be transferred by a transfer of, the associated
Common Share;
(b) after the Separation Time, the Rights Certificates will be
transferable only on the Rights Register as provided herein;
(c) prior to due presentment of a Rights Certificate (or, prior to
the Separation Time, the associated Common Share certificate or Common Share
registration, if uncertificated) for registration of transfer, the Company, the
Rights Agent and any agent of the Company or the Rights Agent may deem and treat
the person in whose name the Rights Certificate (or, prior to the Separation
Time, the associated Common Share certificate or Common Share registration, if
uncertificated) is registered as the absolute owner thereof and of the Rights
evidenced thereby for all purposes whatsoever, and neither the Company nor the
Rights Agent shall be affected by any notice to the contrary;
(d) Rights beneficially owned by certain Persons will, under the
circumstances set forth in Section 3.1(b), become void; and
(e) this Agreement may be supplemented or amended from time to time
pursuant to Section 2.3(b) or 5.4 hereof.
ARTICLE III
ADJUSTMENTS TO THE RIGHTS IN
THE EVENT OF CERTAIN TRANSACTIONS
3.1 Flip-in. (a) In the event that prior to the Expiration Time a
Flip-in Date shall occur, except as provided in this Section 3.1, each Right
shall constitute the
-28-
<PAGE> 32
right to purchase from the Company, upon exercise thereof in accordance with the
terms hereof (but subject to Section 5.10), that number of shares of Common
Stock, in the case of Voting Class Rights, or Nonvoting Common Stock, in the
case of Nonvoting Class Rights, having an aggregate Market Price on the Stock
Acquisition Date that gave rise to the Flip-in Date equal to twice the Exercise
Price for an amount in cash equal to the Exercise Price (such right to be
appropriately adjusted in order to protect the interests of the holders of
Rights generally in the event that on or after such Stock Acquisition Date any
of the events described in Section 2.3(a) or (b), or any analogous event, shall
have occurred with respect to the Common Shares).
(b) Notwithstanding the foregoing, any Rights that are or were
Beneficially Owned on or after the Stock Acquisition Date by an Acquiring Person
or an Affiliate or Associate thereof or by any transferee, direct or indirect,
of any of the foregoing shall become void and any holder of such Rights
(including transferees) shall thereafter have no right to exercise or transfer
such Rights under any provision of this Agreement. If any Rights Certificate is
presented for assignment or exercise and the Person presenting the same will not
complete the certification set forth at the end of the form of assignment or
notice of election to exercise and provide such additional evidence of the
identity of the Beneficial Owner and its Affiliates and Associates (or former
Beneficial Owners and their Affiliates and Associates) as the Company shall
reasonably request, then the Company shall be entitled conclusively to deem the
Beneficial Owner thereof to be an Acquiring Person or an Affiliate or Associate
thereof or a transferee of
-29-
<PAGE> 33
any of the foregoing and accordingly will deem the Rights evidenced thereby to
be void and not transferable or exercisable.
(c) The Board of Directors of the Company may, at its option, at any
time after a Flip-in Date and prior to the time that an Acquiring Person becomes
the Beneficial Owner of more than 50% of the outstanding shares of Common Stock
elect to exchange all (but not less than all) the then outstanding Rights (which
shall not include Rights that have become void pursuant to the provisions of
Section 3.1(b)) for shares of Common Stock, in the case of Voting Class Rights,
and Nonvoting Common Stock, in the case of Nonvoting Class Rights, at an
exchange ratio of one share of Common Stock or Nonvoting Common Stock, as the
case may be, per Right, appropriately adjusted in order to protect the interests
of holders of Rights generally in the event that after the Separation Time any
of the events described in Section 2.3(a) or (b), or any analogous event, shall
have occurred with respect to the Common Shares (such exchange ratio, as
adjusted from time to time, being hereinafter referred to as the "Exchange
Ratio"). Notwithstanding anything to the contrary contained in this Agreement,
upon action of the Board of Directors of the Company electing to exchange the
Rights pursuant to this Section 3.1(c), any Voting Class Rights held by SBCM
shall be exchanged for shares of Common Stock only to the extent that SBCM's
aggregate holdings constitute 4.9 percent or less of the outstanding Common
Stock of the Company. Any Voting Class Rights of SBCM that upon exchange would
cause SBCM to hold in excess of 4.9 percent of the
-30-
<PAGE> 34
Company's outstanding Common Stock will be exchanged for Nonvoting Common Stock.
Immediately upon the action of the Board of Directors of the Company
electing to exchange the Rights, without any further action and without any
notice, the right to exercise the Rights will terminate and each Right (other
than Rights that have become void pursuant to Section 3.1(b)) will thereafter
represent only the right to receive a number of shares of Common Stock or
Nonvoting Common Stock, as the case may be, multiplied by the Exchange Ratio.
Promptly after the action of the Board of Directors electing to exchange the
Rights, the Company shall give written notice thereof (specifying the steps to
be taken to receive Common Shares in exchange for Rights) to the Rights Agent
and the holders of the Rights (other than Rights that have become void pursuant
to Section 3.1(b)) outstanding immediately prior thereto by mailing such notice
in accordance with Section 5.9.
Each Person in whose name any certificate for shares is issued (or
for whom any registration on the stock transfer books of the Company is made)
upon the exchange of Rights pursuant to this Section 3.1(c) or Section 3.1(d)
shall for all purposes be deemed to have become the holder of record of the
shares represented thereby on, and such certificate (or registration on the
stock transfer books of the Company) shall be dated (or registered as of), the
date upon which the Rights Certificate evidencing such Rights was duly
surrendered and payment of any applicable taxes and other governmental charges
payable by the holder was made; provided, however, that if the date of such
-31-
<PAGE> 35
surrender and payment is a date upon which the stock transfer books of the
Company are closed, such Person shall be deemed to have become the record holder
of such shares on, and such certificate (or registration on the stock transfer
books of the Company) shall be dated (or registered as of), the next succeeding
Business Day on which the stock transfer books of the Company are open.
(d) Whenever the Company shall become obligated under Section 3.1(a)
or (c) to issue Common Shares upon exercise of or in exchange for Rights, the
Company, at its option, may substitute therefor shares of the applicable
Preferred Stock, at a ratio of one one-hundredth of a share of Preferred Stock
for each Common Share so issuable.
(e) In the event that there shall not be sufficient treasury shares
or authorized but unissued Common Shares or Preferred Stock of the Company to
permit the exercise or exchange in full of the Rights in accordance with Section
3.1(a) or, if the Company so elects, to make the exchange referred to in Section
3.1(c), the Company shall either (i) call a meeting of stockholders seeking
approval to cause sufficient additional shares to be authorized (provided that
if such approval is not obtained the Company will take the action specified in
clause (ii) of this sentence) or (ii) take such action as shall be necessary to
ensure and provide, to the extent permitted by applicable law and any agreements
or instruments in effect on the Stock Acquisition Date to which it is a party,
that each Right shall thereafter constitute the right to receive, (x) at the
Company's option, either (A) in return for the Exercise Price, debt or equity
securities or
-32-
<PAGE> 36
other assets (or a combination thereof) having a fair value equal to twice the
Exercise Price, or (B) without payment of consideration (except as otherwise
required by applicable law), debt or equity securities or other assets (or a
combination thereof) having a fair value equal to the Exercise Price, or (y) if
the Board of Directors of the Company elects to exchange the Rights in
accordance with Section 3.1(c), debt or equity securities or other assets (or a
combination thereof) having a fair value equal to the product of the Market
Price of a share of Common Stock or, if applicable, the Market Price of a share
of Nonvoting Common Stock on the Stock Acquisition Date times the Exchange Ratio
in effect on the Flip-in Date, where in any case set forth in (x) or (y) above
the fair value of such debt or equity securities or other assets shall be as
determined in good faith by the Board of Directors of the Company, after
consultation with a nationally recognized investment banking firm other than
Goldman, Sachs & Co.
3.2 Flip-over. (a) Prior to the Expiration Time, the Company shall
not enter into any agreement with respect to, consummate or permit to occur any
Flip-over Transaction or Event unless and until it shall have entered into a
supplemental agreement with the Flip-over Entity, for the benefit of the holders
of the Rights, providing that, upon consummation or occurrence of the Flip-over
Transaction or Event (i) each Right shall thereafter constitute the right to
purchase from the Flip-over Entity, upon exercise thereof in accordance with the
terms hereof, that number of shares of the applicable Flip-over Stock of the
Flip-over Entity having an aggregate Market Price on the date of consummation
or occurrence of such Flip-over Transaction or Event equal to twice the Exercise
-33-
<PAGE> 37
Price for the applicable Right for an amount in cash equal to the Exercise Price
for the applicable Right (such right to be appropriately adjusted in order to
protect the interests of the holders of Rights generally in the event that after
such date of consummation or occurrence any of the events described in Section
2.3(a) or (b), or any analogous event, shall have occurred with respect to the
Flip-over Stock) and (ii) the Flip-over Entity shall thereafter be liable for,
and shall assume, by virtue of such Flip-over Transaction or Event and such
supplemental agreement, all the obligations and duties of the Company pursuant
to this Agreement. The provisions of this Section 3.2 shall apply to successive
Flip-over Transactions or Events.
(b) Prior to the Expiration Time, the Company shall not enter into
any agreement with respect to, consummate or permit to occur any Flip-over
Transaction or Event if at the time thereof there are any rights, warrants or
securities outstanding or any other arrangements, agreements or instruments that
would eliminate or otherwise diminish in any material respect the benefits
intended to be afforded by this Rights Agreement to the holders of Rights upon
consummation of such transaction.
ARTICLE IV
THE RIGHTS AGENT
4.1 General. (a) The Company hereby appoints the Rights Agent to act
as agent for the Company in accordance with the terms and conditions hereof, and
the Rights Agent hereby accepts such appointment. The Company agrees to pay to
the Rights Agent reasonable compensation for all services rendered by it
hereunder and, from
-34-
<PAGE> 38
time to time, on demand of the Rights Agent, its reasonable expenses and counsel
fees and other disbursements incurred in the preparation, delivery, amendment,
administration and execution of this Agreement and the exercise and performance
of its duties hereunder. The Company also agrees to indemnify the Rights Agent
for, and to hold it harmless against, any loss, liability, damage, judgment,
fine, penalty, claim, demand, settlement, cost or expense, incurred without
gross negligence, bad faith or willful misconduct on the part of the Rights
Agent, which gross negligence, bad faith or willful misconduct must be
determined by a final, non-appealable order, judgment, decree or ruling of a
court of competent jurisdiction, for any action taken, suffered or omitted by
the Rights Agent in connection with the acceptance and administration of this
Agreement, including, without limitation, the costs and expenses of defending
against any claim of liability. The indemnity provided herein shall survive the
termination of this Agreement and the termination and the expiration of the
Rights. The costs and expenses incurred in enforcing this right of
indemnification shall be paid by the Company. Anything to the contrary
notwithstanding, in no event shall the Rights Agent be liable for special,
punitive, indirect, consequential or incidental loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Rights Agent
has been advised of the likelihood of such loss or damage.
(b) The Rights Agent shall be authorized and protected and shall
incur no liability for or in respect of any action taken, suffered or omitted by
it in connection with its acceptance and administration of this Agreement in
reliance upon any certificate
-35-
<PAGE> 39
for securities (or registration on the stock transfer books of the Company)
purchasable upon exercise of Rights, Rights Certificate, certificate for other
securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it to be genuine
and to be signed, executed and, where necessary, verified or acknowledged, by
the proper person or persons.
4.2 Merger or Consolidation or Change of Name of Rights Agent. (a)
Any Person into which the Rights Agent or any successor Rights Agent may be
merged or with which it may be consolidated, or any Person resulting from any
merger or consolidation to which the Rights Agent or any successor Rights Agent
is a party, or any Person succeeding to the shareholder services business of the
Rights Agent or any successor Rights Agent, will be the successor to the Rights
Agent under this Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor Rights Agent under
the provisions of Section 4.4 hereof. In case at the time such successor Rights
Agent succeeds to the agency created by this Agreement any of the Rights
Certificates have been countersigned but not delivered, any such successor
Rights Agent may adopt the countersignature of the predecessor Rights Agent and
deliver such Rights Certificates so countersigned; and in case at that time any
of the Rights Certificates have not been countersigned, any successor Rights
Agent may countersign such Rights Certificates either in the name of the
predecessor Rights Agent or in the
-36-
<PAGE> 40
name of the successor Rights Agent; and in all such cases such Rights
Certificates will have the full force provided in the Rights Certificates and in
this Agreement.
(b) In case at any time the name of the Rights Agent is changed and
at such time any of the Rights Certificates shall have been countersigned but
not delivered, the Rights Agent may adopt the countersignature under its prior
name and deliver Rights Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been countersigned, the Rights
Agent may countersign such Rights Certificates either in its prior name or in
its changed name; and in all such cases such Rights Certificates shall have the
full force provided in the Rights Certificates and in this Agreement.
4.3 Duties of Rights Agent. The Rights Agent undertakes the duties
and obligations expressly imposed by this Agreement upon the following terms and
conditions, all of which the Company and the holders of Rights Certificates, by
their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be
legal counsel for the Company), and the advice or opinion of such counsel will
be full and complete authorization and protection to the Rights Agent and the
Rights Agent shall incur no liability for or in respect of any action taken,
suffered or omitted by it in good faith and in accordance with such advice or
opinion.
(b) Whenever in the performance of its duties under this Agreement
the Rights Agent deems it necessary or desirable that any fact or matter
(including, without limitation, the identity of any Acquiring Person and the
determination of the
-37-
<PAGE> 41
Market Price) be proved or established by the Company prior to taking, suffering
or omitting any action hereunder, such fact or matter (unless other evidence in
respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate signed by a person believed
by the Rights Agent to be one of the Chairmen of the Board, one of the Chief
Executive Officers, one of the Presidents or one of the Vice Presidents and by
any Treasurer or any Assistant Treasurer or any Secretary or any Assistant
Secretary of the Company and delivered to the Rights Agent; and such certificate
will be full authorization and protection to the Rights Agent and the Rights
Agent shall incur no liability for or in respect of any action taken, suffered
or omitted in good faith by it under the provisions of this Agreement in
reliance upon such certificate.
(c) The Rights Agent will be liable hereunder only for its own gross
negligence, bad faith or willful misconduct.
(d) The Rights Agent will not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the
certificates, if any, for securities purchasable upon exercise of Rights or the
Rights Certificates (except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are and will be deemed to
have been made by the Company only.
(e) The Rights Agent will not be under any liability or
responsibility in respect of the validity of this Agreement or the execution and
delivery hereof (except the due authorization, execution and delivery hereof by
the Rights Agent) or in respect of
-38-
<PAGE> 42
the validity or execution of any certificate, if any, for securities purchasable
upon exercise of Rights or Rights Certificate (except its countersignature
thereof); nor will it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any Rights Certificate;
nor will it be responsible for any change in the exercisability of the Rights
(including the Rights becoming void pursuant to Section 3.1(b) hereof) or any
adjustment required under the provisions of Section 2.3, 3.1 or 3.2 hereof or
responsible for the manner, method or amount of any such adjustment or the
ascertaining of the existence of facts that would require any such adjustment
(except with respect to the exercise of Rights after receipt of the certificate
contemplated by Section 2.3 describing any such adjustment); nor will it by any
act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any securities purchasable upon exercise of
Rights or any Rights or as to whether any securities purchasable upon exercise
of Rights will, when issued, be duly and validly authorized, executed, issued
and delivered and fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably be
required by the Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
person
-39-
<PAGE> 43
believed by the Rights Agent to be a Chairman of the Board, a Chief Executive
Officer, a President or a Vice President, a Secretary or an Assistant Secretary,
a Treasurer or an Assistant Treasurer of the Company, and to apply to such
persons for advice or instructions in connection with its duties, and such
instructions shall be full authorization and protection to the Rights Agent and
the Rights Agent shall incur no liability for or in respect of any action taken,
suffered or omitted by it in good faith in accordance with instructions of any
such person.
(h) The Rights Agent and any affiliate, stockholder, director,
officer or employee of the Rights Agent may buy, sell or deal in Common Shares,
Rights or other securities of the Company or become pecuniarily interested in
any transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not
Rights Agent under this Agreement. Nothing herein shall preclude the Rights
Agent from acting in any other capacity for the Company or for any other Person
or legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent will not be answerable or
accountable for any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such act, default,
neglect or misconduct, absent gross negligence, bad faith or willful misconduct
in the selection and continued employment thereof.
-40-
<PAGE> 44
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of its rights if
it believes that repayment of such funds or adequate indemnification against
such risk of liability is not reasonably assured to it.
4.4 Change of Rights Agent. The Rights Agent may resign and be
discharged from its duties under this Agreement upon 30 days' notice (or such
lesser notice as is acceptable to the Company) in writing mailed to the Company
and to each transfer agent of Common Shares by registered or certified mail, and
to the holders of the Rights in accordance with Section 5.9. The Company may
remove the Rights Agent upon 30 days' notice in writing, mailed to the Rights
Agent and to each transfer agent of the Common Shares by registered or certified
mail, and to the holders of the Rights in accordance with Section 5.9. If the
Rights Agent should resign or be removed or otherwise become incapable of
acting, the Company will appoint a successor to the Rights Agent. If the Company
fails to make such appointment within a period of 30 days after such removal or
after it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent or by the holder of any Rights (which
holder shall, with such notice, submit such holder's Rights Certificate for
inspection by the Company), then the holder of any Rights or the Rights Agent
may apply to any court of competent jurisdiction for the appointment of a new
Rights Agent. Any successor Rights Agent, whether appointed by the Company or by
such a court, shall be a Person
-41-
<PAGE> 45
organized and doing business under the laws of the United States or any state of
the United States, in good standing, which is authorized under such laws to
exercise the powers of the Rights Agent contemplated by this Agreement and is
subject to supervision or examination by federal or state authority and which
has at the time of its appointment as Rights Agent a combined capital and
surplus of at least $50,000,000. After appointment, the successor Rights Agent
will be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Rights Agent without further act or deed; but
the predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, the Company will file notice
thereof in writing with the predecessor Rights Agent and each transfer agent of
the Common Shares, and mail a notice thereof in writing to the holders of the
Rights. Failure to give any notice provided for in this Section 4.4, however, or
any defect therein, shall not affect the legality or validity of the resignation
or removal of the Rights Agent or the appointment of the successor Rights Agent,
as the case may be.
ARTICLE V
MISCELLANEOUS
5.1 Redemption. (a) The Board of Directors of the Company may, at
its option, at any time prior to the Flip-in Date, elect to redeem all (but not
less than all) the then outstanding Rights at the Redemption Price and the
Company, at its option, may
-42-
<PAGE> 46
pay the Redemption Price either in cash or in Common Stock, in the case of the
Voting Class Rights, or in Nonvoting Common Stock, in the case of the Nonvoting
Class Rights, or other securities of the Company deemed by the Board of
Directors, in the exercise of its sole discretion, to be at least equivalent in
value to the Redemption Price.
(b) Immediately upon the action of the Board of Directors of the
Company electing to redeem the Rights (or, if the resolution of the Board of
Directors electing to redeem the Rights states that the redemption will not be
effective until the occurrence of a specified future time or event, upon the
occurrence of such future time or event), without any further action and without
any notice, the right to exercise the Rights will terminate and each Right will
thereafter represent only the right to receive the Redemption Price in cash or
securities, as determined by the Board of Directors. Promptly after the Rights
are redeemed, the Company shall give notice of such redemption to the Rights
Agent and the holders of the then outstanding Rights by mailing such notice in
accordance with Section 5.9.
5.2 Expiration. The Rights and this Agreement shall expire at the
Expiration Time and no Person shall have any rights pursuant to this Agreement
or any Right after the Expiration Time, except, if the Rights are exchanged or
redeemed, as provided in Section 3.1 or 5.1 hereof , respectively.
