Exhibit 4.2
AMENDED AND RESTATED DECLARATION
OF TRUST
AMG CAPITAL TRUST II
DATED AS OF OCTOBER 17, 2007
TABLE OF
CONTENTS
|
ARTICLE I
|
|
|
|
INTERPRETATION AND
DEFINITIONS
|
|
|
|
|
|
|
|
|
SECTION 1.1
|
|
Definitions
|
|
2
|
|
|
|
|
|
|
|
|
ARTICLE II
|
|
|
|
TRUST INDENTURE ACT
|
|
|
|
|
|
|
|
|
SECTION 2.1
|
|
Trust Indenture Act; Application
|
|
9
|
|
|
SECTION 2.2
|
|
Lists of Holders of Securities
|
|
10
|
|
|
SECTION 2.3
|
|
Reports by the Property Trustee
|
|
10
|
|
|
SECTION 2.4
|
|
Periodic Reports to Property Trustee
|
|
10
|
|
|
SECTION 2.5
|
|
Evidence of Compliance with Conditions Precedent
|
|
11
|
|
|
SECTION 2.6
|
|
Events of Default, Waiver
|
|
11
|
|
|
SECTION 2.7
|
|
Event of Default, Notice
|
|
12
|
|
|
|
|
|
|
|
|
ARTICLE III
|
|
|
|
ORGANIZATION
|
|
|
|
|
|
|
|
|
SECTION 3.1
|
|
Name
|
|
13
|
|
|
SECTION 3.2
|
|
Office
|
|
13
|
|
|
SECTION 3.3
|
|
Purpose
|
|
13
|
|
|
SECTION 3.4
|
|
Authority
|
|
14
|
|
|
SECTION 3.5
|
|
Title to Property of the Trust
|
|
14
|
|
|
SECTION 3.6
|
|
Powers and Duties of the Administrators
|
|
14
|
|
|
SECTION 3.7
|
|
Prohibition of Actions by the Trust, the Trustees
and the Administrators
|
|
18
|
|
|
SECTION 3.8
|
|
Powers and Duties of the Property Trustee
|
|
19
|
|
|
SECTION 3.9
|
|
Certain Duties and Responsibilities of the Property
Trustee
|
|
21
|
|
|
SECTION 3.10
|
|
Certain Rights of Property Trustee
|
|
23
|
|
|
SECTION 3.11
|
|
Delaware Trustee
|
|
26
|
|
|
SECTION 3.12
|
|
Execution of Documents
|
|
26
|
|
|
SECTION 3.13
|
|
Not Responsible for Recitals or Issuance of
Securities
|
|
26
|
|
|
SECTION 3.14
|
|
Duration of Trust
|
|
27
|
|
|
SECTION 3.15
|
|
Mergers
|
|
27
|
|
|
|
|
|
|
|
|
|
|
|
i
|
ARTICLE IV
|
|
|
|
INITIAL PURCHASER OF
COMMON SECURITIES
|
|
|
|
|
|
|
|
|
SECTION 4.1
|
|
Purchase of Common Securities by Initial Purchaser
|
|
29
|
|
|
SECTION 4.2
|
|
Responsibilities of the Initial Purchaser of Common
Securities
|
|
29
|
|
|
SECTION 4.3
|
|
Right to Proceed
|
|
30
|
|
|
SECTION 4.4
|
|
Right to Terminate Trust
|
|
30
|
|
|
SECTION 4.5
|
|
Obligations of the Initial Purchaser
|
|
30
|
|
|
|
|
|
|
|
|
ARTICLE V
|
|
|
|
TRUSTEES AND
ADMINISTRATORS
|
|
|
|
|
|
|
|
|
SECTION 5.1
|
|
Number of Trustees and Administrators: Appointment
of Co-Trustee
|
|
30
|
|
|
SECTION 5.2
|
|
Delaware Trustee
|
|
31
|
|
|
SECTION 5.3
|
|
Property Trustee; Eligibility
|
|
31
|
|
|
SECTION 5.4
|
|
Certain Qualifications of Administrators and
Delaware Trustee Generally
|
|
32
|
|
|
SECTION 5.5
|
|
Administrators
|
|
32
|
|
|
SECTION 5.6
|
|
Delaware Trustee
|
|
33
|
|
|
SECTION 5.7
|
|
Appointment, Removal and Resignation of Trustees and
Administrators
|
|
33
|
|
|
SECTION 5.8
|
|
Vacancies Among Trustees
|
|
35
|
|
|
SECTION 5.9
|
|
Effect of Vacancies
|
|
35
|
|
|
SECTION 5.10
|
|
Meetings
|
|
36
|
|
|
SECTION 5.11
|
|
Delegation of Power
|
|
36
|
|
|
SECTION 5.12
|
|
Merger, Conversion, Consolidation or Succession to
Business
|
|
36
|
|
|
|
|
|
|
|
|
ARTICLE VI
|
|
|
|
DISTRIBUTIONS
|
|
|
|
|
|
|
|
ARTICLE VII
|
|
|
|
ISSUANCE OF SECURITIES
|
|
|
|
|
|
|
|
|
SECTION 7.1
|
|
General Provisions Regarding Securities
|
|
37
|
|
|
SECTION 7.2
|
|
Execution and Authentication
|
|
39
|
|
|
SECTION 7.3
|
|
Form and Dating
|
|
40
|
|
|
SECTION 7.4
|
|
Registrar, Paying Agent, Conversion Agent and
Exchange Agent
|
|
42
|
|
|
SECTION 7.5
|
|
Paying Agent to Hold Money in Trust
|
|
42
|
|
|
SECTION 7.6
|
|
Replacement Securities
|
|
43
|
ii
|
|
SECTION 7.7
|
|
Outstanding
Preferred Securities
|
|
43
|
|
|
SECTION 7.8
|
|
Preferred Securities in Treasury
|
|
43
|
|
|
SECTION 7.9
|
|
Temporary Securities
|
|
43
|
|
|
SECTION 7.10
|
|
Cancellation
|
|
44
|
|
|
SECTION 7.11
|
|
CUSIP Numbers
|
|
44
|
|
|
SECTION 7.12
|
|
Payment
|
|
44
|
|
|
|
|
|
|
|
|
ARTICLE VIII
|
|
|
|
TERMINATION OF TRUST
|
|
|
|
|
|
|
|
|
SECTION 8.1
|
|
Termination of Trust
|
|
45
|
|
|
|
|
|
|
|
|
ARTICLE IX
|
|
|
|
TRANSFER OF INTERESTS
|
|
|
|
|
|
|
|
|
SECTION 9.1
|
|
Transfer of Securities
|
|
46
|
|
|
SECTION 9.2
|
|
Transfer Procedures and Restrictions
|
|
47
|
|
|
SECTION 9.3
|
|
Deemed Security Holders
|
|
52
|
|
|
SECTION 9.4
|
|
Book-Entry Interests
|
|
53
|
|
|
SECTION 9.5
|
|
Notices to Clearing Agency
|
|
53
|
|
|
SECTION 9.6
|
|
Appointment of Successor Clearing Agency
|
|
53
|
|
|
|
|
|
|
|
|
ARTICLE X
|
|
|
|
LIMITATION OF LIABILITY
OF HOLDERS OF SECURITIES, TRUSTEES,
ADMINISTRATORS OR OTHERS
|
|
|
|
|
|
|
|
|
SECTION 10.1
|
|
Liability
|
|
54
|
|
|
SECTION 10.2
|
|
Exculpation
|
|
54
|
|
|
SECTION 10.3
|
|
Fiduciary Duty
|
|
55
|
|
|
SECTION 10.4
|
|
Indemnification
|
|
55
|
|
|
SECTION 10.5
|
|
Outside Businesses
|
|
58
|
|
|
SECTION 10.6
|
|
Compensation; Fees
|
|
59
|
|
|
|
|
|
|
|
|
ARTICLE XI
|
|
|
|
ACCOUNTING
|
|
|
|
|
|
|
|
|
SECTION 11.1
|
|
Fiscal Year
|
|
59
|
|
|
SECTION 11.2
|
|
Certain Accounting Matters
|
|
59
|
|
|
SECTION 11.3
|
|
Banking
|
|
60
|
|
|
SECTION 11.4
|
|
Withholding
|
|
60
|
iii
|
ARTICLE XII
|
|
|
|
AMENDMENTS AND MEETINGS
|
|
|
|
|
|
|
|
|
SECTION 12.1
|
|
Amendments
|
|
60
|
|
|
SECTION 12.2
|
|
Meetings of the Holders; Action by Written Consent
|
|
61
|
|
|
|
|
|
|
|
|
ARTICLE XIII
|
|
|
|
REPRESENTATIONS OF
PROPERTY TRUSTEE, DELAWARE TRUSTEE AND
INSTITUTIONAL ADMINISTRATOR
|
|
|
|
|
|
|
|
|
SECTION 13.1
|
|
Representations and Warranties of Property Trustee
|
|
63
|
|
|
SECTION 13.2
|
|
Representations and Warranties of Delaware Trustee
|
|
64
|
|
|
SECTION 13.3
|
|
Representations and Warranties of Institutional
Administrator
|
|
64
|
|
|
|
|
|
|
|
|
ARTICLE XIV
|
|
|
|
REGISTRATION RIGHTS
|
|
|
|
|
|
|
|
|
SECTION 14.1
|
|
Registration Rights
|
|
65
|
|
|
|
|
|
|
|
|
ARTICLE XV
|
|
|
|
MISCELLANEOUS
|
|
|
|
|
|
|
|
|
SECTION 15.1
|
|
Notices
|
|
65
|
|
|
SECTION 15.2
|
|
Governing Law
|
|
67
|
|
|
SECTION 15.3
|
|
Intention of the Parties
|
|
67
|
|
|
SECTION 15.4
|
|
Headings
|
|
67
|
|
|
SECTION 15.5
|
|
Successors and Assigns
|
|
67
|
|
|
SECTION 15.6
|
|
Partial Enforceability
|
|
67
|
|
|
SECTION 15.7
|
|
Counterparts
|
|
67
|
|
ANNEX I
|
TERMS OF SECURITIES
|
A-I-1
|
|
EXHIBIT A-1
|
FORM OF PREFERRED SECURITY CERTIFICATE
|
A-1-1
|
|
EXHIBIT A-2
|
FORM OF COMMON SECURITY CERTIFICATE
|
A-2-1
|
|
EXHIBIT A-3
|
PROJECTED PAYMENT SCHEDULE
|
A-3-1
|
iv
CROSS-REFERENCE TABLE
|
Trust
Indenture Act
Section
|
|
Declaration of Trust
Section
|
|
Section 310
|
(a)(1)
|
|
5.3
|
|
|
(a)(2)
|
|
5.3
|
|
|
(a)(3)
|
|
5.1
|
|
|
(a)(4)
|
|
Not Applicable
|
|
|
(a)(5)
|
|
5.3(a)
|
|
|
(b)
|
|
5.3(c)
|
|
|
(c)
|
|
Not Applicable
|
|
Section 311
|
(a)
|
|
2.2(b)
|
|
|
(b)
|
|
2.2(b)
|
|
|
(c)
|
|
Not Applicable
|
|
Section 312
|
(a)
|
|
2.2(a)
|
|
|
(b)
|
|
2.2(b)
|
|
|
(c)
|
|
Not Applicable
|
|
Section 313
|
(a)
|
|
2.3
|
|
|
(b)
|
|
2.3
|
|
|
(c)
|
|
2.3, 15.1
|
|
|
(d)
|
|
2.3
|
|
Section 314
|
(a)
|
|
2.4, 3.6(k)
|
|
|
(b)
|
|
Not Applicable
|
|
|
(c)(1)
|
|
2.5
|
|
|
(c)(2)
|
|
2.5
|
|
|
(c)(3)
|
|
2.5
|
|
|
(d)
|
|
Not Applicable
|
|
|
(e)
|
|
2.5
|
|
|
(f)
|
|
Not Applicable
|
|
Section 315
|
(a)
|
|
3.9, 3.10(a)
|
|
|
(b)
|
|
2.7, 15.1
|
|
|
(c)
|
|
3.9(a)
|
|
|
(d)
|
|
3.9(b)
|
|
|
(e)
|
|
Not Applicable
|
|
Section 316
|
(a)
|
|
7.8
|
|
|
(a)(1)(A)
|
|
2.6(c)
|
|
|
(a)(1)(B)
|
|
2.6(b), 2.6(c), 2.6(d)
|
|
|
(a)(2)
|
|
Not Applicable
|
|
|
(b)
|
|
12.1(c)
|
|
|
(c)
|
|
3.6(e)
|
|
Section 317
|
(a)(1)
|
|
3.8(h)
|
|
|
(a)(2)
|
|
3.8(h)
|
|
|
(b)
|
|
3.8(i), 7.5
|
|
Section318
|
(a)
|
|
2.1(b)
|
*
This
Cross-Reference Table shall not, for any purpose, be deemed part of this
Declaration.
v
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
AMG CAPITAL TRUST II
OCTOBER 17, 2007
AMENDED AND RESTATED DECLARATION OF TRUST (“Declaration”),
dated and effective as of October 17, 2007, by the Trustees (as defined
herein), the Administrators (as defined herein), the Initial Purchaser of
Common Securities (as defined herein), the Debenture Issuer (as defined herein)
and by the holders, from time to time, of undivided beneficial interests in the
Trust to be issued pursuant to this Declaration;
WHEREAS, the Initial Purchaser of Common Securities,
the Delaware Trustee and the Initial Administrator established AMG Capital
Trust II (the “Trust”), a statutory trust formed under the Delaware Statutory
Trust Act pursuant to a Declaration of Trust dated as of October 11, 2007 (the “Original
Declaration”), and a Certificate of Trust filed with the Secretary of State of
the State of Delaware on October 11, 2007 (the “Certificate of Trust”), for the
sole purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain Debentures of the Debenture Issuer (each as hereinafter
defined), and engaging in only those other activities necessary, advisable or
incidental thereto;
WHEREAS, as of the date hereof, no interests in the
Trust have been issued;
WHEREAS, all of the Trustees, Administrators and the
Initial Purchaser of Common Securities, by this Declaration, amend and restate
each and every term and provision of the Original Declaration in its entirety;
and
WHEREAS, the Initial Purchaser of Common Securities
and the Debenture Issuer shall have rights and obligations under this
Declaration as set forth herein.
NOW, THEREFORE, it being the intention of the parties
hereto to continue the Trust as a statutory trust under the Delaware Statutory
Trust Act and that this Declaration constitute the governing instrument of such
statutory trust, the Trustees declare that all assets contributed to the Trust
will be held in trust for the benefit of the holders, from time to time, of the
securities representing undivided beneficial interests in the assets of the
Trust issued hereunder, subject to the provisions of this Declaration, and the
parties hereto hereby amend and restate in its entirety the Original
Declaration as follows:
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1
Definitions
.
Unless the context otherwise requires:
(a)
Capitalized
terms used in this Declaration but not defined in the preamble above have the
respective meanings assigned to them in this Section 1.1;
(b)
a
term defined anywhere in this Declaration has the same meaning throughout;
(c)
all
references to “the Declaration” or “this Declaration” are to this Declaration
as modified, supplemented or amended from time to time;
(d)
all
references in this Declaration to Articles and Sections and Annexes and
Exhibits are to Articles and Sections of and Annexes and Exhibits to this
Declaration unless otherwise specified;
(e)
a
term defined in the Trust Indenture Act has the same meaning when used in this
Declaration unless otherwise defined in this Declaration or unless the context
otherwise requires; and
(f)
a
reference to the singular includes the plural and vice versa.
“Additional Sums” has the meaning set forth in the Indenture.
“Administrator” has the meaning set forth in Section
5.1.
“Affiliate” has the same meaning as given to that term
in Rule 405 under the Securities Act or any successor rule thereunder.
“Agent” means any Paying Agent or Registrar.
“Associate” has the same meaning as given to that term
in Rule 405 under the Securities Act or any successor rule thereunder.
“Authorized Officer” of a Person means any other
Person that is authorized to legally bind such former Person.
“Book-Entry Interest” means a beneficial interest in a
global certificate registered in the name of a Clearing Agency or its nominee,
ownership and transfers of which shall be maintained and made through book
entries by a Clearing Agency as described in Section 9.4.
“Business Day” means any day other than a Saturday or
a Sunday or a day on which banking institutions in New York, New York or
Chicago, Illinois are authorized or required by law, regulation or executive
order to remain closed.
2
“Certificated Preferred Securities” shall have the meaning
set forth in Section 7.3(c).
“Change in Control” has the meaning set forth in the
Indenture.
“Clearing Agency” means an organization registered as
a “clearing agency” pursuant to Section 17A of the Exchange Act that is acting
as depositary for the Preferred Securities and in whose name or in the name of
a nominee of that organization shall be registered a Global Certificate and
which shall undertake to effect book entry transfers and pledges of the
Preferred Securities.
“Clearing Agency Participant” or “Participant” means a
broker, dealer, bank, other financial institution or other Person for whom from
time to time the Clearing Agency effects book entry transfers and pledges of
securities deposited with the Clearing Agency.
“Closing Price” has the meaning set forth in the
Indenture.
“Closing Time” means the “Closing Time” under the
Purchase Agreement.
“Code” means the Internal Revenue Code of 1986, as
amended from time to time, or any successor legislation.
“Commission” means the United States Securities and
Exchange Commission as from time to time constituted, or if at any time after
the execution of this Declaration such Commission is not existing and
performing the duties now assigned to it under applicable federal securities
laws, then the body performing such duties at such time.
“Common Securities” has the meaning specified in
Section 7.1(a).
“Common Securities Certificate” means the certificate
evidencing the Common Securities, in the form of Exhibit A-2 hereof.
“Common Stock” has the meaning set forth in the
Indenture.
“Company Indemnified Person” means (a) any
Administrator (other than the Institutional Administrator); (b) any Affiliate
of any Administrator (other than the Institutional Administrator); (c) any
officers, directors, stockholders, members, partners, employees,
representatives or agents of any Administrator (other than the Institutional
Administrator); or (d) any officer, employee or agent of the Trust or its
Affiliates.
“Compounded Interest” has the meaning set forth in the
Indenture.
“Contingent Distribution” means a distribution payable
in accordance with the provisions of Section 2(d) of Annex I.
“Contingent Distribution Payment Date” shall have the
meaning set forth in paragraph 2(d) of Annex I.
“Contingent Interest” has the meaning set forth in the
Indenture.
3
“Conversion Agent” has the meaning set forth in
Section 7.4.
“Conversion Date” has the meaning set forth in Annex
I.
“Conversion Price” has the meaning set forth in the
Indenture.
“Conversion Rate” has the
meaning set forth in the Indenture.
“Conversion Preference
Period” has the meaning set forth in the Indenture.
“Conversion Request” has
the meaning set forth in Annex I.
“Conversion Value” has the meaning set forth in the
Indenture.
“Corporate Trust Office” means the office of the
Property Trustee at which the corporate trust business of the Property Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Agreement is located at 540 West Madison Street,
Suite 2500, Chicago, Illinois 60661, Attn: CDO Trust Services Group - AMG
Capital Trust II.
“Coupon Rate” has the meaning set forth in Annex I.
“Covered Person” means: (a) any officer, director,
stockholder, partner, member, representative, employee or agent of (i) the Trust
or (ii) the Trust’s Affiliates; and (b) any Holder of Securities.
“CPDI Regulations” has the meaning set forth in
Section 4.5.
“Debenture Issuer” means Affiliated Managers Group,
Inc., a Delaware corporation, or any successor entity resulting from any consolidation,
amalgamation, merger or other business combination, in its capacity as issuer
of the Debentures under the Indenture.
“Debenture Trustee” means LaSalle Bank National
Association, a national banking association, as trustee under the Indenture until
a successor is appointed thereunder, and thereafter means such successor
trustee.
“Debentures” means, the 5.15% Junior Subordinated
Convertible Debentures due October 15, 2037 of the Debenture Issuer issued
pursuant to the Indenture.
“Default” means any event, act or condition that with
notice or lapse of time, or both, would constitute an Event of Default.
“Delaware Trustee” has the meaning set forth in
Section 5.1.
“Direct Action” has the meaning set forth in Annex I.
“Disclosure Package” has the meaning set forth in the
Purchase Agreement.
“Distribution” means a distribution payable to Holders
in accordance with Article VI.
4
“Distribution Date” has the meaning set forth in Annex
I.
“DTC” means The Depository Trust Company, the initial
Clearing Agency.
“ERISA” has the meaning set forth in Section 7.1(f).
“Event of Default” in respect of the Securities has
the meaning set forth in Section 2.6(a).
“Exchange Act” means the Securities Exchange Act of
1934, as amended from time to time, or any successor legislation.
“Exchange Agent” has the meaning set forth in Section
7.4.
“Extension Period” has the meaning set forth in Annex
I.
“Fiduciary
Indemnified Person” has the meaning set forth in Section 10.4(b).
“Fiscal Year” has the meaning set forth in Section 11.1.
“Global Preferred Security” has the meaning set forth
in Section 7.3(a).
“Holder” means a Person in whose name a Security or
Successor Security is registered on the register maintained by or on behalf of
the Registrar, such Person being a beneficial owner of the Trust within the
meaning of the Statutory Trust Act.
“Indemnified Person” means a Company Indemnified
Person or a Fiduciary Indemnified Person.
“Indenture” means the Indenture dated as of October
17, 2007, between the Debenture Issuer and the Debenture Trustee, as amended
from time to time.
“Initial Administrator” has the meaning set forth in
the Original Declaration.
“Initial Purchasers” has the meaning set forth in the
Purchase Agreement.
“Initial Purchaser of Common Securities” means Affiliated
Managers Group, Inc., a Delaware corporation, or any successor entity resulting
from any merger, consolidation, amalgamation or other business combination.
“Institutional Administrator” means LaSalle Bank
National Association, not in its individual capacity but solely in its capacity
as an Administrator under this Declaration, and any Successor Administrator
thereto that is not a natural person.
“Interest” has the meaning set forth in the Indenture.
“Investment Company” means an investment company as defined
in the Investment Company Act.
5
“Investment Company Act” means the Investment Company
Act of 1940, as amended from time to time, or any successor legislation.
“Investment Company Event” has the meaning set forth
in Annex I.
“IRS” means the United States Internal Revenue
Service.
“Legal Action” has the meaning set forth in Section
3.6(g).
“Like Amount” has the meaning set forth in Annex I.
“Liquidated Damages” has the meaning set forth in the
Indenture.
“Liquidation Amount” has the meaning set forth in
Annex I.
“Liquidation Distribution” has the meaning set forth
in Annex I.
“List of Holders” has the meaning set forth in Section
2.2(a).
“Majority in liquidation amount” means, with respect
to the Trust Securities, except as provided in the terms of the Preferred
Securities or by the Trust Indenture Act, Holder(s) of outstanding Trust
Securities voting together as a single class or, as the context may require,
Holders of outstanding Preferred Securities or Holders of outstanding Common
Securities voting separately as a class, who are the record owners of more than
50% of the aggregate liquidation amount of all outstanding Trust Securities of
the relevant class.
“Offering Memorandum” means, the offering memorandum,
dated October 12, 2007, relating to the offering and sale by the Trust of the
Preferred Securities.
“Officers’ Certificate” means, with respect to any
Person, a certificate signed by any two of the following: the chairman of the
board of directors, a vice chairman, the chief executive officer, the president,
an executive vice president, a senior vice president, a vice president, the
chief financial officer, the secretary or an assistant secretary, the treasurer
or an assistant treasurer of the Guarantor. Any Officers’ Certificate delivered
by the Trust shall be signed by the Initial Purchaser of Common Securities or
by an Administrator on behalf of the Trust. Any Officers’ Certificate delivered
with respect to compliance with a condition or covenant provided for in this
Declaration shall include:
(a)
a
statement that each officer signing the Officers’ Certificate has read the
covenant or condition and the definitions relating thereto;
(b)
a
brief statement of the nature and scope of the examination or investigation
undertaken by each officer in rendering the Officers’ Certificate;
(c)
a
statement that each such officer has made such examination or investigation as,
in such officer’s opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
6
(d)
a
statement as to whether, in the opinion of each such officer, such condition or
covenant has been complied with.
“Opinion of Counsel” means a written opinion of
counsel, who may be an employee of the Initial Purchaser of Common Securities,
and who shall be reasonably acceptable to the Property Trustee. Any Opinion of Counsel pertaining to federal
income tax matters may rely on published rulings of the Internal Revenue
Service.
“Original Declaration” has the meaning set forth in
the second paragraph of the preamble hereto.
“Paying Agent” has the meaning specified in Section
7.4.
“Payment Amount” has the meaning specified in Section
6.1.
“Person” means a legal person, including any
individual, corporation, estate, partnership, joint venture, association, joint
stock company, limited liability company, trust, unincorporated organization,
or government or any agency or political subdivision thereof, or any other
entity of whatever nature.
“Plan” has the meaning set forth in Section 7.1(f).
“PORTAL” has the meaning set forth in Section
3.6(b)(iii).
“Preferred Securities” has the meaning specified in
Section 7.1(a).
“Preferred Securities Certificate” means a certificate
evidencing the Preferred Securities, in the form attached as Exhibit A-1
hereto.
“Property Trustee” has the meaning set forth in
Section 5.3(a).
“Property Trustee Account” has the meaning set forth
in Section 3.8(c)(i).
“Pro Rata” has the meaning set forth in Annex I.
“Purchase Agreement” has the meaning set forth in
Section 7.3.
“QIBs” has the meaning set forth in Section 3.6(b)(i).
“Quarterly Period” shall have the meaning set forth in
Section 15.1 hereof.
“Quorum” means, at any time that there are more than
two Administrators, a majority of the Administrators and, in all other cases,
all of the Administrators.
“Redemption/Distribution Notice” has the meaning set
forth in Annex I.
“Redemption Price” has the meaning set forth in Annex
I.
“Registrar” has the meaning set forth in Section 7.4.
7
“Registration Rights Agreement” has the meaning set
forth in the Purchase Agreement.
“Registration Statement” has the meaning set forth in
Section 3.6(b)(i).
“Related Party” means, with respect to the Initial
Purchaser of Common Securities, any direct or indirect wholly owned subsidiary
of the Initial Purchaser of Common Securities or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Initial Purchaser of Common Securities.
“Repurchase Date” has the meaning set forth in the
Indenture.
“Responsible Officer” means any officer within the
Corporate Trust Office of the Property Trustee with direct responsibility for
the administration of this Declaration and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of that officer’s knowledge of and familiarity with the
particular subject.
“Restricted Preferred Security” has the meaning
specified in Section 9.2(a).
“Restricted Securities Legend” means the legend
specified in Section 9.2(c)(i).
“Rule 3a-5” means Rule 3a-5 under the Investment
Company Act, or any successor rule or regulation.
“Securities” or “Trust Securities” means the Common
Securities and the Preferred Securities.
“Securities Act” means the Securities Act of 1933, as
amended from time to time, or any successor legislation.
“Securities Guarantee” means the Guarantee Agreement
dated as of October 17, 2007 of the Initial Purchaser of Common Securities in
respect of the Trust Securities.
“Special Event” has the meaning set forth in Section
4(d) of Annex I.
“Statutory Trust Act” means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. §§ 3801 et seq., as it may be amended from time
to time, or any successor legislation.
“Successor Administrator” has the meaning set forth in
Section 5.7(b)(iii).
“Successor Delaware Trustee” has the meaning set forth
in Section 5.7(b)(ii).
“Successor Entity” has the meaning set forth in
Section 3.15(b)(i).
“Successor Property Trustee” has the meaning set forth
in Section 3.8(f)(ii).
“Successor Securities” has the meaning set forth in
Section 3.15(b)(i)(B).
“Super Majority” has the meaning set forth in Section
2.6(b)(ii).
8
“25% in liquidation amount” means, with respect to the
Trust Securities, except as provided in the terms of the Preferred Securities
or by the Trust Indenture Act, Holder(s) of outstanding Trust Securities voting
together as a single class or, as the context may require, Holders of
outstanding Preferred Securities or Holders of outstanding Common Securities voting
separately as a class, who are the record owners of 25% or more of the
aggregate liquidation amount of all outstanding Securities of the relevant
class.
“Tax Event” has the meaning set forth in Annex I.
“Tax Original Issue Discount” means the amount of ordinary
interest income on a Security that must be accrued as original issue discount
for United States federal income tax purposes pursuant to Treasury Regulation
section 1.1275-4.
“Trading Day” has the meaning set forth in the
Indenture.
“Treasury Regulations” means the income tax
regulations, including temporary and proposed regulations, promulgated under
the Code by the United States Treasury, as such regulations may be amended from
time to time (including corresponding provisions of succeeding regulations).
“Trust Indenture Act” means the Trust Indenture Act of
1939, as amended from time to time, or any successor legislation.
“Trust Securities” or “Securities” means the Common
Securities together with the Preferred Securities.
“Trustee” or “Trustees” means each Person who has
signed this Declaration as a trustee, so long as such Person shall continue as
a trustee in accordance with the terms hereof, and all other Persons who may
from time to time be duly appointed, qualified and serving as trustees in accordance
with the provisions hereof, and references herein to a Trustee or the Trustees
shall refer to such Person or Persons solely in their capacity as trustees
hereunder.
“Unrestricted Global Preferred Security” has the
meaning set forth in Section 9.2(b).
ARTICLE
II
TRUST INDENTURE ACT
SECTION 2.1
Trust
Indenture Act; Application
.
This Declaration is subject to the provisions of the
Trust Indenture Act that are required to be part of this Declaration in order
for this Declaration to be qualified under the Trust Indenture Act and shall,
to the extent applicable, be governed by such provisions.
(a)
The
Property Trustee shall be the only Trustee which is a trustee for the purposes
of the Trust Indenture Act.
9
(b)
If
and to the extent that any provision of this Declaration limits, qualifies or
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
(c)
The
application of the Trust Indenture Act to this Declaration shall not affect the
nature of the Securities as equity securities representing undivided beneficial
interests in the assets of the Trust.
SECTION 2.2
Lists of
Holders of Securities
.
(a)
The
Registrar on behalf of the Trust shall provide the Property Trustee, unless the
Property Trustee is Registrar for the Securities, (i) within 14 days after each
record date for payment of Distributions a list, in such form as the Property
Trustee may reasonably require, of the names and addresses of the Holders (“List
of Holders”) as of such record date, provided that the Registrar on behalf of
the Trust shall not be obligated to provide such List of Holders at any time
that the List of Holders does not differ from the most recent List of Holders
given to the Property Trustee by the Registrar on behalf of the Trust, and (ii)
at any other time, within 30 days of receipt by the Trust of a written request
for a List of Holders as of a date no more than 14 days before such List of
Holders is given to the Property Trustee. The Property Trustee shall preserve,
in as current a form as is reasonably practicable, all information contained in
the List of Holders given to it or which it receives in the capacity as Paying
Agent (if acting in such capacity), provided that the Property Trustee may
destroy any List of Holders previously given to it on receipt of a new List of
Holders.
(b)
The
Property Trustee shall comply with its obligations under Sections 311(a),
311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3
Reports
by the Property Trustee
.
Within 60 days after
January 1 of each year, commencing January 1, 2008 the Property Trustee shall
provide to the Holders of the Preferred Securities such reports as are required
by Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Property Trustee shall also comply with
the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4
Periodic
Reports to Property Trustee
.
The Initial Purchaser of Common Securities, and either
the Initial Purchaser of Common Securities or the Administrators on behalf of
the Trust, shall provide to the Property Trustee such documents, reports and
information as are required by Section 314 of the Trust Indenture Act (if any)
and shall provide to the Property Trustee the compliance certificate required
by Section 314 of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act, such compliance
certificate to be delivered annually on or before 120 days after the end of
each fiscal year of the Initial Purchaser of Common Securities. Delivery of
such documents, reports and information to the Property Trustee is for
informational purposes only and the Property Trustee’s receipt of such shall
not constitute constructive notice of any information contained therein or
determinable from information contained therein, including
10
compliance by the Initial
Purchaser of Common Securities with any of its covenants hereunder (as to which
the Property Trustee is entitled to rely exclusively on Officer’s
Certificates).
SECTION 2.5
Evidence
of Compliance with Conditions Precedent
.
The Initial Purchaser of
Common Securities, and either the Initial Purchaser of Common Securities or the
Administrators on behalf of the Trust, shall provide to the Property Trustee
such evidence of compliance with any conditions precedent provided for in this
Declaration that relate to any of the matters set forth in Section 314(c) of
the Trust Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) of the Trust Indenture Act may be given
in the form of an Officers’ Certificate.
SECTION 2.6
Events
of Default, Waiver
.
(a)
An
Event of Default in respect of the Trust Securities means an Event of Default
(as defined in the Indenture) that has occurred and is continuing in respect of
the Debentures.
(b)
The
Holders of a Majority in liquidation amount of Preferred Securities may, by
vote, on behalf of the Holders of all of the Preferred Securities, waive any
past Event of Default in respect of the Preferred Securities and its
consequences, provided that, if the underlying event of default under the
Indenture:
(i) is not waivable under the
Indenture, the Event of Default under the Declaration shall also not be
waivable; or
(ii) requires the consent or
vote of greater than a majority in aggregate principal amount of the holders of
the Debentures (a “Super Majority”) to be waived under the Indenture, the Event
of Default under the Declaration may only be waived by the vote of the Holders
of at least the proportion in aggregate liquidation amount of the Preferred
Securities that the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding.
The foregoing provisions of this Section 2.6(b) shall
be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this
Declaration and the Securities, as permitted by the Trust Indenture Act. Upon
such waiver, any such default shall cease to exist, and any Event of Default
with respect to the Preferred Securities arising therefrom shall be deemed to
have been cured, for every purpose of this Declaration, but no such waiver
shall extend to any subsequent or other default or an Event of Default with
respect to the Preferred Securities or impair any right consequent thereon. Any
waiver by the Holders of the Preferred Securities of an Event of Default with
respect to the Preferred Securities shall also be deemed to constitute a waiver
by the Holders of the Common Securities of any such Event of Default with
respect to the Common Securities for all purposes of this Declaration without
any further act, vote, or consent of the Holders of the Common Securities.
(c)
The
Holders of a Majority in liquidation amount of the Common Securities may, by
vote, on behalf of the Holders of all of the Common Securities, waive
11
any past Event
of Default with respect to the Common Securities and its consequences, provided
that, if the underlying Event of Default under the Indenture:
(i) is not waivable under the
Indenture, except where the Holders of the Common Securities are deemed to have
waived such Event of Default under the Declaration as provided below in this
Section 2.6(c), the Event of Default under the Declaration shall also not be
waivable; or
(ii) requires the consent or
vote of a Super Majority to be waived, except where the Holders of the Common
Securities are deemed to have waived such Event of Default under the
Declaration as provided below in this Section 2.6(c), the Event of Default
under the Declaration may only be waived by the vote of the Holders of at least
the proportion in aggregate liquidation amount of the Common Securities that
the relevant Super Majority represents of the aggregate principal amount of the
Debentures outstanding;
provided further, the Holders of Common Securities
will be deemed to have waived any such Event of Default and all Events of
Default with respect to the Common Securities and their consequences if all
Events of Default with respect to the Preferred Securities have been cured,
waived or otherwise eliminated, and until such Events of Default have been so
cured, waived or otherwise eliminated, the Property Trustee will be deemed to
be acting solely on behalf of the Holders of the Preferred Securities and only
the Holders of the Preferred Securities will have the right to direct the
Property Trustee in accordance with the terms of the Securities. The foregoing
provisions of this Section 2.6(c) shall be in lieu of Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act and such Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act are hereby expressly excluded from this
Declaration and the Securities, as permitted by the Trust Indenture Act.
Subject to the foregoing provisions of this Section 2.6(c), upon such waiver,
any such default shall cease to exist and any Event of Default with respect to
the Common Securities arising therefrom shall be deemed to have been cured for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or Event of Default with respect to the Common
Securities or impair any right consequent thereon.
(d)
A
waiver of an Event of Default under the Indenture by the Property Trustee, at
the direction of the Holders of the Preferred Securities, constitutes a waiver
of the corresponding Event of Default under this Declaration. The foregoing
provisions of this Section 2.6(d) shall be in lieu of Section 316(a)(1)(B) of
the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture
Act is hereby expressly excluded from this Declaration and the Securities, as
permitted by the Trust Indenture Act.
SECTION 2.7
Event of
Default, Notice
.
(a)
The
Property Trustee shall, within ten Business Days after the Property Trustee has
actual knowledge that an Event of Default has occurred, (i) transmit by mail,
first-class postage prepaid, to the Holders of the Securities and (ii) transmit
by any means provided in this Declaration to the Administrators and the Initial
Purchaser of Common Securities, notices of all defaults with respect to the
Securities actually known to a Responsible Officer of the Property Trustee,
unless such defaults have been cured or
12
waived before
the giving of such notice (the term “defaults” for the purposes of this Section
2.7(a) being hereby defined to be an Event of Default as defined in the
Indenture, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein); provided that,
except for a default in the payment of principal of or Interest (as defined in
the Indenture), the Property Trustee shall be protected in withholding such
notice if and so long as a Responsible Officer of the Property Trustee in good
faith determines that the withholding of such notice is in the interests of the
Holders.
(b)
The
Property Trustee shall not be deemed to have knowledge of any default except:
(i) a default under Sections
5.01(a) (other than the payment or non-payment of Compounded Interest,
Liquidated Damages, Additional Sums and Contingent Interest) and 5.01(b) of the
Indenture; or
(ii) any default as to which the
Property Trustee shall have received written notice or of which a Responsible
Officer charged with the administration of the Declaration shall have actual
knowledge.
(c)
The
Debenture Issuer, and either the Debenture Issuer or the Administrators on
behalf of the Trust, shall file annually with the Property Trustee a
certification as to whether or not they are in compliance with all the
conditions and covenants applicable to them under this Declaration.
ARTICLE III
ORGANIZATION
SECTION 3.1
Name
.
The Trust continued
hereby is named “AMG Capital Trust II” as such name may be modified from time
to time by the Administrators following written notice to the Delaware Trustee,
the Property Trustee and the Holders. The Trust’s activities may be conducted
under the name of the Trust or any other name deemed advisable by the
Administrators.
SECTION 3.2
Office
.
The address of the
principal office of the Trust is c/o LaSalle Bank National Association, 540
West Madison Street, Suite 2500, Chicago, Illinois 60661, Attn: CDO Trust
Services Group — AMG Capital Trust II. On ten Business Days’ written notice to
the Delaware Trustee, the Property Trustee and the Holders of Securities, the
Administrators may designate another principal office, provided that such
designation does not cause the Trust to become subject to state or local tax.
SECTION 3.3
Purpose
.
The exclusive purposes and functions of the Trust are
(a) to issue and sell the Preferred Securities; (b) to issue and sell the
Common Securities to the Initial Purchaser of Common
13
Securities in a total
liquidation amount equal to $10,000; (c) to use the proceeds from the sale of
the Securities to acquire the Debentures and (d) except as otherwise limited
herein, to engage in only those other activities necessary, advisable or
incidental thereto, including, without limitation, those activities specified
in Sections 3.6, 3.8, 3.9, 3.10, 3.11 and/or 3.12. The Trust shall not acquire
any investments, sell or assign Trust property, borrow money, issue debt or
reinvest proceeds derived from investments, mortgage or pledge any of its
assets, take or consent to any action that would result in the placement of a
lien on any of the Trust property, issue any securities other than the
Preferred Securities or Common Securities or otherwise undertake (or permit to
be undertaken) any activity that would cause the Trust not to be classified for
United States federal income tax purposes as a grantor trust.
SECTION 3.4
Authority
.
The Trust shall have the
power and authority and is hereby authorized to undertake the actions set forth
above and to own property and conduct its business as contemplated herein. Subject to the limitations provided in this
Declaration and to the specific duties of the Property Trustee, the
Administrators shall have exclusive and complete authority to carry out the
purposes of the Trust. An action taken by the Administrators in accordance with
their powers shall constitute the act of and serve to bind the Trust and an
action taken by the Property Trustee on behalf of the Trust in accordance with
its powers shall constitute the act of and serve to bind the Trust. In dealing with Trustees or Administrators
acting on behalf of the Trust, no Person shall be required to inquire into the
authority of the Trustees and Administrators to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority of
the Trustees and Administrators as set forth in this Declaration.
SECTION 3.5
Title to
Property of the Trust
.
Except as provided in
Section 3.8 with respect to the Debentures and the Property Trustee Account or
as otherwise provided in this Declaration, legal title to all assets of the
Trust shall be vested in the Trust. The Holders shall not have legal title to
any part of the assets of the Trust, but shall have an undivided beneficial
interest in the assets of the Trust.
SECTION 3.6
Powers
and Duties of the Administrators
.
The Administrators, acting individually or together,
shall have the exclusive power, duty and authority, and are hereby authorized
and directed, to cause the Trust to engage in the following activities:
(a)
to
issue and sell the Securities in accordance with this Declaration; provided,
however, (i) the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities, (ii) there shall
be no interests in the Trust other than the Securities, and (iii) the issuance
of Securities shall be limited to a simultaneous issuance of both Preferred
Securities and Common Securities at the Closing Time;
(b)
in
connection with the issue and sale of the Preferred Securities at the direction
of the Initial Purchaser of Common Securities, to:
14
(i) assist in the preparation of
the Offering Memorandum and the Disclosure Package, in each case prepared by
the Initial Purchaser of Common Securities, in relation to the offering and
sale of the Preferred Securities to “qualified institutional buyers” (as
defined in Section 144A of the Securities Act) (“QIBs”) in reliance on Rule
144A under the Securities Act and to execute and file with the Commission, at
such time as determined by the Initial Purchaser of Common Securities, a
registration statement (the “Registration Statement”) prepared by the Initial
Purchaser of Common Securities, including any amendments thereto, covering (a)
resales by the holders of all Preferred Securities (including the Guarantee
Agreement), (b) resales by the holders of all Debentures, and (c) resales by
holders of the Common Stock issuable upon conversion of Preferred Securities by
the holder thereof, and take all other actions as directed by the Initial
Purchaser of Common Securities in connection with the Registration Rights
Agreement;
(ii) execute and file any
documents prepared by the Initial Purchaser of Common Securities, or take any
acts as determined by the Initial Purchaser of Common Securities to be
necessary in order to qualify or register all or part of the Preferred
Securities in any state or foreign jurisdiction in which the Initial Purchaser
of Common Securities has determined to qualify or register such Preferred
Securities for sale;
(iii) execute and file an
application, prepared by the Initial Purchaser of Common Securities, to the
Private Offerings, Resale and Trading through Automated Linkages (“PORTAL”)
Market and, at such time, if any, as determined by the Initial Purchaser of
Common Securities to the New York Stock Exchange, Inc. or any other national
stock exchange for listing upon notice of issuance of any Preferred Securities,
but if and only if the Initial Purchaser of Common Securities has authorized
the Administrators to make such filing;
(iv) execute and deliver
letters, documents, or instruments with DTC and other Clearing Agencies
relating to the Preferred Securities;
(v) execute and file with the
Commission a registration statement on Form 8-A, including any amendments
thereto, prepared by the Initial Purchaser of Common Securities relating to the
registration of the Preferred Securities under Section 12 of the Exchange Act,
but if and only if the Initial Purchaser of Common Securities has authorized
the Administrators to make such filing;
(vi) execute and enter into the Purchase
Agreement providing for the sale of the Preferred Securites;
(vii) execute and enter into the
Registration Rights Agreement and pursuant thereto execute and file with the
Commission a registration statement on Form S-1 or Form S-3,
including any amendments thereto, prepared by the Initial Purchaser of Common
Securities relating to the registration of the Preferred Securities under the
Securities Act; and
15
(viii) execute and file any
agreement, certificate or other document which such Administrator deems
necessary or appropriate in connection with the issuance and sale of the
Preferred Securities;
(c)
to
acquire the Debentures with the proceeds of the sale of the Preferred
Securities and the Common Securities; provided, however, that the
Administrators shall cause legal title to the Debentures to be held of record
in the name of the Property Trustee for the benefit of the Holders of Preferred
Securities and Holders of Common Securities;
(d)
to
give the Initial Purchaser of Common Securities and the Property Trustee prompt
written notice of the occurrence of a Special Event;
(e)
to
establish a record date with respect to all actions to be taken hereunder that
require a record date be established, including and with respect to, for the
purposes of Section 316(c) of the Trust Indenture Act, Distributions (subject
to Section 2(d) of Annex I and Section 15.2 hereof), voting rights, redemptions
and exchanges, and to issue relevant notices to the Holders of Preferred
Securities and Holders of Common Securities as to such actions and applicable
record dates, except as such duty has expressly been accorded to the Property
Trustee under the terms hereof (including Annex I);
(f)
to
take all actions and perform such duties as may be required of the
Administrators pursuant to the terms of the Securities;
(g)
to
bring or defend, pay, collect, compromise, arbitrate, resort to legal action,
or otherwise adjust claims or demands of or against the Trust (“Legal Action”),
unless pursuant to Section 3.8(e), the Property Trustee has the exclusive power
to bring such Legal Action;
(h)
to
defend all claims and demands of all Persons at any time claiming any liens on
any of the Trust property adverse to the interest of the Trust or the Holders
in their capacity as Holders;
(i)
to
employ or otherwise engage employees and agents (who may be designated as
officers with titles) and managers, contractors, advisors, and consultants and
pay reasonable compensation for such services;
(j)
to
cause the Trust to comply with the Trust’s obligations under the Trust
Indenture Act;
(k)
to
give the certificate required by Section 314(a)(4) of the Trust Indenture Act
to the Property Trustee, which certificate may be executed by any
Administrator;
(l)
to
incur expenses that are necessary or incidental to carry out any of the
purposes of the Trust;
(m)
to
act as, or appoint another Person to act as, Registrar, Conversion Agent or
Exchange Agent for the Securities or to appoint a Paying Agent for the
Securities as
16
provided in
Section 7.4, except for such time as such power to appoint a Paying Agent is
vested in the Property Trustee;
(n)
to
take all action that may be necessary or appropriate for the preservation and
the continuation of the Trust’s valid existence, rights, franchises and
privileges as a statutory trust under the laws of the State of Delaware and of
each other jurisdiction in which such existence is necessary to protect the
limited liability of the Holders or to enable the Trust to effect the purposes
for which the Trust was created;
(o)
to
take any action, not inconsistent with this Declaration, the Certificate of
Trust or with applicable law, that the Administrators determine in their
discretion to be necessary or desirable in carrying out the activities of the
Trust as set out in this Section 3.6, including, but not limited to:
(i) causing the Trust not to be
deemed to be an Investment Company under the Investment Company Act;
(ii) causing the Trust to be
classified for United States federal income tax purposes as a grantor trust and
not as an association taxable as a corporation or partnership; and
(iii) cooperating with the
Debenture Issuer to ensure that the Debentures will be treated as indebtedness
of the Debenture Issuer for United States federal income tax purposes;
provided that any such
action does not materially adversely affect the interests of the Holders of the
Preferred Securities or cause the trust to be treated as other than a grantor
trust for United States federal income tax purposes;
(p)
to
take all action necessary to cause all applicable tax returns and tax
information reports that are required to be filed with respect to the Trust to
be duly prepared and filed by the Administrators, on behalf of the Trust; and
(q)
to
execute all documents or instruments, perform all duties and powers, and do all
things for and on behalf of the Trust in all matters necessary or incidental to
the foregoing.
The Administrators must exercise the powers set forth
in this Section 3.6 in a manner that is consistent with the purposes and
functions of the Trust set out in Section 3.3, and the Administrators shall not
take any action that is inconsistent with the purposes and functions of the
Trust set forth in Section 3.3.
Subject to this Section 3.6, the Administrators shall
have none of the powers or the authority of the Property Trustee set forth in
Section 3.8.
Any expenses incurred by the Administrators pursuant
to this Section 3.6 shall be reimbursed by the Debenture Issuer.
17
Notwithstanding any
provision to the contrary in this Declaration (including, without limitation,
this Article III), Annex I, any Exhibit hereto, any Securities, the Indenture,
the Securities Guarantee, or any other agreement or document contemplated by
any of the foregoing, and to the fullest extent permitted by law, the
Institutional Administrator (i) is agreed by the parties to be acting pursuant
to Section 3806(b)(7) of the Statutory Trust Act and shall have no duty (including,
without limitation, fiduciary duty) whatsoever to act hereunder, whether
separately as Administrator or on behalf of the Trust, until it receives
written direction reasonably satisfactory to it from the Initial Purchaser of
Common Securities, and until it receives payment or assurances of payment
reasonably satisfactory to it of expenses from the Debenture Issuer; (ii) shall
have no liability to any Person (including, without limitation, to the Trust,
any Holder or any Trustee) for any acts or omissions taken or omitted to be
taken by it pursuant to and in accordance with such written direction from the
Initial Purchaser of Common Securities, and such acts and omissions by the
Institutional Administrator shall be deemed not to constitute negligence, gross
negligence, bad faith or willful misconduct (it being understood that any such
liability shall be that of the Debenture Issuer insofar as having directed such
action); (iii) shall be entitled, in addition to the protections, benefits,
indemnities and immunities granted to it hereunder, to all of the protections,
benefits, indemnities and immunities granted to the Property Trustee hereunder;
and (iv) shall have the right to resign as Administrator by delivery to the
Initial Purchaser of the Common Securities of a written notice of resignation
not less than 10 Business Days prior to the time the resignation is to take
effect, and such resignation shall be effective as provided in the notice of
resignation whether or not a Successor Administrator shall have been appointed.
SECTION 3.7
Prohibition
of Actions by the Trust, the Trustees and the Administrators
.
(a)
The
Trust shall not, and the Trustees (including the Property Trustee and the
Delaware Trustee) and Administrators shall not, engage in any business, activities
or transactions except as expressly provided herein or contemplated hereby. In
particular, the Trust shall not and the Administrators shall cause the Trust
not to:
(i) invest any proceeds received
by the Trust from holding the Debentures, but shall distribute all such
proceeds to Holders pursuant to the terms of this Declaration and of the
Securities;
(ii) acquire any investments or
assets other than as expressly provided herein, or engage in any activities not
authorized by this Declaration;
(iii) sell, assign, transfer,
exchange, pledge, set-off or otherwise dispose of any of the Trust property or
interests therein, including to the Holders, except as expressly provided
herein;
(iv) take any action or fail to
take any action that would cause the Trust to fail or cease to qualify as a
grantor trust for United States federal income tax purposes;
(v) possess Trust property for
other than a Trust purpose;
(vi) make any loans or incur any
indebtedness;
18
(vii) have any power to, or
consent to any action that would vary the investment (within the meaning of
Treasury Regulation section 301.7701-4(c)) of the Trust or of the Holders;
(viii) issue any securities or
other evidences of beneficial ownership of, or beneficial interest in, the
Trust other than the Securities;
(ix) execute mortgages, pledge,
otherwise encumber any of the Trust’s assets or take or consent to any action
that would result in the placement of a lien on any of the Trust property; or
(x) revoke any action previously
authorized or approved by a vote of the Holders of the Preferred Securities,
except by subsequent vote of such Holders.
(b)
So
long as the Property Trustee holds any Debentures, the Trustees and the
Administrators may not, without obtaining the prior consent of the Holders of a
Majority in liquidation amount of all outstanding Preferred Securities: (i)
direct the time, method and place of conducting any proceeding for any remedy
available to the Debenture Trustee, or execute any trust or power conferred on
the Debenture Trustee with respect to the Debentures; (ii) revoke any action
previously authorized or approved by a vote of the Holders of the Preferred
Securities except by subsequent vote of such Holders; (iii) waive any past
default that is waivable under Section 5.07 of the Indenture; (iv) exercise any
right to rescind or annul a declaration accelerating the maturity of the
principal of the Debentures; or (v) consent to any amendment, modification or
termination of the Indenture or the Debentures, where such consent shall be
required; provided further, where a consent under the Indenture would require
the consent of Holders of a Super Majority of the aggregate principal amount of
Debentures affected thereby, only the Holders of the percentage of that
aggregate stated liquidation amount of the Preferred Securities which is at
least equal to the percentage required under the Indenture may direct the
Property Trustee to give such consent. In addition to obtaining the approval of
the Holders of the Preferred Securities, the Property Trustee shall be under no
obligation to take any of the actions described in clause (iii), (iv) or (v)
unless the Property Trustee has obtained an Opinion of Counsel experienced in
such matters to the effect that the Trust will not fail to be classified as a
grantor trust for federal income tax purposes after taking the action into
account and each Holder will be treated as owning an undivided beneficial
interest in the Debentures. The foregoing provisions of this Section 3.7(b) are
subject to Section 7.8 hereof.
SECTION 3.8
Powers
and Duties of the Property Trustee
.
(a)
The
legal title to the Debentures shall be owned by and held of record in the name
of the Property Trustee in trust for the benefit of the Holders. The right,
title and interest of the Property Trustee to the Debentures shall vest
automatically in each Person who may hereafter be appointed as Property Trustee
in accordance with Section 5.7. Such vesting and cessation of title shall be
effective whether or not conveyancing documents with regard to the Debentures
have been executed and delivered.
19
(b)
The
Property Trustee shall not transfer its right, title and interest in the
Debentures to the Administrators (in its capacity as such to the extent that
the Person serving as Property Trustee is also an Administrator) or to the
Delaware Trustee (if the Property Trustee does not also act as Delaware
Trustee).
(c)
The
Property Trustee shall:
(i) establish and maintain a
segregated non-interest bearing trust account (the “Property Trustee Account”)
in the name of and under the exclusive control of the Property Trustee on
behalf of the Holders and, upon the receipt of payments of funds made in
respect of the Debentures held by the Property Trustee, deposit such funds into
the Property Trustee Account and make payments or cause the Paying Agent to
make payments to the Holders from the Property Trustee Account in accordance
with Section 6.1. Funds in the Property Trustee Account shall be held
uninvested until disbursed in accordance with this Declaration. The Property
Trustee Account shall be an account that is maintained with a banking
institution the rating on whose long-term unsecured indebtedness by a “nationally
recognized statistical rating organization,” as that term is defined for purposes
of Rule 436(g)(2) under the Securities Act, is at least investment grade;
(ii) engage in such ministerial
activities as shall be necessary or appropriate to effect the redemption of the
Trust Securities to the extent the Debentures are redeemed or mature; and
(iii) upon written notice of
distribution issued by the Administrators in accordance with the terms of the
Securities, engage in such ministerial activities as shall be necessary or
appropriate to effect the distribution of the Debentures to Holders upon the
occurrence of certain events.
(d)
The
Property Trustee shall take all actions and perform such duties as may be
specifically required of the Property Trustee pursuant to the terms of this
Declaration and the Securities.
(e)
Subject
to Section 3.9(a), the Property Trustee shall take any Legal Action which
arises out of or in connection with an Event of Default (of which a Responsible
Officer has actual knowledge), including in respect of enforcing rights under
the Indenture and the Debentures in respect of an event of default thereunder,
or the Property Trustee’s duties and obligations under this Declaration or the
Trust Indenture Act.
(f)
The
Property Trustee shall not resign as a Trustee unless either:
(i) the Trust has been
completely liquidated and the proceeds of the liquidation distributed to the
Holders pursuant to the terms of the Securities; or
(ii) a successor Property
Trustee has been appointed and has accepted that appointment in accordance with
Section 5.7 (a “Successor Property Trustee”).
20
(g)
The
Property Trustee shall have the legal power to exercise all of the rights,
powers and privileges of a holder of Debentures under the Indenture and, if an
Event of Default actually known to a Responsible Officer occurs and is
continuing, the Property Trustee shall, for the benefit of Holders, enforce its
rights as holder of the Debentures subject to the rights of the Holders
pursuant to the terms of this Declaration and the Securities.
(h)
The
Property Trustee shall be authorized to undertake any actions set forth in
Section 317(a) of the Trust Indenture Act.
(i)
For
such time as the Property Trustee is the Paying Agent, the Property Trustee may
authorize one or more Persons, acceptable to the Administrators and the Holder
of Common Securities, to act as additional Paying Agents and to pay
Distributions, redemption payments or liquidation payments on behalf of the
Trust with respect to all Securities and any such Paying Agent shall comply
with Section 317(b) of the Trust Indenture Act. Any such additional Paying
Agent may be removed by the Property Trustee at any time the Property Trustee
remains as Paying Agent and a successor Paying Agent or additional Paying
Agents may be (but are not required to be) appointed at any time by the
Property Trustee while the Property Trustee is so acting as Paying Agent.
(j)
The
Property Trustee shall give prompt written notice to Holders of any notice
received from the Debenture Issuer of its election to defer payments of
interest on the Debentures by extending the interest payment period under the
Indenture.
(k)
Subject
to this Section 3.8, the Property Trustee shall have none of the duties,
liabilities, powers or the authority of the Administrators set forth in Section
3.6.
Notwithstanding anything
expressed or implied to the contrary in this Declaration or any Annex or
Exhibit hereto, (i) the Property Trustee must exercise the powers set forth in
this Section 3.8 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3, and (ii) the Property Trustee shall not
take any action that is inconsistent with the purposes and functions of the
Trust set out in Section 3.3.
SECTION 3.9
Certain
Duties and Responsibilities of the Property Trustee
.
(a)
The
Property Trustee, before the occurrence of any Event of Default and after the
curing or waiving of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Declaration and in the Securities and no implied covenants or obligations shall
be read into this Declaration against the Property Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to Section
2.6) of which a Responsible Officer has actual knowledge, the Property Trustee
shall exercise such of the rights and powers vested in it by this Declaration,
and use the same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs. If no such Event of Default exists and the Property Trustee is
required to decide between alternative courses of action or to construe
21
ambiguous
provisions in this Declaration or is unsure of the application of any provision
of this Declaration, and the matter is not one on which Holders of the
Preferred Securities or the Common Securities are entitled under this
Declaration to vote, then the Property Trustee shall take such action as
directed by the Holder of Common Securities and, if not directed, shall take
such action as it deems advisable and in the best interests of the Holders of
Preferred Securities and will have no liability, except for its own bad faith,
negligence or willful misconduct.