5.3 Issuance of New Rights Certificates. Notwithstanding any of the
provisions of this Agreement or of the Rights to the contrary, the Company may,
at its option, issue new Rights Certificates evidencing Rights in such form as
may be approved
-43-
<PAGE> 47
by its Board of Directors to reflect any adjustment or change in the number or
kind or class of shares of stock purchasable upon exercise of Rights made in
accordance with the provisions of this Agreement. In addition, in connection
with the issuance or sale of Common Shares by the Company following the
Separation Time and prior to the Expiration Time pursuant to the terms of
securities convertible or redeemable into Common Shares or to options, in each
case issued or granted prior to, and outstanding at, the Separation Time, the
Company shall issue to the holders of such Common Shares, applicable Rights
Certificates representing the appropriate number of applicable Rights in
connection with the issuance or sale of such Common Shares; provided, however,
in each case, (i) no such Rights Certificate shall be issued, if, and to the
extent that, the Company shall be advised by counsel that such issuance would
create a significant risk of material adverse tax consequences to the Company or
to the Person to whom such Rights Certificates would be issued, (ii) no such
Rights Certificates shall be issued if, and to the extent that, appropriate
adjustment shall have otherwise been made in lieu of the issuance thereof, and
(iii) the Company shall not distribute Rights Certificates to any Acquiring
Person or Affiliate or Associate of an Acquiring Person or any transferee of any
of the foregoing.
5.4 Supplements and Amendments. The Company and the Rights Agent may
from time to time supplement or amend this Agreement without the approval of any
holders of Rights (i) prior to the Flip-in Date, in any respect and (ii) on or
after the Flip-in Date, to make any changes that the Company may deem necessary
or desirable
-44-
<PAGE> 48
and which shall not materially adversely affect the interests of the holders of
Rights generally or in order to cure any ambiguity or to correct or supplement
any provision contained herein which may be inconsistent with any other
provisions herein or otherwise defective. The Rights Agent will, upon the
delivery of a certificate from an appropriate officer of the Company that states
that the proposed supplement or amendment complies with this Section 5.4, duly
execute and deliver any supplement or amendment hereto requested by the Company
which satisfies the terms of the preceding sentence. Notwithstanding anything
contained in this Agreement to the contrary, the Rights Agent may, but shall not
be obligated to, enter into any supplement or amendment that affects the Rights
Agent's rights, duties, obligations or immunities under this Agreement.
5.5 Fractional Shares. If the Company elects not to issue
certificates representing (or register on the stock transfer books of the
Company) fractional shares upon exercise or redemption of Rights, the Company
shall, in lieu thereof, in the sole discretion of the Board of Directors, either
(a) evidence such fractional shares by depositary receipts issued pursuant to an
appropriate agreement between the Company and a depositary selected by it,
providing that each holder of a depositary receipt shall have all of the rights,
privileges and preferences to which such holder would be entitled as a
beneficial owner of such fractional share, or (b) pay to the registered holder
of such Rights the appropriate fraction of the Market Price per share in cash.
5.6 Rights of Action. Subject to the terms of this Agreement
(including Sections 3.1(b) and 5.14), rights of action in respect of this
Agreement, other
-45-
<PAGE> 49
than rights of action vested solely in the Rights Agent, are vested in the
respective holders of the Rights; and any holder of any Voting Class Rights or
Nonvoting Class Rights, as the case may be, without the consent of the Rights
Agent or of the holder of any other Voting Class Rights or Nonvoting Class
Rights, as the case may be, may, on such holder's own behalf and for such
holder's own benefit and the benefit of other holders of Voting Class Rights or
Nonvoting Class Rights, as the case may be, enforce, and may institute and
maintain any suit, action or proceeding against the Company to enforce, or
otherwise act in respect of, such holder's right to exercise such holder's
Rights in the manner provided in such holder's Rights Certificate and in this
Agreement. Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the holders of Rights
would not have an adequate remedy at law for any breach of this Agreement and
will be entitled to specific performance of the obligations under, and
injunctive relief against actual or threatened violations of, the obligations of
any Person subject to this Agreement.
5.7 Holder of Rights Not Deemed a Stockholder. No holder, as such,
of any Rights shall be entitled to vote, receive dividends or be deemed for any
purpose the holder of shares or any other securities which may at any time be
issuable on the exercise of such Rights, nor shall anything contained herein or
in any Rights Certificate be construed to confer upon the holder of any Rights,
as such, any of the rights of a stockholder of the Company or any right to vote
for the election of directors or upon any matter submitted to stockholders at
any meeting thereof, or to give or withhold consent to
-46-
<PAGE> 50
any corporate action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in Section 5.8 hereof), or to receive
dividends or subscription rights, or otherwise, until such Rights shall have
been exercised or exchanged in accordance with the provisions hereof.
5.8 Notice of Proposed Actions. In case the Company shall propose
after the Separation Time and prior to the Expiration Time (i) to effect or
permit a Flip-over Transaction or Event or (ii) to effect the liquidation,
dissolution or winding up of the Company, then, in each such case, the Company
shall give to each holder of a Right, in accordance with Section 5.9 hereof, a
notice of such proposed action, which shall specify the date on which such
Flip-over Transaction or Event, liquidation, dissolution, or winding up is to
take place, and such notice shall be so given at least 20 Business Days prior to
the date of the taking of such proposed action.
5.9 Notices. Notices or demands authorized or required by this
Agreement to be given or made by the Rights Agent or by the holder of any Rights
to or on the Company shall be sufficiently given or made if delivered or sent by
first-class mail, postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
The Goldman Sachs Group, Inc.
85 Broad Street
New York, New York 10004
Attention: Secretary
-47-
<PAGE> 51
Any notice or demand authorized or required by this Agreement to be given or
made by the Company or by the holder of any Rights to or on the Rights Agent
shall be sufficiently given or made if delivered or sent by first-class mail,
postage prepaid, addressed (until another address is filed in writing with the
Company) as follows:
ChaseMellon Shareholder Services, L.L.C.
85 Challenger Road
Ridgefield Park, New Jersey 07660-2108
Attention: General Counsel
Notices or demands authorized or required by this Agreement to be given or made
by the Company or the Rights Agent to or on the holder of any Rights shall be
sufficiently given or made if delivered or sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder as it appears
upon the registry books of the Rights Agent or, prior to the Separation Time, on
the registry books of the transfer agent for the Common Shares. Any notice which
is mailed in the manner herein provided shall be deemed given, whether or not
the holder receives the notice.
5.10 Suspension of Exercisability. To the extent that the Company
determines in good faith that some action will or need be taken pursuant to
Section 3.1 or to comply with federal or state securities laws, the Company may
suspend the exercisability of the Rights for a reasonable period in order to
take such action or comply with such laws. In the event of any such suspension,
the Company shall issue as promptly as practicable a public announcement (with
prompt written notice thereof to the Rights
-48-
<PAGE> 52
Agent) stating that the exercisability or exchangeability of the Rights has been
temporarily suspended. Notice thereof pursuant to Section 5.9 shall not be
required.
Failure to give a notice pursuant to the provisions of this
Agreement shall not affect the validity of any action taken hereunder.
5.11 Costs of Enforcement. The Company agrees that if the Company or
any other Person the securities of which are purchasable upon exercise of Rights
fails to fulfill any of its obligations pursuant to this Agreement, then the
Company or such Person will reimburse the holder of any Rights for the costs and
expenses (including legal fees) incurred by such holder in actions to enforce
such holder's rights pursuant to any Rights or this Agreement.
5.12 Successors. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Rights Agent shall bind and inure to
the benefit of their respective successors and assigns hereunder.
5.13 Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any Person other than the Company, the Rights Agent and the
holders of the Rights any legal or equitable right, remedy or claim under this
Agreement and this Agreement shall be for the sole and exclusive benefit of the
Company, the Rights Agent and the holders of the Rights.
5.14 Determination and Actions by the Board of Directors, etc. The
Board of Directors of the Company shall have the exclusive power and authority
to administer this Agreement and to exercise all rights and powers specifically
granted to
-49-
<PAGE> 53
the Board or to the Company, or as may be necessary or advisable in the
administration of this Agreement, including, without limitation, the right and
power to (i) interpret the provisions of this Agreement and (ii) make all
determinations deemed necessary or advisable for the administration of this
Agreement. All such actions, interpretations and determinations (including, for
purposes of clause (y) below, all omissions with respect to the foregoing) done
or made by the Board, shall (x) be final, conclusive and binding on the Company,
the Rights Agent, the holders of the Rights and all other parties, and (y) not
subject the Board of Directors of the Company to any liability to the holders of
the Rights.
5.15 Descriptive Headings. Descriptive headings appear herein for
convenience only and shall not control or affect the meaning or construction of
any of the provisions hereof.
5.16 GOVERNING LAW; EXCLUSIVE JURISDICTION. (A) THIS AGREEMENT AND
EACH RIGHT ISSUED HEREUNDER SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS
OF THE STATE OF DELAWARE AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF SUCH STATE APPLICABLE TO CONTRACTS TO BE MADE AND
PERFORMED ENTIRELY WITHIN SUCH STATE.
(b) (i) THE COMPANY AND EACH HOLDER OF RIGHTS HEREBY IRREVOCABLY
SUBMITS TO THE EXCLUSIVE
-50-
<PAGE> 54
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN THE STATE OF
DELAWARE OVER ANY SUIT, ACTION, OR PROCEEDING ARISING OUT OF OR RELATING
TO OR CONCERNING THIS AGREEMENT. The Company and each holder of Rights
acknowledge that the forum designated by this paragraph (b) has a
reasonable relation to this Agreement, and to such Persons' relationship
with one another.
(ii) The Company and each holder of Rights hereby waive, to the
fullest extent permitted by applicable law, any objection which they now
or hereafter have to personal jurisdiction or to the laying of venue of
any such suit, action or proceeding brought in any court referred to in
paragraph (b)(i). The Company and each holder of Rights undertake not to
commence any action subject to this Agreement in any forum other than the
forum described in this paragraph (b). The Company and each holder of
Rights agree that, to the fullest extent permitted by applicable law, a
final and non-appealable judgment in any such suit, action, or proceeding
brought in any such court shall be conclusive and binding upon such
Persons.
5.17 Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
-51-
<PAGE> 55
5.18 Severability. If any term or provision hereof or the
application thereof to any circumstance shall, in any jurisdiction and to any
extent, be invalid or unenforceable, such term or provision shall be ineffective
as to such jurisdiction to the extent of such invalidity or unenforceability
without invalidating or rendering unenforceable the remaining terms and
provisions hereof or the application of such term or provision to circumstances
other than those as to which it is held invalid or unenforceable.
-52-
<PAGE> 56
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
THE GOLDMAN SACHS GROUP, INC.
By: /s/ Robert J. Katz
--------------------------------
Name: Robert J. Katz
Title: Executive Vice President
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
By: /s/ Stanley E. Siekierski
--------------------------------
Name: Stanley E. Siekierski
Title: Vice President
-53-
<PAGE> 57
EXHIBIT A
[Form of Common Stock Rights Certificate]
Certificate No. W- __________ Voting Class Rights
THE VOTING CLASS RIGHTS ARE SUBJECT TO REDEMPTION OR MANDATORY EXCHANGE,
AT THE OPTION OF THE COMPANY, ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. VOTING CLASS RIGHTS BENEFICIALLY OWNED BY ACQUIRING PERSONS OR
AFFILIATES OR ASSOCIATES THEREOF (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT) OR TRANSFEREES OF ANY OF THE FOREGOING WILL BE VOID.
Common Stock Rights Certificate
The Goldman Sachs Group, Inc.
This certifies that ____________________, or registered assigns, is
the registered holder of the number of Voting Class Rights set forth above, each
of which entitles the registered holder thereof, subject to the terms,
provisions and conditions of the Stockholder Protection Rights Agreement, dated
as of April 5, 1999 (as amended from time to time, the "Rights Agreement"),
between The Goldman Sachs Group, Inc., a Delaware corporation (the "Company"),
and ChaseMellon Shareholder Services, L.L.C., a New Jersey limited liability
company, as Rights Agent (the "Rights Agent", which term shall include any
successor Rights Agent under the Rights Agreement), to purchase from the Company
at any time after the Separation Time (as such term is defined in the Rights
Agreement) and prior to the close of business on April 5, 2009, one
one-hundredth of a fully paid share of Series A Participating Preferred Stock,
par value $0.01 per share (the "Series A Preferred Stock"), of the Company
(subject to adjustment as provided in the
<PAGE> 58
Rights Agreement) at the Exercise Price referred to below, upon presentation and
surrender of this Common Stock Rights Certificate with the Form of Election to
Exercise duly executed at the office of the Rights Agent in The City of New York
designated for such purpose. The Exercise Price shall initially be $250.00 per
Voting Class Right and shall be subject to adjustment in certain events as
provided in the Rights Agreement.
In certain circumstances described in the Rights Agreement, the
Voting Class Rights evidenced hereby may entitle the registered holder thereof
to purchase securities of an entity other than the Company or securities of the
Company other than Series A Preferred Stock or assets of the Company, all as
provided in the Rights Agreement.
This Common Stock Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms, provisions and
conditions are hereby incorporated herein by reference and made a part hereof
and to which Rights Agreement reference is hereby made for a full description of
the rights, limitations of rights, obligations, duties and immunities hereunder
of the Rights Agent, the Company and the holders of the Common Stock Rights
Certificates. Copies of the Rights Agreement are on file at the principal office
of the Company and are available without cost upon written request.
This Common Stock Rights Certificate, with or without other Common
Stock Rights Certificates, upon surrender at the office of the Rights Agent
designated for such purpose, may be exchanged for another Common Stock Rights
Certificate or
-2-
<PAGE> 59
Common Stock Rights Certificates of like tenor evidencing an aggregate number of
Voting Class Rights equal to the aggregate number of Voting Class Rights
evidenced by the Common Stock Rights Certificate or Common Stock Rights
Certificates surrendered. If this Common Stock Rights Certificate shall be
exercised in part, the registered holder shall be entitled to receive, upon
surrender hereof, another Common Stock Rights Certificate or Common Stock Rights
Certificates for the number of whole Voting Class Rights not exercised.
Subject to the provisions of the Rights Agreement, each Voting Class
Right evidenced by this Common Stock Rights Certificate may be (a) redeemed by
the Company under certain circumstances, at its option, at a redemption price of
$0.01 per Voting Class Right or (b) exchanged by the Company under certain
circumstances, at its option, for one share of Common Stock or one one-hundredth
of a share of Series A Preferred Stock per Voting Class Right (or, in certain
cases, other securities or assets of the Company), subject in each case to
adjustment in certain events as provided in the Rights Agreement.
No holder of this Common Stock Rights Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any purpose the holder of
any securities which may at any time be issuable on the exercise hereof, nor
shall anything contained in the Rights Agreement or herein be construed to
confer upon the holder hereof, as such, any of the rights of a stockholder of
the Company or any right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting
-3-
<PAGE> 60
thereof, or to give or withhold consent to any corporate action, or to receive
notice of meetings or other actions affecting stockholders (except as provided
in the Rights Agreement), or to receive dividends or subscription rights, or
otherwise, until the Voting Class Rights evidenced by this Common Stock Rights
Certificate shall have been exercised or exchanged as provided in the Rights
Agreement.
This Common Stock Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal.
Date: ____________
ATTEST: THE GOLDMAN SACHS GROUP, INC.
___________________________ By_________________________________
Secretary Name:
Title:
Countersigned:
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
By____________________________
Authorized Signature
-4-
<PAGE> 61
[Form of Reverse Side of Common Stock Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to
transfer this Common Stock Rights Certificate.)
FOR VALUE RECEIVED ________________________ hereby
sells, assigns and transfers unto ______________________________________________
________________________________________________________
(Please print name and address of transferee)
this Common Stock Rights Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and appoint
_______________ Attorney, to transfer the within Common Stock Rights Certificate
on the books of the within-named Company, with full power of substitution.
Dated: _______________, ____
Signature Guaranteed: ____________________________________
Signature
(Signature must correspond to name
as written upon the face of this
Common Stock Rights Certificate in
every particular, without alteration
or enlargement or any change
whatsoever)
Signatures must be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee Medallion program), pursuant to
Exchange Act Rule 17Ad-15.
________________________________________________________
<PAGE> 62
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of Rights and
Common Shares, that the Voting Class Rights evidenced by this Common Stock
Rights Certificate are not, and, to the knowledge of the undersigned, have never
been, Beneficially Owned by an Acquiring Person or an Affiliate or Associate
thereof (as defined in the Rights Agreement).
___________________________________
Signature
_______________________________________
NOTICE
In the event the certification set forth above is not completed in
connection with a purported assignment, the Company will deem the Beneficial
Owner of the Voting Class Rights evidenced by the enclosed Common Stock Rights
Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement) or a transferee of any of the foregoing and
accordingly will deem the Voting Class Rights evidenced by such Common Stock
Rights Certificate to be void and not transferable or exercisable.
-2-
<PAGE> 63
[To be attached to each Common Stock Rights Certificate]
FORM OF ELECTION TO EXERCISE
(To be executed if holder desires to exercise the Common Stock
Rights Certificate.)
TO: THE GOLDMAN SACHS GROUP, INC.
The undersigned hereby irrevocably elects to exercise
_______________________ whole Voting Class Rights represented by the attached
Common Stock Rights Certificate to purchase the shares of Series A Preferred
Stock issuable upon the exercise of such Voting Class Rights and requests that
certificates for such shares be issued in the name of:
Name: _______________________________________
Address: _______________________________________
_______________________________________
Social Security
or Other Taxpayer
Identification Number:___________________________________
If such number of Voting Class Rights shall not be all the Voting Class Rights
evidenced by this Common Stock Rights Certificate, a new Common Stock Rights
Certificate for the balance of such Voting Class Rights shall be registered in
the name of and delivered to:
Name: _______________________________________
Address: _______________________________________
_______________________________________
Social Security
or Other Taxpayer
Identification Number:___________________________________
Dated: _______________, ____
Signature Guaranteed: ____________________________________
Signature
<PAGE> 64
(Signature must correspond to name as
written upon the face of the attached
Common Stock Rights Certificate in
every particular, without alteration
or enlargement or any change
whatsoever)
Signatures must be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee Medallion program), pursuant to
Exchange Act Rule 17Ad-15.
_______________________________________________
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of
Rights and Common Shares, that the Voting Class Rights evidenced by the attached
Common Stock Rights Certificate are not, and, to the knowledge of the
undersigned, have never been, Beneficially Owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
____________________________________
Signature
________________________________________
NOTICE
In the event the certification set forth above is not completed in
connection with a purported exercise, the Company will deem the Beneficial Owner
of the Voting Class Rights evidenced by the attached Common Stock Rights
Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement) or a transferee of any of the foregoing and
accordingly will deem the Voting Class Rights evidenced by such Common Stock
Rights Certificate to be void and not transferable or exercisable.
-2-
<PAGE> 65
EXHIBIT B
[Form of Nonvoting Common Stock Rights Certificate]
Certificate No. W- _________ Nonvoting Class Rights
THE NONVOTING CLASS RIGHTS ARE SUBJECT TO REDEMPTION OR MANDATORY EXCHANGE, AT
THE OPTION OF THE COMPANY, ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
NONVOTING CLASS RIGHTS BENEFICIALLY OWNED BY ACQUIRING PERSONS OR AFFILIATES OR
ASSOCIATES THEREOF (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) OR
TRANSFEREES OF ANY OF THE FOREGOING WILL BE VOID.
Nonvoting Class Rights Certificate
The Goldman Sachs Group, Inc.
This certifies that ____________________, or registered assigns, is
the registered holder of the number of Nonvoting Class Rights set forth above,
each of which entitles the registered holder thereof, subject to the terms,
provisions and conditions of the Stockholder Protection Rights Agreement, dated
as of April 5, 1999 (as amended from time to time, the "Rights Agreement"),
between The Goldman Sachs Group, Inc., a Delaware corporation (the "Company"),
and ChaseMellon Shareholder Services, L.L.C., a New Jersey limited liability
company, as Rights Agent (the "Rights Agent", which term shall include any
successor Rights Agent under the Rights Agreement), to purchase from the Company
at any time after the Separation Time (as such term is defined in the Rights
Agreement) and prior to the close of business on April 5, 2009, one
one-hundredth of a fully paid share of Series B Participating Preferred Stock,
par value $0.01 per share (the "Series B Preferred Stock"), of the Company
(subject to adjustment as provided in the
<PAGE> 66
Rights Agreement) at the Exercise Price referred to below, upon presentation and
surrender of this Nonvoting Common Stock Rights Certificate with the Form of
Election to Exercise duly executed at the office of the Rights Agent in The City
of New York designated for such purpose. The Exercise Price shall initially be
$250.00 per Nonvoting Class Right and shall be subject to adjustment in certain
events as provided in the Rights Agreement.