(b)
No
provision of this Declaration shall be construed to relieve the Property
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(i) prior to the occurrence of
an Event of Default and after the curing or waiving of all such Events of
Default that may have occurred:
(A) the duties and obligations
of the Property Trustee shall be determined solely by the express provisions of
this Declaration and in the Securities and the Property Trustee shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Declaration and in the Securities, and no
implied covenants or obligations shall be read into this Declaration against
the Property Trustee; and
(B) in the absence of bad faith
on the part of the Property Trustee, the Property Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Declaration; provided,
however, that in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the Property
Trustee, the Property Trustee shall be under a duty to examine the same to
determine whether or not on their face they conform to the requirements of this
Declaration (but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein);
(ii) the Property Trustee shall
not be liable for any error of judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Property Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Property Trustee shall
not be liable with respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of not less than a
majority in liquidation amount of the Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon the Property Trustee
under this Declaration;
22
(iv) no provision of this
Declaration shall require the Property Trustee to expend or risk its own funds
or otherwise incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this Declaration or
indemnity reasonably satisfactory to the Property Trustee against such risk or
liability is not reasonably assured to it;
(v) the Property Trustee’s sole
duty with respect to the custody, safe keeping and physical preservation of the
Debentures and the Property Trustee Account shall be to deal with such property
in a similar manner as the Property Trustee deals with similar property for its
own account, subject to the protections and limitations on liability afforded
to the Property Trustee under this Declaration and the Trust Indenture Act;
(vi) the Property Trustee shall
have no duty or liability for or with respect to the value, genuineness,
existence or sufficiency of the Debentures or the payment of any taxes or
assessments levied thereon or in connection therewith;
(vii) the Property Trustee shall
not be liable for any interest on any money received by it. Money held by the
Property Trustee need not be segregated from other funds held by it except in
relation to the Property Trustee Account maintained by the Property Trustee
pursuant to Section 3.8(c)(i) and except to the extent otherwise required by
law;
(viii) the Property Trustee
shall not be responsible for monitoring the compliance by the Administrators or
the Initial Purchaser of Common Securities with their respective duties under
this Declaration, nor shall the Property Trustee be liable for any default or misconduct
of the Administrators (other than to the extent that the Property Trustee also
serves as an Administrator) or the Initial Purchaser of Common Securities; and
(ix) the Property Trustee shall
not be deemed to have notice of any Event of Default unless a Responsible
Officer of the Property Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the Property
Trustee at the Corporate Trust Office of the Property Trustee, and such notice
references the Securities and this Indenture, except as set forth in Section
2.7(b).
SECTION 3.10
Certain
Rights of Property Trustee
.
(a)
Subject
to the provisions of Section 3.9:
(i) the Property Trustee may
conclusively rely and shall be fully protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
23
believed by it
to be genuine and to have been signed, sent or presented by the proper party or
parties;
(ii) any direction or act of the
Initial Purchaser of Common Securities or the Administrators contemplated by
this Declaration may be sufficiently evidenced by an Officers’ Certificate;
(iii) whenever in the
administration of this Declaration, the Property Trustee shall deem it
desirable that a matter be proved or established before taking, suffering or
omitting any action hereunder, the Property Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers’ Certificate which, upon receipt
of such request, shall be promptly delivered by the Initial Purchaser of Common
Securities or the Administrators;
(iv) the Property Trustee shall
have no duty to see to any recording, filing or registration of any instrument
(including any financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or re-registration thereof;
(v) the Property Trustee may
consult with counsel or other experts of its selection and the advice or
opinion of such counsel and experts with respect to legal matters or advice
within the scope of such experts’ area of expertise 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 accordance with such advice or
opinion, such counsel may be counsel to the Initial Purchaser of Common
Securities or any of its Affiliates, and may include any of its employees. The
Property Trustee shall have the right at any time to seek instructions
concerning the administration of this Declaration from any court of competent
jurisdiction;
(vi) the Property Trustee shall
be under no obligation to exercise any of the rights or powers vested in it by
this Declaration at the request or direction of any Holder, unless such Holder
shall have provided to the Property Trustee security and indemnity, reasonably
satisfactory to the Property Trustee, against the costs, expenses (including
reasonable attorneys’ fees and expenses and the expenses of the Property
Trustee’s agents, nominees or custodians) and liabilities that might be
incurred by it in complying with such request or direction, including such
reasonable advances as may be requested by the Property Trustee provided, that,
nothing contained in this Section 3.10(a)(vi) shall be taken to relieve the
Property Trustee, upon the occurrence of an Event of Default, of its obligation
to exercise the rights and powers vested in it by this Declaration;
(vii) the Property Trustee shall
not be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Property
24
Trustee, in
its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit;
(viii) the Property Trustee may
execute any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, custodians, nominees or attorneys and
the Property Trustee shall not be responsible for any misconduct or negligence
on the part of any such agent, custodian, nominee or attorney appointed with
due care by it hereunder;
(ix) any action taken by the
Property Trustee or its agents hereunder shall bind the Trust and the Holders,
and the signature of the Property Trustee or its agents alone shall be
sufficient and effective to perform any such action and no third party shall be
required to inquire as to the authority of the Property Trustee to so act or as
to its compliance with any of the terms and provisions of this Declaration,
both of which shall be conclusively evidenced by the Property Trustee’s or its
agent’s taking such action;
(x) whenever in the
administration of this Declaration the Property Trustee shall deem it desirable
to receive instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Property Trustee (i) may request instructions
from the Holders which instructions may only be given by the Holders of the
same proportion in liquidation amount of the Securities as would be entitled to
direct the Property Trustee under the terms of the Securities in respect of
such remedy, right or action, (ii) may refrain from enforcing such remedy or
right or taking such other action until such instructions are received, and
(iii) shall be protected in conclusively relying on or acting in accordance
with such instructions;
(xi) except as otherwise
expressly provided by this Declaration, the Property Trustee shall not be under
any obligation to take any action that is discretionary under the provisions of
this Declaration;
(xii) the Property Trustee shall
not be liable for any action taken, suffered, or omitted to be taken by it in
good faith, without negligence, and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Declaration;
(xiii) the rights, privileges,
protections, immunities and benefits given to the Property Trustee, including,
without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Property Trustee in each of its capacities hereunder, and
to each agent, custodian and other Person employed to act hereunder;
(xiv) the Property Trustee may
request that the Initial Purchaser of Common Securities deliver an Officers’
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Declaration,
which Officers’ Certificate may be signed by any
25
person
authorized to sign an Officers’ Certificate, including any person specified as
so authorized in any such certificate previously delivered and not superseded;
and
(xv) The permissive rights of
the Property Trustee to do things enumerated in this Declaration shall not be
construed as duties.
(b)
No
provision of this Declaration shall be deemed to impose any duty or obligation
on the Property Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it, in any jurisdiction in
which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty. In the exercise
of its discretion, the Property Trustee shall take no action or fail to take
any action that, to the actual knowledge of a Responsible Officer of the
Property Trustee, would cause the Trust to be treated as other than a grantor
trust for U.S. federal income tax purposes, provided, however, that the
Property Trustee, at the expense of the Initial Purchaser of Common Securities,
shall consult with legal tax counsel experienced in such matters in the event
of an Event of Default.
SECTION 3.11
Delaware Trustee
.
Notwithstanding any other provision of this
Declaration other than Section 5.2, the Delaware Trustee shall not be entitled
to exercise any powers, nor shall the Delaware Trustee have any of the duties
and responsibilities of the Administrators or the Property Trustee described in
this Declaration. Except as set forth in Section 5.2, the Delaware Trustee
shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Statutory Trust Act. In the event the
Delaware Trustee shall at any time be required to take any action or perform
any duty hereunder, the Delaware Trustee shall be entitled to the benefits of
Section 3.9(b)(ii) to (viii), inclusive, and Section 3.10. No implied covenants
or obligations shall be read into this Declaration against the Delaware
Trustee.
SECTION 3.12
Execution of Documents
.
Unless otherwise determined by the Administrators, and
except as otherwise required by the Statutory Trust Act, a majority of the
Administrators or, if there are only two, any Administrator or, if there is
only one, such Administrator is authorized to execute and deliver on behalf of
the Trust any documents that the Administrators have the power and authority to
execute pursuant to Section 3.6; provided that the Registration Statement
referred to in Section 3.6(b)(i), including any amendments thereto, shall, to
the extent required by applicable law,
be signed by (or on behalf of) all of the Administrators.
SECTION 3.13
Not Responsible for Recitals or Issuance
of Securities
.
The recitals contained in this Declaration and the
Securities shall be taken as the statements of the Initial Purchaser of Common
Securities, and the Trustees and Administrators do not assume any
responsibility for their correctness. The Trustees and Administrators make no
26
representations as to the
value or condition of the property of the Trust or any part thereof. The
Trustees and Administrators make no representations as to the validity or
sufficiency of this Declaration or the Securities.
SECTION 3.14
Duration of Trust
.
The Trust, unless terminated pursuant to the
provisions of Article VIII hereof, shall have existence up to October 17, 2042.
SECTION 3.15
Mergers
.
(a)
The
Trust may not merge with or into, consolidate, amalgamate, or be replaced by,
or convey, transfer or lease all or substantially all of its properties and
assets to any Person, except as described in Section 3.15(b) and (c) and except
with respect to the distribution of Debentures to Holders pursuant to Section
8.1(a)(iii) of this Declaration or Section 3 of Annex I.
(b)
The
Trust may, at the request of the Holder of Common Securities, with the consent
of the Administrators or, if there are more than two, a majority of the
Administrators and without the consent of the Holders, the Delaware Trustee or
the Property Trustee, merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease all or substantially all of its properties
and assets to, a trust organized as such under the laws of any State; provided
that:
(i) such successor entity (if
not the original Trust) (the “Successor Entity”) either:
(A) expressly assumes all of the
obligations of the Trust under the Securities; or
(B) substitutes for the
Securities other securities having substantially the same terms as the
Securities (the “Successor Securities”) so long as the Successor Securities
rank the same as the Securities rank with respect to Distributions and payments
upon liquidation, redemption and otherwise, provided, however that the
Administrator first obtains the opinion of counsel of the Trust experienced in
such matters, to the effect that such substitution would not vary the
investment (within the meaning of Treasury Regulation Section 301.7701-4(c)) of
the Trust or of the Holders;
(ii) the Holder of Common
Securities expressly appoints a trustee of any Successor Entity that possesses
the same powers and duties as the Property Trustee as the holder of the
Debentures;
(iii) any such preferred
Successor Securities are listed or quoted, or any such preferred Successor
Securities will be listed or quoted upon notification of issuance, on any
national securities exchange or with another organization on which the
Preferred Securities are then listed or quoted, if any;
27
(iv) if the Preferred Securities
(including any Successor Securities) or the Debentures are rated by any
nationally recognized statistical rating organization prior to such
transaction, such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause either the Preferred Securities (including any
Successor Securities), or the Debentures to have a lower rating by any
nationally recognized statistical rating organization;
(v) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders (including the
holders of any Successor Securities) in any material respect or cause the Trust
or the successor entity to be treated as other than a grantor trust for United
States federal income tax purposes;
(vi) any Successor Entity has a
purpose substantially identical to that of the Trust;
(vii) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, each
of the Holder of Common Securities and the Property Trustee has received an
opinion of independent counsel to the Trust experienced in such matters to the
effect that:
(A) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders (including the
holders of any Successor Securities) in any material respect;
(B) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease,
neither the Trust nor the Successor Entity will be an Investment Company; and
(C) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Trust continues to be, and any Successor Entity will be, classified as a
grantor trust for United States federal income tax purposes;
(viii) the Holder of Common
Securities or any permitted successor or assignee owns all of the common
securities of any Successor Entity and guarantees the obligations of such
Successor Entity under any Successor Securities at least to the extent provided
by the Guarantee Agreement; and
(ix) there shall have been
furnished to the Property Trustee an Officer’s Certificate and an Opinion of
Counsel, each to the effect that all conditions precedent in this Declaration
to such transaction have been satisfied.
(c)
Notwithstanding
Section 3.15(b), the Trust shall not, except with the consent of Holders of
100% in liquidation amount of the Securities, consolidate, amalgamate, merge
with or into, or be replaced by, or convey, transfer or lease all or
substantially all of its properties and assets to any other
28
Person or
permit any other Person to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Trust or the Successor Entity not
to be classified as a grantor trust for United States federal income tax
purposes or would cause any holder of the Preferred Securities or the Successor
Securities not to be treated as owning an undivided beneficial interest in the
Debentures.
ARTICLE
IV
INITIAL PURCHASER OF COMMON SECURITIES
SECTION 4.1
Purchase of Common Securities by Initial
Purchaser
.
At the Closing Time, the Initial Purchaser of Common
Securities will purchase all of the Common Securities then issued by the Trust,
the aggregate liquidation amount of which shall at such date equal $10,000.
SECTION 4.2
Responsibilities of the Initial Purchaser
of Common Securities
.
In connection with the issue and sale of the Preferred
Securities, the Initial Purchaser of Common Securities shall have the exclusive
right and responsibility to engage in the following activities:
(a)
to
prepare the Disclosure Package and the Offering Memorandum and to prepare for
filing by the Trust with the Commission the Registration Statement, including
any amendments thereto;
(b)
to
determine the states and foreign jurisdictions in which to take appropriate
action to qualify or register for sale all or part of the Preferred Securities
and to do any and all such acts other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for execution
and filing any documents to be executed and filed by the Trust, as the Initial
Purchaser of Common Securities deems necessary or advisable in order to comply
with the applicable laws of any such states and foreign jurisdictions;
(c)
if
so determined by the Initial Purchaser of Common Securities, to prepare for
filing by the Trust an application to PORTAL;
(d)
to
prepare for filing by the Trust with the Commission a registration statement on
Form 8-A relating to the registration of the Preferred Securities under Section
12 of the Exchange Act, including any amendments thereto, if the Initial
Purchaser of Common Securities in its sole discretion determines such a filing
is necessary or appropriate;
(e)
to
negotiate the terms of the Purchase Agreement, the Registration Rights
Agreement and other related agreements providing for the sale of the Preferred
Securities; and
29
(f)
to
execute all documents or instruments, perform all duties and powers, and do all
things for and on behalf of the Trust in all matters necessary or incidental to
the foregoing.
SECTION 4.3
Right to Proceed
.
The Initial Purchaser of Common Securities
acknowledges the rights of the Holders of Preferred Securities, in the event
that a failure of the Trust to pay Distributions on the Preferred Securities is
attributable to the failure of the Debenture Issuer to pay Interest or
principal on the Debentures and the rights of the Holders to institute a
proceeding directly against the Debenture Issuer for enforcement of its payment
obligations on the Debentures.
SECTION 4.4
Right to Terminate Trust
.
The Holder of Common Securities will have the right at
any time to terminate the Trust and, after satisfaction of liabilities to
creditors of the Trust as required by applicable law, to cause the Debentures
to be distributed to the Holders of the Trust Securities in liquidation of the
Trust.
SECTION 4.5
Obligations of the Initial Purchaser
.
The Initial Purchaser of Common Securities agrees to
take the position, for United States federal and state income tax purposes,
that (i) the Trust is a grantor trust and not a partnership or an association
taxable as a corporation, and (ii) the Debentures constitute indebtedness of the
Company that is subject to the Treasury Regulations governing contingent
payment debt instruments (“CPDI Regulations”).
ARTICLE V
TRUSTEES AND ADMINISTRATORS
SECTION 5.1
Number of Trustees and Administrators:
Appointment of Co-Trustee
.
The combined number of Trustees and Administrators
initially shall be three, consisting of one Administrator, the Delaware Trustee
and the Property Trustee, and:
(a)
at
any time before the issuance of any Securities, the Initial Purchaser of Common
Securities may, by written instrument, increase or decrease the number of
Trustees or the number of Administrators; and
(b)
after
the issuance of any Securities, the number of Trustees or the number of
Administrators may be increased or decreased by vote of the Holders of a
Majority in liquidation amount of the Common Securities voting as a class at a
meeting of the Holders of the Common Securities;
30
provided, however, that, the combined number of
Trustees and Administrators shall in no event be less than three (3); provided
further that (1) one Trustee, in the case of a natural person, shall be a
person who is a resident of the State of Delaware or that, if not a natural
person, is an entity which has its principal place of business in the State of
Delaware (the “Delaware Trustee”); (2) there shall be at least one
Administrator to perform ministerial functions (including the Initial
Administrator, each, an “Administrator”) and any Administrator may but is not
required to be an employee or officer of, or affiliated with, the Initial Purchaser
of Common Securities; and (3) one Trustee shall be the Property Trustee for so
long as this Declaration is required to qualify as an indenture under the Trust
Indenture Act, and such Trustee may also serve as Delaware Trustee if it meets
the applicable requirements. The term “Administrators”
as used herein shall not include any Trustees but shall include all Persons who
accept appointment as Administrator of the Trust, or if there shall be only one
Administrator, then such term shall be deemed to refer to such Administrator.
Notwithstanding the above, unless an Event of Default shall have occurred and
be continuing, at any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in which any
part of the Trust’s property may at the time be located, the Holders of a
Majority in liquidation amount of the Common Securities acting as a class at a
meeting of the Holders of the Common Securities, and the Administrators shall
have power to appoint one or more Persons either to act as a co-trustee,
jointly with the Property Trustee, of all or any part of the Trust’s property,
or to act as separate trustee of any such property, in either case with such
powers as may be provided in the instrument of appointment, and to vest in such
Person or Persons in such capacity any property, title, right or power deemed
necessary or desirable, subject to the provisions of this Declaration. In case
an Event of Default has occurred and is continuing, the Property Trustee alone
shall have power to make any such appointment of a co-trustee.
SECTION 5.2
Delaware Trustee
.
If required by the Statutory Trust Act, the Delaware
Trustee shall be:
(a)
a
natural person who is a resident of the State of Delaware; or
(b)
if
not a natural person, an entity which has its principal place of business in
the State of Delaware, and otherwise meets the requirements of applicable law,
provided that, if the Property Trustee has its
principal place of business in the State of Delaware and otherwise meets the
requirements of applicable law, then the Property Trustee shall also be the
Delaware Trustee and Section 3.11 shall have no application.
SECTION 5.3
Property Trustee; Eligibility
.
(a)
There
shall at all times be one Trustee (the “Property Trustee”) which shall act as
Property Trustee which shall:
(i) not be an Affiliate of the
Initial Purchaser of Common Securities; and
(ii) be a corporation or
national banking association organized and doing business under the laws of the
United States of America or any State or Territory thereof or of the District
of Columbia, or a corporation or Person permitted by the
31
Commission to
act as an institutional trustee under the Trust Indenture Act, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by federal, state, territorial or District of
Columbia authority. If such corporation or national banking association publishes
reports of condition at least annually, pursuant to law or to the requirements
of the supervising or examining authority referred to above, then for the
purposes of this Section 5.3(a)(ii), 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.
(b)
If
at any time the Property Trustee shall cease to be eligible to so act under
Section 5.3(a), the Property Trustee shall immediately resign in the manner and
with the effect set forth in Section 5.7(c).
(c)
If
the Property Trustee has or shall acquire any “conflicting interest” within the
meaning of Section 310(b) of the Trust Indenture Act, the Property Trustee and
the Holder of the Common Securities (as if it were the obligor referred to in
Section 310(b) of the Trust Indenture Act) shall in all respects comply with
the provisions of Section 310(b) of the Trust Indenture Act.
(d)
The
Guarantee Agreement shall be deemed to be specifically described in this
Declaration for purposes of clause (i) of the first provision contained in
Section 310(b) of the Trust Indenture Act.
(e)
The
initial Property Trustee shall be:
LaSalle Bank National
Association
540 West Madison Street, Suite 2500
Chicago, Illinois 60661
Fax: (312) 904-0524
Telephone: (312) 904-0283
Attention: CDO Trust Services Group –AMG Capital Trust II
SECTION 5.4
Certain Qualifications of Administrators
and Delaware Trustee Generally
.
Each Administrator and the Delaware Trustee (unless
the Property Trustee also acts as Delaware Trustee) shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more Authorized Officers.
SECTION 5.5
Administrators
.
(a)
The
Initial Administrator shall resign as Administrator effective as of the
delivery of this Declaration by all parties hereto.
The successor Administrator shall be:
The Institutional Administrator
32
LaSalle Bank National Association
540 West Madison Street, Suite 2500
Chicago, Illinois 60661
Fax: (312) 904-0524
Telephone: (312) 904-0283
Attention: CDO Trust Services Group –AMG Capital Trust II
(b)
To
the extent that, at any time or from time to time, there is more than one
Administrator,
(i) except as expressly set
forth in this Declaration and except if a meeting of the Administrators is
called with respect to any matter over which the Administrators have power to
act, any power of the Administrators may be exercised by, or with the consent
of, any one such Administrator; and
(ii) unless otherwise determined
by the Administrators, and except as otherwise required by the Statutory Trust
Act or applicable law, any Administrator is authorized to execute on behalf of
the Trust any documents which the Administrators have the power and authority
to cause the Trust to execute pursuant to Section 3.6, provided, that, any
Registration Statement referred to in Section 3.6, including any amendments
thereto, shall, to the extent required by applicable law, be signed by all of
the Administrators.
SECTION 5.6
Delaware Trustee
.
The initial Delaware Trustee shall be:
LaSalle National
Trust Delaware
1201 North Orange
Street
Suite 1000
Wilmington, DE
19801
Fax: (302)
427-1414
Telephone: (302) 427-1401
SECTION 5.7
Appointment, Removal and Resignation of Trustees
and Administrators
.
(a)
Except
as provided otherwise in this Section 5.7 and in Annex I hereto Trustees and
Administrator may be appointed or removed without cause at any time:
(i) until the issuance of any
Securities, by written instrument executed by the Initial Purchaser of Common
Securities;
(ii) after the issuance of any
Securities:
(A) unless an Event of Default
shall have occurred and be continuing, by vote of the Holders of a Majority in
liquidation amount of the Common Securities voting as a class at a meeting of
the Holders of the Common Securities, or without a meeting by the written
consent of the
33
Holders of a
Majority in liquidation amount of the Common Securities; and
(B) if an Event of Default shall
have occurred and be continuing, in which event the Property Trustee or the
Delaware Trustee may be removed only by the vote of Holders of a Majority in
liquidation amount of the Preferred Securities voting as a class at a meeting
of Holders of the Preferred Securities, or without a meeting by the written
consent of the Holders of a Majority in liquidation amount of the Preferred
Securities.
(b)
(i) The Trustee that acts as Property Trustee
shall not be removed in accordance with Section 5.7(a) until a Successor
Property Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Property Trustee and delivered to
the removed Property Trustee, the remaining Trustees, the Administrators and
the Initial Purchaser of Common Securities; and
(ii) The Trustee that acts as
Delaware Trustee shall not be removed in accordance with Section 5.7(a) until a
successor Trustee possessing the qualifications to act as Delaware Trustee
under Sections 5.2 and 5.4 (a “Successor Delaware Trustee”) has been appointed
and has accepted such appointment by written instrument executed by such
Successor Delaware Trustee and delivered to the removed Property Trustee, the
remaining Trustees and the Administrators and the Initial Purchaser of Common
Securities.
(iii) The Institutional
Administrator shall not be removed in accordance with Section 5.7(a) unless and
until at least one other Administrator shall have been appointed and shall have
accepted such appointment to act as an Administrator hereunder (a “Successor Administrator”)
by written instrument executed by such Successor Administrator and delivered to
the Initial Purchaser of Common Securities.
(c)
A
Trustee or Administrator appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Trustee or Administrator may resign from office (without need for prior or
subsequent accounting) by an instrument in writing signed by the Trustee or
Administrator and delivered to the other Trustees and Administrators, the
Initial Purchaser of Common Securities and the Trust, which resignation shall
take effect upon such delivery or upon such later date as is specified therein;
provided, however, that:
(i) No such resignation of the
Trustee or Administrator that acts as the Property Trustee or the Institutional
Administrator shall be effective:
(A) except as otherwise provided
in Section 3.6, until a Successor Property Trustee or Successor Administrator,
as the case may be, has been appointed and has accepted such appointment by
instrument executed by such Successor Property Trustee or Successor
Administrator, as the case may be, and delivered to the Trust, the Delaware
Trustee, the Initial
34
Purchaser of
Common Securities, the resigning Property Trustee and/or the resigning
Administrator, as applicable; or
(B) until the assets of the
Trust have been completely liquidated and the proceeds thereof distributed to
the Holders; and
(ii) No such resignation of the
Trustee that acts as the Delaware Trustee shall be effective until a Successor
Delaware Trustee has been appointed and has accepted such appointment by
instrument executed by such Successor Delaware Trustee and delivered to the
Trust, the Property Trustee, the Administrator, the Initial Purchaser of Common
Securities and the resigning Delaware Trustee.
(d)
The
Holders of the Common Securities shall use their best efforts to promptly
appoint a Successor Delaware Trustee or Successor Property Trustee, as the case
may be, if the Property Trustee or the Delaware Trustee delivers an instrument
of resignation in accordance with this Section 5.7.
(e)
If
no Successor Property Trustee or Successor Delaware Trustee shall have been
appointed and accepted appointment as provided in this Section 5.7 within 60
days after delivery of an instrument of resignation or removal, the Property
Trustee or Delaware Trustee resigning or being removed, as applicable, at the
expense of the Initial Purchaser of Common Securities, may petition any court
of competent jurisdiction for appointment of a Successor Property Trustee or
Successor Delaware Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper and prescribe, appoint a Successor
Property Trustee or Successor Delaware Trustee, as the case may be.
(f)
No
Property Trustee, Delaware Trustee or Administrator shall be liable for the
acts or omissions to act of any Successor Property Trustee, Successor Delaware
Trustee or Successor Administrator, as the case may be.
(g)
At
the time of resignation or removal of the Property Trustee, the Delaware
Trustee or the Institutional Administrator, the Debenture Issuer shall pay to
such Trustee any amounts that may be owed to such Trustee pursuant to Section
10.4.
SECTION 5.8
Vacancies Among Trustees and Administrators
.
If a Trustee or Administrator ceases to hold office
for any reason and the number of Trustees or Administrators, as the case may
be, is not reduced pursuant to Section 5.1, or if the number of Trustees or
Administrators, as the case may be, is increased pursuant to Section 5.1, a
vacancy shall occur. A resolution certifying the existence of such vacancy by
the Administrators or, if there are more than two, a majority of the
Administrators shall be conclusive evidence of the existence of such vacancy.
The vacancy shall be filled with a Trustee or Administrator, as the case may
be, appointed in accordance with Section 5.7.
SECTION 5.9
Effect of Vacancies
.
The death, resignation, retirement, removal,
bankruptcy, dissolution, liquidation, incompetence or incapacity to perform the
duties of a Trustee shall not operate to dissolve,
35
terminate or annul the
Trust. Whenever a vacancy in the number of Administrators shall occur, until
such vacancy is filled by the appointment of an Administrator in accordance
with Section 5.7, the Administrators in office, regardless of their number,
shall have all the powers granted to the Administrators and shall discharge all
the duties imposed upon the Administrators by this Declaration.
SECTION 5.10
Meetings
.
If there is more than one Administrator, meetings of
the Administrators shall be held from time to time upon the call of any
Administrator. Regular meetings of the Administrators may be held at a time and
place fixed by resolution of the Administrators. Notice of any in-person
meetings of the Administrators shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 24 hours before such meeting. Notice of any telephonic meetings of
the Administrators or any committee thereof shall be hand delivered or
otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 24 hours before a meeting. Notices shall
contain a brief statement of the time, place and anticipated purposes of the
meeting. The presence (whether in person or by telephone) of an Administrator
at a meeting shall constitute a waiver of notice of such meeting except where
an Administrator attends a meeting for the express purpose of objecting to the
transaction of any activity on the ground that the meeting has not been
lawfully called or convened. Unless provided otherwise in this Declaration, any
action of the Administrators may be taken at a meeting by vote of a majority of
the Administrators present (whether in person or by telephone), provided that a
Quorum is present, or without a meeting by the unanimous written consent of the
Administrators. In the event there is only one Administrator, any and all
action of such Administrator shall be evidenced by a written consent of such
Administrator.
SECTION 5.11
Delegation of Power
.
(a)
Any
Administrator may, by power of attorney consistent with applicable law,
delegate to any other Person his, her or its power for the purpose of executing
any documents contemplated in Section 3.6, including any registration statement
or amendment thereto filed with the Commission, or making any other
governmental filing; and
(b)
The
Administrators shall have power to delegate from time to time to such of their
number or to officers of the Trust the doing of such things and the execution
of such instruments either in the name of the Trust or the names of the
Administrators or otherwise as the Administrators may deem expedient, to the
extent such delegation is not prohibited by applicable law or contrary to the
provisions of this Declaration.
SECTION 5.12
Merger, Conversion, Consolidation or
Succession to Business
.
If the Property Trustee, the Delaware Trustee or any
Administrator that is not a natural person, as the case may be, is merged,
converted or consolidated into another Person, or any such Trustee or
Administrator is a party to a merger, conversion or consolidation that results
in a new entity, or any Person succeeds to all or substantially all the corporate
trust business of the
36
Property Trustee, the
Delaware Trustee or any Administrator that is not a natural person, as the case
may be, the new entity shall be the successor of the Property Trustee, the
Delaware Trustee or the Administrator, as the case may be, hereunder, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, provided such Person shall be otherwise qualified and
eligible.
ARTICLE
VI
DISTRIBUTIONS
Holders shall receive Distributions in accordance with
the applicable terms of the relevant Holder’s Securities. If and to the extent that the Debenture
Issuer makes a payment of Interest (including Compounded Interest, Liquidated
Damages, Additional Sums and Contingent Interest) or principal on the
Debentures held by the Property Trustee, or other amounts payable thereunder
with respect to overdue installments of principal or Interest, or any other
payments with respect to the Debentures held by the Property Trustee (the
amount of any such payment being a “Payment Amount”), the Property Trustee
shall and is directed, to the extent funds are available for that purpose, to
make a distribution (a “Distribution”) of the Payment Amount to Holders.
ARTICLE
VII
ISSUANCE OF SECURITIES
SECTION 7.1
General Provisions Regarding Securities
.
(a)
The
Trust shall issue one class of convertible trust preferred securities
representing undivided beneficial interests in the assets of the Trust having
such terms as are set forth in Annex I (the “Preferred Securities”) and one
class of common securities representing undivided beneficial interests in the
assets of the Trust having such terms as are set forth in Annex I (the “Common
Securities”). The Trust shall issue no securities or other interests in the
assets of the Trust other than the Preferred Securities and the Common
Securities.
(b)
The
consideration received by the Trust for the issuance of the Securities shall
constitute a contribution to the capital of the Trust and shall not constitute
a loan to the Trust.
(c)
Upon
issuance of the Securities as provided in this Declaration, the Securities so
issued shall be deemed to be validly issued, fully paid and non-assessable.
(d)
Each
Holder or beneficial owner of any Preferred Security agrees, for U.S. federal
income tax purposes:
(i) to treat the Trust as a
grantor trust and not as a partnership or an association taxable as a
corporation;
(ii) to the treatment of such
Holder or beneficial owner as a grantor owner of an undivided interest in the
Debentures;
37
(iii) to treat the Debentures as
indebtedness of the Initial Purchaser of Common Securities subject to the CPDI
Regulations;
(iv) to accrue in gross income
such Holder’s or beneficial owner’s pro rata share of the interest income
accruing on the Debentures (in accordance with the “noncontingent bond method,”
set forth in section 1.1275-4(b) of the CPDI Regulations) on a constant yield
to maturity basis at a “comparable yield” (within the meaning of the CPDI
Regulations and treating the fair market value of the Common Stock to be
received by such Holder or beneficial owner upon conversion, if any, as a
contingent payment) of 8.0%, compounded quarterly, in accordance with the “projected
payment schedule” (within the meaning of section 1.1275-4(b) of the CPDI Regulations)
attached as Exhibit A-3 hereto, determined by the Initial Purchaser of Common
Securities; and
(v) to treat such comparable
yield and projected payment schedule determined by the Initial Purchaser of
Common Securities as “reasonable” for the purposes of the CPDI Regulations.
(e)
Each
Preferred Security certificate evidencing the Global Preferred Securities and
any Certificated Preferred Securities (and all Preferred Securities issued in
exchange therefor or substitution thereof) shall bear legends in substantially
the following form:
FOR PURPOSES OF SECTIONS
1273 AND 1275 OF THE INTERNAL REVENUE CODE, THE ISSUE PRICE OF EACH SECURITY IS
$49.50 PER $50.00 OF LIQUIDATION AMOUNT, THE ISSUE DATE IS OCTOBER 17, 2007 AND
THE COMPARABLE YIELD IS 8.00% PER ANNUM.
THE HOLDER OF THIS
SECURITY, BY ACCEPTANCE THEREOF, AGREES (I) TO TREAT THE SECURITY AS
INDEBTEDNESS OF THE DEBENTURE ISSUER FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES THAT IS SUBJECT TO TREASURY REGULATION SECTION 1.1275-4(B) AND (II) TO
TREAT THE COMPARABLE YIELD AND PROJECTED PAYMENT SCHEDULE AS DETERMINED BY THE
DEBENTURE ISSUER AS “REASONABLE” FOR PURPOSES OF TREASURY REGULATION SECTION
1.1275-4(B).
U.S. HOLDERS OF THIS
SECURITY MAY OBTAIN THE PROJECTED PAYMENT SCHEDULE FOR THIS SECURITY BY
SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO AFFILIATED MANAGERS GROUP,
INC., 600 HALE STREET, PRIDES CROSSING, MASSACHUSETTS 01965, ATTN.: CHIEF FINANCIAL OFFICER
(f)
On
each day from the date on which the Holder acquires the Preferred Securities
through and including the date on which the Holder disposes of its interests in
such Preferred Securities: (a) such
Holder is not an employee benefit plan or other similar retirement plan or
arrangement, whether or not subject to the Employee
38
Retirement
Income Security Act of 1974, as amended (“ERISA”) or Section 4975 of the Code
(or any similar laws or regulations), or an entity whose underlying assets are
considered to include the assets of any such plans and arrangements (each, a “Plan”)
and no part of the assets to be used by such Holder to acquire and/or hold the
Preferred Securities or any interest therein constitutes plan assets of any
Plan or (b) the acquisition, holding, and, if applicable, conversion of the
Preferred Securities by such Holder will not constitute a non-exempt prohibited
transaction under the Title I of ERISA or Section 4975 of the Code or a
violation under any other applicable laws and regulations that are similar to
the provisions of Title I of ERISA or Section 4975 of the Code; and
(g)
Each
Preferred Security Certificate will bear the following legend:
BY ITS ACQUISITION OF THIS CERTIFICATE THE HOLDER
REPRESENTS THAT EITHER (I) IT IS NOT AN EMPLOYEE BENEFIT PLAN OR OTHER SIMILAR
RETIREMENT PLAN OR ARRANGEMENT, WHETHER OR NOT SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) (OR ANY SIMILAR
LAWS OR REGULATIONS), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO
INCLUDE THE ASSETS OF ANY SUCH PLANS AND ARRANGEMENTS UNDER U.S. DEPARTMENT OF
LABOR REGULATIONS OR SECTION 3(42) OF ERISA, TAKING INTO ACCOUNT SECTION 611(F)
OF THE PENSION PROTECTION ACT OF 2006 (EACH, A “PLAN”) AND NO PART OF THE
ASSETS TO BE USED BY THE HOLDER TO ACQUIRE AND/OR HOLD THIS CERTIFICATE OR ANY
INTEREST THEREIN CONSTITUTES PLAN ASSETS OF ANY PLAN OR (II) THE ACQUISITION,
HOLDING AND, IF APPLICABLE, CONVERSION OF THIS CERTIFICATE WILL NOT CONSTITUTE
A NON-EXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF ERISA OR SECTION 4975 OF
THE CODE OR A VIOLATION UNDER ANY OTHER APPLICABLE LAWS AND REGULATIONS THAT
ARE SIMILAR TO THE PROVISIONS OF TITLE I OF ERISA OR SECTION 4975 OF THE CODE.
(h)
Every
Person, by virtue of having become a Holder or a beneficial owner in any Global
Preferred Security in accordance with the terms of this Declaration, shall be
deemed to have expressly assented and agreed to the terms of, and shall be
bound by, this Declaration.
SECTION 7.2
Execution and Authentication
.
(a)
The
Securities shall be signed on behalf of the Trust by an Administrator. In case
any Administrator of the Trust who shall have signed any of the Securities
shall cease to be such Administrator before the Securities so signed shall be
delivered by the Trust, such Securities nevertheless may be delivered as though
the person who signed such Securities had not ceased to be such Administrator;
and any Securities may be signed on behalf of the Trust by such persons who, at
the actual date of execution of such Security, shall be the Administrators of
the Trust, although at the date of the execution and delivery of the
Declaration any such person was not an Administrator.
39
(b)
One
Administrator shall sign the Securities for the Trust by manual or facsimile
signature.
A Preferred Security shall not be valid until
authenticated by the manual signature of an authorized signatory of the
Property Trustee. The signature shall be conclusive evidence that the Preferred
Security has been authenticated under this Declaration.
Upon a written order of the Trust signed by the
Initial Holder of Common Securities, the Property Trustee shall authenticate
the Preferred Securities for original issue. The aggregate number of Preferred
Securities outstanding at any time shall not exceed the number set forth in the
Terms in Annex I hereto except as provided in Section 7.6.
The Property Trustee may appoint an authenticating
agent acceptable to the Trust to authenticate Preferred Securities. An
authenticating agent may authenticate Preferred Securities whenever the
Property Trustee may do so. Each reference in this Declaration to
authentication by the Property Trustee includes authentication by such agent.
An authenticating agent has the same rights as the Property Trustee to deal
with the Initial Purchaser of Common Securities or an Affiliate.
SECTION 7.3
Form and Dating
.
The Preferred Securities shall be evidenced by one or
more certificates substantially in the form of Exhibit A-1 and the Common
Securities shall be evidenced by one or more certificates substantially in the
form of Exhibit A-2, each of which is hereby incorporated in and expressly made
a part of this Declaration. The Property Trustee’s certificate of
authentication shall be substantially in the form set forth in Exhibit A-1.
Certificates representing the Securities may be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Administrators, as evidenced by their execution thereof. The Securities may
have letters, CUSIP or other numbers, notations or other marks of
identification or designation and such legends or endorsements required by law,
stock exchange rule, agreements to which the Trust is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the Trust). The Trust at the direction of the Initial Purchaser of Common
Securities shall furnish any such legend not contained in Exhibit A-1 to the
Property Trustee and, if applicable, the Institutional Administrator in writing.
Each Security shall be dated the date of its authentication. The terms and
provisions of the Securities set forth in Annex I and the forms of Securities
set forth in Exhibits A-1 and A-2 are part of the terms of this Declaration and
to the extent applicable, the Property Trustee and the Initial Purchaser of
Common Securities, by their execution and delivery of this Declaration,
expressly agree to such terms and provisions and to be bound thereby.
The Preferred Securities are being offered and sold by
the Trust pursuant to a Purchase Agreement relating to the Preferred
Securities, dated October 11, 2007, among the Trust, the Initial Purchaser of
Common Securities and the Initial Purchasers named therein (the “Purchase
Agreement”).
(a)
Global
Securities
. Preferred Securities offered and sold to QIBs as provided in
the Purchase Agreement shall initially be issued in the form of one or more
40
permanent
Global Certificates in definitive, fully registered form without distribution
coupons as set forth in Exhibit A-1 hereto (a “Global Preferred Security”),
which shall be deposited on behalf of the purchasers of the Global Preferred
Securities represented thereby with the Property Trustee, at its Corporate
Trust Office, as custodian for the Clearing Agency, and registered in the name
of the Clearing Agency or a nominee of the Clearing Agency, duly executed by
the Trust and authenticated by the Property Trustee as hereinafter provided.
The number of Preferred Securities represented by a Global Preferred Security
may from time to time be increased or decreased by adjustments made on the
records of the Property Trustee and the Clearing Agency or its nominee as
hereinafter provided. Except as provided in Section 9.2(g), owners of
beneficial interests in a Global Preferred Security will not be entitled to
receive Certificated Preferred Securities.
(b)
Book-Entry
Provisions
. This Section 7.3(b) shall apply only to the Global Preferred
Securities and such other Preferred Securities in global form as may be
authorized by the Trust to be deposited with or on behalf of the Clearing
Agency.
An Administrator shall execute and the Property
Trustee shall, in accordance with this Section 7.3, authenticate and make
available for delivery initially one or more Global Preferred Securities that
(i) shall be registered in the name of Cede & Co. or other nominee of a
Clearing Agency and (ii) shall be delivered by the Property Trustee to such
Clearing Agency or pursuant to such Clearing Agency’s written instructions or,
if no such written instructions are received by the Property Trustee, held by
the Property Trustee as custodian for the Clearing Agency.
Clearing Agency Participants shall have no rights
under this Declaration with respect to any Global Preferred Security held on
their behalf by the Clearing Agency or by the Property Trustee as the custodian
of the Clearing Agency or under such Global Preferred Security, and the
Clearing Agency may be treated by the Trust, the Property Trustee and any agent
of the Trust or the Property Trustee as the absolute owner of such Global
Preferred Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Trust, the Property Trustee or any agent of
the Trust or the Property Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Clearing Agency or
impair, as between the Clearing Agency and its Participants, the operation of
customary practices of such Clearing Agency governing the exercise of the
rights of a holder of a beneficial interest in any Global Preferred Security.
(c)
Certificated
Preferred Securities
. Except as provided in Section 9.2(e), owners of
definitive, fully registered certificated Preferred Securities (“Certificated
Preferred Securities”) will not be entitled to receive beneficial interests in
a Global Preferred Security.
(d)
Authorized
Denominations
. The Preferred Securities are issuable only in denominations
of $50.00 and any integral multiple thereof.
41
SECTION 7.4
Registrar, Paying Agent, Conversion Agent
and Exchange Agent
.
The Trust shall maintain (i) an office or agency where
Preferred Securities may be presented for registration of transfer (“Registrar”),
(ii) an office or agency where Preferred Securities may be presented for
payment (“Paying Agent”), (iii) an office or agency where Preferred Securities
may be presented for conversion (“Conversion Agent”) and (iv) an office or
agency where Preferred Securities may be presented for repurchase upon the
occurrence of a Change In Control (“Exchange Agent”). The Registrar shall keep
a register of the Preferred Securities and of their transfer. The
Administrators may appoint the Registrar, the Paying Agent, the Conversion
Agent and the Exchange Agent and may appoint one or more co-Registrars, one
or more additional paying agents, one or more additional conversion agents and
one or more additional exchange agents in such other locations as it shall
determine. The term “Registrar” includes any additional registrar, “Paying
Agent” includes any additional paying agent, “Conversion Agent” includes any
additional conversion agent and “Exchange Agent” includes any additional
exchange agent. The Administrators may change any Registrar, Paying Agent,
Conversion Agent or Exchange Agent without prior notice to any Holder. Any
Paying Agent, Conversion Agent or Exchange Agent may be removed by the
Administrators at any time and a successor Paying Agent or Conversion Agent or
Exchange Agent or additional Paying Agent, Conversion Agent or Exchange Agent
may be appointed at any time by the Administrators. The Paying Agent, the
Conversion Agent and the Exchange Agent may resign upon 30 days written notice
to the Administrators. The Administrators shall notify the Property Trustee of
the name and address of any Agent not a party to this Declaration. If the
Administrators fail to appoint or maintain another entity as Registrar, Paying
Agent, Conversion Agent or Exchange Agent, the Property Trustee shall act as
such. The Trust shall act as Paying Agent and Registrar for the Common
Securities.
The Trust initially appoints the Property Trustee, at
its Corporate Trust Office, as Registrar, Paying Agent, Conversion Agent and
Exchange Agent for the Preferred Securities.
SECTION 7.5
Paying Agent to Hold Money in Trust
.
The Trust shall require each Paying Agent other than
the Property Trustee to agree in writing that the Paying Agent will hold in
trust for the benefit of Holders or the Property Trustee all money held by the
Paying Agent for the payment of liquidation amounts or Distributions, and will
notify the Property Trustee if there are insufficient funds for such purpose.
While any such insufficiency continues, the Property Trustee may require a
Paying Agent to pay all money held by it to the Property Trustee. The Trust at
any time may require a Paying Agent to pay all money held by it to the Property
Trustee and to account for any money disbursed by it. Upon payment over to the
Property Trustee, the Paying Agent (if other than the Trust or an Affiliate of
the Trust) shall have no further liability for the money. If the Trust or the
Initial Purchaser of Common Securities or an Affiliate of the Trust or the
Initial Purchaser of Common Securities acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the benefit of the Holders all money held
by it as Paying Agent.
42
SECTION 7.6
Replacement Securities
.
If a Holder claims that a Security owned by it has
been lost, destroyed or wrongfully taken or if such Security is mutilated and
is surrendered to the Trust or in the case of the Preferred Securities to the
Property Trustee, the Trust shall issue and the Property Trustee shall, upon
written order of the Trust, authenticate a replacement Security if the Property
Trustee’s and the Trust’s requirements, as the case may be, are met. An
indemnity bond must be provided by the Holder which, in the judgment of the
Property Trustee and the Initial Purchaser of Common Securities, is sufficient
to protect the Trustees and Administrators, the Initial Purchaser of Common
Securities, the Trust or any authenticating agent from any loss which any of
them may suffer if a Security is replaced. The Trust may charge such Holder for
its expenses in replacing a Security.
SECTION 7.7
Outstanding Preferred Securities
.
The Preferred Securities outstanding at any time are
all the Preferred Securities authenticated by the Property Trustee except for
those cancelled by it, those delivered to it for cancellation, and those
described in this Section as not outstanding.
If a Preferred Security is replaced pursuant to
Section 7.6 hereof, it ceases to be outstanding unless the Property Trustee
receives proof satisfactory to it that the replaced Preferred Security is held
by a bona fide purchaser.
If Preferred Securities are considered paid in
accordance with the terms of this Declaration, including upon conversion
thereof into Common Stock, they cease to be outstanding and Distributions on
them shall cease to accumulate, subject, in the case of Preferred Securities
which have been converted, to the rights of Holders as of a record date with
respect to the Distribution to be paid on the applicable Distribution Payment
Date.
A Preferred Security does not cease to be outstanding
because one of the Trust, the Initial Purchaser of Common Securities or an
Affiliate of the Initial Purchaser of Common Securities holds the Security.
SECTION 7.8
Preferred Securities in Treasury
.
In determining whether the Holders of the required
amount of Securities have concurred in any direction, waiver or consent,
Preferred Securities owned by the Trust, a Trustee, the Initial Purchaser of
Common Securities or an Affiliate of the Initial Purchaser of Common
Securities, as the case may be, shall be disregarded and deemed not to be
outstanding, except that for the purposes of determining whether the Property
Trustee shall be fully protected in relying on any such direction, waiver or
consent, only Securities which a Responsible Officer of the Property Trustee
actually knows are so owned shall be so disregarded.
SECTION 7.9
Temporary Securities
.
Until definitive Securities are ready for delivery,
the Trust may prepare and, in the case of the Preferred Securities, the
Property Trustee shall, upon receipt of a written order of the Trust,
authenticate temporary Securities. Temporary Securities shall be substantially
in the form
43
of definitive Securities
but may have variations that the Trust considers appropriate for temporary
Securities. Without unreasonable delay, the Trust shall prepare and, in the
case of the Preferred Securities, the Property Trustee shall, upon receipt of a
written order of the Trust, authenticate, definitive Securities in exchange for
temporary Securities. Until so exchanged, the temporary Securities shall in all
respects be entitled to the same benefits under this Declaration as definitive
Securities.
SECTION 7.10
Cancellation
.
The Trust at any time may deliver Preferred Securities
to the Property Trustee for cancellation. The Registrar, Paying Agent,
Conversion Agent and Exchange Agent shall forward to the Property Trustee any
Preferred Securities surrendered to them for registration of transfer,
redemption, conversion, exchange or payment (including payment following a
Change in Control). The Property Trustee shall promptly cancel all Preferred
Securities, surrendered for registration of transfer, redemption, conversion,
exchange, payment, replacement or cancellation and shall dispose of cancelled
Preferred Securities in accordance with its customary procedures unless the
Trust otherwise directs. The Trust may not issue new Preferred Securities to
replace Preferred Securities that it has paid or that have been delivered to
the Property Trustee for cancellation or that any Holder has converted or
presented for repayment following a Change in Control.
SECTION 7.11
CUSIP Numbers
.
The Trust in issuing the Preferred Securities may use “CUSIP”
numbers (if then generally in use), and, if so, the Property Trustee shall use “CUSIP”
numbers in notices of redemption as a convenience to Holders of Preferred
Securities; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Preferred
Securities or as contained in any notice of a redemption and that reliance may
be placed only on the other identification numbers printed on the Preferred
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Initial Purchaser of Common Securities will
promptly notify the Property Trustee of any change in the CUSIP numbers.
SECTION 7.12
Payment
.
Payments in respect of the Global Preferred Securities
shall be made to the Clearing Agency or its nominee, and the Clearing Agency
shall credit the relevant accounts at the Clearing Agency. Payments on the
Securities issued in certificated form may be made at the option of the Trust
(i) by check mailed to the Holder at such address set forth on the books and
records of the Trust or the Registrar or (ii) by transfer to an account
maintained by the Holder entitled thereto, provided that proper transfer
instructions have been received in writing by the relevant record date.
44
ARTICLE
VIII
TERMINATION OF TRUST
SECTION 8.1
Termination of Trust
.
(a)
The
Trust shall automatically dissolve:
(i) upon the bankruptcy of the
Debenture Issuer;
(ii) upon the filing of a
certificate of dissolution or liquidation or its equivalent with respect to the
Debenture Issuer;
(iii) following the distribution
of all of the Debentures to the Holders, provided that, the Property Trustee
has received written notice from the Holder of Common Securities directing the
Property Trustee to terminate the Trust (which direction is optional, and
except as otherwise expressly provided below, within the discretion of the
Holder of Common Securities);
(iv) upon the entry of a decree
of judicial dissolution of the Trust by a court of competent jurisdiction;
(v) when all of the Securities
shall have been called for redemption and the amounts necessary for redemption
thereof shall have been paid to the Holders in accordance with the terms of the
Securities;
(vi) upon the redemption or
repayment of the Debentures at Maturity;
(vii) the expiration of the term
of the Trust provided in Section 3.14;
(viii) when all of the Preferred
Securities shall have been converted into shares of Common Stock of the Initial
Purchaser of Common Securities; or
(ix) when all Preferred
Securities shall have been presented for repurchase following a Change in
Control and a Like Amount of Debentures shall have been repurchased upon such
Change in Control by the Debenture Issuer.
(b)
As
soon as is practicable following the occurrence of an event referred to in
Section 8.1(a), the Administrators shall wind up the Trust in accordance with
Section 3808(e) of the Statutory Trust Act and upon its completion terminate
the Trust by filing a certificate of cancellation with the Secretary of State
of the State of Delaware in accordance with the Statutory Trust Act.
(c)
The
provisions of Section 3.9 and Article X shall survive the termination of the
Trust.
45
ARTICLE
IX
TRANSFER OF INTERESTS
SECTION 9.1
Transfer of Securities
.
(a)
Securities
may only be transferred, in whole or in part, in accordance with the terms and
conditions set forth in this Declaration and in the terms of the Securities.
Any transfer or purported transfer of any Security not made in accordance with
this Declaration shall be null and void.
(b)
For
so long as the Trust Securities remain outstanding, the Initial Purchaser of
Common Securities will covenant (i) to maintain, directly or indirectly, 100%
ownership of the Common Securities, provided that any successor of the Initial
Purchaser of Common Securities permitted hereunder or under the Indenture may
succeed to the Initial Purchaser’s of Common Securities ownership of such
Common Securities, (ii) not to cause, as Initial Purchaser of Common Securities
of the Trust, or to permit, as Holder of the Common Securities, the
dissolution, winding-up, liquidation or termination of the Trust, except in
connection with a distribution of the Debentures as provided in the
Declaration, the redemption or repurchase of all of the Trust Securities and in
connection with certain mergers, consolidations or amalgamations in each case,
as permitted by this Declaration, (iii) to use commercially reasonable efforts
to cause the Trust to remain a statutory trust, (iv) to take all actions (or
refrain from any action), consistent with the terms and provisions of this
Declaration, to cause the Trust to remain classified as a grantor trust and not
as a partnership or an association taxable as a corporation for United States
federal income tax purposes, (v) to treat the Debentures as indebtedness of the
Initial Purchaser of Common Securities subject to the CPDI Regulations; (vi) to
treat the comparable yield and projected payment schedule (attached as Exhibit
A-3 hereto) as “reasonable” for purposes of the CPDI Regulations; and (vii) to
use its reasonable efforts to ensure that the Trust will not be an “investment
company” for purposes of the Investment Company Act of 1940.
(c)
The
Administrators shall provide for the registration of Securities and of the
transfer of Securities, which will be effected without charge but only upon
payment (with such indemnity as the Administrators may require) in respect of
any tax or other governmental charges that may be imposed in connection with
any transfer or exchange. Upon surrender for registration of transfer of any
Securities, the Administrators shall cause one or more new Securities to be
issued in the name of the designated transferee or transferees. Every Security
surrendered for registration of transfer shall be accompanied by a written
instrument of transfer in form satisfactory to the Administrators duly executed
by the Holder or such Holder’s attorney duly authorized in writing. Each
Security surrendered for registration of transfer shall be canceled by the
Property Trustee (in the case of Preferred Securities) or the Trust (in the
case of Common Securities). A transferee of a Security shall be entitled to the
rights and subject to the obligations of a Holder hereunder upon the receipt by
such transferee of a Security. By acceptance of a Security, each transferee
shall be deemed to have agreed to be bound by this Declaration.
46
SECTION 9.2
Transfer Procedures and Restrictions
.
(a)
General
.
Each Preferred Security that bears or is required to bear the Restricted
Securities Legend set forth in Section 9.2(c) is referred to herein as a “Restricted
Preferred Security” and shall be subject to the restrictions on transfer set
forth in Section 9.2(c). Subject to Sections 9.2(b) and 9.2(c)(ii), if
Preferred Securities are issued upon the transfer, exchange or replacement of
Preferred Securities bearing the Restricted Securities Legend, or if a request
is made to remove such Restricted Securities Legend on Preferred Securities, the
Preferred Securities so issued shall bear the Restricted Securities Legend, or
the Restricted Securities Legend shall not be removed, as the case may be,
unless there is delivered to the Trust and the Property Trustee such
satisfactory evidence, which may include an Opinion of Counsel, as may be
reasonably required by the Initial Purchaser of Common Securities, that (i)
neither the legend nor the restrictions on transfer set forth therein are
required to ensure that transfers thereof comply with the provisions of Rule
144A under the Securities Act or any other available exemption from the
registration requirements of the Securities Act or (ii) that such Securities
may be sold pursuant to the provisions of Rule 144(k) under the Securities Act.
Upon provision of such satisfactory evidence, the Property Trustee, at the
written direction of an Administrator on behalf of the Trust, shall
authenticate and deliver Preferred Securities that do not bear the Restricted
Securities Legend.
(b)
Transfers
After Effectiveness of Registration Statement
. After a transfer of
Preferred Securities pursuant to an effective Registration Statement, all
requirements pertaining to Restricted Securities Legends on any Preferred
Security included within such Registration Statement will cease to apply, and
beneficial interests in a Preferred Security in global form without Restricted
Securities Legends will be available to transferees of such Preferred
Securities. After the effectiveness of the Registration Statement, the
Administrators shall execute and deliver and the Property Trustee shall, upon
receipt of a written order of the Trust, authenticate a Preferred Security in
global form without the Restricted Securities Legend (the “Unrestricted Global
Preferred Security”) to deposit with the Clearing Agency to evidence transfers
of beneficial interests from the Global Preferred Security.
(c)
Restricted
Securities Legend
. Except as permitted by the last paragraph of this
Section 9.2(c), each Preferred Security certificate evidencing the Global
Preferred Securities and any Certificated Preferred Securities (and all
Preferred Securities issued in exchange therefor or substitution thereof) shall
bear a legend in substantially the following form (the “Restricted Securities
Legend”):
THIS SECURITY AND THE
SHARES OF AFFILIATED MANAGERS GROUP, INC. COMMON STOCK ISSUABLE UPON CONVERSION
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE ‘‘SECURITIES
ACT’’), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY, THE SHARES OF AFFILIATED
MANAGERS GROUP, INC. COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY NOR
ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH
47
REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS
SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY, PRIOR TO THE DATE (THE ‘‘RESALE RESTRICTION TERMINATION DATE’’)
WHEN THE HOLDER OF THIS SECURITY, OTHER THAN A HOLDER WHO IS AN AFFILIATE OF
AFFILIATED MANAGERS GROUP, INC., IS ABLE TO SELL THIS SECURITY IMMEDIATELY
WITHOUT RESTRICTION OR BEING SUBJECT TO ANY CONDITIONS PURSUANT TO RULE 144
UNDER THE SECURITIES ACT OR ANY SUCCESSOR RULE THERETO ONLY (A) TO AFFILIATED
MANAGERS GROUP, INC. OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A ‘‘QUALIFIED INSTITUTIONAL BUYER’’ AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO AFFILIATED MANAGERS GROUP, INC.’S, AND THE
PROPERTY TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE
FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER
SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
PROPERTY TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
UPON THE EARLIER OF THE TRANSFER OF THE SECURITIES EVIDENCED HEREBY PURSUANT TO
CLAUSE (C) ABOVE AND THE RESALE RESTRICTION TERMINATION DATE. THE HOLDER OF
THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A
TRANSFER PURSUANT TO CLAUSE (C) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
Upon any sale or transfer of a Restricted Preferred
Security (including any Restricted Preferred Security represented by a Global
Preferred Security) pursuant to an available exemption from the registration
requirements of the Securities Act and compliance with the last two sentences
of Section 9.2(a) or an effective registration statement under the Securities
Act the Registrar shall permit the Holder thereof to exchange such Restricted
Preferred Security for an interest in the Unrestricted Global Preferred
Security.