In certain circumstances described in the Rights Agreement, the
Nonvoting Class Rights evidenced hereby may entitle the registered holder
thereof to purchase securities of an entity other than the Company or securities
of the Company other than Series B Preferred Stock or assets of the Company, all
as provided in the Rights Agreement.
This Nonvoting Common Stock Rights Certificate is subject to all of
the terms, provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by reference and made a
part hereof and to which Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights, obligations, duties and
immunities hereunder of the Rights Agent, the Company and the holders of the
Nonvoting Common Stock Rights Certificates. Copies of the Rights Agreement are
on file at the principal office of the Company and are available without cost
upon written request.
This Nonvoting Common Stock Rights Certificate, with or without
other Nonvoting Common Stock Rights Certificates, upon surrender at the office
of the Rights
-2-
<PAGE> 67
Agent designated for such purpose, may be exchanged for another Nonvoting Common
Stock Rights Certificate or Nonvoting Common Stock Rights Certificates of like
tenor evidencing an aggregate number of Nonvoting Class Rights equal to the
aggregate number of Nonvoting Class Rights evidenced by the Nonvoting Common
Stock Rights Certificate or Nonvoting Common Stock Rights Certificates
surrendered. If this Nonvoting Common Stock Rights Certificate shall be
exercised in part, the registered holder shall be entitled to receive, upon
surrender hereof, another Nonvoting Common Stock Rights Certificate or Nonvoting
Common Stock Rights Certificates for the number of whole Nonvoting Class Rights
not exercised.
Subject to the provisions of the Rights Agreement, each Nonvoting
Class Right evidenced by this Nonvoting Common Stock Rights Certificate may be
(a) redeemed by the Company under certain circumstances, at its option, at a
redemption price of $0.01 per Nonvoting Class Right or (b) exchanged by the
Company under certain circumstances, at its option, for one share of Nonvoting
Common Stock or one one-hundredth of a share of Series B Preferred Stock per
Nonvoting Class Right (or, in certain cases, other securities or assets of the
Company), subject in each case to adjustment in certain events as provided in
the Rights Agreement.
No holder of this Nonvoting Common Stock Rights Certificate, as
such, shall be entitled to vote or receive dividends or be deemed for any
purpose the holder of any securities which may at any time be issuable on the
exercise hereof, nor shall anything contained in the Rights Agreement or herein
be construed to confer upon the
-3-
<PAGE> 68
holder hereof, as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in the Rights Agreement), or to receive
dividends or subscription rights, or otherwise, until the Nonvoting Class Rights
evidenced by this Nonvoting Common Stock Rights Certificate shall have been
exercised or exchanged as provided in the Rights Agreement.
This Nonvoting Common Stock Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal.
Date: ____________
ATTEST: THE GOLDMAN SACHS GROUP, INC.
___________________________ By_________________________________
Secretary Name:
Title:
-4-
<PAGE> 69
Countersigned:
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
By____________________________
Authorized Signature
-5-
<PAGE> 70
[Form of Reverse Side of Nonvoting Common Stock Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to
transfer this Nonvoting Common Stock Rights Certificate.)
FOR VALUE RECEIVED ________________________ hereby
sells, assigns and transfers unto ______________________________________________
____________________________________________________________________
(Please print name and address of transferee)
this Nonvoting Common Stock Rights Certificate, together with all right, title
and interest therein, and does hereby irrevocably constitute and appoint
_______________ Attorney, to transfer the within Nonvoting Common Stock Rights
Certificate on the books of the within-named Company, with full power of
substitution.
Dated: _______________, ____
Signature Guaranteed: ____________________________________
Signature
(Signature must correspond to name
as written upon the face of this
Nonvoting Common Stock Rights
Certificate in every particular,
without alteration or enlargement or
any change whatsoever)
Signatures must be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee Medallion program), pursuant to
Exchange Act Rule 17Ad-15.
<PAGE> 71
_______________________________________________
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of Rights and
Common Shares, that the Nonvoting Class Rights evidenced by this Nonvoting
Common Stock Rights Certificate are not, and, to the knowledge of the
undersigned, have never been, Beneficially Owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
_____________________________________
Signature
_______________________________________________
NOTICE
In the event the certification set forth above is not completed in
connection with a purported assignment, the Company will deem the Beneficial
Owner of the Nonvoting Class Rights evidenced by the enclosed Nonvoting Common
Stock Rights Certificate to be an Acquiring Person or an Affiliate or Associate
thereof (as defined in the Rights Agreement) or a transferee of any of the
foregoing and accordingly will deem the Nonvoting Common Stock Rights evidenced
by such Nonvoting Class Rights Certificate to be void and not transferable or
exercisable.
-2-
<PAGE> 72
[To be attached to each Nonvoting Common Stock Rights Certificate]
FORM OF ELECTION TO EXERCISE
(To be executed if holder desires to exercise the Nonvoting Common
Stock Rights Certificate.)
TO: THE GOLDMAN SACHS GROUP, INC.
The undersigned hereby irrevocably elects to exercise
_______________________ whole Nonvoting Class Rights represented by the attached
Nonvoting Common Stock Rights Certificate to purchase the shares of Series B
Preferred Stock issuable upon the exercise of such Nonvoting Class Rights and
requests that certificates for such shares be issued in the name of:
Name: _______________________________________
Address: _______________________________________
_______________________________________
Social Security
or Other Taxpayer
Identification Number:___________________________________
If such number of Nonvoting Class Rights shall not be all the Nonvoting Class
Rights evidenced by this Nonvoting Common Stock Rights Certificate, a new
Nonvoting Common Stock Rights Certificate for the balance of such Nonvoting
Class Rights shall be registered in the name of and delivered to:
Name: _______________________________________
Address: _______________________________________
_______________________________________
Social Security
or Other Taxpayer
Identification Number:___________________________________
Dated: _______________, ____
Signature Guaranteed: ____________________________________
Signature
<PAGE> 73
(Signature must correspond to name as
written upon the face of the attached
Nonvoting Common Stock Rights
Certificate in every particular,
without alteration or enlargement or
any change whatsoever)
Signatures must be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee Medallion program), pursuant to
Exchange Act Rule 17Ad-15.
_______________________________________________
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of
Rights and Common Shares, that the Nonvoting Class Rights evidenced by the
attached Nonvoting Common Stock Rights Certificate are not, and, to the
knowledge of the undersigned, have never been, Beneficially Owned by an
Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights
Agreement).
_____________________________________
Signature
_____________________________________
NOTICE
In the event the certification set forth above is not completed in
connection with a purported exercise, the Company will deem the Beneficial Owner
of the Nonvoting Class Rights evidenced by the attached Nonvoting Common Stock
Rights Certificate to be an Acquiring Person or an Affiliate or Associate
thereof (as defined in the Rights Agreement) or a transferee of any of the
foregoing and accordingly will deem the Nonvoting Class Rights evidenced by such
Nonvoting Common Stock Rights Certificate to be void and not transferable or
exercisable.
-2-
<PAGE> 74
EXHIBIT C
FORM OF CERTIFICATE OF DESIGNATION AND TERMS OF SERIES A PARTICIPATING
PREFERRED STOCK OF THE GOLDMAN SACHS GROUP, INC.
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
We, the undersigned, __________________ and ____________________,
the ____________________, and __________, respectively, of The Goldman Sachs
Group, Inc., a Delaware corporation (the "Corporation"), do hereby certify as
follows:
Pursuant to authority granted by Article FOURTH of the Amended and
Restated Certificate of Incorporation of the Corporation, and in accordance with
the provisions of Section 151 of the General Corporation Law of the State of
Delaware, the Board of Directors of the Corporation has adopted the following
resolutions fixing the designation and certain terms, powers, preferences and
other rights of a new series of the Corporation's Preferred Stock, par value
$0.01 per share, and certain qualifications, limitations and restrictions
thereon:
RESOLVED, that there is hereby established a series of Preferred
Stock, par value $0.01 per share, of the Corporation, and the designation
and certain terms, powers, preferences and other rights of the shares of
such series, and certain qualifications, limitations and restrictions
thereon, are hereby fixed as follows:
(i) The distinctive serial designation of this series shall be
"Series A Participating Preferred Stock" (hereinafter called "this
Series"). Each share of this Series shall be identical in all
respects with the other shares of this Series except as to the dates
from and after which dividends thereon shall be cumulative.
<PAGE> 75
(ii) The number of shares in this Series shall initially be
_______,* which number may from time to time be increased or
decreased (but not below the number then outstanding) by the Board
of Directors. Shares of this Series purchased by the Corporation
shall be cancelled and shall revert to authorized but unissued
shares of Preferred Stock undesignated as to series. Shares of this
Series may be issued in fractional shares, which fractional shares
shall entitle the holder, in proportion to such holder's fractional
share, to all rights of a holder of a whole share of this Series.
(iii) The holders of full or fractional shares of this Series
shall be entitled to receive, when and as declared by the Board of
Directors, but only out of funds legally available therefor,
dividends, (A) on each date that dividends or other distributions
(other than dividends or distributions payable in Common Stock of
the Corporation) are payable on or in respect of Common Stock
comprising part of the Reference Package (as defined below), in an
amount per whole share of this Series equal to the aggregate amount
of dividends or other distributions (other than dividends or
distributions payable in Common Stock of the Corporation) that would
be payable on such date to a holder of the Reference Package and (B)
on the last day of March, June, September and December in each year,
in an amount per whole share of this Series equal to the excess (if
any) of $____** over the aggregate dividends paid per whole share of
this Series during the three month period ending on such last day.
Each such dividend shall be paid to the holders of record of shares
of this Series on the date, not exceeding sixty days preceding such
dividend or distribution payment date, fixed for the purpose by the
Board of Directors in advance of payment of each particular dividend
or distribution. Dividends on each full and each fractional share of
this Series shall be cumulative from the date such full or
fractional share is originally issued; provided that any such full
or fractional share originally issued after a dividend record date
and on or prior to the dividend payment date to which such record
date relates shall not be entitled to receive the dividend payable
on such dividend payment date or any amount in respect of the period
from such original issuance to such dividend payment date.
- --------
* Insert number equal to the number of shares of Common Stock outstanding on
date prior to filing certificate of designation divided by 100.
** Insert an amount equal to 1/4 of 1% of the Exercise Price divided by the
number of shares of Series A Preferred Stock purchasable upon exercise of
one Right.
-2-
<PAGE> 76
The term "Reference Package" shall initially mean 100
shares of Common Stock, par value $0.01 per share ("Common Stock"),
of the Corporation. In the event the Corporation shall at any time
after the close of business on ________, ____* (A) declare or pay a
dividend on any Common Stock payable in Common Stock, (B) subdivide
any Common Stock or (C) combine any Common Stock into a smaller
number of shares, then and in each such case the Reference Package
after such event shall be the Common Stock that a holder of the
Reference Package immediately prior to such event would hold
thereafter as a result thereof.
Holders of shares of this Series shall not be entitled
to any dividends, whether payable in cash, property or stock, in
excess of full cumulative dividends, as herein provided on this
Series. This Series shall rank pari passu in all respects with the
Series B Participating Preferred Stock of the Company except with
respect to voting rights.
So long as any shares of this Series are outstanding, no
dividend (other than a dividend in Common Stock or in any other
stock ranking junior to this Series as to dividends and upon
liquidation) shall be declared or paid or set aside for payment or
other distribution declared or made upon the Common Stock or
Nonvoting Common Stock or upon any other stock ranking junior to
this Series as to dividends or upon liquidation, unless the full
cumulative dividends (including the dividend to be paid upon payment
of such dividend or other distribution) on all outstanding shares of
this Series shall have been, or shall contemporaneously be, paid.
When dividends are not paid in full upon this Series and any other
stock ranking on a parity as to dividends with this Series, all
dividends declared upon shares of this Series and any other stock
ranking on a parity as to dividends shall be declared pro rata so
that in all cases the amount of dividends declared per share on this
Series and such other stock shall bear to each other the same ratio
that accumulated dividends per share on the shares of the Series and
such other stock bear to each other. Neither the Common Stock or
Nonvoting Common Stock nor any other stock of the Corporation
ranking junior to or on a parity with this Series as to dividends or
upon liquidation shall be redeemed, purchased or
- --------
* For a certificate of designation relating to shares to be issued pursuant
to Section 2.3 of the Rights Agreement, insert the Separation Time. For a
certificate of designation relating to shares to be issued pursuant to
Section 3.1(d) of the Rights Agreement, insert the Flip-in Date.
-3-
<PAGE> 77
otherwise acquired for any consideration (or any moneys be paid to
or made available for a sinking fund for the redemption of any
shares of any such stock) by the Corporation (except by conversion
into or exchange for stock of the Corporation ranking junior to this
Series as to dividends and upon liquidation), unless the full
cumulative dividends (including the dividend to be paid upon payment
of such redemption, purchase or other acquisition) on all
outstanding shares of this Series shall have been, or shall
contemporaneously be, paid.
(iv) In the event of any merger, consolidation, reclassification
or other transaction in which the Common Shares are exchanged for or
changed into other stock or securities, cash and/or any other
property, then in any such case the shares of this Series shall at
the same time be similarly exchanged or changed in an amount per
whole share equal to the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be,
that a holder of the Reference Package would be entitled to receive
as a result of such transaction.
(v) In the event of any liquidation, dissolution or winding up
of the affairs of the Corporation, whether voluntary or involuntary,
the holders of full and fractional shares of this Series shall be
entitled, before any distribution or payment is made on any date to
the holders of the Common Stock or Nonvoting Common Stock or any
other stock of the Corporation ranking junior to this Series upon
liquidation, to be paid in full an amount per whole share of this
Series equal to the greater of (A) $__________* or (B) the aggregate
amount distributed or to be distributed prior to such date in
connection with such liquidation, dissolution or winding up to a
holder of the Reference Package (such greater amount being
hereinafter referred to as the "Liquidation Preference"), together
with accrued dividends to such distribution or payment date, whether
or not earned or declared. If such payment shall have been made in
full to all holders of shares of this Series, the holders of shares
of this Series as such shall have no right or claim to any of the
remaining assets of the Corporation.
In the event the assets of the Corporation available for
distribution to the holders of shares of this Series upon any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, shall be insufficient to pay in full all
amounts to which such
- --------
* Insert an amount equal to 100 times the Exercise Price in effect as of the
Separation Time.
-4-
<PAGE> 78
holders are entitled pursuant to the first paragraph of this Section
(v), no such distribution shall be made on account of any shares of
any other class or series of Preferred Stock ranking on a parity
with the shares of this Series upon such liquidation, dissolution or
winding up unless proportionate distributive amounts shall be paid
on account of the shares of this Series, ratably in proportion to
the full distributable amounts for which holders of all such parity
shares are respectively entitled upon such liquidation, dissolution
or winding up.
Upon the liquidation, dissolution or winding up of the
Corporation, the holders of shares of this Series then outstanding
shall be entitled to be paid out of assets of the Corporation
available for distribution to its stockholders all amounts to which
such holders are entitled pursuant to the first paragraph of this
Section (v) before any payment shall be made to the holders of
Common Stock or Nonvoting Common Stock or any other stock of the
Corporation ranking junior upon liquidation to this Series.
For the purposes of this Section (v), the consolidation
or merger of, or binding share exchange by, the Corporation with any
other corporation shall not be deemed to constitute a liquidation,
dissolution or winding up of the Corporation.
(vi) The shares of this Series shall not be redeemable.
(vii) In addition to any other vote or consent of stockholders
required by law or by the Amended and Restated Certificate of
Incorporation, as amended, of the Corporation, each whole share of
this Series shall, on any matter, vote as a class with any other
capital stock comprising part of the Reference Package and voting on
such matter and shall have the number of votes thereon that a holder
of the Reference Package would have.
IN WITNESS WHEREOF, the undersigned have signed and attested this
certificate on the ____ day of _________, _____.
__________________________________________
Attest:
-5-
<PAGE> 79
_____________________________
-6-
<PAGE> 80
EXHIBIT D
FORM OF CERTIFICATE OF DESIGNATION AND TERMS OF SERIES B PARTICIPATING
PREFERRED STOCK OF THE GOLDMAN SACHS GROUP, INC.
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
We, the undersigned, __________________ and ____________________,
the ____________________, and __________, respectively, of The Goldman Sachs
Group, Inc., a Delaware corporation (the "Corporation"), do hereby certify as
follows:
Pursuant to authority granted by Article FOURTH of the Amended and
Restated Certificate of Incorporation of the Corporation, and in accordance with
the provisions of Section 151 of the General Corporation Law of the State of
Delaware, the Board of Directors of the Corporation has adopted the following
resolutions fixing the designation and certain terms, powers, preferences and
other rights of a new series of the Corporation's Preferred Stock, par value
$0.01 per share, and certain qualifications, limitations and restrictions
thereon:
RESOLVED, that there is hereby established a series of Preferred
Stock, par value $0.01 per share, of the Corporation, and the designation
and certain terms, powers, preferences and other rights of the shares of
such series, and certain qualifications, limitations and restrictions
thereon, are hereby fixed as follows:
(i) The distinctive serial designation of this series shall be
"Series B Participating Preferred Stock" (hereinafter called "this
Series"). Each share of this Series shall be identical in all
respects with the other shares of this Series except as to the dates
from and after which dividends thereon shall be cumulative.
<PAGE> 81
(ii) The number of shares in this Series shall initially be
_______,* which number may from time to time be increased or
decreased (but not below the number then outstanding) by the Board
of Directors. Shares of this Series purchased by the Corporation
shall be cancelled and shall revert to authorized but unissued
shares of Preferred Stock undesignated as to series. Shares of this
Series may be issued in fractional shares, which fractional shares
shall entitle the holder, in proportion to such holder's fractional
share, to all rights of a holder of a whole share of this Series.
(iii) The holders of full or fractional shares of this Series
shall be entitled to receive, when and as declared by the Board of
Directors, but only out of funds legally available therefor,
dividends, (A) on each date that dividends or other distributions
(other than dividends or distributions payable in Nonvoting Common
Stock of the Corporation) are payable on or in respect of Nonvoting
Common Stock comprising part of the Reference Package (as defined
below), in an amount per whole share of this Series equal to the
aggregate amount of dividends or other distributions (other than
dividends or distributions payable in Nonvoting Common Stock of the
Corporation) that would be payable on such date to a holder of the
Reference Package and (B) on the last day of March, June, September
and December in each year, in an amount per whole share of this
Series equal to the excess (if any) of $____** over the aggregate
dividends paid per whole share of this Series during the three month
period ending on such last day. Each such dividend shall be paid to
the holders of record of shares of this Series on the date, not
exceeding sixty days preceding such dividend or distribution payment
date, fixed for the purpose by the Board of Directors in advance of
payment of each particular dividend or distribution. Dividends on
each full and each fractional share of this Series shall be
cumulative from the date such full or fractional share is originally
issued; provided that any such full or fractional share originally
issued after a dividend record date and on or prior to the dividend
payment date to which such record date relates shall not be entitled
to receive the dividend payable on such dividend payment
- --------
* Insert number equal to the number of shares of Nonvoting Common Stock
outstanding on date prior to filing of certificate of designation divided
by 100.
** Insert an amount equal to 1/4 of 1% of the Exercise Price divided by the
number of shares of Series B Preferred Stock purchasable upon exercise of
one Right.
-2-
<PAGE> 82
date or any amount in respect of the period from such original
issuance to such dividend payment date.
The term "Reference Package" shall initially mean 100
shares of Nonvoting Common Stock, par value $0.01 per share
("Nonvoting Common Stock"), of the Corporation. In the event the
Corporation shall at any time after the close of business on
________, ____* (A) declare or pay a dividend on any Nonvoting
Common Stock payable in Nonvoting Common Stock, (B) subdivide any
Nonvoting Common Stock or (C) combine any Nonvoting Common Stock
into a smaller number of shares, then and in each such case the
Reference Package after such event shall be the Nonvoting Common
Stock that a holder of the Reference Package immediately prior to
such event would hold thereafter as a result thereof.
Holders of shares of this Series shall not be entitled
to any dividends, whether payable in cash, property or stock, in
excess of full cumulative dividends, as herein provided on this
Series. This Series shall rank pari passu in all respects with the
Series A Participating Preferred Stock of the Company except with
respect to voting rights.
So long as any shares of this Series are outstanding, no
dividend (other than a dividend in Nonvoting Common Stock or in any
other stock ranking junior to this Series as to dividends and upon
liquidation) shall be declared or paid or set aside for payment or
other distribution declared or made upon the Common Stock or
Nonvoting Common Stock or upon any other stock ranking junior to
this Series as to dividends or upon liquidation, unless the full
cumulative dividends (including the dividend to be paid upon payment
of such dividend or other distribution) on all outstanding shares of
this Series shall have been, or shall contemporaneously be, paid.
When dividends are not paid in full upon this Series and any other
stock ranking on a parity as to dividends with this Series, all
dividends declared upon shares of this Series and any other stock
ranking on a parity as to dividends shall be declared pro rata so
that in all cases the amount of dividends declared per share on this
Series and such other stock shall bear to each other the same ratio
that accumulated
- --------
* For a certificate of designation relating to shares to be issued pursuant
to Section 2.3 of the Rights Agreement, insert the Separation Time. For a
certificate of designation relating to shares to be issued pursuant to
Section 3.1(d) of the Rights Agreement, insert the Flip-in Date.
-3-
<PAGE> 83
dividends per share on the shares of the Series and such other stock
bear to each other. Neither the Common Stock or Nonvoting Common
Stock nor any other stock of the Corporation ranking junior to or on
a parity with this Series as to dividends or upon liquidation shall
be redeemed, purchased or otherwise acquired for any consideration
(or any moneys be paid to or made available for a sinking fund for
the redemption of any shares of any such stock) by the Corporation
(except by conversion into or exchange for stock of the Corporation
ranking junior to this Series as to dividends and upon liquidation),
unless the full cumulative dividends (including the dividend to be
paid upon payment of such redemption, purchase or other acquisition)
on all outstanding shares of this Series shall have been, or shall
contemporaneously be, paid.
(iv) In the event of any merger, consolidation, reclassification
or other transaction in which the Common Shares are exchanged for or
changed into other stock or securities, cash and/or any other
property, then in any such case the shares of this Series shall at
the same time be similarly exchanged or changed in an amount per
whole share equal to the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be,
that a holder of the Reference Package would be entitled to receive
as a result of such transaction.
(v) In the event of any liquidation, dissolution or winding up
of the affairs of the Corporation, whether voluntary or involuntary,
the holders of full and fractional shares of this Series shall be
entitled, before any distribution or payment is made on any date to
the holders of the Common Stock or Nonvoting Common Stock or any
other stock of the Corporation ranking junior to this Series upon
liquidation, to be paid in full an amount per whole share of this
Series equal to the greater of (A) $__________* or (B) the aggregate
amount distributed or to be distributed prior to such date in
connection with such liquidation, dissolution or winding up to a
holder of the Reference Package (such greater amount being
hereinafter referred to as the "Liquidation Preference"), together
with accrued dividends to such distribution or payment date, whether
or not earned or declared. If such payment shall have been made in
full to all holders of shares of this Series, the holders of shares
of this Series as such shall have no right or claim to any of the
remaining assets of the Corporation.
- --------
* Insert an amount equal to 100 times the Exercise Price in effect as of the
Separation Time.
-4-
<PAGE> 84
In the event the assets of the Corporation available for
distribution to the holders of shares of this Series upon any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, shall be insufficient to pay in full all
amounts to which such holders are entitled pursuant to the first
paragraph of this Section (v), no such distribution shall be made on
account of any shares of any other class or series of Preferred
Stock ranking on a parity with the shares of this Series upon such
liquidation, dissolution or winding up unless proportionate
distributive amounts shall be paid on account of the shares of this
Series, ratably in proportion to the full distributable amounts for
which holders of all such parity shares are respectively entitled
upon such liquidation, dissolution or winding up.
Upon the liquidation, dissolution or winding up of the
Corporation, the holders of shares of this Series then outstanding
shall be entitled to be paid out of assets of the Corporation
available for distribution to its stockholders all amounts to which
such holders are entitled pursuant to the first paragraph of this
Section (v) before any payment shall be made to the holders of
Common Stock or Nonvoting Common Stock or any other stock of the
Corporation ranking junior upon liquidation to this Series.
For the purposes of this Section (v), the consolidation
or merger of, or binding share exchange by, the Corporation with any
other corporation shall not be deemed to constitute a liquidation,
dissolution or winding up of the Corporation.
(vi) The shares of this Series shall not be redeemable.
(vii) Each whole share of this Series shall have no voting rights
other than such rights as may be required by law.
(viii) If there are no shares of Nonvoting Common Stock
outstanding, a holder of shares of this Series may, at its option,
convert such shares into the same number of shares of Series A
Participating Preferred Stock of the Corporation. If a holder elects
not to convert the shares of this Series, the Reference Package
shall be deemed to refer to 100 shares of Common Stock, par value
$0.01 per share, of the Corporation and all references to Nonvoting
Common Stock in paragraph (iii) hereof shall be deemed to refer to
the Common Stock.
-5-
<PAGE> 85
IN WITNESS WHEREOF, the undersigned have signed and attested this
certificate on the ____ day of _________, _____.
___________________________________________
Attest:
______________________________
-6-
<PAGE> 1
EXHIBIT 6
The Goldman Sachs Group, Inc.
TO
The Bank of New York
Trustee
--------------
INDENTURE
Dated as of May 19, 1999
--------------
<PAGE> 2
THE GOLDMAN SACHS GROUP, INC.
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310
THROUGH 318, INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
<S> <C>
Section 310(a)(1) ........................................................ 609
(a) (2) ........................................................ 609
(a) (3) ........................................................ Not Applicable
(a) (4) ........................................................ Not Applicable
(b) ........................................................ 608
610
Section 311(a) ........................................................ 613
(b) ........................................................ 613
Section 312(a) ........................................................ 701
702
(b) ........................................................ 702
(c) ........................................................ 702
Section 313(a) ........................................................ 703
(b) ........................................................ 703
(c) ........................................................ 703
(d) ........................................................ 703
Section 314(a) ........................................................ 704
(a) (4) ........................................................ 101
1004
(b) ........................................................ Not Applicable
(c) (1) ........................................................ 102
(c) (2) ........................................................ 102
(c) (3) ........................................................ Not Applicable
(d) ........................................................ Not Applicable
(e) ........................................................ 102
Section 315(a) ........................................................ 601
(b) ........................................................ 602
(c) ........................................................ 601
(d) ........................................................ 601
(e) ........................................................ 514
Section 316(a) ........................................................ 101
(a) (1)(A) ........................................................ 502
512
(a) (1)(B) ........................................................ 513
(a) (2) ........................................................ Not Applicable
(b) ........................................................ 508
(c) ........................................................ 104
Section 317(a)(1) ........................................................ 503
(a) (2) ........................................................ 504
(b) ........................................................ 1003
Section 318(a) ........................................................ 107
</TABLE>
- -------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 3
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
Applicable Procedures.........................................................2
Board of Directors............................................................2
Board Resolution..............................................................2
Business Day..................................................................2
Commission....................................................................2
Company .....................................................................3
Company Request or Company Order..............................................3
Corporate Trust Office........................................................3
corporation...................................................................3
Covenant Defeasance...........................................................3
Defaulted Interest............................................................3
Defeasance....................................................................3
Depositary....................................................................3
Event of Default..............................................................3
Exchange Act..................................................................3
Expiration Date...............................................................3
Global Security...............................................................3
GS&Co. .....................................................................3
Holder .....................................................................4
Indenture.....................................................................4
interest .....................................................................4
Interest Payment Date.........................................................4
Investment Company Act........................................................4
Maturity .....................................................................4
Notice of Default.............................................................4
Officers' Certificate.........................................................4
Opinion of Counsel............................................................4
Original Issue Discount Security..............................................4
Outstanding...................................................................5
Paying Agent..................................................................6
Permitted Lien................................................................6
Person .....................................................................6
</TABLE>
- --------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
<S> <C>
Place of Payment..............................................................6
Predecessor Security..........................................................6
Redemption Date...............................................................6
Redemption Price..............................................................6
Regular Record Date...........................................................6
Responsible Officer...........................................................6
Securities....................................................................6
Securities Act................................................................7
Security Register and Security Registrar......................................7
Special Record Date...........................................................7
Stated Maturity...............................................................7
Subsidiary....................................................................7
Trust Indenture Act...........................................................7
Trustee .....................................................................7
U.S. Government Obligation....................................................7
Vice President................................................................7
SECTION 102. Compliance Certificates and Opinions..........................................7
SECTION 103. Form of Documents Delivered to Trustee........................................8
SECTION 104. Acts of Holders; Record Dates.................................................9
SECTION 105. Notices, Etc., to Trustee and Company........................................11
SECTION 106. Notice to Holders; Waiver....................................................11
SECTION 107. Conflict with Trust Indenture Act............................................12
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
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally..............................................................13
SECTION 202. Form of Face of Security.....................................................13
SECTION 203. Form of Reverse of Security..................................................15
SECTION 204. Form of Legend for Global Securities.........................................18
SECTION 205. Form of Trustee's Certificate of Authentication..............................19
</TABLE>
-ii-
<PAGE> 5
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.........................................19
SECTION 302. Denominations................................................................22
SECTION 303. Execution, Authentication, Delivery and Dating...............................22
SECTION 304. Temporary Securities.........................................................23
SECTION 305. Registration, Registration of Transfer and Exchange..........................24
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.............................26
SECTION 307. Payment of Interest; Interest Rights Preserved...............................27
SECTION 308. Persons Deemed Owners........................................................28
SECTION 309. Cancellation.................................................................28
SECTION 310. Computation of Interest......................................................29
Section 311. CUSIP Numbers................................................................29
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture......................................29
SECTION 402. Application of Trust Money...................................................30
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default............................................................30
SECTION 502. Acceleration of Maturity; Rescission and Annulment...........................32
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee..............33
SECTION 504. Trustee May File Proofs of Claim.............................................34
SECTION 505. Trustee May Enforce Claims Without Possession of Securities..................34
SECTION 506. Application of Money Collected...............................................34
SECTION 507. Limitation on Suits..........................................................35
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest and to Convert..........................................35
SECTION 509. Restoration of Rights and Remedies...........................................36
SECTION 510. Rights and Remedies Cumulative...............................................36
SECTION 511. Delay or Omission Not Waiver.................................................36
SECTION 512. Control by Holders...........................................................36
SECTION 513. Waiver of Past Defaults......................................................37
SECTION 514. Undertaking for Costs........................................................37
SECTION 515. Waiver of Usury, Stay or Extension Laws......................................37
</TABLE>
-iii-
<PAGE> 6
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities..........................................38
SECTION 602. Notice of Defaults...........................................................38
SECTION 603. Certain Rights of Trustee....................................................38
SECTION 604. Not Responsible for Recitals or Issuance of Securities.......................39
SECTION 605. May Hold Securities..........................................................40
SECTION 606. Money Held in Trust..........................................................40
SECTION 607. Compensation and Reimbursement...............................................40
SECTION 608. Conflicting Interests........................................................41
SECTION 609. Corporate Trustee Required; Eligibility......................................41
SECTION 610. Resignation and Removal; Appointment of Successor............................41
SECTION 611. Acceptance of Appointment by Successor.......................................43
SECTION 612. Merger, Conversion, Consolidation or Succession to Business..................44
SECTION 613. Preferential Collection of Claims Against Company............................44
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders....................44
SECTION 702. Preservation of Information; Communications to Holders.......................45
SECTION 703. Reports by Trustee...........................................................45
SECTION 704. Reports by Company...........................................................45
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.........................46
SECTION 802. Successor Substituted........................................................47
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders...........................47
SECTION 902. Supplemental Indentures With Consent of Holders..............................48
SECTION 903. Execution of Supplemental Indentures.........................................49
SECTION 904. Effect of Supplemental Indentures............................................49
SECTION 905. Conformity with Trust Indenture Act..........................................50
</TABLE>
-iv-
<PAGE> 7
<TABLE>
<CAPTION>
PAGE
<S> <C>
SECTION 906. Reference in Securities to Supplemental Indentures...........................50
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest...................................50
SECTION 1002. Maintenance of Office or Agency..............................................50
SECTION 1003. Money for Securities Payments to Be Held in Trust............................51
SECTION 1004. Statement by Officers as to Default..........................................52
SECTION 1005. Restriction on Certain Liens.................................................52
SECTION 1006. Waiver of Certain Covenants..................................................53
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.....................................................53
SECTION 1102. Election to Redeem; Notice to Trustee........................................53
SECTION 1103. Selection by Trustee of Securities to Be Redeemed............................53
SECTION 1104. Notice of Redemption.........................................................54
SECTION 1105. Deposit of Redemption Price..................................................55
SECTION 1106. Securities Payable on Redemption Date........................................55
SECTION 1107. Securities Redeemed in Part..................................................56
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.....................................................56
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities........................57
SECTION 1203. Redemption of Securities for Sinking Fund....................................57
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance.................57
SECTION 1302. Defeasance and Discharge.....................................................58
SECTION 1303. Covenant Defeasance..........................................................58
SECTION 1304. Conditions to Defeasance or Covenant Defeasance..............................58
SECTION 1305. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions......................................60
SECTION 1306. Reinstatement................................................................61
</TABLE>
-v-
<PAGE> 8
<TABLE>
<CAPTION>
PAGE
<S> <C>
TESTIMONIUM....................................................................................62
SIGNATURES AND SEALS...........................................................................62
ACKNOWLEDGEMENTS...............................................................................63
</TABLE>
-vi-
<PAGE> 9
INDENTURE, dated as of May 19, 1999, between The Goldman Sachs Group,
Inc., a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its principal office at 85 Broad
Street, New York, New York 10004 and The Bank of New York, a New York banking
corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the 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 or of series thereof, 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;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture;
<PAGE> 10
(5) 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 sub-division; and
(6) when used with respect to any Security, the words "convert",
"converted" and "conversion" are intended to refer to the right of the Holder
or the Company to convert or exchange such Security into or for securities or
other property in accordance with such terms, if any, as may hereafter be
specified for such Security as contemplated by Section 301, and these words
are not intended to refer to any right of the Holder or the Company to
exchange such Security for other Securities of the same series and like tenor
pursuant to Section 304, 305, 306, 906 or 1107 or another similar provision
of this Indenture, unless the context otherwise requires; and references
herein to the terms of any Security that may be converted mean such terms as
may be specified for such Security as contemplated in Section 301.
"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.
"Applicable Procedures" of a Depositary means, with respect to any matter
at any time, the policies and procedures of such Depositary, if any, that are
applicable to such matter at such time.
"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", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close; provided that, when used with respect to any
Security, "Business Day" may have such other meaning, if any, as may be
specified for such Security as contemplated by Section 301.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this
-2-
<PAGE> 11
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.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any two of the following: a Chairman of the
Board, a Vice Chairman of the Board, a President, a Vice President, a Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary of the Company,
or any other officer or officers of the Company designated in writing by or
pursuant to authority of the Board of Directors and delivered to the Trustee
from time to time.
"Corporate Trust Office" means the principal office of the Trustee in New
York, New York at which at any particular time its corporate trust business
shall be administered, which at the date hereof is located at 101 Barclay
Street, Floor 21 West, New York, New York 10286.
"corporation" means a corporation, association, company (including a
limited liability company), joint-stock company, business trust or other similar
entity.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
that is designated to act as Depositary for such Securities as contemplated by
Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"GS&Co." means Goldman, Sachs & Co., a New York partnership, or any other
Person that is a Subsidiary and becomes the successor to GS&Co. as a result of a
merger, consolidation or sale of all or substantially all the assets of GS&Co.,
but only for as long as such other Person continues to be a Subsidiary and such
successor.
-3-
<PAGE> 12
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and 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. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an instalment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an instalment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(4).
"Officers' Certificate" means a certificate signed by any two of the
following: a Chairman of the Board, a Vice Chairman of the Board, a President, a
Vice President, a Treasurer, an Assistant Treasurer, a Secretary or an Assistant
Secretary of the Company, or any other officer or officers of the Company
designated in a writing by or pursuant to authority of the Board of Directors
and delivered to the Trustee from time to time. 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 of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
-4-
<PAGE> 13
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount has 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 are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302;
(4) 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 this Indenture, other than any such Securities in
respect of 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; and
(5) Securities as to which any property deliverable upon conversion
thereof has been delivered (or such delivery has been duly provided for), or
as to which any other particular conditions have been satisfied, in each case
as may be provided for such Securities as contemplated in Section 301;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies, composite currencies or currency units which
shall be deemed to be Outstanding shall be the U.S. dollar equivalent,
determined as of such date in the manner provided as contemplated by Section
301, of the principal amount of such Security (or, in the case of a Security
described in Clause (A) or (B) above, of the amount determined as provided in
such Clause), and (D) 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, waiver or other action, only
Securities which a Responsible Officer of the Trustee actually 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
-5-
<PAGE> 14
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 or any premium or interest on any Securities on behalf of the
Company.
"Permitted Lien" means each such pledge, lien and other encumbrance as the
Board of Directors determines does not materially detract from or interfere with
the value or control, as of the date of such determination, of the Company's or
any Subsidiary's voting or profit participating equity ownership interests in
GS&Co. (or in any Subsidiary that beneficially owns or holds any such interests
in GS&Co., directly or indirectly).
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series
and subject to Section 1002, means the place or places where the principal of
and any premium and interest on the Securities of that series are payable as
specified as contemplated by Section 301.
"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.
"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.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means any
vice president, any assistant secretary, any assistant treasurer, any trust
officer, any assistant trust officer or any other officer of the Trustee, in
each case, located in the Corporate Trust Office of the Trustee, and also means,
with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and familiarity with the
particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
-6-
<PAGE> 15
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"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
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" means any Person a majority of the combined voting power of
the total outstanding ownership interests in which is, at the time of
determination, beneficially owned or held, directly or indirectly, by the
Company or one or more other Subsidiaries. For this purpose, "voting power"
means power to vote in an ordinary election of directors (or, in the case of a
Person that is not a corporation, ordinarily to appoint or approve the
appointment of Persons holding similar positions), whether at all times or only
as long as no senior class of ownership interests 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
or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"Vice President", when used with respect to the Company or the Trustee,
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 certificates and opinions as may be required under the Trust
Indenture Act; provided, however, that no such opinion shall be required in
connection with the issuance of Securities of any Series. Each such certificate
or opinion shall be given in the form of an Officers'
-7-
<PAGE> 16
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 signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 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, or representation by, counsel may
be based, insofar as it relates to factual matters, 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.
-8-
<PAGE> 17
SECTION 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders 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 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.
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.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other 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 thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to
-9-
<PAGE> 18
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to 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 part of such principal amount.
-10-
<PAGE> 19
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder 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
Trustee Administration, 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.
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 in writing and mailed, first-class postage prepaid, 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. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such 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.
Where this Indenture provides for Notice of any event to a Holder of a
Global Security, such notice shall be sufficiently given if given to the
Depositary for such Security (or its designee), pursuant to its Applicable
Procedures, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice.
-11-
<PAGE> 20
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
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 shall bind
its 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
and the Holders, 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 law of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Maturity
of any Security, or any date on which a Holder has the right to convert his
Security, shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically
-12-
<PAGE> 21
states that such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any), or conversion of such Security need
not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Maturity,
or on such date for conversion, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each
case 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 the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
The Goldman Sachs Group, Inc.