48
(d)
Transfer
and Exchange of Certificated Preferred Securities
. When Certificated
Preferred Securities are presented to the Registrar or co-Registrar
(x)
to
register the transfer of such Certificated Preferred Securities; or
(y)
to
exchange such Certificated Preferred Securities which became mutilated,
destroyed, defaced, stolen or lost, for an equal number of Certificated
Preferred Securities,
the Registrar or co-Registrar shall register the
transfer or make the exchange as requested if its reasonable requirements for
such transaction are met; provided, however, that the Certificated Preferred
Securities surrendered for transfer or exchange
(i) shall be duly endorsed or
accompanied by a written instrument of transfer in form reasonably satisfactory
to the Trust and the Registrar or co-Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing; and
(ii) in the case of Certificated
Preferred Securities that are Restricted Preferred Securities, and are being
transferred or exchanged, such transfer or exchange shall be (x) pursuant to an
effective registration statement under the Securities Act or (y) pursuant to,
and in compliance with, clause (A), (B) or (C) below:
(A) if such Restricted Preferred
Securities are being delivered to the Registrar by a Holder for registration in
the name of such Holder, without transfer, such Holder shall deliver a
certification to that effect (in the form set forth on the reverse of the
Preferred Security);
(B) such Restricted Preferred
Securities are being transferred to the Initial Purchaser of Common Securities
or a subsidiary thereof; or
(C) if such Restricted Preferred
Securities are being transferred pursuant to an exemption from registration in
accordance with Rule 144A under the Securities Act or an available exemption
from the registration requirements of the Securities Act, such Holder shall
deliver: (i) a certification to that effect (in the form set forth on the reverse
of the Preferred Security) and (ii) if the Trust or Registrar so requests,
evidence reasonably satisfactory to them as to the compliance with the
restrictions set forth in the Restricted Securities Legend.
(e)
[Reserved].
(f)
Transfer
and Exchange of Global Preferred Securities
. The transfer and exchange of
Global Preferred Securities or beneficial interests therein shall be effected
through the Clearing Agency, in accordance with this Declaration (including
applicable restrictions on transfer set forth herein, if any) and the
procedures of the Clearing Agency therefor.
49
Notwithstanding any other provisions of this
Declaration (other than subsection (g) of this Section 9.2), a Global Preferred
Security may not be transferred as a whole except by the Clearing Agency to a
nominee of the Clearing Agency or another nominee of the Clearing Agency or by
the Clearing Agency or any such nominee to a successor Clearing Agency or a
nominee of such successor Clearing Agency.
(g)
Restrictions
on Transfer of a Beneficial Interest in a Global Preferred Security for a
Certificated Preferred Security
. Except as provided below, holders of
beneficial interests in a Global Preferred Security shall not be entitled to
have certificates registered in their names and will not receive physical
delivery of certificates in definitive form.
(i) A Global Preferred Security
deposited with the Clearing Agency or with the Property Trustee as custodian
for the Clearing Agency pursuant to Section 7.3 shall be transferred to the
beneficial owners thereof in the form of Certificated Preferred Securities only
if (a) the Clearing Agency notifies the Initial Purchaser of Common Securities
that it is unwilling or unable to continue as Clearing Agency for such Global
Preferred Security or if at any time such Clearing Agency ceases to be a “clearing
agency” registered under the Exchange Act and a clearing agency is not
appointed by the Initial Purchaser of Common Securities within 90 days of such
notice, (b) a Default or an Event of Default has occurred and is continuing or
(c) the Trust at its sole discretion elects to cause the issuance of
Certificated Preferred Securities.
(ii) Any Global Preferred
Security that is transferable to the beneficial owners thereof in the form of
Certificated Preferred Securities pursuant to this Section 9.2 shall be
surrendered by the Clearing Agency to the Property Trustee, to be so
transferred, in whole or from time to time in part, without charge, and the
Property Trustee shall authenticate and make available for delivery, upon such
transfer of each portion of such Global Preferred Security, an equal aggregate
liquidation amount of Preferred Securities of authorized denominations in the
form of Certificated Preferred Securities. Any portion of a Global Preferred
Security transferred pursuant to this Section shall be registered in such names
and in such authorized denominations as the Clearing Agency, pursuant to
instructions from its Clearing Agency Participants or otherwise, shall instruct
the Property Trustee in writing. The Property Trustee shall deliver such
Preferred Securities to the Persons in whose names such Preferred Securities
are so registered in accordance with such instructions of the Clearing Agency.
Any Preferred Security in the form of Certificated Preferred Securities
delivered in exchange for an interest in the Restricted Global Preferred
Security shall, except as otherwise provided in this Section 9.2, bear the
Restricted Securities Legend.
(iii) In the event of the
occurrence of any event specified in Section 9.2(g)(i), the Trust will promptly
make available to the Property Trustee a reasonable supply of Certificated
Preferred Securities in fully registered form without distribution coupons.
50
(h)
Cancellation
or Adjustment of Global Preferred Security
. At such time as all beneficial
interests in a Global Preferred Security have either been exchanged for
Certificated Preferred Securities to the extent permitted by this Declaration
or redeemed, repurchased or canceled in accordance with the terms of this
Declaration, such Global Preferred Security shall be returned to the Clearing
Agency for cancellation or retained and canceled by the Property Trustee. At
any time prior to such cancellation, if any beneficial interest in a Global
Preferred Security is exchanged for Certificated Preferred Securities,
Preferred Securities represented by such Global Preferred Security shall be
reduced and an adjustment shall be made on the books and records of the
Clearing Agency and the Registrar, to reflect such reduction.
(i)
Legend
on Global Securities
. Any Preferred Security in global form may be endorsed
with or have incorporated in the text thereof such legends or recitals or
changes not inconsistent with the provisions of this Declaration as may be
required by the Clearing Agency or by the Financial Industry Regulatory
Authority, Inc. in order for the Preferred Securities to be tradable on The
PORTAL Market or as may be required for the Preferred Securities to be tradable
on any other market developed for trading of securities pursuant to Rule 144A
or required to comply with any applicable law or any regulation thereunder or
with the rules and regulations of any securities exchange or automated
quotation system upon which the Preferred Securities may be listed or traded or
to conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Securities are subject.
(j)
Obligations
with Respect to Transfers of Preferred Securities
. (i) To
permit registrations of transfer, the Trust shall execute and the Property
Trustee shall authenticate Global Preferred Securities at the Registrar’s or co-Registrar’s
request in accordance with the terms of this Declaration.
(ii) Registrations of transfer
will be effected without charge, but only upon payment (with such indemnity as
the Trust or the Initial Purchaser of Common Securities may require) in respect
of any tax or other governmental charge that may be imposed in relation to it.
(iii) The Registrar or co-Registrar
shall not be required to: (a) issue, register the transfer of or exchange
Preferred Securities during a period beginning at the opening of business 15
days before the day of mailing of a notice of redemption or any notice of
selection of Preferred Securities for redemption and ending at the close of
business on the day of such mailing; or (b) register the transfer or exchange
of any Preferred Security selected for redemption, in whole or in part except,
in the case of any Preferred Security being redeemed in part, any portion
thereof not to be redeemed.
(iv) Prior to the due
presentation for registration of transfer of any Preferred Security, the Trust,
the Property Trustee, the Paying Agent, the Registrar or any co-Registrar
may deem and treat the Person in whose name a Preferred Security is registered
as the absolute owner of such Preferred Security for the purpose of receiving
Distributions on such Preferred Security and for all other
51
purposes
whatsoever, and none of the Trust, the Property Trustee, the Paying Agent, the
Registrar or any co- Registrar shall be affected by notice to the
contrary.
(v) All Preferred Securities
issued upon any transfer or exchange pursuant to the terms of this Declaration
shall evidence the same security and shall be entitled to the same benefits
under this Declaration as the Preferred Securities surrendered upon such
transfer or exchange.
(k)
No
Obligation of the Property Trustee
. (i)
The Property Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Preferred Security, a Clearing Agency Participant
in the Clearing Agency or other Person with respect to the accuracy of the
records of the Clearing Agency or its nominee or of any Clearing Agency
Participant thereof, with respect to any ownership interest in the Preferred
Securities or with respect to the delivery to any Clearing Agency Participant,
beneficial owner or other Person (other than the Clearing Agency) of any notice
(including any notice of redemption) or the payment of any amount, under or
with respect to such Preferred Securities. All notices and communications to be
given to the Holders and all payments to be made to Holders under the Preferred
Securities shall be given or made only to or upon the order of the registered
Holders (which shall be the Clearing Agency or its nominee in the case of a
Global Preferred Security). The rights of beneficial owners in any Global
Preferred Security shall be exercised only through the Clearing Agency subject
to the applicable rules and procedures of the Clearing Agency. The Property
Trustee may conclusively rely and shall be fully protected in relying upon
information furnished by the Clearing Agency or any agent thereof with respect
to its Clearing Agency Participants and any beneficial owners.
(ii) The Property Trustee and
the Registrar shall have no obligation or duty to monitor, determine or inquire
as to compliance with any restrictions on transfer imposed under this
Declaration or under applicable law with respect to any transfer of any
interest in any Preferred Security (including any transfers between or among
Clearing Agency Participants or beneficial owners in any Global Preferred
Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
when expressly required by, the terms of this Declaration, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
SECTION 9.3
Deemed Security Holders
.
The Trustees and Administrators may treat the Person
in whose name any Security shall be registered on the books and records of the
Trust as the sole owner of such Security for purposes of receiving
Distributions and for all other purposes whatsoever and, accordingly, shall not
be bound to recognize any equitable or other claim to or interest in such
Security on the part of any Person, whether or not the Trust shall have actual
or other notice thereof.
52
SECTION 9.4
Book-Entry Interests
.
Global Preferred Securities shall initially be
registered on the books and records of the Trust in the name of Cede & Co.,
the nominee of the Clearing Agency and shall be in the form of a global
certificate (the “Global Certificate”), and no beneficial owner in any Global
Preferred Security will receive a Certificated Preferred Security representing
such beneficial owner’s interests in such Global Preferred Securities, except
as provided in Section 9.2. Unless and until definitive, fully registered
Certificated Preferred Securities have been issued to the beneficial owners in
any Global Preferred Security pursuant to Section 9.2:
(a)
the
provisions of this Section 9.4 shall be in full force and effect;
(b)
the
Trust, the Trustees, and the Administrators shall be entitled to deal with the
Clearing Agency for all purposes of this Declaration in respect of Global
Preferred Securities (including the payment of Distributions on the Global
Preferred Securities and receiving approvals, votes or consents hereunder) as
the Holder of the Preferred Securities and the sole holder of the Global
Certificate and shall have no obligation to the beneficial owners in any Global
Preferred Security;
(c)
to
the extent that the provisions of this Section 9.4 conflict with any other
provisions of this Declaration, the provisions of this Section 9.4 shall
control; and
(d)
the
rights of the beneficial owners in any Global Preferred Security shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such beneficial owners in any Global
Preferred Security and the Clearing Agency and/or the Clearing Agency
Participants and receive and transmit payments of Distributions on the Global
Certificate to such Clearing Agency Participants. DTC will make book-entry
transfers among the Clearing Agency Participants.
SECTION 9.5
Notices to Clearing Agency
.
Whenever a notice or other communication to the
Preferred Security Holders is required to be given by a Trustee under this
Declaration, such Trustee shall give all such notices and communications
specified herein to be given to the Holders of Global Preferred Securities to
the Clearing Agency, and shall have no notice obligations to the beneficial
owners in any Global Preferred Security.
SECTION 9.6
Appointment of Successor Clearing Agency
.
If any Clearing Agency elects to discontinue its
services as securities depositary with respect to the Preferred Securities, the
Administrators may, in their sole discretion, appoint a successor Clearing
Agency with respect to such Preferred Securities.
53
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES,
ADMINISTRATORS OR OTHERS
SECTION 10.1
Liability
.
(a)
Except
as expressly set forth in this Declaration, the Securities Guarantee and the
terms of the Securities, the Initial Purchaser of Common Securities shall not
be:
(i) personally liable for the
return of any portion of the capital contributions (or any return thereon) of
the Holders which shall be made solely from assets of the Trust; or
(ii) required to pay to the
Trust or to any Holder any deficit upon dissolution of the Trust or otherwise.
(b)
The
Debenture Issuer, in its capacity as such, shall be liable for all of the debts
and obligations of the Trust (other than in respect of the Securities) as
provided in the Indenture.
(c)
Pursuant
to Section 3803(a) of the Statutory Trust Act, the Holders shall be entitled to
the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware.
SECTION 10.2
Exculpation
.
(a)
No
Indemnified Person shall be liable, responsible or accountable in damages or
otherwise to the Trust or any Covered Person for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person’s negligence or willful
misconduct with respect to such acts or omissions.
(b)
An
Indemnified Person shall be fully protected in relying in good faith upon the
records of the Trust and upon such information, opinions, reports or statements
presented to the Trust by any Person as to matters the Indemnified Person
reasonably believes are within such other Person’s professional or expert
competence and who has been selected with reasonable care by or on behalf of
the Trust, including information, opinions, reports or statements as to the
value and amount of the assets, liabilities, profits, losses, or any other
facts pertinent to the existence and amount of assets from which Distributions
to Holders might properly be paid.
54
SECTION 10.3
Fiduciary Duty
.
(a)
To
the extent that, at law or in equity, an Indemnified Person has duties
(including fiduciary duties) and liabilities relating thereto to the Trust or
to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions
of this Declaration, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in equity
(other than the duties imposed on the Property Trustee under the Trust
Indenture Act), are agreed by the parties hereto to replace such other duties
and liabilities of such Indemnified Person.
(b)
Unless
otherwise expressly provided herein:
(i) whenever a conflict of
interest exists or arises between any Covered Persons; or
(ii) whenever this Declaration
or any other agreement contemplated herein or therein provides that an
Indemnified Person shall act in a manner that is, or provides terms that are,
fair and reasonable to the Trust or any Holder of Securities, the Indemnified
Person shall resolve such conflict of interest, take such action or provide
such terms, considering in each case the relative interest of each party
(including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any
customary or accepted industry practices, and any applicable U.S. generally
accepted accounting practices or principles. In the absence of bad faith by the
Indemnified Person, the resolution, action or term so made, taken or provided
by the Indemnified Person shall not constitute a breach of this Declaration or
any other agreement contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise.
(c)
Whenever
in this Declaration an Indemnified Person is permitted or required to make a
decision:
(i) in its “discretion” or under
a grant of similar authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including its own interests,
and shall have no duty or obligation to give any consideration to any interest
of or factors affecting the Trust or any other Person; or
(ii) in its “good faith” or
under another express standard, the Indemnified Person shall act under such
express standard and shall not be subject to any other or different standard
imposed by this Declaration.
SECTION 10.4
Indemnification
.
(a)
(i) The Debenture Issuer shall indemnify, to the
full extent permitted by law, any Company Indemnified Person who was or is a
party or is threatened to be made
55
a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Trust) by reason of the fact that he is or was a Company
Indemnified Person, against expenses (including attorneys’ fees and expenses),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Trust, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the Company Indemnified Person did not act in
good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of the Trust, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall
indemnify, to the full extent permitted by law, any Company Indemnified Person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Trust to procure
a judgment in its favor by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys’ fees and expenses)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Trust
and except that no such indemnification shall be made in respect of any claim,
issue or matter as to which such Company Indemnified Person shall have been
adjudged to be liable to the Trust unless and only to the extent that the Court
of Chancery of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such Person is fairly and
reasonably entitled to indemnity for such expenses which such Court of Chancery
or such other court shall deem proper.
(iii) To the extent that a
Company Indemnified Person shall be successful on the merits or otherwise
(including dismissal of an action without prejudice or the settlement of an
action without admission of liability) in defense of any action, suit or
proceeding referred to in paragraphs (i) and (ii) of this Section 10.4(a), or
in defense of any claim, issue or matter therein, he shall be indemnified, to the
full extent permitted by law, against expenses (including attorneys’ fees)
actually and reasonably incurred by him in connection therewith.
(iv) Any indemnification under
paragraphs (i) and (ii) of this Section 10.4(a) (unless ordered by a court)
shall be made by the Debenture Issuer only as authorized in the specific case
upon a determination that indemnification of the Company Indemnified Person is
proper in the circumstances because he has met the applicable standard of
conduct set forth in paragraphs (i) and (ii). Such determination shall be made
by the Common Security Holder of the Trust.
56
(v) Expenses (including
attorneys’ fees and expenses) incurred by a Company Indemnified Person in
defending a civil, criminal, administrative or investigative action, suit or
proceeding referred to in paragraphs (i) and (ii) of this Section 10.4(a) shall
be paid by the Debenture Issuer in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of
such Company Indemnified Person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Debenture Issuer as
authorized in this Section 10.4(a). Notwithstanding the foregoing, no advance
shall be made by the Debenture Issuer if a determination is reasonably and
promptly made by the Common Security Holder of the Trust, that, based upon the
facts known to the Common Security Holder at the time such determination is
made, such Company Indemnified Person acted in bad faith or in a manner that
such person did not believe to be in or not opposed to the best interests of
the Trust, or, with respect to any criminal proceeding, that such Company
Indemnified Person believed or had reasonable cause to believe his conduct was
unlawful. In no event shall any advance be made in instances where the Common
Security Holder reasonably determine that such person deliberately breached his
duty to the Trust or its Common or Preferred Security Holders.
(vi) The indemnification and
advancement of expenses provided by, or granted pursuant to, the other
paragraphs of this Section 10.4(a) shall not be deemed exclusive of any other
rights to which those seeking indemnification and advancement of expenses may
be entitled under any agreement, vote of stockholders or disinterested
directors of the Debenture Issuer or Preferred Security Holders of the Trust or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office. All rights to indemnification under
this Section 10.4(a) shall be deemed to be provided by a contract between the
Debenture Issuer and each Company Indemnified Person who serves in such
capacity at any time while this Section 10.4(a) is in effect. Any repeal or
modification of this Section 10.4(a) shall not affect any rights or obligations
then existing.
(vii) The Debenture Issuer or
the Trust may purchase and maintain insurance on behalf of any person who is or
was a Company Indemnified Person against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the Debenture Issuer would have the power to indemnify him
against such liability under the provisions of this Section 10.4(a).
(viii) For purposes of this
Section 10.4(a), references to the “Trust” shall include, in addition to the
resulting or surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a consolidation or merger, so that
any person who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such constituent
entity as a director, trustee, officer, employee or agent of another entity,
shall stand in the same position under the provisions of this Section 10.4(a)
with respect to the
57
resulting or
surviving entity as he would have with respect to such constituent entity if
its separate existence had continued.
(ix) The indemnification and
advancement of expenses provided by, or granted pursuant to, this Section
10.4(a) shall, unless otherwise provided when authorized or ratified, continue
as to a person who has ceased to be a Company Indemnified Person and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
(b)
The
Debenture Issuer agrees to indemnify (i) the Property Trustee, (ii) the
Delaware Trustee, (iii) the Institutional Administrator, (iv) any Affiliate of
the Property Trustee, the Delaware Trustee or the Institutional Administrator,
and (v) any officers, directors, stockholders, members, partners, employees,
representatives, custodians, nominees or agents of the Property Trustee, the
Delaware Trustee or the Institutional Administrator (each of the Persons in (i)
through (v), including the Institutional Administrator, the Property Trustee
and the Delaware Trustee in their respective individual capacities, being
referred to as a “Fiduciary Indemnified Person”) for, and to hold each
Fiduciary Indemnified Person harmless against, any and all loss, liability, damage,
claim or expense including taxes (other than taxes based on the income of such
Fiduciary Indemnified Person) incurred without negligence or bad faith on the
part of such Fiduciary Indemnified Person, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder, including
the advancement of funds to cover the costs and expenses (including reasonable
legal fees and expenses) of defending against or investigating any claim or
liability in connection with the exercise or performance of any of the powers
or duties of such Fiduciary Indemnified Person hereunder. The obligation to
indemnify and advance as set forth in this Section 10.4(b) shall survive the
resignation or removal of the Property Trustee, the Delaware Trustee or the
Institutional Administrator and the satisfaction and discharge of this
Declaration.
SECTION 10.5
Outside Businesses
.
Any Covered Person, the Initial Purchaser of Common
Securities, the Delaware Trustee, the Property Trustee and the Institutional
Administrator may engage in or possess an interest in other business ventures
of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders shall
have no rights by virtue of this Declaration in and to such independent
ventures or the income or profits derived therefrom, and the pursuit of any
such venture, even if competitive with the business of the Trust, shall not be
deemed wrongful or improper. No Covered Person, the Initial Purchaser of Common
Securities, the Delaware Trustee, the Property Trustee or the Institutional
Administrator shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and any Covered Person,
the Initial Purchaser of Common Securities, the Delaware Trustee, the Property
Trustee and the Institutional Administrator shall have the right to take for
its own account (individually or as a partner or fiduciary) or to recommend to
others any such particular investment or other opportunity. Any Covered Person,
the Delaware Trustee, the Property Trustee and the Institutional Administrator
may engage or be interested in any financial or other transaction with the
Initial Purchaser of Common Securities or any Affiliate of the Initial
58
Purchaser of Common
Securities, or may act as depositary for, trustee or agent for, or act on any
committee or body of holders of, securities or other obligations of the Initial
Purchaser of Common Securities or its Affiliates.
SECTION 10.6
Compensation; Fees
.
The Debenture Issuer agrees:
(a)
to
pay to the Trustees and Administrators from time to time such compensation for
all services rendered by them hereunder as the parties shall agree in writing
from time to time (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust); and
(b)
except
as otherwise expressly provided herein, to reimburse the Trustees and
Administrators upon request for all reasonable expenses, disbursements and
advances incurred or made by the Trustees and Administrators in accordance with
any provision of this Declaration (including the reasonable compensation and
the expenses and disbursements of their respective agents and counsel), except
any such expense, disbursement or advance as may be attributable to its
negligence or bad faith.
The provisions of this Section 10.6 shall survive the
dissolution of the Trust and the termination of this Declaration and the
removal or resignation of any Trustee or Administrator.
No Trustee or Administrator may claim any lien or
charge on any property of the Trust as a result of any amount due pursuant to
this Section 10.6.
ARTICLE
XI
ACCOUNTING
SECTION 11.1
Fiscal Year
.
The fiscal year (“Fiscal Year”) of the Trust shall be
the calendar year, or such other year as is required by the Code.
SECTION 11.2
Certain Accounting Matters
.
(a)
At
all times during the existence of the Trust, the Administrators shall keep, or
cause to be kept, full books of account, records and supporting documents,
which shall reflect in reasonable detail each transaction of the Trust. The
books of account shall be maintained on the accrual method of accounting, in
accordance with U.S. generally accepted accounting principles, consistently
applied. The Trust shall use the accrual method of accounting for United States
federal income tax purposes. The books of account and the records of the Trust
shall be examined by and reported upon as of the end of each Fiscal Year of the
Trust by a firm of independent certified public accountants selected by the
Administrators.
(b)
The
Administrators shall cause to be duly prepared and delivered to each of the
Holders, any annual United States federal income tax information statement,
59
required by
the Code, containing such information with regard to the Securities held by
each Holder as is required by the Code and the Treasury Regulations.
Notwithstanding any right under the Code to deliver any such statement at a
later date, the Administrators shall endeavor to deliver all such information
statements within 30 days after the end of each Fiscal Year of the Trust.
(c)
The
Administrators shall cause to be duly prepared and filed with the appropriate
taxing authority, an annual United States federal income tax return, on an IRS
Form 1041 or such other form required by United States federal income tax law,
and any other annual income tax returns required to be filed by the Administrators
on behalf of the Trust with any state or local taxing authority.
SECTION 11.3
Banking
.
The Trust may maintain one or more bank accounts in
the name and for the sole benefit of the Trust; provided, however, that all
payments of funds in respect of the Debentures held by the Property Trustee
shall be made directly to the Property Trustee Account and no other funds of
the Trust shall be deposited in the Property Trustee Account. The sole
signatories for such accounts shall be designated by the Administrators;
provided, however, that the Property Trustee shall designate the signatories
for the Property Trustee Account.
SECTION 11.4
Withholding
.
The Trust and the Paying Agent shall comply with all
withholding requirements under United States federal, state and local law. The
Trust shall request, and the Holders shall provide to the Trust, such forms or
certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably
be requested by the Trust to assist it in determining the extent of, and in
fulfilling, its withholding obligations. The Administrators shall cause to be
filed required forms with applicable jurisdictions and, unless an exemption
from withholding is properly established by a Holder, shall remit amounts
withheld with respect to the Holder to applicable jurisdictions. To the extent
that the Trust is required to withhold and pay over any amounts to any
authority with respect to Distributions or allocations to any Holder, the
amount withheld shall be deemed to be a Distribution in the amount of the
withholding to the Holder. In the event of any claim of excess withholding,
Holders shall be limited to an action against the applicable jurisdiction. If the
amount required to be withheld was not withheld from actual Distributions made,
the Trust may reduce subsequent Distributions by the amount of such
withholding.
ARTICLE
XII
AMENDMENTS AND MEETINGS
SECTION 12.1
Amendments
.
(a)
Except
as otherwise provided in this Declaration or by any applicable terms of the
Securities, this Declaration may be amended from time to time by the Initial
Purchaser of Common Securities, the Property Trustee and the Administrators,
without the consent of the Holders of the Securities (i) to provide for the
acceptance of appointment by a successor trustee as permitted hereby, (ii) to
cure any ambiguity,
60
correct or
supplement any provision in the Declaration that may be defective or
inconsistent with any other provision, or to make any other provisions with
respect to matters or questions arising under the Declaration, which shall not
be inconsistent with the other provisions of the Declaration, (iii) to modify,
eliminate or add to any provisions of the Declaration to such extent as shall
be necessary to ensure that at all times any Preferred Securities are
outstanding, the Trust will be classified as a grantor trust for United States
federal income tax purposes or to ensure that the Trust will not be an “investment
company” under the Investment Company Act, or (iv) add to the covenants,
restrictions or obligations of the Initial Purchaser of Common Securities;
provided, however, that such action shall not adversely affect in any material
respect the interests of any Holders of the Securities and any such amendments
of the Declaration shall become effective when notice thereof is given to the
Holders of the Securities.
(b)
Except
as provided in (c) below, and the terms of the Securities, this Declaration may
be amended by the Trustees, the Administrators and the Initial Purchaser of
Common Securities with the consent of Holders representing not less than a
Majority in liquidation amount of the outstanding Securities; provided that, if
any amendment would adversely affect only the holders of the Preferred
Securities or the Common Securities, then only the affected class shall be
entitled to vote on such amendment and such amendment shall not be effective
except with the approval of not less than a Majority in liquidation amount of
such class of securities affected thereby.
(c)
Without
the consent of each Holder of Securities, the Declaration may not be amended to
(i) change the amount or timing of any Distribution on the Securities or
otherwise adversely affect the amount of any Distribution required to be made
in respect of the Securities as of a specified date, (ii) change the conversion
rate of the Preferred Securities except as provided in the Indenture or
otherwise change the right to convert the Preferred Securities in a manner that
would be adverse to the Holders, (iii) change any of the redemption provisions
or (iv) restrict the right of a Holder of Securities to institute suit for the
enforcement of any payment on or after the specified date.
(d)
Any
amendment to the Declaration in accordance with the provisions of this Section
12.1 shall be conditioned upon the receipt by the Trustees and Administrators
of an Opinion of Counsel experienced in such matters to the effect that such
amendment or the exercise of any power granted to the Trustees and
Administrators in accordance with such amendment will not affect the Trust’s
status as a grantor trust for United States federal income tax purposes or the
Trust’s exemption from status as an “investment company” under the Investment
Company Act.
SECTION 12.2
Meetings of the Holders; Action by Written
Consent
.
(a)
Meetings
of the Holders of any class of Securities may be called at any time by the
Administrators (or as provided in the terms of the Securities) to consider and
act on any matter on which Holders of such class of Securities are entitled to
act under the terms of this Declaration, the terms of the Securities or the
rules of any stock exchange on which the Preferred Securities are listed or
admitted for trading. The Administrators shall call a meeting of the Holders of
such class if directed to do so by the
61
Holders of at
least 25% in liquidation amount of such class of Securities. Such direction
shall be given by delivering to the Administrators one or more notices in
writing stating that the signing Holders wish to call a meeting and indicating
the general or specific purpose for which the meeting is to be called. Any
Holders calling a meeting shall specify in writing the Security Certificates
held by the Holders exercising the right to call a meeting and only those
Securities specified shall be counted for purposes of determining whether the
required percentage set forth in the second sentence of this paragraph has been
met.