..........................................................................
No. ......... $ ........
The Goldman Sachs Group, Inc., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby
-13-
<PAGE> 22
promises to pay to ..............................................., or
registered assigns, the principal sum of ......................................
Dollars on ........................................................ [if the
Security is to bear interest prior to Maturity, insert -- , and to pay interest
thereon from ............. or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on ............
and ............ in each year, commencing ........., and at the Maturity
thereof, at the rate of ....% per annum, until the principal hereof is paid or
made available for payment [if applicable, insert -- , provided that any
principal and premium, and any such instalment of interest, which is overdue
shall bear interest at the rate of ...% per annum (to the extent that the
payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand]. 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 the ....... or .......
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest so payable, but not punctually paid or
duly provided for, on any Interest Payment Date 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, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid in any other lawful manner not inconsistent
with the requirements of any securities exchange on which this Security may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ....% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in New York, New York, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts, against surrender of this
Security in the case of any payment due at the Maturity of the principal thereof
(other than any payment of interest that first becomes payable on a day other
than an Interest Payment Date); provided, however, that at the option of the
Company, payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register;
and provided, further, that if this Security is a Global Security, payment may
be made pursuant to the Applicable Procedures of the Depositary as permitted in
said Indenture.
-14-
<PAGE> 23
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.
The Goldman Sachs Group, Inc.
By:
-----------------------------
Name:
Title:
Attest:
.................
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of May 19, 1999 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and The Bank of New York, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [if applicable,
insert -- , limited in aggregate principal amount to $...........].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' nor more than 60 days' notice, at any
time [if applicable, insert -- on or after .........., 20..], as a whole or in
part, at the election of the Company, at the following
-15-
<PAGE> 24
Redemption Prices (expressed as percentages of the principal amount): If
redeemed [if applicable, insert -- on or before ..............., ...%, and if
redeemed] during the 12-month period beginning ............. of the years
indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
- ---- ----- ---- -----
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption with accrued interest to the
Redemption Date, but interest instalments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If the Security is subject to redemption of any kind, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- The Indenture contains provisions for defeasance
at any time of the entire indebtedness of this Security or certain restrictive
covenants and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
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 of each series to be
affected under the Indenture at any time
-16-
<PAGE> 25
by the Company and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of all series to be
affected (considered together as one class for this purpose). The Indenture also
contains provisions (i) permitting the Holders of a majority in principal amount
of the Securities at the time Outstanding of all series to be affected under the
Indenture (considered together as one class for this purpose), on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and (ii) permitting the Holders of a
majority in principal amount of the Securities at the time Outstanding of any
series to be affected under the Indenture (with each such series considered
separately for this purpose), on behalf of the Holders of all Securities of such
series, to waive 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.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture, or for the appointment of a receiver or trustee, or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee indemnity reasonably satisfactory to
it, and the Trustee shall not have received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
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 any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this 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
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any multiple thereof. As provided in the
Indenture and subject
-17-
<PAGE> 26
to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this 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, 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.
This Security is a Global Security and is subject to the provisions of the
Indenture relating to Global Securities, including the limitations in Section
305 thereof on transfers and exchanges of Global Securities.
This Security and the Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
-18-
<PAGE> 27
SECTION 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated herein and referred
to in the within-mentioned Indenture.
Dated:
The Bank of New York,
As Trustee
By
--------------------------------------
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish the
Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906 or 1107 and except for any Securities which,
pursuant to Section 303, are deemed never to have been authenticated and
delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall be
payable, if other than the Person 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;
(4) the date or dates on which the principal of any Securities of the
series is payable;
-19-
<PAGE> 28
(5) the rate or rates at which any Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any such interest payable on any
Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable and the manner in
which any payment may be made;
(7) the period or periods within which, the price or prices at which and
the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than by a Board Resolution, the manner in which any election by the Company
to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous provisions
or at the option of the Holder thereof and the period or periods within
which, the price or prices at which and the terms and conditions upon which
any Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any multiple thereof, the
denominations in which any Securities of the series shall be issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be determined;
(11) if other than the currency of the United States of America, the
currency, currencies, composite currency, composite currencies or currency
units in which the principal of or any premium or interest on any Securities
of the series shall be payable and the manner of determining the equivalent
thereof in the currency of the United States of America for any purpose,
including for the purposes of making payment in the currency of the United
States of America and applying the definition of "Outstanding" in Section
101;
(12) if the principal of or any premium or interest on any Securities of
the series is to be payable, at the election of the Company or the Holder
thereof, in one or more currencies, composite currencies or currency units
other than that or those in which such Securities are stated to be payable,
the currency, currencies, composite currency, composite currencies or
currency units in which the principal of or any premium or interest on such
Securities as to which such election is made shall be payable, the periods
within which and the terms and conditions upon which such election is to be
made and the amount so payable (or the manner in which such amount shall be
determined);
(13) if other than the entire principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
-20-
<PAGE> 29
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more dates
prior to the Stated Maturity, the amount which shall be deemed to be the
principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or which
shall be deemed to be Outstanding as of any date prior to the Stated Maturity
(or, in any such case, the manner in which such amount deemed to be the
principal amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or Section 1303
or both such Sections, any provisions to permit a pledge of obligations other
than U.S. Government Obligations (or the establishment of other arrangements)
to satisfy the requirements of Section 1304(1) for defeasance of such
Securities and, if other than by a Board Resolution, the manner in which any
election by the Company to defease such Securities shall be evidenced;
(16) if applicable, that any Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in such
case, the respective Depositaries for such Global Securities, the form of any
legend or legends which shall be borne by any such Global Security in
addition to or in lieu of that set forth in Section 204, any addition to,
elimination of or other change in the circumstances set forth in Clause (2)
of the last paragraph of Section 305 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any transfer of
such Global Security in whole or in part may be registered, in the name or
names of Persons other than the Depositary for such Global Security or a
nominee thereof and any other provisions governing exchanges or transfers of
any such Global Security;
(17) any addition to, elimination of or other change in the Events of
Default which applies to any Securities of the series and any change in the
right of the Trustee or the requisite Holders of such Securities to declare
the principal amount thereof due and payable pursuant to Section 502;
(18) any addition to, elimination of or other change in the covenants set
forth in Article Ten which applies to Securities of the series;
(19) any provisions necessary to permit or facilitate the issuance,
payment or conversion of any Securities of the series that may be converted
into securities or other property other than Securities of the same series
and of like tenor, whether in addition to, or in lieu of, any payment of
principal or other amount and whether at the option of the Company or
otherwise; and
(20) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by Section
901(5)).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner
-21-
<PAGE> 30
provided, in the Officers' Certificate referred to above or in any such
indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by a Chairman of
the Board, a Vice Chairman of the Board, a President or a Vice President of the
Company (or any other officer of the Company designated in writing by or
pursuant to authority of the Board of Directors and delivered to the Trustee
from time to time), under its corporate seal reproduced thereon attested by a
Secretary or Assistant Secretary of the Company. 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 of any series 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 the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(1)if the form of such Securities has been established by or pursuant to
Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
-22-
<PAGE> 31
(2)if the terms of such Securities have been established by or pursuant to
Board Resolution as permitted by Section 301, that such terms have been
established in conformity with the provisions of this Indenture; and
(3)that such Securities, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
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
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. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
-23-
<PAGE> 32
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount. Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
SECTION 305. Registration, Registration of 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 of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall 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.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of like tenor and aggregate
principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid 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.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or
-24-
<PAGE> 33
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security
or a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, and subject to
such applicable provisions, if any, as may be specified as contemplated by
Section 301, no Global Security may be exchanged in whole or in part for
Securities registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the Depositary
for such Global Security or a nominee thereof unless (A) such Depositary has
notified the Company that it (i) is unwilling or unable to continue as
Depositary for such Global Security or (ii) has ceased to be a clearing
agency registered under the Exchange Act, (B) there shall have occurred and
be continuing an Event of Default with respect to such Global Security or (C)
the Company has executed and delivered to the Trustee a Company Order stating
that such Global Security shall be exchanged in whole for Securities that are
not Global Securities (in which case such exchange shall promptly be effected
by the Trustee). If the Company receives a notice of the kind specified in
Clause (A) above or has delivered a Company Order of the kind specified in
Clause (C) above, it may, in its sole discretion, designate a successor
Depositary for such Global Security within 60 days after receiving such
notice or delivery of such order, as the case may be. If the Company
designates a successor Depositary as aforesaid, such Global Security shall
promptly be exchanged in whole for one or more other Global Securities
registered in the name of the successor Depositary, whereupon such designated
successor shall be the Depositary for such successor Global Security or
Global Securities and the provisions of Clauses (1), (2), (3) and (4) of this
Section shall continue to apply thereto.
(3) Subject to Clause (2) above and to such applicable provisions, if any,
as may be specified as contemplated by Section 301, any exchange of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion thereof
shall be registered in such names as the Depositary for such Global Security
shall direct.
-25-
<PAGE> 34
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1107 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
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 the same series and 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 the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
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.
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 of any series 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 of that series 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.
-26-
<PAGE> 35
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect
to any Securities of a series, 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 Person 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 (or, if no business is conducted by the Trustee at its
Corporate Trust Office on such date, at 5:00 P.M. New York City time on such
date).
Any interest on any Security of any series 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
payable on any Securities of a series to the Persons in whose names such
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 of such Securities and the date of
the proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 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 given to each Holder
of such Securities in the manner set forth in Section 106, 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 such 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 on any
Securities of a series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such 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.
-27-
<PAGE> 36
Except as may otherwise be provided in this Section 307 or as contemplated
in Section 301 with respect to any Securities of a series, the Person to whom
interest shall be payable on any Security that first becomes payable on a day
that is not an Interest Payment Date shall be the Holder of such Security on the
day such interest is paid.
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. 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. Notwithstanding the
foregoing, the terms of any Security that may be converted may provide that the
provisions of this paragraph do not apply, or apply with such additions, changes
or omissions as may be provided thereby, to such Security.
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 any premium and
(subject to Section 307) any 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.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or conversion or for credit against any sinking fund
payment 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 may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, 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
-28-
<PAGE> 37
of as directed by a Company Order; provided, however, that the Trustee shall not
be required to destroy such canceled Securities.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, 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 Numbers.
The Company in issuing the Securities may use CUSIP numbers (if then
generally in use) and, if so, the Trustee shall use CUSIP numbers in notices of
redemption as a convenience to Holders, provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities. Any such redemption shall not be affected by any defect in or
omission of such numbers.
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 as to any surviving rights of conversion, registration of transfer or
exchange of any Security expressly provided for herein or in the terms of such
Security), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(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; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
-29-
<PAGE> 38
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and any premium and interest to the date
of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee. All
moneys deposited with the Trustee pursuant to Section 401 (and held by it or any
Paying Agent) for the payment of Securities subsequently converted shall be
returned to the Company upon Company Request.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and
-30-
<PAGE> 39
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by
the terms of a Security of that series; or
(4) 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 or which has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series), 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 10% in principal amount of
the Outstanding Securities of that series 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
(5) 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 60 consecutive days (provided
that, if any Person becomes the successor to the Company pursuant to Article
Eight and such Person is a corporation, partnership or trust organized and
validly existing under the law of a jurisdiction outside the United States,
each reference in this Clause 5 to an applicable Federal or State law of a
particular kind shall be deemed to refer to such law or any applicable
comparable law of such non-U.S. jurisdiction, for as long as such Person is
the successor to the Company hereunder and is so organized and existing); or
(6) 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
-31-
<PAGE> 40
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 an
assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such action (provided
that, if any Person becomes the successor to the Company pursuant to Article
Eight and such Person is a corporation, partnership or trust organized and
validly existing under the law of a jurisdiction outside the United States,
each reference in this Clause 6 to an applicable Federal or State law of a
particular kind shall be deemed to refer to such law or any applicable
comparable law of such non-U.S. jurisdiction, for as long as such Person is
the successor to the Company hereunder and is so organized and existing); or
(7) any other Event of Default provided with respect to Securities of that
series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(5) or 501(6)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, in the case of any Security of that series which specifies an amount
to be due and payable thereon upon acceleration of the Maturity thereof, such
amount as may be specified by the terms thereof) 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 such principal amount (or specified
amount) shall become immediately due and payable. If an Event of Default
specified in Section 501(5) or 501(6) with respect to Securities of any series
at the time Outstanding occurs, the principal amount of all the Securities of
that series (or, in the case of any Security of that series which specifies an
amount to be due and payable thereon upon acceleration of the Maturity thereof,
such amount as may be specified by the terms thereof) shall automatically, and
without any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series 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 of that series, 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 of that series,
-32-
<PAGE> 41
(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate or rates prescribed therefor in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which have
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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 (or premium, if
any, on) 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 any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such 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, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series 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.
-33-
<PAGE> 42
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 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 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 for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its 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 be a member of a creditors' or
other similar 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, its 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 any premium
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: To the payment of all amounts due the Trustee under Section 607;
and
SECOND: To the payment of the amounts then due and unpaid for principal of
and any premium and interest on the Securities in respect of which or for the
benefit of which
-34-
<PAGE> 43
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 any premium and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series 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 with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series 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 indemnity
reasonably satisfactory to it 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 of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever 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 of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium 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 any premium 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, if the
terms of such Security so provide, to convert such Security in accordance with
its terms, and to institute suit for the enforcement of any such payment and, if
applicable, any such right to convert, and such rights shall not be impaired
without the consent of such Holder.
-35-
<PAGE> 44
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, 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 the last paragraph of 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 Securities 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 a majority in principal amount of the Outstanding
Securities of any series 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, with respect to the
Securities of such series, 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.
-36-
<PAGE> 45
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any
Security of such series, 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 of such series 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,
including reasonable attorneys' fees and expenses, 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 or the Trustee or, if
applicable, in any suit for the enforcement of the right to convert any Security
in accordance with its terms.
SECTION 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
-37-
<PAGE> 46
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. 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 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 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.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default 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(4) with respect to Securities of such series, 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 with respect
to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) 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;
(2) 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 shall be sufficiently evidenced by a
Board Resolution;
(3) 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;
-38-
<PAGE> 47
(4) the Trustee may consult with counsel of its selection 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;
(5) 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 security or indemnity reasonably satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(6) 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;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(8) the Trustee shall not be liable for any action taken, suffered or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture;
(9) the Trustee shall not be deemed to have notice of any default or Event
of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default
is received by the Trustee at the Corporate Trust Office of the Trustee, and
such notice references the Securities and this Indenture; and
(10) the rights, privileges, protections, immunities and benefits given to
the Trustee, including its rights to be indemnified, are extended to, and
shall be enforceable by, the Trustee in each of its capacities hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee does not assume any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
-39-
<PAGE> 48
SECTION 605. May Hold Securities.
The Trustee, 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,
Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as shall be
agreed in writing between the parties for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee for, and
to hold it harmless against, any and all losses, liabilities, damages, claims
or expenses including taxes (other than taxes imposed on the income of the
Trustee) incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim (whether asserted by the Company, a Holder or any other Person) or
liability in connection with the exercise or performance of any of its powers
or duties hereunder.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(5) or Section 501(6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
-40-
<PAGE> 49
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 608. 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. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $50,000,000 and has its Corporate Trust Office
in the Borough of Manhattan, The City of New York. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, 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 with respect to the Securities of any series 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.
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.
The Trustee may resign at any time with respect to the Securities of one
or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 60 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of a notice of removal pursuant to this paragraph, the Trustee
-41-
<PAGE> 50
being removed may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
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 at least 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, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, 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 removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
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, with respect to
the Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and 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 with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
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
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series 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 of such series 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
with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the
-42-
<PAGE> 51
manner provided in Section 106. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect
to all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each 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 with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
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
-43-
<PAGE> 52
all such rights, powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
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
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
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 claims against
the Company (or any such other obligor).
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
(1) semi-annually, not later than May 15 and November 15 in each year, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities of each series as of the immediately
preceding May 1 or November 1, as the case may be, and
(2) 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;
-44-
<PAGE> 53
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
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.
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 privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
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 names and addresses of Holders made pursuant to the Trust
Indenture Act.
SECTION 703. Reports by Trustee.
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.
Reports so required to be transmitted at stated intervals of not more than
12 months shall be transmitted no later than July 1 and shall be dated as of May
1 in each calendar year, commencing in 2000.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange and
of any delisting thereof.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, 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.
-45-
<PAGE> 54
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, and the Company shall not permit any Person to consolidate with
or merge into the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of any domestic or
foreign jurisdiction and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of and any premium 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, for each Security that by its terms provides for conversion,
shall have provided for the right to convert such Security in accordance with
its terms;
(2) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or any Subsidiary as
a result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a pledge, lien or other similar encumbrance which would not
be permitted by this Indenture, the Company or such successor Person, as the
case may be, shall take such steps as shall be necessary effectively to
secure the Securities equally and ratably with (or prior to) all indebtedness
secured thereby; and
(4) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, 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.
-46-
<PAGE> 55
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 the properties and
assets of the Company substantially as an entirety 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 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
(2) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (and if such additional Events of Default
are to be for the benefit of less than all series of Securities, stating that
such additional Events of Default are expressly being included solely for the
benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the issuance
of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this Indenture
in respect of one or more series of Securities, provided that any such
addition, change or elimination (A) shall neither (i) apply to any Security
of any series created prior to the execution of such supplemental indenture
and entitled to the benefit of such provision nor (ii) modify
-47-
<PAGE> 56
the rights of the Holder of any such Security with respect to such provision
or (B) shall become effective only when there is no such Security
Outstanding; or
(6) to secure the Securities pursuant to the requirements of Section
801(3) or Section 1005 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
611; or
(9) to add to or change any of the provisions of this Indenture with
respect to any Securities that by their terms may be converted into
securities or other property other than Securities of the same series and of
like tenor, in order to permit or facilitate the issuance, payment or
conversion of such Securities; or
(10) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this Clause (9) shall
not adversely affect the interests of the Holders of Securities of any series
in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of a majority in principal amount of the
Outstanding Securities of all series affected by such supplemental indenture
(considered together as one class for this purpose), by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
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 instalment of
principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original
Issue Discount Security or any other Security which would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502, or permit the Company to redeem any Security if, absent such
supplemental indenture, the Company would not be permitted to do so, or
change any 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
-48-
<PAGE> 57
any such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2) if any Security provides that the Holder may require the Company to
repurchase or convert such Security, impair such Holder's right to require
repurchase or conversion of such Security on the terms provided therein, or
(3) reduce the percentage in principal amount of the Outstanding
Securities of any one or more series (considered separately or together as
one class, as applicable), 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
(4) modify any of the provisions of this Section, Section 513 or Section
1006, 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 and Section 1006, or the deletion of this
proviso, in accordance with the requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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
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
-49-
<PAGE> 58
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.
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 authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange, where Securities may be surrendered
for conversion and where notices and demands to or upon the Company in respect
of the Securities of that series 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 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, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
-50-
<PAGE> 59
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series 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 each Place of Payment for Securities of any series 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.
With respect to any Global Security, and except as otherwise may be
specified for such Global Security as contemplated by Section 301, the Corporate
Trust Office of the Trustee shall be the Place of Payment where such Global
Security may be presented or surrendered for payment or for registration of
transfer or exchange, or where successor Securities may be delivered in exchange
therefor, provided, however, that any such payment, presentation, surrender or
delivery effected pursuant to the Applicable Procedures of the Depositary for
such Global Security shall be deemed to have been effected at the Place of
Payment for such Global Security in accordance with the provisions of this
Indenture.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and 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 for any series
of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit (or, if the
Company has deposited any trust funds with a trustee pursuant to Section
1304(1), cause such trustee to deposit) with a Paying Agent a sum sufficient to
pay such amount, 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 for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, 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 of that series.
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
-51-
<PAGE> 60
Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by 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 or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or 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 The
City of New York, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 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.
SECTION 1005. Restriction on Certain Liens.
The Company will not create, assume, incur or guarantee any indebtedness
for borrowed money that is secured by a pledge, lien or other similar
encumbrance (except for Permitted Liens) on the Company's or any Subsidiary's
voting or profit participating equity ownership interests in GS&Co. (or in any
Subsidiary that beneficially owns or holds any such interests in GS&Co.,
directly or indirectly), unless the Company also secures the Securities equally
and ratably with (or, at the option of the Company, prior to) the indebtedness
secured thereby.
-52-
<PAGE> 61
SECTION 1006. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securities of a specific series, the Company may, with respect to the Securities
of any one or more series, omit in any particular instance to comply with any
term, provision or condition set forth in any covenant provided pursuant to
Section 301(18), 901(2) or 901(7) for the benefit of the Holders of such series
or in Article Eight or Section 1005 if, before the time for such compliance, the
Holders of a majority in principal amount of the Outstanding Securities of all
series affected by such waiver (considered together as one class for this
purpose) shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be established
in or pursuant to a Board Resolution or in another manner specified as
contemplated by Section 301 for such Securities. In case of any redemption at
the election of the Company of less than all the Securities of any series
(including any such redemption affecting only a single Security), the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects
-53-
<PAGE> 62
only a single Security), 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 of such series not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of a portion of the principal amount
of any Security of such series, provided that the unredeemed portion of the
principal amount of any Security shall be in an authorized denomination (which
shall not be less than the minimum authorized denomination) for such Security.
If less than all the Securities of such series and of a specified tenor are to
be redeemed (unless such redemption affects only a single Security), 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 of
such series and specified tenor not previously called for redemption in
accordance with the preceding sentence.
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.
The Trustee shall promptly notify the Company and each Security Registrar
in writing of the Securities selected for redemption as aforesaid and, in case
of any Securities selected for partial redemption as aforesaid, the principal
amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
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 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 days nor more than 60 days prior to the Redemption Date,
to each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP numbers, if any) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
-54-
<PAGE> 63
(3) if less than all the Outstanding Securities of any series consisting
of more than a single Security are to be redeemed, the identification (and,
in the case of partial redemption of any such Securities, the principal
amounts) of the particular Securities to be redeemed and, if less than all
the Outstanding Securities of any series consisting of a single Security are
to be redeemed, the principal amount of the particular Security to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered for
payment of the Redemption Price,
(6) for any Securities that by their terms may be converted, the terms of
conversion, the date on which the right to convert the Security to be
redeemed will terminate and the place or places where such Securities may be
surrendered for conversion, and
(7) that the redemption is for a sinking fund, if such is the case.
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, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 1105. Deposit of Redemption Price.
Prior to 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
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 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 or in the terms of such Security) be paid to the
Company upon Company Request or, if then held by the Company, shall be
discharged from such trust.
SECTION 1106. 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
-55-
<PAGE> 64
of the Redemption Price and accrued interest) such Securities shall cease to
bear interest. Upon 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, unless otherwise specified as contemplated by Section 301, instalments of
interest whose Stated Maturity is on or prior to the Redemption Date will 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 and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (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 the same series and of like tenor, 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
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms
of any Securities is herein referred to as a "mandatory sinking fund payment",
and any payment in excess of such minimum amount provided for by the terms of
such Securities is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
-56-
<PAGE> 65
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been converted in accordance with their terms or which
have been redeemed either at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to any Securities of
such series required to be made pursuant to the terms of such Securities as and
to the extent provided for by the terms of such Securities; provided that the
Securities to be so credited have not been previously so credited. The
Securities to be so credited shall be received and credited for such purpose by
the Trustee at the Redemption Price, as specified in the Securities so to be
redeemed (or at such other prices as may be specified for such Securities as
contemplated in Section 301), for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 90 days (or such shorter period as shall be satisfactory to
the Trustee) prior to each sinking fund payment date for any Securities, the
Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for such Securities pursuant to
the terms of such Securities, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities pursuant to Section 1202 and
will also deliver to the Trustee any Securities to be so delivered. Not less
than 60 days prior to each such sinking fund payment date, the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 1103 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner provided
in Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302 or
Section 1303 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 301 as being defeasible pursuant to such
Section 1302 or 1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 301 for such Securities.
-57-
<PAGE> 66
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1304 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (4) this Article. Subject to compliance with this Article, the
Company may exercise its option (if any) to have this Section applied to any
Securities notwithstanding the prior exercise of its option (if any) to have
Section 1303 applied to such Securities.
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (1)
the Company shall be released from its obligations under Section 801(3) and
Section 1005, and any covenants provided pursuant to Section 301(18), 901(2) or
901(7) for the benefit of the Holders of such Securities and (2) the occurrence
of any event specified in Sections 501(4) (with respect to any of Section 801(3)
and Section 1005, and any such covenants provided pursuant to Section 301(18),
901(2) or 901(7)) and 501(7) shall be deemed not to be or result in an Event of
Default, in each case with respect to such Securities as provided in this
Section on and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that, with respect to such Securities, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section (to the extent
so specified in the case of Section 501(4)), whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302
or Section 1303 to any Securities or any series of Securities, as the case may
be:
-58-
<PAGE> 67
(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee which satisfies the requirements
contemplated by Section 609 and agrees to comply with the provisions of this
Article applicable to it) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefits of the Holders of such Securities, (A) money in an
amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) such other obligations or arrangements as
may be specified as contemplated by Section 301 with respect to such
Securities, or (D) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of and any premium
and interest on such Securities on the respective Stated Maturities, in
accordance with the terms of this Indenture and such Securities. As used
herein, "U.S. Government Obligation" means (x) any security which is (i) a
direct obligation of the United States of America for the payment of which
the full faith and credit of the United States of America is pledged or (ii)
an obligation of a Person controlled or supervised by and acting as an agency
or instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case (i) or (ii), is not callable
or redeemable at the option of the issuer thereof, and (y) any depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the Securities
Act) as custodian with respect to any U.S. Government Obligation which is
specified in Clause (x) above and held by such bank for the account of the
holder of such depositary receipt, or with respect to any specific payment of
principal of or interest on any U.S. Government Obligation which is so
specified and held, provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder
of such depositary receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal or interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this instrument, there has
been a change in the applicable Federal income tax law, in either case (A) or
(B) to the effect that, and based thereon such opinion shall confirm that,
the Holders of such Securities will not recognize gain or loss for Federal
income tax purposes as a result of the deposit, Defeasance and discharge to
be effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as
would be the case if such deposit, Defeasance and discharge were not to
occur.
(3) In the event of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Securities will not recognize gain or loss for Federal income
tax purposes as a result of the deposit and Covenant Defeasance to be
effected with respect to such Securities and will be subject to Federal
-59-
<PAGE> 68
income tax on the same amount, in the same manner and at the same times as
would be the case if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such deposit
or, with regard to any such event specified in Sections 501(5) and (6), at
any time on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after such
90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the trust
arising from such deposit constituting an investment company within the
meaning of the Investment Company Act unless such trust shall be registered
under the Investment Company Act or exempt from registration thereunder.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 1305. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section and
Section 1306, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to
-60-
<PAGE> 69
Section 1304 or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the
Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 1304 with
respect to any Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
SECTION 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1305 with respect to such Securities
in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to receive such payment
from the money so held in trust.
-----------------------------
-61-
<PAGE> 70
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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.
THE GOLDMAN SACHS GROUP, INC.
By /s/ Dan H. Jester
-------------------------------------
Attest:
/s/ James B. McHugh
- -----------------------------
THE BANK OF NEW YORK
By /s/ Ming J. Shiang
------------------------------------
Attest:
/s/ Mary La Gumina
- -----------------------------
-62-
<PAGE> 71
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 19 day of May, 1999, before me personally came Dan H. Jester, to me
known, who, being by me duly sworn, did depose and say that he is Treasurer of
The Goldman Sachs Group, Inc., one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said 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 he
signed his name thereto by like authority.
/s/ Paul R. Khan
-----------------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 19 day of May, 1999, before me personally came Ming J. Shiang, to
me known, who, being by me duly sworn, did depose and say that he is Vice
President of The Bank of New York, one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
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 he signed his name thereto by like authority.
/s/ Paul R. Khan
-----------------------------------
-63-
<PAGE> 1
EXHIBIT 7
(Face of Security)
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR
A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY
BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE GOLDMAN SACHS GROUP, INC. OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO 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.
(Face of Security continued on next page)
-1-
<PAGE> 2
CUSIP
NO. 38141GAB0
THE GOLDMAN SACHS GROUP, INC.
MEDIUM-TERM NOTES, SERIES B
------------------
2.00% Exchangeable Note due 2006
(Exchangeable for Common Stock of Wells Fargo & Company)
------------------
The following terms apply to this Security. Capitalized terms that
are not defined the first time they are used in this Security shall have the
meanings indicated elsewhere in this Security.
FACE AMOUNT: $72,411,000
PRINCIPAL AMOUNT: on the Stated Maturity Date, the Company will pay the Holder
cash equal to 100% of the Outstanding Face Amount, unless (i) the
Holder exercises the Exchange Right, (ii) the Company exercises the
Call Right or (iii) an Automatic Exchange occurs, all as provided on
the face of this Security.
EXCHANGE RIGHT: the Holder may elect to exchange this Security for Stock at the
Exchange Rate, provided that the Company may elect to pay the Holder
the cash value of the Stock otherwise deliverable in any such exchange
instead of delivering such Stock, all as provided in section 5 on the
face of this Security.
EXCHANGE RATE: 19.001 shares of Stock for each $1,000 of the Outstanding Face
Amount exchanged, subject to adjustment as provided on the face of this
Security.
CALL RIGHT: the Company may redeem this Security as provided in section 6 on
the face of this Security.
STOCK and STOCK ISSUER: common stock of Wells Fargo & Company, subject to
adjustment as provided on the face of this Security.
AUTOMATIC EXCHANGE: an Automatic Exchange of this Security may occur on the
Stated Maturity Date or on any Call Date, as provided in section 7 on
the face of this Security.
CALCULATION AGENT: Goldman, Sachs & Co.
DEFEASANCE: neither full defeasance nor covenant defeasance applies to this
Security.
(Face of Security continued on next page)
-2-
<PAGE> 3
OTHER TERMS:
All terms used in this Security that are not defined in this
Security but are defined in the Indenture referred to on the reverse of this
Security shall have the meanings assigned to them in the Indenture. References
in this Security to numbered sections are to numbered sections on the face of
this Security, unless the context requires otherwise. Section headings on the
face of this Security are for convenience only and shall not affect the
construction of this Security.
"Authorized Denomination" means, with respect to this
Security, a Face Amount of $10,000 or a multiple of $1,000 in excess of $10,000.
"Automatic Exchange" means an exchange of the Outstanding Face
Amount of this Security for cash, Stock or other property, as provided in
section 7.
"Business Day" means any day that is not a Saturday, a Sunday
or a day on which the NYSE (or, if different, the principal securities market in
which the Stock is then quoted or traded), or on which banking institutions in
The City of New York generally, are authorized or obligated by law, regulation
or executive order to close.
"Call Date" means the day specified by the Company in a Call
Notice for redemption of the Outstanding Face Amount of this Security, unless
the Call Date is postponed to a later date as provided in section 7(c), in which
case the Call Date shall be such later date; provided, however, that a Call Date
shall in all cases be after July 1, 2002. As applied to this Security, the term
"Redemption Date" as used in the Indenture shall mean the Call Date, if any.
"Call Notice" means a notice of redemption given by the
Company to the Holder of this Security as provided in section 6.
"Call Notice Date" means any Business Day on which the Company
gives a Call Notice.
"Closing Price" means, with respect to any security on any
day, the closing sale price or last reported
(Face of Security continued on next page)
-3-
<PAGE> 4
sale price, regular way, for the security on a per-share or other unit basis (i)
on the principal national securities exchange on which such security is listed
for trading on such day, (ii) in the event such security is not listed on any
national securities exchange, on the Nasdaq National Market System on such day
or (iii) in the event such security is not quoted in the Nasdaq National Market
System on such day, on such other U.S. national market system that is the
primary market for the trading of such security; provided, however, that, in the
event such security is not listed or quoted as described in clause (i), (ii) or
(iii) above, the Closing Price with respect to such security will be the
average, as determined by the Calculation Agent, of the bid prices for such
security obtained from as many dealers in such security selected by the
Calculation Agent (which may include the Calculation Agent or any affiliate of
such agent or of the Company) as will make such bid prices available to the
Calculation Agent (provided that the number of such dealers need not exceed
three).
"Default Amount" means, on any day, an amount, in U.S.
dollars, equal to the cost of having a Qualified Financial Institution expressly
assume, as of such day, the due and punctual payment of the principal of and
interest on this Security, and the performance or observance of every covenant
hereof and of the Indenture on the part of the Company to be performed or
observed with respect to this Security (or to undertake other obligations
providing substantially equivalent economic value to the Holder of this Security
as the Company's obligations hereunder). Such cost will equal (i) the lowest
amount that a Qualified Financial Institution (selected as provided below) would
charge to effect such assumption (or undertaking) plus (ii) the reasonable
expenses (including reasonable attorneys' fees) incurred by the Holder of this
Security in preparing any documentation necessary for such assumption (or
undertaking). During the Default Quotation Period, each of the Holder of this
Security and the Company may request a Qualified Financial Institution to
provide a quotation of the amount it would charge to effect such assumption (or
undertaking) and notify the other in writing of such quotation. The amount
referred to in clause (i) of this paragraph will equal the lowest (or, if there
is only one, the only) quotation so obtained, and as to which notice is so
given, during the Default Quotation Period; provided
(Face of Security continued on next page)
-4-
<PAGE> 5
that, with respect to any quotation, the party not obtaining such quotation may
object, on reasonable and significant grounds, to the effectuation of such
assumption (or undertaking) by the Qualified Financial Institution providing
such quotation and notify the other party in writing of such grounds within two
Business Days after the last day of the Default Quotation Period, in which case
such quotation will be disregarded in determining the Default Amount. The
"Default Quotation Period" will be the period beginning on the day the Default
Amount first becomes due and payable and ending on the third Business Day after
such due day, unless no such quotation is so obtained, or unless every such
quotation so obtained is objected to within five Business Days after such due
day as provided above, in which case the Default Quotation Period will continue
until the third Business Day after the first Business Day on which prompt notice
is given of such a quotation as provided above, unless such quotation is
objected to as provided above within five Business Days after such first
Business Day, in which case the Default Quotation Period will continue as
provided in this sentence. Notwithstanding the foregoing, if the Default
Quotation Period (and the subsequent two Business Day objection period) has not
ended prior to the Determination Date, then the Default Amount will equal the
Principal Amount.
"Determination Date" means the fifth Business Day prior to
July 1, 2006; provided, however, that if a Market Disruption Event occurs or is
continuing on each of the fifth, sixth and seventh Business Days prior to July
1, 2006, the Determination Date will be the next succeeding Business Day on
which a Market Disruption Event does not occur and is not continuing; provided,
further, that in no event will the Determination Date be later than July 1, 2006
or, if July 1, 2006 is not a Business Day, later than the first Business Day
after July 1, 2006.
"Distribution Property" means securities, cash and/or other
property distributed in any Reorganization Event in respect of the relevant
Reference Amount and, in the case of a Spin-Off Event, includes such Reference
Amount.
"Exercise Requirements" means, with respect to any exchange of
this Security pursuant to section 5, all the following requirements that apply
to such exchange:
(Face of Security continued on next page)
-5-
<PAGE> 6
(i) Both the Trustee and the Calculation Agent must receive a
properly completed and signed Notice of Exchange specifying the
Outstanding Face Amount of this Security to be exchanged. In each case,
such notice must be delivered by facsimile to the applicable number and
location specified in the Notice of Exchange (or to such other number
and location, or in such other manner, as the Trustee or Calculation
Agent, as applicable, may specify to the Holder).
(ii) If this Security is not a Global Security, the Trustee
must receive the certificate representing this Security. In each case,
such delivery must be made by mail, by hand or by reputable commercial
courier, to the office of the Trustee, and to the attention of its
representative, specified in the Notice of Exchange (or to such other
location, or in such other manner, as the Trustee may specify to the
Holder).
(iii) If this Security is not a Global Security and the
Exchange Date occurs after a Regular Record Date and before the related
Interest Payment Date, the Trustee must receive cash in an amount equal
to the interest payable on the portion of this Security to be
exchanged, as provided in clause (iv) of section 5. In each case, such
delivery must be made by check, as provided in clause (ii) above, or by
wire transfer to an account specified by the Trustee (or in such other
manner as the Trustee may specify).
(iv) If this Security is a Global Security, the beneficial
interest in the portion of the Security to be exchanged must be
transferred on the books of the Depositary to the account of the
Trustee at the Depositary and the Trustee must receive and accept the
transfer, all in accordance with the applicable procedures of the
Depositary. If the Trustee receives and accepts the transfer by 3:00
P.M., New York City time, on any Business Day, the requirement in this
clause (iv) will be deemed satisfied as of 11:00 A.M. on the same
Business Day.
The Calculation Agent will, in its sole discretion, resolve any questions that
may arise as to the validity of a Notice of Exchange or as to whether and when
the Exercise Requirements have been satisfied in respect of any exchange.
(Face of Security continued on next page)
-6-
<PAGE> 7
"Exchange Date" means, with respect to any exchange of this
Security pursuant to section 5, the fifth Business Day after the Exchange Notice
Date for such exchange. Notwithstanding the foregoing, the Exchange Date may be
postponed as provided in section 5, in which case the Exchange Date shall be the
date to which it is so postponed.
"Exchange Notice Date" means, with respect to any exchange of
this Security pursuant to section 5, the first Business Day on which all
Exercise Requirements have been satisfied with respect to such exchange by 11:00
A.M., New York City time, on such day, provided that such first Business Day
must occur no later than the earlier of (i) the third Business Day prior to the
Determination Date and (ii) any Call Notice Date. If the Exercise Requirements
have been satisfied with respect to an exchange on a Business Day but after
11:00 A.M., New York City time, the next Business Day will be the Exchange
Notice Date for such exchange, subject to the proviso in the prior sentence.
Notwithstanding the foregoing, the Exchange Notice Date may be postponed as
provided in section 5, in which case the Exchange Notice Date shall be the date
to which it is so postponed.
"Ex-Dividend Date" for any dividend or other distribution in
respect of the Stock shall mean the first day on which the Stock trades without
the right to receive such dividend or other distribution.
"Market Disruption Event" means, with respect to the Stock,
(i) a suspension, absence or material limitation of trading of the Stock in the
primary market for the Stock for more than two hours of trading or during the
one-half hour period preceding the close of trading in such market, (ii) a
suspension, absence or material limitation of trading in option contracts
related to the Stock, if available, in the primary market for such contracts for
more than two hours of trading or during the one-half hour period preceding the
close of trading in such market or (iii) the Stock does not trade in what was
the primary market for the Stock, in each case (i), (ii) and (iii) as determined
by the Calculation Agent; provided, however, that no such event described in
clause (i), (ii) or (iii) will be a Market Disruption Event unless the
Calculation Agent also determines that such event materially interferes with the
ability of the Company or any of its affiliates to unwind
(Face of Security continued on next page)
-7-
<PAGE> 8
all or a material portion of any hedge that any of them effects with respect to
this Security. For purposes of determining whether a Market Disruption Event has
occurred, (a) a limitation on the hours or numbers of days of trading in the
relevant market will not constitute a Market Disruption Event if it results from
an announced change in the regular business hours of such market, (b) a decision
to permanently discontinue trading in the relevant option contracts will not
constitute a Market Disruption Event, (c) a suspension or limitation of trading
in option contracts related to the Stock, if available, in the primary market
for such contracts, by reason of (1) a price change exceeding limits set by such
market, (2) an imbalance of orders relating to such contracts or (3) a disparity
in bid and ask quotes relating to such contracts, will, in each case (1), (2)
and (3), constitute a suspension or material limitation of trading in option
contracts related to the Stock and (d) an "absence of trading" in the primary
market on which option contracts related to the Stock are traded will not
include any time when such market is itself closed for trading under ordinary
circumstances. References to the Stock in this paragraph will also be deemed to
refer to any Distribution Property consisting of securities.