(b)
Except
to the extent otherwise provided in the terms of the Securities, the following
provisions shall apply to meetings of Holders:
(i) the Property Trustee will
cause a notice to be given of any such meeting to all the Holders having a
right to vote thereat at least seven days and not more than 60 days before the
date of such meeting. Whenever a vote, consent or approval of the Holders is
permitted or required under this Declaration or the rules of any stock exchange
on which the Preferred Securities are listed or admitted for trading, such
vote, consent or approval may be given at a meeting of the Holders. Any action
that may be taken at a meeting of the Holders may be taken without a meeting if
a consent in writing setting forth the action so taken is signed by the Holders
owning not less than the minimum amount of Securities in liquidation an amount
that would be necessary to authorize or take such action at a meeting at which
all Holders having a right to vote thereon were present and voting. Prompt
notice of the taking of action without a meeting shall be given to the Holders
entitled to vote who have not consented in writing. The Trustees and
Administrators may specify that any written ballot submitted to the Security
Holder for the purpose of taking any action without a meeting shall be returned
to the Trust within the time specified by the Trustees and Administrators;
(ii) each Holder may authorize
any Person to act for it by proxy on all matters in which a Holder is entitled
to participate, including waiving notice of any meeting, or voting or participating
at a meeting. No proxy shall be valid after the expiration of 11 months from
the date thereof unless otherwise provided in the proxy. Every proxy shall be
revocable at the pleasure of the Holder executing it. Except as otherwise
provided herein, all matters relating to the giving, voting or validity of
proxies shall be governed by the General Corporation Law of the State of
Delaware relating to proxies, and judicial interpretations thereunder, as if
the Trust were a Delaware corporation and the Holders were stockholders of a
Delaware corporation. The Holder of a Global Preferred Security may grant
proxies and otherwise authorize any Person, including Participants and Persons
that may hold interests through Participants, to take any action which such Holder
is entitled to take under this Declaration or the Securities;
(iii) each meeting of the
Holders shall be conducted by the Administrators or by such other Person that
the Administrators may designate; and
62
(iv) unless the Statutory Trust
Act, this Declaration, the terms of the Securities, the Trust Indenture Act or
the listing rules of any stock exchange on which the Preferred Securities are
then listed or traded, otherwise provides, the Administrators, in their sole
discretion, shall establish all other provisions relating to meetings of
Holders, including notice of the time, place or purpose of any meeting at which
any matter is to be voted on by any Holders, waiver of any such notice, action
by consent without a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter with respect to
the exercise of any such right to vote.
ARTICLE
XIII
REPRESENTATIONS OF PROPERTY TRUSTEE, DELAWARE TRUSTEE AND
INSTITUTIONAL ADMINISTRATOR
SECTION 13.1
Representations and Warranties of Property
Trustee
.
The Trustee that acts as initial Property Trustee
represents and warrants to the Trust and to the Initial Purchaser of Common
Securities at the date of this Declaration at the Closing Time and each
Successor Property Trustee represents and warrants to the Trust and the Initial
Purchaser of Common Securities at the time of the Successor Property Trustee’s
acceptance of its appointment as Property Trustee that:
(a)
The
Property Trustee is a national banking association, with corporate power and
authority to execute and deliver, and to carry out and perform its obligations
under the terms of, this Declaration;
(b)
The
execution, delivery and performance by the Property Trustee of this Declaration
has been duly authorized by all necessary corporate action on the part of the
Property Trustee. This Declaration has been duly executed and delivered by the
Property Trustee and constitutes a legal, valid and binding obligation of the
Property Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium, insolvency, and other
similar laws affecting creditors’ rights generally and to general principles of
equity and the discretion of the court (regardless of whether the enforcement
of such remedies is considered in a proceeding in equity or at law);
(c)
The
execution, delivery and performance of this Declaration by the Property Trustee
does not conflict with or constitute a breach of the charter or by-laws of the
Property Trustee;
(d)
No
consent, approval or authorization of, or registration with or notice to, any
state or federal banking or other regulatory authority is required for the
execution, delivery or performance by the Property Trustee of this Declaration;
and
(e)
The
Property Trustee satisfies the eligibility requirements set forth in Section
5.3(a).
63
SECTION 13.2
Representations and Warranties of Delaware
Trustee
.
The Trustee that acts as initial Delaware Trustee
represents and warrants to the Trust and to the Initial Purchaser of Common
Securities at the date of this Declaration and at the Closing Time and each
Successor Delaware Trustee represents and warrants to the Trust and the Initial
Purchaser of Common Securities at the time of the Successor Delaware Trustee’s
acceptance of its appointment as Delaware Trustee that:
(a)
The
Delaware Trustee is duly organized, validly existing and in good standing under
the laws of the United States or the State of Delaware, as the case may be,
with corporate power and authority to execute and deliver, and to carry out and
perform its obligations under the terms of, this Declaration;
(b)
The
execution, delivery and performance by the Delaware Trustee of this Declaration
has been duly authorized by all necessary corporate action on the part of the
Delaware Trustee. This Declaration has been duly executed and delivered by the
Delaware Trustee and constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium, insolvency, and other
similar laws affecting creditors’ rights generally and to general principles of
equity and the discretion of the court (regardless of whether the enforcement
of such remedies is considered in a proceeding in equity or at law);
(c)
The
execution, delivery and performance of this Declaration by the Delaware Trustee
does not conflict with or constitute a breach of the certificate of
incorporation or by-laws of the Delaware Trustee;
(d)
No
consent, approval or authorization of, or registration with or notice to, any
federal banking or other regulatory authority is required for the execution,
delivery or performance by the Delaware Trustee of this Declaration; and
(e)
The
Delaware Trustee is a natural person who is a resident of the State of Delaware
or, if not a natural person, an entity which has its principal place of
business in the State of Delaware.
SECTION 13.3
Representations and Warranties of
Institutional Administrator.
The Institutional Administrator represents and
warrants to the Trust and to the Initial Purchaser of Common Securities at the
date of this Declaration and at the Closing Time and each Successor
Administrator that is not a natural person (a “Successor Institutional
Administrator”) represents and warrants to the Trust and the Initial Purchaser
of Common Securities at the time of the Successor Institutional Administrator’s
acceptance of its appointment as Successor Institutional Administrator that:
(a)
The
Institutional Administrator is a national banking association, with corporate
power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration;
64
(b)
The
execution, delivery and performance by the Institutional Administrator of this
Declaration has been duly authorized by all necessary corporate action on the
part of the Institutional Administrator. This Declaration has been duly
executed and delivered by the Institutional Administrator and constitutes a
legal, valid and binding obligation of the Institutional Administrator,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency, and other similar laws
affecting creditors’ rights generally and to general principles of equity and
the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law);
(c)
The
execution, delivery and performance of this Declaration by the Institutional
Administrator does not conflict with or constitute a breach of the charter or
by-laws of the Institutional Administrator; and
(d)
No
consent, approval or authorization of, or registration with or notice to, any
state or federal banking or other regulatory authority is required for the
execution, delivery or performance by the Institutional Administrator of this
Declaration.
ARTICLE
XIV
REGISTRATION RIGHTS
SECTION 14.1
Registration Rights
.
The Holders of the Preferred Securities, the
Debentures, the Guarantee Agreement and the shares of common stock of the
Initial Purchaser of Common Securities issuable upon conversion of the
Preferred Securities are entitled to the benefits of a Registration Rights
Agreement as set forth in the Purchase Agreement, the Registration Rights
Agreement and the Indenture.
ARTICLE
XV
MISCELLANEOUS
SECTION 15.1
Notices
.
All notices provided for in this Declaration shall be
in writing, duly signed by the party giving such notice, and shall be
delivered, by facsimile or mailed by first-class mail, overnight courier
service or confirmed facsimile, as follows:
(a)
if
given to the Trust, in care of the Institutional Administrator at the mailing
address set forth below (or such other address as the Trust may give notice of
to the Property Trustee, the Delaware Trustee and the Holders):
LaSalle Bank
National Association
540 West Madison Street, Suite 2500
Chicago, Illinois 60661
Fax: (312) 904-0524
Telephone: (312) 904-0283
Attention: CDO Trust Services Group –AMG Capital Trust II
65
(b)
if
given to the Delaware Trustee, at the mailing address set forth below (or such
other address as Delaware Trustee may give notice of to the Holders):
LaSalle National
Trust Delaware
1201 North Orange
Street, Suite 1000
Wilmington, DE
19801
Fax: (302)
427-1414
Telephone: (302)
427-1401
Attention: Robert W. Eaddy
(c)
if
given to the Property Trustee, at the Property Trustee’s mailing address set
forth below (or such other address as the Property Trustee may give notice of
to the Holders):
LaSalle Bank
National Association
540 West Madison Street, Suite 2500
Chicago, Illinois 60661
Fax: (312) 904-0524
Telephone: (312) 904-0283
Attention: CDO Trust Services Group –AMG Capital Trust II
(d)
if
given to the Holder of the Common Securities, at the mailing address of the
Initial Purchaser of Common Securities set forth below (or such other address
as the Holder of the Common Securities may give notice to the Property Trustee
and the Trust):
Affiliated Managers Group, Inc.
600 Hale Street
Prides Crossing, Massachusetts 01965
Telecopy: (617) 747-3380
Telephone: (617) 747-3311
Attention: John Kingston, III
(e)
if
given to Initial Purchaser of Common Securities, at the mailing address of the
Initial Purchaser of Common Securities set forth below (or such other address
as the Initial Purchaser of Common Securities may give notice to the Property
Trustee and the Trust):
Affiliated Managers Group, Inc.
600 Hale Street
Prides Crossing, Massachusetts 01965
Telecopy: (617) 747-3380
Telephone: (617) 747-3311
Attention: John Kingston, III
(f)
if
given to any other Holder, at the address set forth on the books and records of
the Trust or the Registrar, as applicable.
66
All such notices shall be deemed to have been given
when received in person, by facsimile with receipt confirmed, or mailed by
first-class mail, postage prepaid except that if a notice or other document is
refused delivery or cannot be delivered because of a changed address of which
no notice was given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
SECTION 15.2
Governing Law
.
This Declaration and the rights of the parties
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware and all rights and remedies shall be governed by such
laws without regard to principles of conflict of laws.
SECTION 15.3
Intention of the Parties
.
It is the intention of the parties hereto that the
Trust be classified for United States federal income tax purposes as a grantor
trust. The provisions of this Declaration shall be interpreted to further this
intention of the parties.
SECTION 15.4
Headings
.
Headings contained in this Declaration are inserted
for convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 15.5
Successors and Assigns
.
Whenever in this Declaration any of the parties hereto
is named or referred to, the successors and assigns of such party shall be
deemed to be included, and all covenants and agreements in this Declaration by
the Initial Purchaser of Common Securities, the Trustees, and the
Administrators shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 15.6
Partial Enforceability
.
If any provision of this Declaration, or the
application of such provision to any Person or circumstance, shall be held
invalid, the remainder of this Declaration, or the application of such
provision to Persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
SECTION 15.7
Counterparts
.
This Declaration may contain more than one counterpart
of the signature page and this Declaration may be executed by the affixing of
the signature of each of the Trustees and Administrators to one of such
counterpart signature pages. All of such counterpart signature pages, whether
by manual or facsimile signature, shall be read as though one, and they shall
have the same force and effect as though all of the signers had signed a single
signature page.
[Remainder of Page
Intentionally Left Blank]
67
IN WITNESS WHEREOF, the undersigned has caused these
presents to be executed as of the day and year first above written.
|
|
LaSalle Bank National Association,
not in its individual capacity but solely as
Institutional Administrator
|
|
|
|
|
|
By:
|
/s/ Greg Myers
|
|
|
|
|
Name: Greg Myers
|
|
|
|
Title: VP
|
Declaration of
Trust
|
|
LaSalle National Trust Delaware,
as Delaware Trustee
|
|
|
|
|
|
By:
|
/s/ Evelyn Cruz
|
|
|
|
|
Name: Evelyn Cruz
|
|
|
|
Title: Assistant Vice-President
|
Declaration of
Trust
|
|
LaSalle Bank National Association,
as Property Trustee
|
|
|
|
|
|
|
|
|
By:
|
/s/ Evelyn Cruz
|
|
|
|
|
Name: Evelyn Cruz
|
|
|
|
Title: Assistant Vice-President
|
Declaration of
Trust
|
|
Affiliated Managers Group, Inc.,
as Initial Purchaser of Common
Securities and Debenture Issuer
|
|
|
|
|
|
By:
|
/s/ John Kingston, III
|
|
|
|
|
Name: John Kingston, III
|
|
|
|
Title:
|
Executive Vice President, General
Counsel and Secretary
|
|
|
|
|
|
|
Declaration of
Trust
|
|
JK Administrative
Services LLC,
as Resigning Initial Administrator
|
|
|
|
|
|
|
|
|
By:
|
/s/ John Kingston, III
|
|
|
|
|
Name: John Kingston, III
|
|
|
|
Title: Member
|
Declaration of Trust
ANNEX
I
TERMS
OF
5.15% CONVERTIBLE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $50.00 PER SECURITY)
AND
5.15% COMMON SECURITIES
(LIQUIDATION AMOUNT $50.00 PER SECURITY)
Pursuant to Section 7.1
of the Amended and Restated Declaration of Trust, dated as of October 17, 2007
(as amended from time to time, the “Declaration”), the designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Securities are set out below (each capitalized term used but not defined herein
has the meaning set forth in the Declaration or, if not defined in such
Declaration, as defined in the Offering Memorandum):
1.
Designation
and Number.
(a) Preferred Securities. 10,000,000
5.15% Preferred Securities of the Trust with an aggregate liquidation amount
with respect to the assets of the Trust of Five Hundred Million Dollars
($500,000,000), and with a liquidation amount with respect to the assets of the
Trust of $50.00 per security, are hereby designated for the purposes of
identification only as Preferred Securities. The certificates evidencing the
Preferred Securities shall be substantially in the form of Exhibit A-1 to the
Declaration, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice or to conform to the
rules of any exchange or quotation system on or in which the Preferred
Securities are listed, traded or quoted, if any.
(b) Common Securities. Up to 200 5.15%
Common Securities of the Trust with an aggregate liquidation amount with
respect to the assets of the Trust of Ten Thousand Dollars ($10,000) and a
liquidation amount with respect to the assets of the Trust of $50.00 per
security, are hereby designated for the purposes of identification only as
Common Securities. The certificates evidencing the Common Securities shall be
substantially in the form of Exhibit A-2 to the Declaration, with such changes
and additions thereto or deletions therefrom as may be required by ordinary
usage, custom or practice.
2.
Distributions.
(a) Distributions payable on each
Security will be fixed at a rate per annum of 5.15% (the “Coupon Rate”) of the
liquidation amount of $50.00 per Security (the “Liquidation Amount”), such rate
being the rate of interest payable on the Debentures to be held by the Property
Trustee. Distributions in arrears will
bear additional distributions thereon compounded quarterly at the Coupon Rate
(to the extent permitted by applicable law).
A Distribution is payable only to the extent that payments are made in
respect of the Debentures held by the Property Trustee and to the extent the
Property Trustee has funds on hand legally available therefor.
A-I-1
(b) Distributions on the Securities will
be cumulative, will accumulate from the date of their original issuance, and
will be payable quarterly in arrears on January 15, April 15, July 15 and
October 15 of each year, commencing on January 15, 2008 (each, a “Distribution
Date”), except as otherwise described below. Distributions will be computed on
the basis of a 360-day year consisting of twelve 30-day months. As long as no
default in the payment of interest on the Debentures has occurred and is
continuing under the Indenture, the Debenture Issuer has the right under the
Indenture to defer payments of interest (other than Contingent Interest) by
extending the interest payment period at any time and from time to time on the
Debentures for a period not exceeding 20 consecutive quarterly periods,
including the first such quarterly period during such period (each an “Extension
Period”), during which Extension Period no interest (other than Contingent
Interest, if any) shall be due and payable on the Debentures, provided that no
Extension Period shall end on a date other than an Interest Payment Date for
the Debentures or extend beyond the stated maturity date of the Debentures or
any redemption dated therefor. As a consequence of such deferral, Distributions
(other than Contingent Distributions, if any) will also be deferred. Despite
such deferral, Distributions (other than Contingent Distributions, if any) will
continue to accumulate with additional Distributions thereon (to the extent
permitted by applicable law but not at a rate greater than the rate at which
interest is then accruing on the Debentures) at the Coupon Rate compounded quarterly
during any such Extension Period. Prior to the termination of any such
Extension Period, the Debenture Issuer may further defer payments of interest
(other than Contingent Interest) by further extending such Extension Period;
provided that such Extension Period, together with all such previous and
further extensions within such Extension Period, may not exceed 20 consecutive
quarterly periods, including the first quarterly period during such Extension
Period, or extend beyond the stated maturity date of the Debentures or any
redemption dated therefor. Upon the termination of any Extension Period and the
payment of all amounts then due, the Debenture Issuer may commence a new
Extension Period, subject to the above requirements. If the Property Trustee shall
be the only holder of the Debentures, the Debenture Issuer shall give the
Administrators, the Property Trustee and the Debenture Trustee (as defined in
the Indenture) notice of its election to defer interest payments or to extend
an Extension Period at least five Business Days prior to the earlier of: (x) the next date on which Distributions on
the Preferred Securities are payable, or (y) the date the Property Trustee is
required to give notice of the record date or the payment date of such related
Distributions for the first quarter of such Extension Period to any national
stock exchange or other organization on which the Preferred Securities are
listed or quoted, if any, or to Holders of the Preferred Securities as of the
record date or the distribution date. The Property Trustee will notify holders
of the Preferred Securities of the Debenture Issuer’s election to begin a new
or extend an Extension Period.
(c) Distributions on the Securities
(other than Distributions on a redemption date and Contingent Distributions, if
any) will be payable to the Holders thereof as they appear on the books and
records of the Trust as of 5:00 p.m., New York City time, on the first day of
the month, whether or not a Business Day, in the month in which the relevant
Distribution Date occurs, which Distribution Dates correspond to the interest
payment dates on the Debentures. The relevant record dates for the Common
Securities shall be the same as the record dates for the Preferred Securities.
Distributions payable on any
A-I-2
Securities that are not
punctually paid on any Distribution Date, as a result of the Debenture Issuer
having failed to make a payment under the Debentures, will cease to be payable
to the Holder on the relevant record date, and such defaulted Distribution will
instead be payable to the Person in whose name such Securities are registered
on the special record date or other specified date determined in accordance
with the Indenture. If any date on which Distributions are payable on the
Securities is not a Business Day, then payment of the Distribution payable on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay) with the
same force and effect as if made on the originally specified date, except that
if such next succeeding Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day with the
same force and effect as if made on such date.
(d) Holders of Securities shall be
entitled to receive Contingent Distributions to the extent that Contingent
Interest is payable on the Debentures in accordance with the provisions of the
Indenture. Contingent Interest, if any,
will be payable on the Debentures in respect of any quarterly period from
January 16 to April 15, April 16 to July 15, July 16 to October 15 and October
16 to January 15 (each, a “Quarterly Period”), commencing with the Quarterly
Period commencing October 16, 2012.
Contingent Distributions, if payable, shall be paid on the last day of
each Quarterly Period (each such date, a “Contingent Distribution Payment Date”)
to Holders of Securities as of the fourteenth day preceding the last day of the
applicable Quarterly Period. Contingent
Distributions, if payable in respect of any applicable Quarterly Period, shall
equal the annual rate of 0.25% of the average of the Security Market Prices (as
such term is defined in the Indenture) for the ten Trading Days ending on the
third Trading Day immediately preceding the first day of the applicable
Quarterly Period. Contingent
Distributions shall be calculated on the basis of a 360-day year of twelve
30-day months.
(e) As used in this Annex I, the term “Distribution,”
unless otherwise stated, includes regular quarterly Distributions payable at
the Coupon Rate as well as Distributions payable in accordance with Article VI
of the Declaration if and to the extent that the Debenture Issuer makes a
payment of Interest on the Debentures in respect of Compounded Interest, Liquidated
Damages, Additional Sums and Contingent Interest.
(f) In the event that there is any money
or other property held by or for the Trust that is not accounted for hereunder,
such property shall be distributed Pro Rata (as defined herein) among the Holders.
3.
Liquidation
Distribution Upon Termination.
In the event of any
termination of the Trust other than upon the occurrence of events specified in
Sections 8.1(a)(v), (vi), (viii) or 8.1(a)(ix) of the Declaration, or if the
Initial Purchaser of Common Securities otherwise gives notice of its election
to liquidate the Trust pursuant to Section 8.1(a)(iii) of the Declaration, the
Trust shall be liquidated by the Administrators as expeditiously as the
Administrators determine to be possible by distributing to the Holders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, a Like Amount (as defined below) of the Debentures, unless such
distribution is determined by
A-I-3
the Property
Trustee not to be practicable, in which event such Holders will be entitled to
receive Pro Rata out of the assets of the Trust legally available for
distribution to Holders an amount in cash or immediately available funds equal
to the aggregate of the liquidation amount of $50.00 per Security plus
accumulated and unpaid Distributions thereon to the date of payment, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law (such amount being the “Liquidation Distribution”). If the Debentures are
distributed to the holders of the Preferred Securities, the Debenture Issuer
will use its reasonable efforts to cause the Debentures to be listed on the
market or exchange on which the Preferred Securities are then listed, if any.
“Like Amount” means (i)
with respect to a redemption of the Securities, Securities having a Liquidation
Amount equal to the principal amount of Debentures to be paid in accordance
with their terms and (ii) with respect to a distribution of Debentures upon the
liquidation of the Trust, Debentures having a principal amount equal to the
Liquidation Amount of the Securities of the Holder to whom such Debentures are
distributed.
If, upon any such
liquidation, the Liquidation Distribution can be paid only in part because the
Trust has insufficient assets on hand legally available to pay in full the
aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Securities shall be paid on a Pro Rata basis except that if an
Event of Default shall exist under the Indenture, the Preferred Securities
shall have a priority over the Common Securities.
On and from the date
fixed by the Administrators for any distribution of Debentures and liquidation
of the Trust: (i) the Securities will no longer be deemed to be outstanding,
(ii) the Clearing Agency or its nominee (or any successor Clearing Agency or
its nominee), as the record Holder of the Preferred Securities, will receive a
registered global certificate or certificates representing the Debentures to be
delivered upon such distribution, and (iii) any certificates representing
Securities not held by the Clearing Agency or its nominee (or any successor
Clearing Agency or its nominee) will be deemed to represent beneficial
interests in a Like Amount of Debentures bearing an interest rate identical to
the distribution rate of those Preferred Securities, and bearing accrued and
unpaid interest in an amount equal to the accumulated and unpaid Distributions
on those Preferred Securities until such certificates are presented to the
Debenture Issuer or its agent for transfer or reissue.
4.
Redemption
and Distribution.
(a) Upon the repayment of the Debentures
in whole or in part, at maturity or otherwise (either at the option of the
Debenture Issuer in accordance with the provisions of 4(c) below or pursuant to
a Special Event, as described below), the proceeds from such redemption shall
be simultaneously applied by the Property Trustee (subject to the Property
Trustee having received written notice no later than 45 days prior to such
redemption) to redeem a Like Amount of the Securities, at the Redemption Price
(as defined below). If fewer than all of
the Debentures are redeemed on a redemption date, then the Property Trustee
shall allocate the proceeds of the redemption on a Pro Rata basis among the
Preferred Securities and the Common Securities unless an Event of Default shall
have occurred, in which case no proceeds shall be allocated to the Common
Securities until the Preferred Securities are paid in full.
A-I-4
(b) (i)
The “Redemption Price,” with respect to a redemption of Securities,
shall mean an amount equal to 100% of the Liquidation Amount of Securities to
be redeemed, plus accrued and unpaid Distributions on the Securities, if any,
to the date of such redemption.
(ii)
If fewer than all the outstanding Securities are to be so redeemed, the
Securities to be redeemed will be determined as described in paragraph 5(a)(ii)
below.
(c) The Debenture Issuer may redeem the
Debentures, subject to conditions set forth in the Indenture, prior to maturity,
in whole or in part, on one or more occasions at any time on or after October
15, 2012 if the Closing Price (as defined in the Indenture) of Common Stock (as
defined in the Indenture) for 20 Trading Days (as defined in the Indenture) in
a period of 30 consecutive Trading Days ending on the Trading Day prior to the
mailing of the notice of redemption exceeds 130% of the then prevailing
Conversion Price (as defined in the Indenture).
(d) If at any time an Investment Company
Event or a Tax Event (each as defined below, and each a “Special Event”)
occurs, the Debenture Issuer shall have the right (subject to the conditions
set forth in the Indenture) at any time to redeem the Debentures in whole, but
not in part, following the occurrence of such Special Event.
“Investment Company Event”
means the Initial Purchaser of Common Securities and the Trust shall have
received an opinion of independent securities counsel experienced in such
matters to the effect that, as a result of (i) any amendment to, or change
(including any announced prospective change) in, any laws or regulations of the
United States or any rules, guidelines or policies of any applicable regulatory
agency or authority; or (ii) any official administrative pronouncement or
judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or decision is
announced on or after the date the Preferred Securities are first issued, the
Trust is, or within 90 days of the date of the opinion will be, considered an
investment company that is required to be registered under the Investment
Company Act.
A “Tax Event” shall occur
upon receipt by the Debenture Issuer and the Trust of an opinion of independent
tax counsel experienced in such matters to the effect that, as a result of (a)
any amendment to, change in or announced prospective change in, the laws or any
regulations thereunder of the United States or any political subdivision or
taxing authority thereof or therein, or (b) any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which pronouncement or
decision is announced on or after the date of original issuance of the
Preferred Securities, there is more than an insubstantial risk that (i) the
Trust is, or will be within 90 days of the date of such opinion, subject to
United States federal income tax with respect to interest received or accrued
on the Debentures, (ii) interest payable by the Debenture Issuer on the
Debentures is not, or within 90 days of the date of such opinion, will not be,
deductible by the Debenture Issuer, in whole or in part, for United States
federal income tax purposes, or (iii) the Trust is, or will be within 90 days
of the date of such opinion, subject to more than a
de minimis
amount of other taxes, duties or other governmental charges.
A-I-5
(e) Upon any redemption of Debentures
upon the occurrence of a Special Event and in compliance with the Indenture,
the Trust will, simultaneous with such redemption of Debentures, cause a Like
Amount of the Securities to be redeemed by the Trust at the Redemption Price on
a Pro Rata basis.
(f) The Trust may not redeem fewer than
all the outstanding Securities unless all accumulated and unpaid Distributions
have been paid on all Securities for all quarterly distribution periods
terminating on or before the date of redemption.
(g) In connection with any redemption of
Securities, the Trust may arrange for the purchase and conversion of any Securities
by an agreement with one or more investment bankers or other purchasers to
purchase such Securities by paying to the Property Trustee in trust for the
Holders, on or before the redemption date, an amount not less than the
applicable Redemption Price of such Securities. Notwithstanding anything to the
contrary contained in this paragraph 4, the obligation of the Trust to pay the
redemption price of such Securities shall be deemed to be satisfied and
discharged to the extent such amount is so paid by such purchasers. If such an
agreement is entered into, a copy of which shall be filed with the Property
Trustee prior to the redemption date, any Securities not duly surrendered for
conversion by the Holders thereof, may, at the option of the Trust, be deemed,
to the fullest extent permitted by law, acquired by such purchasers from such
Holders and (notwithstanding anything to the contrary contained in paragraph 6
of this Annex I) surrendered by such purchasers for conversion, all as of
immediately prior to the close of business on the redemption date (and the
right to convert any such Securities shall be deemed to have been extended
through such time), subject to payment of the above amount as aforesaid. At the
written direction of the Trust, the Property Trustee shall hold and dispose of
any such amount paid to it in the same manner as it would monies deposited with
it by the Trust for the redemption of Securities. Without the Property Trustee’s
prior written consent, no arrangement between the Trust and such purchasers for
the purchase and conversion of any Securities shall increase or otherwise
affect any of the powers, duties, responsibilities or obligations of the
Property Trustee as set forth in the Declaration, and the Debenture Issuer and
the Trust agree to indemnify the Property Trustee from, and hold it harmless
against, any and all loss, liability or expense arising out of or in connection
with any such arrangement for the purchase and conversion of any Securities
between the Trust and such purchasers, including the costs and expenses
incurred by the Property Trustee in the defense of any claim or liability
arising out of or in connection with the exercise or performance of any of its
powers, duties, responsibilities or obligations under the Declaration. Nothing
in the preceding sentence shall be deemed to limit the rights, privileges,
immunities and protections afforded to the Property Trustee in the Declaration.