"NASD" means the National Association of Securities
Dealers, Inc.
"Notice of Exchange" means a properly completed and signed
notice substantially in the form attached to the Company's prospectus supplement
dated June 24, 1999 relating to this Security (or such other form as is
acceptable to the Trustee and the Calculation Agent). Once given, a Notice of
Exchange may not be revoked.
"NYSE" means the New York Stock Exchange, Inc.
"Original Issue Date" means July 1, 1999.
"Qualified Financial Institution" means, at any time, a
financial institution organized under the laws of any jurisdiction in the United
States of America, Europe or Japan that at such time has outstanding debt
obligations with a stated maturity of one year or less from the date of issue
and rated A-1 or higher by Standard & Poor's Ratings Group (or any successor) or
P-1 or higher by Moody's Investors Service, Inc. (or any successor) or, in
either
(Face of Security continued on next page)
-8-
<PAGE> 9
case, such other comparable rating, if any, then used by such rating agency.
"Redemption Price" means the amount payable in respect of this
Security on a Call Date pursuant to section 6. The Redemption Price payable on
any Call Date does not include any accrued interest payable in respect of this
Security.
"Reference Amount" means, initially, the amount of Stock
specified above under "Exchange Rate" and shall be adjusted, as to the amount(s)
and/or type(s) of property comprising the same, by the Calculation Agent as
provided in sections 8 through 15.
"Stated Maturity Date" means July 1, 2006 or, if such day is
not a Business Day, the next succeeding Business Day; provided, however, that if
the fifth Business Day preceding July 1, 2006 is not the Determination Date, the
Stated Maturity Date will be the fifth Business Day succeeding the Determination
Date; provided, further, that in no event will the Stated Maturity Date be later
than the fifth Business Day after July 1, 2006 or, if July 1, 2006 is not a
Business Day, later than the sixth Business Day after July 1, 2006.
"Trade Date" means June 24, 1999.
-----------------------
1. Promise to Pay Principal and Interest
The Goldman Sachs Group, Inc., a corporation duly organized
and existing under the laws of the State of Delaware (hereinafter called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co., as nominee for The Depository Trust Company, or registered assigns, as
principal, the Outstanding Face Amount on the Stated Maturity Date, subject to
the other provisions of this Security, and to pay interest on the Outstanding
Face Amount, from the Original Issue Date or from the most recent date to which
interest has been paid or duly provided for, on January 1 and July 1 (each an
"Interest Payment Date") in each year, commencing
(Face of Security continued on next page)
-9-
<PAGE> 10
on January 1, 2000, and at the Maturity of the principal at the rate of 2.00%
per annum, until the principal of this Security is paid or made available for
payment. Any such instalment of interest that is overdue at any time shall also
bear interest, at the rate of 2.00% per annum (to the extent that payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Notwithstanding the
foregoing, (i) if the Stated Maturity Date does not occur on July 1, 2006, then
the Interest Payment Date that would otherwise occur on July 1, 2006 shall
instead occur on the Stated Maturity Date, (ii) interest on any overdue amount
shall be payable on demand and (iii) the accrual and payment of interest on any
portion of the Face Amount exchanged by the Holder pursuant to section 5 or
subject to an Automatic Exchange pursuant to section 7 shall be subject to the
applicable provisions of those sections.
2. Payment of Interest
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the 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 Payment Date. If this Security is a Global Security, the Regular Record
Date for an Interest Payment Date shall be the first Business Day before such
Interest Payment Date. If this Security is not a Global Security, the Regular
Record Date for an Interest Payment Date shall be the fifteenth calendar day
(whether or not a Business Day) next preceding such Interest Payment Date. Any
interest so payable, but not punctually paid or duly provided for, on any
Interest Payment Date will forthwith cease to be payable to the Holder on such
Regular Record Date and such Defaulted Interest 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, notice whereof shall be
given to the Holder of this Security not less than 10 days prior to such Special
Record Date, or be paid in any other lawful manner not inconsistent with the
requirements of any securities exchange on which this Security may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
(Face of Security continued on next page)
-10-
<PAGE> 11
3. No Fractional Shares
No fractional shares will be delivered in exchange for this
Security. If more than one Security of this series and of like tenor are to be
exchanged for Stock on the same date and by the same Holder pursuant to section
5, 7(a) or 7(b), the number of full shares that will be delivered upon exchange
will be calculated on the basis of the aggregate number of such Securities. If
this Security is a Global Security and two or more portions of this Security are
to be exchanged for Stock on the same date pursuant to two or more Notices of
Exchange, the number of full shares that will be delivered upon exchange will be
calculated separately with respect to each such Notice of Exchange, on the basis
of the Face Amount to be exchanged pursuant to each such Notice of Exchange. In
lieu of any fractional share otherwise deliverable in exchange for this
Security, the Holder shall be entitled to receive an amount in cash equal to the
value of such fractional share based on the following: (i) for an exchange
pursuant to section 5, the Closing Price of the relevant security on the
relevant Exchange Notice Date and (ii) for an exchange pursuant to section 7(a)
or 7(b), the Average Closing Price of the relevant security, as determined
pursuant to such section (or such other price as may apply in lieu thereof
pursuant to section 7(c)). With respect to any security other than a share of
capital stock, a fractional share shall be deemed to mean any denomination other
than an authorized denomination for such security.
4. Principal Amount
The principal of this Security that becomes due and payable on
the Stated Maturity Date shall be the Outstanding Face Amount unless an
Automatic Exchange is to occur on such date, in which case such principal shall
be the cash, Stock or other property that the Company is obligated to deliver
(or cause to be delivered) in such Automatic Exchange. The principal of this
Security that becomes due and payable on a Call Date shall be the Redemption
Price unless an Automatic Exchange is to occur on such date, in which case such
principal shall be the cash, Stock or other property that the Company is
obligated to deliver (or cause to be delivered) in such Automatic Exchange. The
principal of this Security that becomes due and payable on any Exchange Date
shall be the cash, Stock or other property that the Company is obligated to
deliver in exchange for this Security (or any portion hereof being
(Face of Security continued on next page)
-11-
<PAGE> 12
exchanged) on such date. The principal of this Security that becomes due and
payable upon acceleration of the Maturity hereof after an Event of Default has
occurred pursuant to the Indenture shall be the Default Amount. When the cash,
Stock or other property referred to above in this section 4 has been paid or
delivered as provided herein (or such payment or delivery has been duly provided
for), the principal of this Security (or the portion hereof being exchanged, as
the case may be) shall be deemed to have been paid in full, whether or not this
Security shall have been surrendered for payment or cancellation. References to
the payment of the principal of this Security on any day shall be deemed to mean
the delivery or payment of cash, Stock or other property that is payable or
deliverable on such day as provided in this Security. Notwithstanding the
foregoing, solely for the purpose of determining whether any consent, waiver,
notice or other action to be given or taken by Holders of Securities pursuant to
the Indenture has been given or taken by Holders of Outstanding Securities in
the requisite aggregate principal amount, the principal amount of this Security
will be deemed to equal the Face Amount. This Security shall cease to be
Outstanding as provided in the definition of such term in the Indenture or when
the principal of this Security shall be deemed to have been paid in full as
provided above and all interest payable on this Security has been paid (or such
payment of interest has been duly provided for).
5. Holder's Exchange Right
The Holder may elect to exchange the Outstanding Face Amount
of this Security, in whole or in part at any time and from time to time, for
shares of Stock at the Exchange Rate, provided that the Exercise Requirements
with respect to such exchange have been satisfied no later than 11:00 A.M., New
York City time, on the earlier of (i) the third Business Day before the
Determination Date and (ii) any Call Notice Date. If the Holder makes such an
election, the Company may choose, at its sole option, either to deliver such
shares of Stock to the Holder (subject to section 3 above) or to pay cash to the
Holder in an amount equal to the value of such shares (including any fractional
share), which value shall equal the number of such shares multiplied by the
Closing Price of the Stock on the applicable Exchange Notice Date. The Company
shall make (or cause its agent to make) the delivery or payment due in any
(Face of Security continued on next page)
-12-
<PAGE> 13
such exchange on the applicable Exchange Date and in the manner provided in
section 17 below. No election to exchange this Security pursuant to this section
5 shall be effective unless the Exercise Requirements are satisfied with respect
to such exchange at or prior to the date and time specified above. The right of
the Holder to exchange the Security pursuant to this section 5 is herein called
the "Exchange Right".
If the Holder exercises the Exchange Right and if the Company
chooses to pay cash instead of delivering Stock on the applicable Exchange Date,
the Company will notify the Holder of its election no later than the Business
Day after the related Exchange Notice Date. If the Holder exercises the Exchange
Right and the Company does not notify the Holder of such election on the
Business Day after the related Exchange Notice Date, the Company will deliver
shares of Stock (subject to section 3) on the Exchange Date, except as provided
below in this section 5. The Company will give any such notice by telephone or
telecopier to the number specified in the applicable Notice of Exchange by the
Person who signs such notice.
If a Market Disruption Event occurs or is continuing on a day
that would otherwise be an Exchange Notice Date, then such Exchange Notice Date
will be postponed to the first succeeding Business Day on which a Market
Disruption Event does not occur and is not continuing. In no event, however,
will any Exchange Notice Date be postponed by more than five Business Days. If
an Exchange Notice Date is postponed, the related Exchange Date will also be
postponed, to the fifth Business Day after the day to which such Exchange Notice
Date is postponed. If an Exchange Notice Date is postponed to the last possible
day, and a Market Disruption Event occurs or is continuing on that day, that day
will nevertheless be such Exchange Notice Date.
In the event that a Market Disruption Event occurs or is
continuing on an Exchange Notice Date or on any later day through and including
the related Exchange Date, the Company may choose to pay cash instead of
delivering Stock on such Exchange Date, even if the Company has not notified the
Holder of its election to pay cash as provided above in this section 5.
(Face of Security continued on next page)
-13-
<PAGE> 14
If the Company elects to pay the cash value of the Stock
otherwise deliverable on an Exchange Date but the Closing Price of the Stock
that must be used to determine such cash value is not available on the related
Exchange Notice Date, either because of a Market Disruption Event or for any
other reason, the Calculation Agent will nevertheless determine that Closing
Price based on its assessment, made in its sole discretion, of the market value
of the Stock on such Exchange Notice Date. This paragraph shall apply whether
the election to pay cash is made pursuant to the prior paragraph or the second
paragraph of this section 5.
Partial exchanges of this Security will be permitted only if
the portion of the Face Amount exchanged is a multiple of $1,000 and only if the
unexchanged portion is an Authorized Denomination. References herein to any
portion of this Security being exchanged shall mean the entire amount of this
Security if the entire amount is being exchanged.
If the Holder exercises the Exchange Right, the applicable
provisions of this paragraph will apply to the exchanged portion of this
Security.
(i) If the applicable Exchange Date occurs on an Interest
Payment Date, interest will accrue on the exchanged portion to, but
excluding, such Interest Payment Date. The interest that accrues on
such exchanged portion to such Interest Payment Date, excluding any
part of such interest that becomes payable prior to such Interest
Payment Date, shall be payable on such Interest Payment Date as
provided in section 2 above.
(ii) If the applicable Exchange Date occurs after an Interest
Payment Date but on or before the next Regular Record Date, interest
will accrue on the exchanged portion only to, and excluding, such prior
Interest Payment Date and no interest will accrue or be payable for the
later period that precedes such Exchange Date.
(iii) If the applicable Exchange Date occurs on or before the
first Regular Record Date, interest will not accrue or be payable on
such exchanged portion.
(iv) If this Security is not a Global Security and the
applicable Exchange Date occurs after a Regular
(Face of Security continued on next page)
-14-
<PAGE> 15
Record Date but before the related Interest Payment Date, interest will
accrue on the exchanged portion of this Security to, but excluding,
such Interest Payment Date. The interest that accrues on such exchanged
portion to such Interest Payment Date, excluding any part of such
interest that becomes payable prior to such Interest Payment Date, will
be payable on such Interest Payment Date as provided in section 2
above; provided, however, that the Holder exercising the Exchange Right
with respect to such portion will be required to pay to the Trustee
(for the benefit of the Company), no later than 11:00 A.M., New York
City time, on the Exchange Notice Date, cash in an amount equal to the
interest that becomes payable on the exchanged portion of this Security
on such Interest Payment Date.
Notwithstanding the foregoing, if the Company defaults on its obligation to make
(or cause to be made) the delivery or payment due in respect of any portion of
this Security on an Exchange Date pursuant to this section 5, interest shall
accrue on such portion from the Exchange Date to the day such delivery or
payment is made or made available and shall be payable on demand of the Holder.
6. Company's Call Right
This Security is subject to redemption upon not less than 15
days' nor more than 30 days' notice, at any time after July 1, 2002, in whole
but not in part, at the election of the Company for cash at a Redemption Price
equal to 100% of the Outstanding Face Amount on the Call Date, plus accrued
interest to the Call Date. Interest instalments whose Stated Maturity is on or
prior to a Call Date will be payable as provided in section 2.
The Company shall not give a Call Notice that results in a
Call Date later than the Stated Maturity Date. A Call Notice, once given, shall
be irrevocable.
If the Company gives a Call Notice, this Security will be
subject to the provisions of section 7(b). If an Automatic Exchange is to occur
pursuant to section 7(b), then, notwithstanding the foregoing, this Security
shall not be subject to redemption pursuant to this section 6. If an Automatic
Exchange is not to occur pursuant to section 7(b), then this Security shall be
redeemed on the Call Date as
(Face of Security continued on next page)
-15-
<PAGE> 16
provided in this section 6 and in the Indenture (as modified by this section 6).
7. Automatic Exchange
(a) On the Stated Maturity Date. If the Holder does not
exercise the Exchange Right for the entire Outstanding Face Amount of this
Security by 11:00 A.M., New York City time, on the third Business Day before the
Determination Date and the Company does not give a Call Notice, the provisions
of this section 7(a) will apply. On the Determination Date, the Calculation
Agent (i) will determine the number of shares of Stock (including any fractional
share) that would be deliverable in exchange for the Outstanding Face Amount on
such date at the Exchange Rate, if such amount were to be exchanged on such date
pursuant to section 5, and (ii) will multiply such number of shares by the
average of the Closing Prices of the Stock on each of the three consecutive
Business Days ending on and including the Determination Date, subject to section
7(c) below. The resulting amount determined pursuant to the prior sentence and
section 7(c), as applicable, is herein called the "Section 7(a) Amount".
If the Section 7(a) Amount exceeds the sum of (i) the
Outstanding Face Amount on the Determination Date plus (ii) the amount of the
regular interest instalment that would become due on such Outstanding Face
Amount on the Stated Maturity Date if such Outstanding Face Amount were not
exchanged or redeemed, then, without any action being taken by the Holder, this
Security will automatically be exchanged as follows. On the Stated Maturity
Date, either the Company will deliver to the Holder the shares of Stock
specified in clause (i) of the prior paragraph or, at the Company's option, the
Company will pay to the Holder cash in an amount equal to the Section 7(a)
Amount. The Company will be entitled to select either of these alternatives at
its option and without notifying the Holder or any other Person of its
selection. In determining the amounts specified in this paragraph and the prior
paragraph, the Outstanding Face Amount on the Determination Date shall be deemed
to exclude any portion thereof to be exchanged pursuant to section 5 on an
Exchange Date that occurs on or after the Determination Date. In addition, if
the Outstanding Face Amount on the Stated Maturity Date is lower than the Face
Amount deemed to be Outstanding on the
(Face of Security continued on next page)
-16-
<PAGE> 17
Determination Date, then the number of shares to be delivered or the amount of
cash to be paid on the Stated Maturity Date pursuant to this section 7(a) will
be proportionately reduced.
If the Section 7(a) Amount does not exceed the sum specified
in the prior paragraph, then this Security shall not be subject to an Automatic
Exchange pursuant to this section 7(a) and the Company will pay the Holder the
Outstanding Face Amount on the Stated Maturity Date as provided in section 1.
If any portion of this Security is subject to an Automatic
Exchange pursuant to this section 7(a), no interest will accrue or be payable on
such portion in respect of the period from the Interest Payment Date prior to
the Stated Maturity Date to the Stated Maturity Date. If the Company defaults on
its obligation to make the delivery or payment due in respect of any portion of
the Security in such an Automatic Exchange, interest shall accrue on such
portion from the Stated Maturity Date to the day such delivery or payment is
made or made available and shall be payable on demand of the Holder.
(b) On a Call Date. If the Company gives a Call Notice, the
provisions of this section 7(b) will apply. On the Section 7(b) Calculation Day
(as defined in section 7(c)), the Calculation Agent (i) will determine the
number of shares of Stock (including any fractional share) that would be
deliverable in exchange for the Outstanding Face Amount on such day at the
Exchange Rate, if such amount were to be exchanged on such day pursuant to
section 5, and (ii) will multiply such number of shares by the average of the
Closing Prices of the Stock on each of the three consecutive Business Days
beginning on and including the Call Notice Date, subject to section 7(c) below.
The resulting amount determined pursuant to the prior sentence and section 7(c),
as applicable, is herein called the "Section 7(b) Amount".
If the Section 7(b) Amount exceeds the sum of (i) the
Redemption Price that would be payable on the Call Date in respect of the
Outstanding Face Amount on the Section 7(b) Calculation Day plus (ii) the amount
of interest that will have accrued on such Outstanding Face Amount from and
after the last Interest Payment Date before the Call Date to
(Face of Security continued on next page)
-17-
<PAGE> 18
the Call Date, then, without any action being taken by the Holder, this Security
will automatically be exchanged as follows. On the Call Date, either the Company
will deliver to the Holder the shares of Stock specified in clause (i) of the
prior paragraph or, at the Company's option, the Company will pay to the Holder
cash in an amount equal to the Section 7(b) Amount. The Company will be entitled
to select either of these alternatives at its option and without notifying the
Holder or any other Person of its selection. In determining the amounts
specified in this paragraph and the prior paragraph, the Outstanding Face Amount
on the Section 7(b) Calculation Day will be deemed to exclude any portion
thereof to be exchanged pursuant to section 5 on an Exchange Date that occurs on
or after the Section 7(b) Calculation Day. In addition, if the Outstanding Face
Amount on the Call Date is lower than the Face Amount deemed to be Outstanding
on the Section 7(b) Calculation Day, then the number of shares to be delivered
or the amount of cash to be paid on the Call Date pursuant to this section 7(b)
will be proportionately reduced.
If the Section 7(b) Amount does not exceed the sum specified
in the prior paragraph, then this Security shall not be subject to an Automatic
Exchange pursuant to this section 7(b) and the Company will redeem the
Outstanding Face Amount on the Call Date as provided in section 6.
If any portion of this Security is subject to an Automatic
Exchange pursuant to this section 7(b), no interest will accrue or be payable on
such portion in respect of the period from the Interest Payment Date prior to
the Call Date to the Call Date. If the Company defaults on its obligation to
make the delivery or payment due in respect of any portion of this Security in
such an Automatic Exchange, interest shall accrue on such portion from the Call
Date to the day such delivery or payment is made or made available and shall be
payable on demand of the Holder.
(c) Deferred Pricing. In determining the Section 7(a) Amount
or the Section 7(b) Amount, the Calculation Agent shall follow the applicable
provisions of clauses (i) through (iv) below. For the purposes of this section
7(c), the three-Business Day pricing periods referred to in sections 7(a) and
7(b) are each called a "Pricing Period" and the averages of the Closing Prices
specified in sections 7(a) and 7(b) are each called an "Average Closing Price".
(Face of Security continued on next page)
-18-
<PAGE> 19
(i) If a Market Disruption Event occurs or is continuing on
only one Business Day during the relevant Pricing Period, the
Calculation Agent will use, instead of the relevant Average Closing
Price, the average of the Closing Prices on the two other Business Days
during that period.
(ii) If a Market Disruption Event occurs or is continuing on
only two Business Days during the relevant Pricing Period, the
Calculation Agent will use, instead of the relevant Average Closing
Price, the Closing Price on the one other Business Day during that
period.
(iii) If a Market Disruption Event occurs or is continuing on
all three Business Days during the relevant Pricing Period, then the
Calculation Agent will use, instead of the relevant Average Closing
Price, the Closing Price on the first Business Day after that period on
which no Market Disruption Event occurs or is continuing. Such first
Business Day, however, shall not be later than the Determination Date,
in the case of an Automatic Exchange on the Stated Maturity Date, or
later than the fifth Business Day after the relevant Pricing Period, in
the case of an Automatic Exchange on the Call Date. Such first Business
Day is herein called a "Deferred Pricing Date" and such latest Business
Day on which a Deferred Pricing Date may occur is herein called the
"Latest Possible Pricing Date". (The Deferred Pricing Date may occur on
the Latest Possible Pricing Date.)
(iv) If a Market Disruption Event occurs or is continuing on
each Business Day during the relevant Pricing Period and on each
subsequent Business Day through and including the Latest Possible
Pricing Date, the Calculation Agent will nevertheless determine the
Closing Price of the Stock (and the Deferred Pricing Date will occur)
on the Latest Possible Pricing Date. If the Calculation Agent
determines that the Closing Price is not available on the Latest
Possible Pricing Date, either because of a Market Disruption Event or
for any other reason, the Calculation Agent will determine the Closing
Price based on its assessment, made in its sole discretion, of the
market value of the Stock on the Latest Possible Pricing Date. The
Calculation Agent will use the Closing Price on the
(Face of Security continued on next page)
-19-
<PAGE> 20
Latest Possible Pricing Date, however determined, instead of the
Average Closing Price.
If a Call Notice is given and the Calculation Agent uses the Closing Price
(however determined as aforesaid) on a Deferred Pricing Date as provided in
clause (iii) or (iv) above, the Call Date shall be the later of (x) the fifth
Business Day after such Deferred Pricing Date and (y) the original Call Date
specified in the Call Notice. If the date described in clause (x) is later than
the date in clause (y), the Call Date shall automatically be postponed to such
later date, without notice to the Holder or any other Person and whether this
Security is redeemed or an Automatic Exchange occurs on the Call Date. If a Call
Notice is given, the last day of the relevant Pricing Period will be the
"Section 7(b) Calculation Day" unless the Calculation Agent uses a Closing Price
on the Deferred Pricing Date to determine the Section 7(b) Amount, in which case
the "Section 7(b) Calculation Day" will be such Deferred Pricing Date.
8. Antidilution Adjustment.
The Calculation Agent shall adjust the Exchange Rate as
provided in this Security in respect of each event for which adjustment is
required under sections 9 through 14 (and not in respect of any other event).
(If more than one such event occurs, the Calculation Agent shall adjust the
Exchange Rate as so provided for each such event, sequentially, in the order in
which such events occur, and on a cumulative basis.) With respect to any portion
of this Security to be exchanged, including any portion subject to an Automatic
Exchange, the Calculation Agent will make the required determinations and
adjustments no later than the related Exchange Notice Date. Solely for this
purpose, the Exchange Notice Date for an Automatic Exchange will be the last
Business Day for which the Closing Price or other market value of the Stock is
used to determine the amount of cash payable in such exchange. If any event
requiring adjustment occurs during a Pricing Period for an Automatic Exchange,
so that one or more but not all the Closing Prices used to calculate the
relevant Average Closing Price are affected by the event, the Calculation Agent
will make any additional adjustments it considers necessary to give appropriate
effect to this fact.
Notwithstanding any provision of this Security, if an event
for which adjustment is required under sections 9
(Face of Security continued on next page)
-20-
<PAGE> 21
through 14 occurs, the Calculation Agent may make the adjustment and any related
determinations and calculations in a manner that differs from that specified in
this Security as necessary to achieve an equitable result. Upon written request
by the Holder to the Calculation Agent, the Calculation Agent will provide the
Holder with such information about adjustments made pursuant to this Security as
such agent determines is appropriate.
9. Stock Splits.
If the Stock is subject to a stock split, then at the opening
of business on the first day on which the Stock trades without the right to
receive the stock split, the Calculation Agent will adjust the Exchange Rate to
equal the sum of the Exchange Rate in effect immediately prior to such
adjustment plus the product of (i) the number of new shares issued in the stock
split with respect to one share of the Stock and (ii) the Exchange Rate in
effect immediately prior to such adjustment. The Exchange Rate will not be
adjusted, however, unless such first day occurs after the Trade Date and on or
before the relevant Exchange Notice Date.
10. Reverse Stock Splits.
If the Stock is subject to a reverse stock split, then once
the reverse stock split becomes effective, the Calculation Agent will adjust the
Exchange Rate to equal the product of the Exchange Rate in effect immediately
prior to such adjustment and the quotient of (i) the number of shares of
outstanding Stock resulting from the reverse stock split divided by (ii) the
number of shares of Stock outstanding immediately before the reverse stock split
becomes effective. The Exchange Rate will not be adjusted, however, unless the
reverse stock split becomes effective after the Trade Date and on or before the
relevant Exchange Notice Date.
11. Stock Dividends.
If the Stock is subject to a stock dividend that is given
ratably to all holders of the Stock, then at the opening of business on the
Ex-Dividend Date, the Calculation Agent will adjust the Exchange Rate to equal
the Exchange Rate in effect immediately prior to such adjustment plus the
product of (i) the number of shares issued in the Stock
(Face of Security continued on next page)
-21-
<PAGE> 22
dividend with respect to one share of the Stock and (ii) the Exchange Rate in
effect immediately prior to such adjustment. The Exchange Rate will not be
adjusted, however, unless such Ex-Dividend Date occurs after the Trade Date and
on or before the relevant Exchange Notice Date.
12. Other Dividends and Distributions.
There will be no adjustments to the Exchange Rate to reflect
dividends or other distributions paid with respect to the Stock other than (i)
stock dividends as provided in section 11, (ii) dividends or other distributions
constituting Spin-Off Events as provided in section 14, (iii) issuances of
transferable rights or warrants as provided in section 13 and (iv) Extraordinary
Dividends as provided in this section 12. A dividend or other distribution with
respect to the Stock will be deemed to be an "Extraordinary Dividend" if the per
share value of such dividend or other distribution exceeds the per share value
of the immediately preceding dividend or distribution with respect to the Stock,
if any, that is not an Extraordinary Dividend by an amount equal to at least 10%
of the Closing Price of the Stock on the Business Day immediately preceding the
Ex-Dividend Date for such Extraordinary Dividend. If an Extraordinary Dividend
occurs with respect to the Stock, the Calculation Agent will adjust the Exchange
Rate to equal the product of (a) the Exchange Rate in effect immediately prior
to such adjustment and (b) a fraction, the numerator of which is the Closing
Price of the Stock on the Business Day immediately preceding the Ex-Dividend
Date and the denominator of which is the amount by which such Closing Price
exceeds the Extraordinary Dividend Amount. The "Extraordinary Dividend Amount"
with respect to an Extraordinary Dividend for the Stock will equal (1) in the
case of cash dividends or other distributions that constitute regular quarterly
dividends, the amount per share of such Extraordinary Dividend minus the amount
per share of the immediately preceding dividend or distribution with respect to
the Stock, if any, that is not an Extraordinary Dividend or (2) in the case of
cash dividends or other distributions that do not constitute regular quarterly
dividends, the amount per share of such Extraordinary Dividend. To the extent an
Extraordinary Dividend is not paid in cash, the value of the non-cash component
will be determined by the Calculation Agent. A distribution on the Stock that
constitutes a stock dividend, an issuance of
(Face of Security continued on next page)
-22-
<PAGE> 23
transferable rights or warrants or a Spin-Off Event and also constitutes an
Extraordinary Dividend will result only in an adjustment to the Exchange Rate
pursuant to section 11, 13 or 14, as applicable. The Exchange Rate will not be
adjusted pursuant to this section 12 unless the Ex-Dividend Date for the
Extraordinary Dividend occurs after the Trade Date and on or before the relevant
Exchange Notice Date.
13. Transferable Rights and Warrants.
If the Stock Issuer issues transferable rights or warrants to
all holders of the Stock to subscribe for or purchase the Stock at an exercise
price per share less than the Closing Price of the Stock on the Business Day
immediately before the Ex-Dividend Date for such issuance, then the Calculation
Agent will adjust the Exchange Rate by multiplying the Exchange Rate in effect
immediately prior to such adjustment by a fraction, the numerator of which is
the number of shares of Stock outstanding at the close of business on the day
before such Ex-Dividend Date plus the number of additional shares of Stock
offered for subscription or purchase under such transferable rights or warrants,
and the denominator of which is the number of shares of Stock outstanding at the
close of business on the day before such Ex-Dividend Date plus the number of
additional shares of Stock that the aggregate offering price of the total number
of shares of Stock so offered for subscription or purchase would purchase at the
Closing Price of the Stock on the Business Day immediately before such
Ex-Dividend Date, with such number of additional shares being determined by
multiplying the total number of shares so offered by the exercise price of such
transferable rights or warrants and dividing the resulting product by the
Closing Price of the Stock on the Business Day immediately before such Ex-
Dividend Date. The Exchange Rate will not be adjusted, however, unless such
Ex-Dividend Date occurs after the Trade Date and on or before the relevant
Exchange Notice Date.
14. Reorganization Events.
If (i) any reclassification or other change of the Stock
occurs, (ii) the Stock Issuer has been subject to a merger, combination or
consolidation and is not the surviving entity or it does survive but all the
shares of Stock are exchanged for or converted into Distribution
(Face of Security continued on next page)
-23-
<PAGE> 24
Property, (iii) any statutory share exchange involving the outstanding Stock and
the securities of another entity occurs (other than in a transaction described
in clause (ii) above), (iv) the Stock Issuer sells or otherwise transfers its
property and assets as an entirety or substantially as an entirety to another
entity, (v) the Stock Issuer issues to all holders of Stock equity securities of
an issuer other than the Stock Issuer (other than in a transaction described in
clause (i), (ii), (iii) or (iv) above) (a "Spin-Off Event"), (vi) an entity
other than the Stock Issuer completes a tender or exchange offer for all the
outstanding Stock or (vii) the Stock Issuer is liquidated, dissolved or wound up
or is subject to a proceeding under any applicable bankruptcy, insolvency or
other similar law (any such event in clauses (i) through (vii), a
"Reorganization Event"), then the Calculation Agent will adjust the Exchange
Rate by adjusting the Reference Amount so that the Reference Amount consists of
the respective amounts of each type of Distribution Property deemed, for the
purposes of this Security, to be distributed in such Reorganization Event in
respect of the Reference Amount as in effect immediately prior to such
adjustment, taken together.
If the Calculation Agent determines that the Distribution
Property so distributed consists of more than one type of property, the
Calculation Agent will determine the respective amounts of such types that will
comprise the adjusted Reference Amount so that the value of each such amount
bears the same relationship to the total value of all such amounts as the value
of the corresponding component type of Distribution Property so distributed
bears to the total value of all Distribution Property so distributed. The
Calculation Agent will determine the value of each component type of
Distribution Property, using the Closing Price for any such type consisting of
securities and such other method as it considers reasonable for any other type.
If a holder of the Stock may elect to receive different types or combinations of
types of Distribution Property in the Reorganization Event, the Distribution
Property will be deemed to include the types and amounts thereof distributed to
a holder that makes no election. If a Reorganization Event occurs and as a
result the Reference Amount is adjusted to consist of Distribution Property, the
Calculation Agent will make further adjustments for subsequent events that
affect such Distribution Property or any component type thereof, to the same
extent that it would make adjustments if the Stock were outstanding and were
(Face of Security continued on next page)
-24-
<PAGE> 25
affected by the same kinds of events. Consequently, if the Holder exercises the
Exchange Right or an Automatic Exchange occurs, the Holder will be entitled to
receive, for each $1,000 of the Outstanding Face Amount of this Security being
exchanged, all components of the Reference Amount as in effect on the relevant
Exchange Notice Date, with each component having been adjusted on a sequential
and cumulative basis for all events requiring adjustment on or before the
relevant Exchange Notice Date, unless the Company elects to pay cash in the
exchange.
If the Exchange Right is exercised or an Automatic Exchange
occurs and the Company elects to pay cash in the exchange, the Company will do
so based on the applicable price of the Stock pursuant to section 5, 7(a) or
7(b) as long as the Reference Amount consists only of Stock. If a Reorganization
Event occurs and the Reference Amount consists of property other than Stock,
then the amount of cash the Company will pay -- for each $1,000 of the
Outstanding Face Amount of this Security being exchanged -- will equal the total
value of the adjusted Reference Amount, as in effect on the relevant Exchange
Notice Date. The Calculation Agent will determine the value of each component of
the adjusted Reference Amount as provided in the prior paragraph.
If at any time another Person becomes the successor to the
Stock Issuer, as determined by the Calculation Agent, such successor Person
shall thereupon be deemed to be the Stock Issuer for all purposes of this
Security. If at any time the Reference Amount consists of Distribution Property,
as determined by the Calculation Agent, then all references in this Security to
the "Stock" shall thereupon be deemed to mean such Distribution Property and all
references in this Security to a "share of Stock" shall thereupon be deemed to
mean a comparable unit of each type of property comprising such Distribution
Property, as determined by the Calculation Agent.
Notwithstanding the foregoing, however, the Calculation Agent
will not make any adjustment for a Reorganization Event unless the event becomes
effective -- or, if the event is a Spin-Off Event, unless the Ex-Dividend Date
for the Spin-Off Event occurs -- after the Trade Date and on or before the
relevant Exchange Notice Date.
15. Minimum Adjustments.
(Face of Security continued on next page)
-25-
<PAGE> 26
Notwithstanding the foregoing, no adjustment will be required
in respect of any event specified in sections 9 through 14 unless such
adjustment would result in a change of at least 0.1% in the Exchange Rate. The
Exchange Rate resulting from any adjustment shall be rounded up or down, as
appropriate, to the nearest ten-thousandth, with five hundred-thousandths being
rounded upward -- e.g., 0.12344 will be rounded down to 0.1234 and 0.12345 will
be rounded up to 0.1235.
16. Role of Calculation Agent.
The Calculation Agent will be solely responsible for all
determinations and calculations regarding the Default Amount; whether a Market
Disruption Event has occurred and whether, and if so the day to which, the
Determination Date, Stated Maturity Date or any Exchange Notice Date, Exchange
Date or Call Date is to be postponed; adjustment of the Exchange Rate and
Reference Amount, including whether any event has occurred for which adjustment
is required and as to the amounts, types and values of property comprising any
Distribution Property and the Reference Amount; whether an Automatic Exchange is
to occur on the Stated Maturity Date or any Call Date and as to the Section 7(a)
Amount or Section 7(b) Amount, including the relevant Pricing Period and Average
Closing Price and any alternative price to be used in making this determination;
the Closing Price or other value of the Stock or any other property; as to the
Exchange Rate and the amounts and types of property deliverable or payable in
exchange for this Security on the Stated Maturity Date or any Exchange Date or
Call Date; and all such other matters as may be specified elsewhere herein as
matters to be determined by the Calculation Agent. The Calculation Agent shall
make all such determinations and calculations in its sole discretion, and absent
manifest error all determinations and calculations made by the Calculation Agent
shall be final and binding on the Company, the Holder and all other Persons
having an interest in this Security, without liability on the part of the
Calculation Agent.
The Company shall take such action as shall be necessary to
ensure that there is at all relevant times a financial institution serving as
the Calculation Agent hereunder. The Company may, in its sole discretion at any
time and from time to time, upon written notice to the
(Face of Security continued on next page)
-26-
<PAGE> 27
Trustee, but without notice to the Holder of this Security, terminate the
appointment of any Person serving as the Calculation Agent and appoint another
Person (including any Affiliate of the Company) to serve as such agent. Insofar
as this Security provides for the Calculation Agent to obtain prices or other
information from any institution or other source, the Calculation Agent may do
so from any source or sources of the kind contemplated hereby notwithstanding
that any one or more of such sources are such agent, Affiliates of such agent or
Affiliates of the Company.
17. Payment and Delivery.
Payment of any amount payable on this Security in cash will be
made in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. Payment or
delivery of any Stock, cash or other property payable or deliverable on this
Security will be made to an account designated by the Holder (in writing to the
Company and the Trustee on or before the Determination Date) and acceptable to
the Company or, if no such account is designated and acceptable as aforesaid, at
the office or agency of the Company maintained for that purpose in The City of
New York, provided, however, that, at the option of the Company, payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register; and provided,
further, that payment or delivery at Maturity shall be made only upon surrender
of this Security at such office or agency (unless the Company waives surrender).
Notwithstanding the foregoing, if this Security is a Global Security, any
payment or delivery may be made pursuant to the Applicable Procedures of the
Depositary as permitted in said Indenture.
18. Holidays.
Notwithstanding any provision of this Security or of the
Indenture, if any delivery or payment of principal or interest would otherwise
be due on this Security on a day (the "Specified Day") that is not a Business
Day, such delivery or payment may be made (or such principal or interest may be
made available for delivery or payment) on the next succeeding Business Day with
the same force and
(Face of Security continued on next page)
-27-
<PAGE> 28
effect as if such delivery or payment were made on the Specified Day. The
provisions of this section shall apply to this Security in lieu of the
provisions of Section 113 of the Indenture.
19. Reverse of this Security.
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.
20. Certificate of Authentication.
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.
(Face of Security continued on next page)
-28-
<PAGE> 29
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated:
THE GOLDMAN SACHS GROUP, INC.
By____________________________
Name:
Title:
This is one of the Securities of the series
designated herein and referred to in the Indenture.
THE BANK OF NEW YORK,
as Trustee
By____________________________
Authorized Officer
-29-
<PAGE> 30
(Reverse of Security)
Reverse
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities") issued and to be
issued in one or more series under an Indenture, dated as of May 19, 1999
(herein called the "Indenture", which term shall have the meaning assigned to it
in such instrument), between the Company and The Bank of New York, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), and reference is hereby made to the Indenture for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee, the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. Insofar as
the provisions of the Indenture may conflict with the provisions set forth on
the face of this Security, the latter shall control for purposes of this
Security.
This Security is one of the series designated on
the face hereof, limited to an aggregate initial offering price not to exceed
$15,000,000,000 (or the equivalent thereof in any other currency or currencies
or currency units), which amount may be increased at the option of the Company
if in the future it determines that it may wish to sell additional Securities of
this series. References herein to "this series" mean the series designated on
the face hereof.
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 of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of all series to be affected (considered
together as one class for this purpose). The Indenture also contains provisions
(i) permitting the Holders of a majority in principal amount of the Securities
at the time Outstanding of all series to be affected under the Indenture
(considered together as one class for this purpose), on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and (ii) permitting the Holders of a majority in
principal amount of the Securities at the time Outstanding
(Reverse of Security continued on next page)
-30-
<PAGE> 31
of any series to be affected under the Indenture (with each such series
considered separately for this purpose), on behalf of the Holders of all
Securities of such series, to waive 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.
As provided in and subject to the provisions of
the Indenture, the Holder of this Security shall not have the right to institute
any proceeding with respect to the Indenture or for the appointment of a
receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of
Default with respect to the Securities of this series, the Holders of not less
than 25% in principal amount of the Securities of this series at the time
Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee indemnity reasonable satisfactory to it, and the Trustee shall not have
received from the Holders of a majority in principal amount of Securities of
this series at the time Outstanding a direction inconsistent with such request,
and shall have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal hereof or any interest hereon on or after the
respective due dates expressed herein.
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 as herein provided.
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 interest on this Security are payable, duly endorsed
by, or accompanied by a written instrument of
(Reverse of Security continued on next page)
-31-
<PAGE> 32
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing.
Thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate Face Amount, will be issued
to the designated transferee or transferees.
This Security, and any other Securities of this
series and of like tenor, are issuable only in registered form without coupons
in Authorized Denominations. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different Authorized Denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this 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, 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.
THIS SECURITY AND THE INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
-32-