Nothing in this paragraph 4(g) shall affect the right of the Holders to receive
the full Redemption Price on the redemption date.
5.
Procedures
Related to Redemptions or Distributions of Securities.
(a) The procedure with respect to
redemptions or distributions of Securities shall be as follows:
A-I-6
(i)
Notice of any redemption of, or notice of distribution of Debentures in
exchange for, the Securities (a “Redemption/Distribution Notice”) will be given
by the Trust by mail to each Holder to be redeemed or exchanged not fewer than
20 nor more than 60 days before the date fixed for redemption or exchange
thereof which, in the case of a redemption, will be the date fixed for
redemption of the Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given pursuant to
this paragraph 5(a)(i), a Redemption/Distribution Notice shall be deemed to be
given on the day such notice is first mailed by first-class mail, postage
prepaid, to Holders. Each Redemption/Distribution Notice shall be addressed to
the Holders at the address of each such Holder appearing in the books and
records of the Trust. The notice if mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, failure to give such notice or any defect in
the Redemption/Distribution Notice to the Holder of any Security designated for
redemption or exchange as a whole or in part shall not affect the validity of
the redemption or exchange proceedings with respect to any other Security.
(ii)
Subject to paragraph 4(a) hereof, in the event that fewer than all the
outstanding Securities are to be redeemed, the particular Securities to be
redeemed shall be selected on a Pro Rata basis (based upon Liquidation Amounts)
not more than 60 days prior to the date fixed for redemption from the
outstanding Securities not previously called for redemption, provided, however,
that with respect to Holders that would be required to hold less than 100 but
more than zero Securities as a result of such Pro Rata redemption, the Trust
shall redeem Securities of each such Holder so that after such redemption such
Holder either shall hold 100 Securities or such Holder shall no longer hold any
Securities, and shall use such method (including, without limitation, by lot)
as the Trust shall deem fair and appropriate, provided further, that any such
proration may be made on the basis of the aggregate Liquidation Amount of
Securities held by each Holder thereof and may be made by making such
adjustments as the Trust deems fair and appropriate in order that only
Securities in denominations of $50.00 or integral multiples thereof shall be
redeemed. In respect of Preferred Securities registered in the name of and held
of record by the Clearing Agency or its nominee (or any successor Clearing
Agency or its nominee) or any nominee, the distribution of the proceeds of such
redemption will be made to the Clearing Agency and disbursed by such Clearing
Agency in accordance with the procedures applied by such agency or nominee.
(iii)
If Securities are to be redeemed and the Trust gives a Redemption/
Distribution Notice (which notice will be irrevocable), then (A) with respect
to Preferred Securities issued in book-entry form, by 12:00 noon, New York City
time, on the redemption date or at such earlier time as the Trust determines,
provided that the Debenture Issuer has paid the Debenture Trustee a sufficient
amount of cash in connection with the related redemption or maturity of the
Debentures by 10:00 a.m., New York City time, on the maturity date or the date
of redemption, as the case requires, the Property Trustee will deposit
irrevocably with
A-I-7
the Clearing Agency or its nominee (or successor Clearing Agency or its
nominee) funds sufficient to pay the Redemption Price with respect to such
Preferred Securities and will give the Clearing Agency irrevocable instructions
and authority to pay the Redemption Price to the relevant Clearing Agency
Participants, and (B) with respect to Preferred Securities issued in
certificated form and Common Securities, the Property Trustee will irrevocably
deposit with the Paying Agent funds sufficient to pay the Redemption Price and
will give the Paying Agent irrevocable instructions and authority to pay the
Redemption Price to Holders upon surrender of their certificates evidencing the
Preferred Securities or Common Securities, as the case may be. If a
Redemption/Distribution Notice shall have been given and funds deposited as
required, if applicable, then immediately prior to the close of business on the
redemption date, Distributions will cease to accumulate on the Securities so
called for redemption and all rights of Holders so called for redemption will
cease, except the right of the Holders of such Securities to receive the
Redemption Price, but without interest on such Redemption Price, and such
Securities shall cease to be outstanding.
(iv)
Notwithstanding the foregoing, payment of accumulated and unpaid
Distributions (including Contingent Distributions, if any) on the Redemption
Date of the Securities will be subject to the rights of Holders on the close of
business on the relevant record date in respect of a Distribution Date (or a
Contingent Distribution Payment Date, if applicable) occurring on or prior to
such Redemption Date.
The Trust shall not be
required to: (i) issue, register the transfer of or exchange any Securities
during a period beginning at the opening of business 15 days before the day of
mailing of a notice of redemption and ending at the close of business on the
day of such mailing or (ii) register the transfer of or exchange any Securities
selected for redemption in whole or in part except, in the case of any
Securities being redeemed in part, any portion thereof not to be redeemed. If
any date fixed for redemption of Securities is not a Business Day, then payment
of the Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such next succeeding
Business Day falls in the next calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date fixed for redemption. If payment of the Redemption
Price in respect of any Securities is improperly withheld or refused and not
paid either by the Trust or by the Debenture Issuer as guarantor pursuant to
the Guarantee Agreement, Distributions on such Securities will continue to
accumulate from the original redemption date to the actual date of payment, in
which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the Redemption Price.
(v)
Redemption/Distribution Notices shall be sent by the Property Trustee on
behalf of the Trust at the expense of the Initial Purchaser of Common
Securities to (A) in respect of the Preferred Securities, the Clearing Agency
or its nominee (or any successor Clearing Agency or its nominee) if the Global
Certificates have been issued or, if Certificated Preferred Security
Certificates have been issued, to
A-I-8
the Holder thereof, and (B) in respect of the Common Securities to the
Holder thereof.
(vi)
Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), the Initial Purchaser of
Common Securities or any of its subsidiaries may at any time and from time to
time purchase outstanding Preferred Securities by tender, in the open market or
by private agreement.
6.
Conversion
Rights.
The Holders of Preferred
Securities shall have the right at any time on or after the occurrence of the
events described in Section 17.01 of the Indenture and prior to 5:00 p.m., New
York City time, on the Business Day immediately preceding the date of repayment
of such Preferred Securities, whether at stated maturity or upon redemption, at
their option to cause the Conversion Agent to convert Preferred Securities, on
behalf of the converting Holders, into shares of common stock of the Debenture
Issuer, par value $0.01 per share (“Common Stock”), in the manner described
herein on and subject to the following terms and conditions:
(a) The Preferred Securities will be
convertible at the office of the Conversion Agent into fully paid and
nonassessable shares of Common Stock pursuant to the Holder’s direction to the
Conversion Agent to exchange such Preferred Securities for a portion of the
Debentures theretofore held by the Trust on the basis of one Preferred Security
per $50.00 principal amount of Debentures, and immediately convert such amount of
Debentures into fully paid and nonassessable shares of Common Stock at an
initial conversion rate of 0.2500 shares of Common Stock for each $50.00
principal amount of Debentures, subject to adjustment as described in the
Indenture. The Conversion Rate shall be
subject to adjustment in the manner set forth in the Indenture. In addition, upon the occurrence of a Change
in Control prior to October 15, 2017, holders converting Debentures in
connection with such Change in Control within the meaning of the Indenture
(including Holders directing the Conversion Agent) shall, under certain
circumstances, be entitled to receive a make whole premium in the form of an
increase in the Conversion Rate, as and to the extent set forth in the
Indenture.
Upon
conversion of Debentures following the Holder’s direction to the Conversion
Agent, the Debenture Issuer shall, in accordance with the provisions of the
Indenture, have the right to deliver, in lieu of Common Stock, cash in lieu of
all or a portion of such Common Stock. The Debenture Issuer shall inform the
Property Trustee of its election to pay cash for all or a portion of the shares
in lieu of delivery of the shares of Common Stock otherwise issuable upon
conversion (and, if applicable, the percentage of each share of Common Stock
that will be paid in cash in lieu of shares of Common Stock) and the Property
Trustee shall upon receipt of such notice notify Holders who have surrendered
their Preferred Securities for conversion no later than two Business Days after
the Conversion Date.
If the Debenture Issuer
shall have elected, unilaterally and irrevocably, to settle its obligation to
deliver shares of Common Stock with respect to Debentures converted
A-I-9
following such
election, in cash and, if applicable, shares of common stock (“Net Share
Settlement Election”), then upon conversion of Debentures following the Holder’s
direction to the Conversion Agent, the Debenture Issuer shall deliver to the
holder surrendering such Debentures for conversion an amount in cash equal to the
lesser of (i) the principal amount of the Debentures so converted and (ii) the
Conversion Value, determined in the manner set forth in the Indenture. If the
Conversion Value exceeds the principal amount of the Debentures on the
conversion date, the Debenture Issuer will also deliver, at its election, cash
or Common Stock or a combination of cash and Common Stock for the Conversion
Value in excess of the principal amount of the Debentures so converted. On any day prior to the first Trading Day of
the applicable Conversion Reference Period, the Debenture Issuer may specify
the Cash Percentage (as defined in the Indenture) and the Debenture Issuer
shall notify the Property Trustee who shall forthwith and immediately notify
the Holder of such Cash Percentage.
(b) In order to convert Preferred
Securities into Common Stock the Holder shall submit to the Conversion Agent at
the office referred to above an irrevocable request to convert Preferred
Securities on behalf of such Holder substantially in the form attached to
Exhibit A-1 to the Declaration (the “Conversion Request”), together, if the
Preferred Securities are in certificated form, with such certificates. The
Holder must furnish appropriate endorsements or transfer documents, if required
by the Conversion Agent, and pay any transfer or similar tax, if required. The
Trust shall not cause the conversion of any Debentures except pursuant to such
a Conversion Request. The Conversion Request shall (i) set forth the number of
Preferred Securities to be converted and the name or names, if other than the
Holder, in which the shares of Common Stock should be issued and (ii) direct
the Conversion Agent (a) to exchange such Preferred Securities for a portion of
the Debentures held by the Trust having a principal amount equal to the
Liquidation Amount of the Preferred Securities to be converted and (b) to
immediately convert such Debentures on behalf of such Holder, into Common Stock
at the conversion rate applicable to the Debentures at such time. The
Conversion Agent shall notify the Property Trustee of the Holder’s election to
exchange Preferred Securities for a portion of the Debentures held by the Trust
and the Property Trustee shall, upon receipt of such notice, deliver to the
Conversion Agent the appropriate principal amount of Debentures for exchange in
accordance with this paragraph 6. The Conversion Agent shall thereupon notify
the Initial Purchaser of Common Securities of the Holder’s election to convert
such Debentures into shares of Common Stock.
(c) Except as described herein, no
distribution will be payable on Preferred Securities surrendered for conversion
with respect to any Distribution Date subsequent to the date of conversion and
neither the Trust nor the Debenture Issuer will make, or be required to make,
any payment, allowance or adjustment for accumulated and unpaid Distributions,
whether or not in arrears, on Preferred Securities surrendered for conversion.
If any Preferred Securities are surrendered for conversion between the period
from 5:00 p.m., New York City time, on any record date through and including
the related Distribution Date, the Preferred Securities surrendered for
conversion must be accompanied by payment from the Holder in next day funds of
an amount equal to the Distribution which the registered holder on such record
date is to receive, and such registered holder shall be entitled to receive the
Distribution payable on the subsequent
A-I-10
Distribution Date on the
portion of Preferred to be converted, notwithstanding the conversion thereof
prior to such Distribution Date. The previous sentence shall not apply in the
case of Preferred Securities called for redemption on a redemption date between
a record date and a related Distribution Date and in the case of any Preferred
Securities surrendered for conversion after such Preferred Securities have been
called for redemption during an Extension Period as described in the next
sentence. If notice of redemption of Preferred Securities is mailed or
otherwise given to Holders, then, if any Holder converts any Preferred
Securities into Common Stock on any date on or after the date on which such
notice of redemption is mailed or otherwise given, and if such date of
conversion falls on any day from and including the first day of an Extension
Period and on or prior to the Distribution Date upon which such Extension
Period ends, such converting Holder shall be entitled to receive either (i) if
the date of such conversion falls after a record date and on or prior to the
next succeeding Distribution Date, all accrued and unpaid Distributions on such
Securities to such Distribution Date, or (ii) if the date of such conversion
does not fall on a date described in clause (i) above, all accrued and unpaid
Distributions on such Securities to the most recent Distribution Date prior to
the date of such conversion (even though no Distributions were paid on such
date), which Distributions shall, in either such case, be paid to such
converting Holder unless another Holder was the record owner of such Securities
as of 5:00 p.m., New York City time on the record date for which such
Distribution payment is made, in which case such Distribution payment shall be
paid to such other Holder. Except as otherwise set forth above in this
paragraph, in the case of any Security which is converted, Distributions
(including Tax Original Issue Discount) which are payable after the date of
conversion of such Preferred Security shall not be payable, and the Trust shall
not make nor be required to make any other payment, adjustment or allowance
with respect to accrued but unpaid Distributions (including Tax Original Issue
Discount) on the Securities being converted, which shall be deemed to be paid
in full through delivery of the amount owing upon conversion. If any Preferred
Security called for redemption is converted, any money deposited with the
Property Trustee or with any paying agent or so segregated and held in trust
for the redemption of such Preferred Security shall (subject to any right of
the Holder) be paid to the Trust upon a written request or, if then held by the
Trust, shall be discharged from such trust. Each conversion shall be deemed to
have been effected immediately prior to 5:00 p.m., New York City time, on the
Business Day on which the related Conversion Request and any other required
deliverables were received (the “Conversion Date”) by the Conversion Agent from
the Holder. The Person or Persons entitled to receive the Common Stock issuable
upon such conversion shall be treated for all purposes as the record holder or
holders of such Common Stock as of the Conversion Date. As promptly as
practicable on or after the Conversion Date, the Debenture Issuer shall issue
and deliver at the office of the Conversion Agent, unless otherwise directed by
the Holder in the Conversion Request, a certificate or certificates for the
number of full shares of Common Stock issuable upon such conversion, together
with the cash payment, if any, in lieu of any fraction of any share to the
Person or Persons entitled to receive the same. The Conversion Agent shall
distribute such certificate or certificates to such Person or Persons.
(d) Subject to any right of the Holder,
the fair market value of the fixed number of shares of Common Stock into which
the Preferred Securities are convertible
A-I-11
(together with the cash
payment, if any, in lieu of fractional shares) shall be treated as issued, to
the extent thereof, (i) first, in exchange for accrued and unpaid Distributions
(including Tax Original Issue Discount) on such Preferred Securities at the time
of such conversion, and (ii) second, the balance, if any, of such fair market
value of such Common Stock (and any cash payment) shall be treated as issued in
exchange for the liquidation amount of the portion of Preferred Securities so
converted.
(e) Subject to the next succeeding
sentence, no fractional shares of Common Stock shall be issued as a result of
conversion, but in lieu thereof, the Debenture Issuer shall pay to the
Conversion Agent a cash adjustment in an amount equal to the same fraction of the
Closing Price of such fractional interest on the date on which the Preferred
Securities or Debentures, as the case may be, were duly surrendered to the
Conversion Agent for conversion, or, if such day is not a Trading Day, on the
next Trading Day, and the Conversion Agent in turn shall make such payment, if
any, to the Holder of the Debentures so converted. In the event that the Debenture Issuer shall
have made a Net Share Settlement Election, a Holder otherwise entitled to a
fractional share shall receive cash equal to the applicable portion of the
arithmetic average of the volume weighted average price of the Common Stock for
each of the ten consecutive Trading Days of the Conversion Reference Period.
(f) In the event of the conversion of
any Preferred Security in part only, a new Preferred Security or Preferred
Securities for the unconverted portion thereof shall be issued in the name of
the Holder thereof upon the cancellation thereof in accordance with Section
7.10 of the Declaration.
(g) In effecting the conversion
transactions described in this paragraph 6, the Conversion Agent shall be
acting as agent of the Holders of Preferred Securities (in the exchange of
Preferred Securities for Debentures) and as agent of the Debenture holders (in
the conversion of Debentures into Common Stock), as the case may be, directing
it to effect such conversion transactions. The Conversion Agent is hereby
authorized (i) to exchange Preferred Securities for Debentures held by the
Trust from time to time in connection with the conversion of such Preferred
Securities in accordance with this paragraph 6 and the applicable provisions of
the Indenture and (ii) to convert all or a portion of the Debentures into
Common Stock and thereupon to deliver such shares of Common Stock in accordance
with the provisions of this paragraph 6 and the applicable provisions of the
Indenture and to deliver to the Trust a new Debenture or Debentures for any
resulting unconverted principal amount.
(h) Any certificates representing shares
of Common Stock issuable upon exchange of the Preferred Securities for
Debentures and conversion of such Debentures shall bear any legend required by
Section 2.06 of the Indenture.
(i) The Debenture Issuer shall at all
times reserve and keep available out of its authorized and unissued Common
Stock, solely for issuance upon the conversion of the Debentures, free from any
preemptive or other similar rights, such number of shares of Common Stock as
shall from time to time be issuable upon the conversion of all the Debentures
then outstanding. Notwithstanding the foregoing, the Debenture Issuer shall
A-I-12
be entitled to deliver
upon conversion of Debentures, shares of Common Stock reacquired and held in
the treasury of the Initial Purchaser of Common Securities (in lieu of the
issuance of authorized and unissued shares of Common Stock), so long as any
such treasury shares are free and clear of all liens, charges, security
interests or encumbrances. Any shares of Common Stock issued upon conversion of
the Debentures shall be duly authorized, validly issued and fully paid and
nonassessable. The Property Trustee shall deliver the shares of Common Stock
received upon conversion of the Debentures to the converting Holder free and
clear of all liens, charges, security interests and encumbrances, except for
United States withholding taxes.
7.
Purchase
Right Following Change In Control.
(a) If a Change in Control occurs, each
holder of a Preferred Security will have the right to exchange any or all of
such Holder’s Preferred Securities for Debentures of a Like Amount and to
simultaneously require the Debenture Issuer to repurchase such Debentures on
the Repurchase Date (as defined in the Indenture) at a repurchase price in cash
equal to 100% of the principal amount of the Debentures that have been
exchanged for such Holder’s Preferred Securities, plus accrued and unpaid
interest (including deferred interest and contingent interest, if any) on such
Debentures to, but excluding, the Repurchase Date.
(b) As promptly as practicable following
the date the Debenture Issuer publicly announces such transaction but in no
event less than 15 days prior to the anticipated effective date of a Change in
Control, the Debenture Issuer must give notice to each Holder of a Preferred
Security and the Property Trustee of the transaction that constitutes the
Change in Control and of the resulting repurchase right, which notice must
specify the Repurchase Date. To exercise the repurchase right, a Holder must
deliver irrevocable written notice to the Debenture Issuer, the Trust and the
Property Trustee of the Holder’s exercise of its repurchase right no later than
the second Business Day prior to the Repurchase Date. Pursuant to the Holder’s
notice to the Property Trustee, the Holder will direct the Property Trustee, in
its capacity as exchange agent (the “Exchange Agent”) to exchange such
Preferred Securities for a portion of the Debentures theretofore held by the
Trust on the basis of one Preferred Security per $50.00 principal amount of
Debentures, and immediately exercise the right in respect of such Debentures to
require the Debenture issuer to repurchase such Debentures on the Repurchase
Date for cash at a purchase price of $50.00 plus accrued and unpaid interest to
the Repurchase Date for each $50.00 principal amount of Debentures so tendered
for repurchase.
(c) In order to exercise the right to
require the Debenture Issuer to repurchase the Holder’s Debentures following
the exchange of Preferred Securities for Debentures, the Holder shall submit to
the Exchange Agent at the office referred to above an irrevocable request to
repurchase Preferred Securities on behalf of such Holder substantially in the
form attached to Exhibit A-1 to the Declaration (the “Notice of Repurchase
Election”), together, if the Preferred Securities are in certificated form,
with such certificates. The Holder must furnish appropriate endorsements or
transfer documents, if required by the Exchange Agent, and pay any transfer or
similar tax, if required. The Trust shall not cause the repurchase of any
Debentures except pursuant to
A-I-13
such a Notice of
Repurchase Election. The Notice of Repurchase Election shall (i) set forth the
number of Preferred Securities to be repurchased and (ii) direct the Exchange
Agent (a) to exchange such Preferred Securities for a portion of the Debentures
held by the Trust having a principal amount equal to the Liquidation Amount of
the Preferred Securities to be repurchased and (b) to immediately exercise the
repurchase right with respect to such Debentures on behalf of such Holder. The
Exchange Agent (if other than the Property Trustee) shall notify the Property
Trustee of the Holder’s election to exchange Preferred Securities for a portion
of the Debentures held by the Trust and the Property Trustee shall, upon
receipt of such notice, deliver to the Exchange Agent the appropriate principal
amount of Debentures for exchange in accordance with this paragraph 7. The
Exchange Agent shall thereupon notify the Debenture Issuer of the Holder’s
election to require the Debenture Issuer to repurchase such Debentures in
accordance with the provisions of the Indenture.
(d) In the event of the exercise of the
repurchase right of any Preferred Security in part only, a new Preferred
Security or Preferred Securities for the portion thereof in respect of which
the repurchase right shall not have been exercised shall be issued in the name
of the Holder thereof upon the cancellation thereof in accordance with Section
7.10 of the Declaration.
(e) In effecting the repurchase transactions
described in this Paragraph 7, the Exchange Agent shall be acting as agent of
the Holders of Preferred Securities (in the exchange of Preferred Securities
for Debentures) and as agent of the Debenture holders (in the exercise of the
repurchase right with respect to the Debentures), as the case may be, directing
it to effect such repurchase transactions. The Exchange Agent is hereby
authorized (i) to exchange Preferred Securities for Debentures held by the
Trust from time to time in connection with the exercise of the repurchase right
with respect to such Preferred Securities in accordance with this paragraph 7
and the applicable provisions of the Indenture and (ii) to exercise the
repurchase right with respect to all or a portion of the Debentures and thereupon
to deliver cash in accordance with the provisions of this paragraph 7 and the
applicable provisions of the Indenture and to deliver to the Trust a new
Debenture or Debentures for any principal amount of Debentures in respect of
which the repurchase right shall not have been exercised.
(f) The Debenture Issuer will comply
with the requirements of the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable
in connection with the redemption of the Preferred Securities or the repurchase
of the Debentures as a result of a Change in Control.
8.
Voting
Rights-Preferred Securities.
(a) Except as provided under paragraphs
8(b), 9(b) and 10 and as otherwise required by law and the Declaration, the
Holders of the Preferred Securities will have no voting rights.
(b) So long as the Property Trustee holds
any Debentures, the Trustees may not, without obtaining the prior consent of
the holders of a majority in liquidation amount
A-I-14
of all outstanding
Preferred Securities: (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or execute any
trust or power conferred on the Debenture Trustee with respect to the
Debentures; (ii) revoke any action previously authorized or approved by a vote
of the Holders of the Preferred Securities, except by subsequent vote of such
Holders; (iii) waive any past default that is waivable under Section 5.07 of
the Indenture; (iv) exercise any right to rescind or annul a declaration
accelerating the maturity of the principal of the Debentures; or (v) consent to
any amendment, modification or termination of the Indenture or the Debentures,
where such consent shall be required; provided, where a consent under the Indenture
would require the consent of Holders of more than a majority of the aggregate
principal amount of Debentures affected thereby, only the Holders of the
percentage of that aggregate stated liquidation amount of the Preferred
Securities which is at least equal to the percentage required under the
Indenture may direct the Property Trustee to give such consent; provided
further, that if an event of default under the Indenture has occurred and is
continuing, then holders of 25% of the aggregate liquidation amount of the
Preferred Securities may direct the Property Trustee to declare the principal
of and interest or other required payments on the Debentures due and payable.
In addition to obtaining
the approvals of the Holders of the Preferred Securities, the Property Trustee
shall be under no obligation to take any of the foregoing actions (except with
respect to directing the time, method and place of conducting a proceeding for
a remedy) unless the Property Trustee has obtained an Opinion of Counsel experienced
in such matters to the effect that the Trust will not fail to be classified as
a grantor trust for federal income tax purposes after taking the action into
account and each Holder will be treated as owning an undivided beneficial
interest in the Debentures. The Property
Trustee shall notify each Holder of Preferred Securities of any written notice
of default it receives with respect to the Debentures.
Any approval or direction
of Holders of Preferred Securities may be given at a separate meeting of
Holders of Preferred Securities convened for such purpose, at a meeting of all
of the Holders of Securities in the Trust or pursuant to written consent. The
Property Trustee will cause a notice of any meeting at which Holders of
Preferred Securities are entitled to vote, or of any matter upon which action
by written consent of such Holders is to be taken, to be mailed to each Holder
of record of Preferred Securities. Each such notice will include a statement
setting forth (i) the date of such meeting or the date by which such action is
to be taken, (ii) a description of any resolution proposed for adoption at such
meeting on which such Holders are entitled to vote or of such matter upon which
written consent is sought and (iii) instructions for the delivery of proxies or
consents.
No vote or consent of the
Holders of the Preferred Securities will be required for the Trust to redeem
and cancel Preferred Securities or to distribute the Debentures in accordance
with the Declaration and the terms of the Securities.
Notwithstanding that
Holders of Preferred Securities are entitled to vote or consent under any of
the circumstances described above, any of the Preferred Securities that are
owned by the Debenture Issuer or any Affiliate of the Debenture Issuer shall not
be entitled to vote or consent and shall, for purposes of such vote or consent,
be treated as if they were not outstanding.
A-I-15
9.
Voting
Rights-Common Securities.
(a) Except as provided otherwise under
paragraphs 9(b), 9(c) and 10 or as otherwise required by law and the
Declaration, the Holders of the Common Securities will have no voting rights.
(b) Subject to the conditions set forth
in Section 5.7 of the Declaration, unless an Event of Default shall have
occurred and be continuing, any Trustee may be appointed or removed without
cause at any time by vote of the Holders of a Majority in liquidation amount of
the Common Securities voting as a class at a meeting of Holders of the Common
Securities. If an Event of Default has occurred and is continuing, the Property
Trustee and the Delaware Trustee may be removed only by the Holders of a
Majority in liquidation amount of the Preferred Securities voting as a class.
In no event will the holders of the Preferred Securities have the right to vote
to appoint, remove or replace the Administrators, which voting rights are
vested exclusively in the Initial Purchaser of Common Securities as the holder
of the Common Securities. No resignation or removal of a Trustee and no
appointment of a successor trustee shall be effective until the acceptance of
appointment by the successor trustee in accordance with the provisions of the
Declaration.
(c) Unless an Event of Default shall have
occurred and be continuing and so long as any Debentures are held by the
Property Trustee, the Trustees and Administrators shall not (i) direct the
time, method and place of conducting any proceeding for any remedy available to
the Debenture Trustee or executing any trust or power conferred on such
Debenture Trustee with respect to the Debentures, (ii) waive any past default
that is waivable under Section 5.07 of the Indenture, (iii) exercise any right
to rescind or annul a declaration of acceleration of the maturity of the
principal of the Debentures or (iv) consent to any amendment, modification or
termination of the Indenture or the Debentures, where such consent shall be
required, without, in each case, obtaining the prior approval of the Holders of
a Majority in liquidation amount of all outstanding Common Securities;
provided, however, that where a consent under the Indenture would require the
consent of holders of more than a majority of the aggregate principal amount of
Debentures affected thereby, only the holders of the percentage of that
aggregate stated liquidation amount of the Common Securities which is at least
equal to the percentage required under the Indenture may direct the Property
Trustee to give such consent. The Trustees and Administrators shall not revoke
any action previously authorized or approved by a vote of the Holders of the
Common Securities except by subsequent vote of such Holders. The Property
Trustee shall notify each Holder of Common Securities of any written notice of
default it receives with respect to the Debentures. In addition to obtaining
the foregoing approvals of such Holders of the Common Securities prior to
taking any of the foregoing actions (except with respect to directing the time,
method and place of conducting a proceeding for a remedy), the Property Trustee
shall obtain, at the expense of the Initial Purchaser of Common Securities, an
opinion of counsel experienced in such matters to the effect that the Trust
will continue to be classified as a grantor trust for United States federal
income tax purposes on account of such action and each holder will be treated
as owning an undivided beneficial interest in the Debentures.
A-I-16
If an Event of Default
under the Declaration has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay principal of or
interest on the Debentures on the due date (or in the case of redemption, on
the redemption date), then a Holder of Common Securities may institute a Direct
Action for enforcement of payment to such Holder of the principal of or
interest on a Like Amount of Debentures on or after the respective due date
specified in the Debentures. In connection with such Direct Action, the rights
of the Common Securities Holder will be subordinated to the rights of such
Holder of Preferred Securities to the extent of any payment made by the
Debenture Issuer to such Holder of Common Securities in such Direct Action.
Except as provided in the second preceding sentence, the Holders of Common
Securities will not be able to exercise directly any other remedy available to
the Holders of the Debentures.
Any approval or direction
of Holders of Common Securities may be given at a separate meeting of Holders
of Common Securities convened for such purpose, at a meeting of all of the
Holders of Securities in the Trust or pursuant to written consent. The
Administrators will cause a notice of any meeting at which Holders of Common
Securities are entitled to vote, or of any matter upon which action by written
consent of such Holders is to be taken, to be mailed to each Holder of record
of Common Securities. Each such notice will include a statement setting forth
(i) the date of such meeting or the date by which such action is to be taken,
(ii) a description of any resolution proposed for adoption at such meeting on
which such Holders are entitled to vote or of such matter upon which written
consent is sought and (iii) instructions for the delivery of proxies or
consents.
No vote or consent of the
Holders of the Common Securities will be required for the Trust to redeem and
cancel Common Securities or to distribute the Debentures in accordance with the
Declaration and the terms of the Securities.
10.
Pro
Rata.
A reference in these
terms of the Securities to any payment, distribution or treatment as being “Pro
Rata” shall mean pro rata to each Holder according to the aggregate liquidation
amount of the Securities held by the relevant Holder in relation to the
aggregate liquidation amount of all Securities outstanding unless, in relation
to a payment, an Event of Default under the Indenture has occurred and is continuing,
in which case any funds available to make such payment shall be paid first to
each Holder of the Preferred Securities Pro Rata according to the aggregate
liquidation amount of Preferred Securities held by the relevant Holder relative
to the aggregate liquidation amount of all Preferred Securities outstanding,
and, only after satisfaction of all amounts owed to the Holders of the
Preferred Securities, to each Holder of Common Securities Pro Rata according to
the aggregate liquidation amount of Common Securities held by the relevant
Holder relative to the aggregate liquidation amount of all Common Securities
outstanding.
11.
Ranking.
The Trust will pay all
Distributions, any Redemption Price, and any liquidation distribution to
Holders of the Preferred Securities and Common Securities Pro Rata based on the
liquidation amount of the Preferred Securities and Common Securities held.
However, if on any
A-I-17
Distribution Date
or redemption date, or at the time of a liquidation distribution, the Debenture
Issuer is in default under the Indenture, then the Trust will not pay any
Distribution, Redemption Price, or liquidation distribution on the Common
Securities. In that event, the Trust will make payments on the Common
Securities only after making payment in full and in cash of all accumulated and
unpaid distributions to Holders of the outstanding Preferred Securities for all
distribution periods terminating on or prior thereto, and in the case of
payment of the Redemption Price or a liquidation distribution, the full amount
of the Redemption Price or liquidation distribution to holders of the
outstanding Preferred Securities then called for redemption or liquidation.
In the case of any Event
of Default, the holder of all of the Common Securities, will be deemed to have
waived any right to act with respect to the Event of Default until the effect
of the Event of Default has been cured or waived. Until any Event of Default
has been cured or waived, the Property Trustee will act solely on behalf of the
Holders of the Preferred Securities and not on behalf of the Holder of the
Common Securities, and only the holders of the Preferred Securities will have
the right to direct the Property Trustee to act on their behalf.
12.
Acceptance
of Securities Guarantee and Indenture.
Each Holder of Preferred
Securities and Common Securities, by the acceptance thereof, agrees to the
provisions of the Securities Guarantee, including the subordination provisions
therein and to the provisions of the Indenture.
13.
Other
Rights of Holders of Preferred Securities.
If an Event of Default
under the Indenture has occurred and is continuing, then Holders of 25% of the
aggregate liquidation amount of the Preferred Securities may direct the
Property Trustee to declare the principal of and interest (including Contingent
Interest, if any) or other required payments on the Debentures due and payable.
If the Property Trustee
shall have failed to take a Legal Action under Section 3.8(e) of the
Declaration, after any Holder of Preferred Securities shall have made a written
request to the Property Trustee to enforce such rights, such Holder of the
Preferred Securities may, to the fullest extent permitted by law, take such
Legal Action to enforce the rights of the Property Trustee under the
Debentures; provided, however, that if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Debenture
Issuer to pay the principal of or Interest (as defined in the Indenture), on
the Debentures on the date such principal or Interest is otherwise payable (or
in the case of redemption, on the redemption date), then a Holder of Preferred
Securities may directly institute a proceeding for enforcement of payment to
such Holder of the principal of or Interest on the Debentures having a
principal amount equal to the aggregate liquidation amount of the Preferred
Securities of such Holder (a “Direct Action”) on or after the respective due
date specified in the Debentures. Upon the occurrence of an Event of Default,
the rights of the Holders of the Common Securities will be subordinated to the
rights of such Holder of Preferred Securities to the extent of any payment made
by the Debenture Issuer to such Holder of Preferred Securities. Except as
provided in the preceding sentences, the Holders of Preferred Securities will
not be able to exercise directly any other remedy available to the Holders of
the Debentures.
A-I-18
14.
No
Preemptive Rights.
The issuance of Preferred
Securities and the issuance of Common Securities are not subject to preemptive
or other similar rights. The Holders shall have no preemptive rights to
subscribe for any additional securities.
15.
Miscellaneous.
These terms constitute a
part of the Declaration.
The Initial Purchaser of
Common Securities will provide a copy of the Declaration, the Securities
Guarantee and/or the Indenture (including any supplemental indenture) to a
Holder without charge upon written request to the Initial Purchaser of Common
Securities at its principal place of business.
A-I-19
EXHIBIT A-1
5.15% PREFERRED SECURITY CERTIFICATE
THIS SECURITY AND
THE SHARES OF AFFILIATED MANAGERS GROUP, INC. COMMON STOCK ISSUABLE UPON
CONVERSION HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE ‘‘SECURITIES ACT’’), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY, THE SHARES OF AFFILIATED MANAGERS GROUP, INC. COMMON STOCK ISSUABLE
UPON CONVERSION OF THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN OR
THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS
SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY, PRIOR TO THE DATE (THE ‘‘RESALE RESTRICTION TERMINATION DATE’’)
WHEN THE HOLDER OF THIS SECURITY, OTHER THAN A HOLDER WHO IS AN AFFILIATE OF
AFFILIATED MANAGERS GROUP, INC., IS ABLE TO SELL THIS SECURITY IMMEDIATELY
WITHOUT RESTRICTION OR BEING SUBJECT TO ANY CONDITIONS PURSUANT TO RULE 144
UNDER THE SECURITIES ACT OR ANY SUCCESSOR RULE THERETO ONLY (A) TO AFFILIATED
MANAGERS GROUP, INC. OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A ‘‘QUALIFIED INSTITUTIONAL BUYER’’ AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO AFFILIATED MANAGERS GROUP, INC.’S, AND THE
PROPERTY TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE
FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER
SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
PROPERTY TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
UPON THE EARLIER OF THE TRANSFER OF THE SECURITIES EVIDENCED HEREBY PURSUANT TO
CLAUSE (C) ABOVE AND THE RESALE RESTRICTION TERMINATION DATE. THE HOLDER OF
THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A
TRANSFER PURSUANT TO CLAUSE (C) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
A-1-1
FOR PURPOSES OF
SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE, THE ISSUE PRICE OF EACH
SECURITY IS $49.50 PER $50.00 OF LIQUIDATION AMOUNT, THE ISSUE DATE IS OCTOBER
17, 2007 AND THE COMPARABLE YIELD IS 8.00% PER ANNUM.
THE HOLDER OF THIS
SECURITY, BY ACCEPTANCE THEREOF, AGREES (I) TO TREAT THE SECURITY AS
INDEBTEDNESS OF THE DEBENTURE ISSUER FOR UNITED STATES FEDERAL INCOME TAX PURPOSES
THAT IS SUBJECT TO TREASURY REGULATION SECTION 1.1275-4(B) AND (II) TO TREAT
THE COMPARABLE YIELD AND PROJECTED PAYMENT SCHEDULE AS DETERMINED BY THE
DEBENTURE ISSUER AS “REASONABLE” FOR PURPOSES OF TREASURY REGULATION SECTION
1.1275-4(B).
U.S. HOLDERS OF
THIS SECURITY MAY OBTAIN THE PROJECTED PAYMENT SCHEDULE FOR THIS SECURITY BY
SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO AFFILIATED MANAGERS GROUP,
INC., 600 HALE STREET, PRIDES CROSSING,
MASSACHUSETTS 01965, ATTN.: CHIEF FINANCIAL OFFICER.
BY ITS ACQUISITION OF
THIS CERTIFICATE THE HOLDER REPRESENTS THAT EITHER (I) IT IS NOT AN EMPLOYEE
BENEFIT PLAN OR OTHER SIMILAR RETIREMENT PLAN OR ARRANGEMENT, WHETHER OR NOT
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”),
OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”)
(OR ANY SIMILAR LAWS OR REGULATIONS), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE
CONSIDERED TO INCLUDE THE ASSETS OF ANY SUCH PLANS AND ARRANGEMENTS UNDER U.S.
DEPARTMENT OF LABOR REGULATIONS OR SECTION 3(42) OF ERISA, TAKING INTO ACCOUNT
SECTION 611(F) OF THE PENSION PROTECTION ACT OF 2006 (EACH, A “PLAN”) AND NO
PART OF THE ASSETS TO BE USED BY THE HOLDER TO ACQUIRE AND/OR HOLD THIS
CERTIFICATE OR ANY INTEREST THEREIN CONSTITUTES PLAN ASSETS OF ANY PLAN OR (II)
THE ACQUISITION, HOLDING AND, IF APPLICABLE, CONVERSION OF THIS CERTIFICATE
WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF ERISA
OR SECTION 4975 OF THE CODE OR A VIOLATION UNDER ANY OTHER APPLICABLE LAWS AND
REGULATIONS THAT ARE SIMILAR TO THE PROVISIONS OF TITLE I OF ERISA OR SECTION
4975 OF THE CODE.
UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION (“DTC”), TO THE ISSUER 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
A-1-2
INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-1-3
|
Certificate
Number: R-1
|
|
Aggregate
Liquidation
Amount: $500,000,000
|
|
|
|
|
|
CUSIP NO.
00170F308
|
|
|
Certificate Evidencing 5.15% Preferred Securities
of
AMG Capital Trust II
5.15% Preferred Securities
(liquidation amount $50.00 per Preferred Security)
AMG Capital Trust II, a
statutory trust created under the laws of the State of Delaware (the “Trust”),
hereby certifies that Cede & Co. (the “Holder”) is the registered owner of
[$
in aggregate liquidation amount of Preferred Securities of the Trust](1) as may
from time to time be revised as specified in Schedule A hereto representing undivided beneficial interests
in the assets of the Trust designated the 5.15% Preferred Securities
(liquidation amount $50.00 per Preferred Security) (the “Preferred Securities”).
Subject to the Declaration (as defined below), the Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities
represented hereby are issued and shall in all respects be subject to the
provisions of the Amended and Restated Declaration of Trust of the Trust dated
as of October 17, 2007, as the same may be amended from time to time (the “Declaration”),
including the designation of the terms of the Preferred Securities as set forth
in Annex I to the Declaration. Capitalized terms used but not defined herein
shall have the meaning given them in the Declaration. The Initial Purchaser of
Common Securities will provide a copy of the Declaration, the Guarantee
Agreement and the Indenture (including any supplemental indenture(s)) to a
Holder without charge upon written request to the Trust at its principal place
of business.
Upon receipt of this
certificate, the Holder is bound by the Declaration and is entitled to the
benefits thereunder and to the benefits of the Guarantee Agreement to the
extent provided therein.
[The aggregate principal
amount of the Preferred Security in global form represented hereby may from
time to time be reduced to reflect conversions, repurchases or redemptions of a
part of this Preferred Security
(1) Insert
in Certificated Preferred Securities Only.
A-1-4
in global form or
cancellations of a part of this Preferred Security in global form, in each
case, and in any such case, by means of notations on the Global Certificate
Transfer Schedule attached as Schedule A hereto. Notwithstanding any provision
of this Preferred Security to the contrary, conversions or redemptions of a
part of this Preferred Security in global form and cancellations of a part of
this Preferred Security in global form, may be effected without the
surrendering of this Preferred Security in global form, provided that
appropriate notations on the Global Certificate Transfer Schedule are made by
the Property Trustee or the Clearing Agency at the direction of the Property
Trustee, to reflect the appropriate reduction or increase, as the case may be,
in the aggregate liquidation amount of this Preferred Security in a global form
resulting therefrom or as a consequence thereof.](2)
By acceptance, the Holder
agrees (i) to treat, for United States federal income tax purposes, the
Debentures as indebtedness of the Debenture Issuer subject to United States
Treasury Regulation section 1.1275-4(b) and the Preferred Securities as
evidence of indirect beneficial ownership in the Debentures and (ii) to treat
the comparable yield and projected payment schedule as determined by the
Debenture Issuer as “reasonable” for the purposes of Treasury Regulation
section 1.1275-4(b).
(2) Insert
in Global Preferred Securities Only.
A-1-5
IN WITNESS WHEREOF,
the Trust has executed this certificate this
day of October, 2007.
|
|
AMG Capital Trust II
|
|
|
|
|
|
By:
|
LaSalle Bank National
Association
|
|
|
|
not in its
individual capacity but solely
|
|
|
|
as Institutional
Administrator
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
Title:
|
PROPERTY TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This Certificate
represents Preferred Securities referred to in the within-mentioned
Declaration.
Dated: October ,
2007
|
|
LaSalle Bank National
Association,
not in its individual capacity but solely
as Property Trustee
|
|
|
|
|
|
By:
|
|
|
|
|
|
Authorized Signatory
|
A-1-6
REVERSE OF SECURITY
Distributions
payable on each Preferred Security will be fixed at a rate per annum of 5.15%
(the “Coupon Rate”) of the liquidation amount of $50.00 per Preferred Security,
such rate being the rate of interest payable on the Debentures to be held by
the Property Trustee. Distributions in arrears for more than one quarterly
period will bear interest thereon compounded quarterly at the Coupon Rate (to
the extent permitted by applicable law). A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has funds on hand legally available
therefor.
Distributions on
the Preferred Securities will be cumulative, will accumulate from the date of
their original issuance and will be payable quarterly in arrears, on January
15, April 15, July 15 and October 15 of each year, commencing on January 15,
2008, except as otherwise described below. Distributions will be computed on
the basis of a 360-day year consisting of twelve 30-day months. As long as no
event of default has occurred and is continuing under the Indenture, the
Debenture Issuer has the right under the Indenture to defer payments of
interest (other than Contingent Interest) by extending the interest payment
period at any time and from time to time on the Debentures for a period not
exceeding 20 consecutive calendar quarterly periods, including the first such
quarterly period during such extension period (each an “Extension Period”),
provided that no Extension Period shall end on a date other than an interest
payment date for the Debentures or extend beyond the stated maturity date of the
Debentures or any redemption date therefor. As a consequence of such deferral,
Distributions (other than Contingent Distributions) will also be deferred.
Despite such deferral, quarterly Distributions will continue to accumulate with
interest thereon (to the extent permitted by applicable law, but not at a rate
exceeding the rate of interest then accruing on the Debentures) at the Coupon
Rate compounded quarterly during any such Extension Period. Prior to the
termination of any such Extension Period, the Debenture Issuer may further
defer payments of interest (other than Contingent Interest) by further
extending such Extension Period; provided that such Extension Period, together
with all such previous and further extensions within such Extension Period, may
not exceed 20 consecutive quarterly periods, including the first quarterly
period during such Extension Period, end on a date other than an interest
payment date for the Debentures or extend beyond the stated maturity date of
the Debentures or any redemption date therefor. Payments of accumulated
Distributions will be payable to Holders as they appear on the books and
records of the Trust on the first record date after the end of the Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Debenture Issuer may commence a new Extension Period,
subject to the above requirements. The
payment of Contingent Interest may not, under any circumstances, be subject to
an Extension Period.
The Trust shall
pay Contingent Distributions on the terms and in the amounts specified in the
Declaration and the Indenture.
Subject to
conditions set forth in the Declaration and the Indenture, the Property Trustee
may, at the direction of the Initial Purchaser of Common Securities, at any
time liquidate the Trust and cause the Debentures to be distributed to the
holders of the Securities in liquidation of the Trust or, simultaneously with
any redemption of the Debentures, cause a Like Amount of the Securities to be
redeemed by the Trust.
A-1-7
The Preferred
Securities shall be redeemable as provided in the Declaration.
The Preferred
Securities shall be convertible into shares of Affiliated Managers Group, Inc.
Common Stock in the manner and according to the terms set forth in the Declaration
and the Indenture.
Holders of
Preferred Securities will be entitled to the repurchase rights specified in the
Declaration and the Indenture upon the occurrence of a Change in Control.
A-1-8
CONVERSION REQUEST
|
To:
|
LaSalle Bank National
Association,
|
|
|
as Property
Trustee of
|
|
|
AMG Capital
Trust II
|
The undersigned owner of
these Preferred Securities hereby irrevocably exercises the option to convert
these Preferred Securities, or the portion below designated, into Common Stock
(as such term is defined in the Indenture, dated as of October 17, 2007,
between Affiliated Managers Group, Inc. and LaSalle Bank National Association,
as Debenture Trustee (the “Indenture”)) in accordance with the terms of the
Indenture and the Amended and Restated Declaration of Trust (as amended from
time to time, the “Declaration”), dated as of October 17, 2007, by LaSalle Bank
National Association, as Property Trustee and Institutional Administrator, and
LaSalle National Trust Delaware, as Delaware Trustee, Affiliated Managers
Group, Inc., as Initial Purchaser of Common Securities and as Debenture Issuer,
and by the Holders, from time to time, of undivided beneficial interests in the
assets of the Trust to be issued pursuant to the Declaration. Pursuant to the
aforementioned exercise of the option to convert these Preferred Securities,
the undersigned hereby directs the Conversion Agent (as that term is defined in
the Declaration) to (i) exchange such Preferred Securities for a portion of the
Debentures (as that term is defined in the Declaration) held by the Trust (at
the rate of exchange specified in the terms of the Securities set forth in the
Indenture and as Annex I to the Declaration) and (ii) immediately convert such
Debentures on behalf of the undersigned, into Common Stock (at the conversion
rate specified in the terms of the Securities set forth in the Indenture and as
Annex I to the Declaration).
The undersigned does also
hereby direct the Conversion Agent that the shares issuable and deliverable
upon conversion, together with any check in payment for fractional shares, be
issued in the name of and delivered to the undersigned, unless a different name
has been indicated in the assignment below. If shares are to be issued in the
name of a person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto.
Any holder, upon the
exercise of its conversion rights in accordance with the terms of the
Declaration, the Indenture and the Preferred Securities, agrees to be bound by
the terms of the Registration Rights Agreement relating to the Common Stock
issuable upon conversion of the Preferred Securities and agrees to appoint the
Conversion Agent for the purpose of effecting the conversion of the Preferred
Securities into shares of Common Stock.
|
Date:
|
|
|
|
|
|
|
|
Number of Preferred
Securities to be converted:
|
|
|
|
|
|
|
|
|
A-1-9
If a name or names other
than the undersigned, please indicate in the spaces below the name or names in
which the shares of Common Stock are to be issued, along with the address or
addresses of such person or persons.
(Sign exactly as your
name appears on this Preferred Security certificate) (for conversion of
definitive Preferred Securities only)
Please Print or Typewrite
Name and Address, Including Zip Code, and Social Security or Other Identifying
Number.
*
Signature must be guaranteed
by an “eligible guarantor institution” that is, a bank, stockbroker, savings
and loan association or credit union meeting the requirements of the Registrar,
which requirements include membership or participation in the Securities
Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee
program” as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
A-1-10
NOTICE OF REPURCHASE ELECTION
|
To:
|
LaSalle Bank National
Association,
|
|
|
as Property
Trustee of
|
|
|
AMG Capital
Trust II
|
The undersigned
owner of these Preferred Securities, in connection with the occurrence of a
Change in Control (as such term is defined in the Indenture, dated as of
October 17, 2007, between Affiliated Managers Group, Inc. and LaSalle Bank
National Association, as Debenture Trustee (the “Indenture”)) hereby
irrevocably exercises the right to require the repurchase of these Preferred
Securities, or the portion below designated, on the Repurchase Date in
accordance with the terms of the Indenture and the Amended and Restated
Declaration of Trust (as amended from time to time, the “Declaration”), dated
as of October 17, 2007, by LaSalle Bank National Association, as Property
Trustee and Institutional Administrator, LaSalle National Trust Delaware, as
Delaware Trustee, Affiliated Managers Group, Inc., as Initial Purchaser of
Common Securities and as Debenture Issuer, and by the Holders, from time to
time, of undivided beneficial interests in the assets of the Trust to be issued
pursuant to the Declaration. Pursuant to the aforementioned election to require
repurchase of these Preferred Securities, the undersigned hereby directs the
Exchange Agent (as that term is defined in the Declaration) to (i) exchange
such Preferred Securities for a portion of the Debentures (as that term is
defined in the Declaration) held by the Trust (at the rate of exchange
specified in the terms of the Securities set forth in the Indenture and as
Annex I to the Declaration) and (ii) immediately tender such Debentures on
behalf of the undersigned, for repurchase by the Debenture Issuer at the
Repurchase Price (as such term is defined in the Indenture) on the Repurchase
Date (as such term is defined in the Indenture).
|
Date:
|
|
|
|
|
|
|
|
Number of
Preferred Securities to be repurchased:
|
|
|
|
|
|
|
|
|
A-1-11
If a name or names, other
than the undersigned, please indicate in the spaces below the name or names in
which the shares of Common Stock are to be issued, along with the address or
addresses of such person or persons.
(Sign exactly as your
name appears on this Preferred Security certificate) (for conversion of
definitive Preferred Securities only)
Please Print or
Typewrite Name and Address, Including Zip Code, and Social Security or Other
Identifying Number.
*
Signature must be
guaranteed by an “eligible guarantor institution” that is, a bank, stockbroker,
savings and loan association or credit union meeting the requirements of the
Registrar, which requirements include membership or participation in the
Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature
guarantee program” as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
A-1-12
ASSIGNMENT
FOR VALUE RECEIVED, the
undersigned assigns and transfers this Preferred Security Certificate to:
(Insert assignee’s Social
Security or Tax Identification Number)
(Insert address and ZIP
code of assignee)
and irrevocably appoints
agent to transfer this
Preferred Security Certificate on the books of the Trust. The agent may
substitute another to act for him or her.
(Sign exactly as your
name appears on this Preferred Security Certificate)
*
Signature must be guaranteed
by an “eligible guarantor institution” that is a bank, stockbroker, savings and
loan association or credit union meeting the requirements of the Registrar,
which requirements include membership or participation in the Securities
Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee
program” as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities and Exchange Act
of 1934, as amended.
A-1-13
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF RESTRICTED PREFERRED SECURITIES
This certificate relates
to
Preferred Securities held in (check applicable space)
book-entry or
definitive form by the undersigned.
(A)
The undersigned has
requested the Property Trustee by written order to exchange or register the
transfer of a Preferred Security or Preferred Securities.
(B)
The undersigned
confirms that such Preferred Securities are being (check one box below):
(1)
o
transferred to Affiliated Managers Group, Inc. or a subsidiary thereof; or
(2)
o
transferred pursuant to and in compliance with Rule 144A under the Securities
Act of 1933; or
(3)
o
transferred pursuant to an available exemption from the registration
requirements of the Securities Act of 1933; or
(4)
o
transferred pursuant to an effective registration statement under the
Securities Act.
Unless the box below is
checked, the undersigned confirms that such Securities are not being
transferred to an “affiliate” of the Affiliated Managers Group, Inc. as defined
in Rule 144 under the Securities Act of 1933, as amended (an “Affiliate”):
(5)
o
The transferee is an Affiliate of Affiliated Managers Group, Inc.
Unless one of the boxes
(1) through (4) in (B) above is checked, the Property Trustee will refuse to
register any of the Preferred Securities evidenced by this certificate in the
name of any person other than the registered Holder thereof; provided, however,
that if box (3) is checked, the Property Trustee may require, prior to
registering any such transfer of the Preferred Securities such legal opinions,
certifications and other information as the Trust has reasonably requested to
confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act
of 1933, as amended, such as the exemption provided by Rule 144 under such Act.
A-1-14
|
Signature:
|
|
|
|
|
|
|
|
Signature
Guarantee*:
|
|
|
|
|
|
|
Signature must
be guaranteed Signature
|
|
|
|
|
|
|
Signature
|
*
Signature must be
guaranteed by an “eligible guarantor institution” that is, a bank, stockbroker,
savings and loan association or credit union meeting the requirements of the
Registrar, which requirements include membership or participation in the
Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature
guarantee program” as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
A-1-15
Schedule A
Global Certificate Transfer Schedule
Changes to Liquidation Amount of Global Security
|
Date
|
|
Liquidation Amount of
Securities by which this
Global Security Is to Be
Reduced or Increased
|
|
Remaining Liquidation
Amount of the Global
Security (following decrease
or increase)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Schedule to be maintained
by Property Trustee or Clearing Agency in cooperation with Property Trustee, as
applicable.
A-1-16
EXHIBIT A-2
COMMON SECURITY CERTIFICATE
THIS SECURITY HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE ‘‘SECURITIES
ACT’’), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE HOLDER OF THIS
SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY, PRIOR TO THE DATE (THE ‘‘RESALE RESTRICTION TERMINATION DATE’’)
WHEN THE HOLDER OF THIS SECURITY OTHER THAN A HOLDER WHO IS AN AFFILIATE OF
AFFILIATED MANAGERS GROUP, INC., IS ABLE TO SELL THIS SECURITY IMMEDIATELY
WITHOUT RESTRICTION OR BEING SUBJECT TO ANY CONDITIONS PURSUANT TO RULE 144
UNDER THE SECURITIES ACT OR ANY SUCCESSOR RULE THERETO ONLY (A) TO AFFILIATED
MANAGERS GROUP, INC. OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A ‘‘QUALIFIED INSTITUTIONAL BUYER’’ AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO AFFILIATED MANAGERS GROUP, INC.’S, AND THE
PROPERTY TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE
FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER
SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
PROPERTY TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
UPON THE EARLIER OF THE TRANSFER OF THE SECURITIES EVIDENCED HEREBY PURSUANT TO
CLAUSE (C) ABOVE AND THE RESALE RESTRICTION TERMINATION DATE. THE HOLDER OF
THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A
TRANSFER PURSUANT TO CLAUSE (C) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
A-2-1
THIS COMMON
SECURITY IS NOT TRANSFERABLE EXCEPT AS SET FORTH IN SECTION 9.1(b) OF THE
AMENDED AND RESTATED DECLARATION OF TRUST OF AMG CAPITAL TRUST II, DATED AS OF
OCTOBER 17, 2007, AS THE SAME MAY BE AMENDED FROM TIME TO TIME.
FOR PURPOSES OF
SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE, THE ISSUE PRICE OF EACH
SECURITY IS $49.50 PER $50.00 OF LIQUIDATION AMOUNT, THE ISSUE DATE IS OCTOBER
17, 2007 AND THE COMPARABLE YIELD IS 8.00% PER ANNUM.
THE HOLDER OF THIS
SECURITY, BY ACCEPTANCE THEREOF, AGREES (i) TO TREAT THE SECURITY AS
INDEBTEDNESS OF THE DEBENTURE ISSUER FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES THAT IS SUBJECT TO TREASURY REGULATION SECTION 1.1275-4(b), AND (ii)
TO TREAT THE COMPARABLE YIELD AND PROJECTED PAYMENT SCHEDULE AS DETERMINED BY
THE DEBENTURE ISSUER AS “REASONABLE” FOR PURPOSES OF TREASURY REGULATION SECTION
1.1275-4(b).
U.S. HOLDERS OF
THIS SECURITY MAY OBTAIN THE PROJECTED PAYMENT SCHEDULE FOR THIS SECURITY BY
SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO AFFILIATED MANAGERS GROUP,
INC., 600 HALE STREET, PRIDES CROSSING,
MASSACHUSETTS 01965, ATTN.: CHIEF FINANCIAL OFFICER.
A-2-2
Certificate Evidencing Common Securities
of
AMG Capital Trust II
5.15% Common Securities
(liquidation amount $50.00 per Common Security)
AMG Capital Trust II, a
statutory trust formed under the laws of the State of Delaware (the “Trust”),
hereby certifies that
(the “Holder”) is the registered owner of 200 common securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the 5.15% Common Securities (liquidation amount $50.00 per Common
Security) (the “Common Securities”). Subject to the limitations in Section
9.1(b) of the Declaration (as defined below), the Common Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities represented
hereby are issued and shall in all respects be subject to the provisions of the
Amended and Restated Declaration of Trust of the Trust, dated as of October 17,
2007, as the same may be amended from time to time (the “Declaration”),
including the designation of the terms of the Common Securities as set forth in
Annex I to the Declaration. Capitalized terms used but not defined herein shall
have the meaning given them in the Declaration. The Initial Purchaser of Common
Securities will provide a copy of the Declaration, the Guarantee Agreement and
the Indenture (including any supplemental indenture) to a Holder without charge
upon written request to the Initial Purchaser of Common Securities at its
principal place of business.
Upon receipt of this
certificate, the Holder is bound by the Declaration and is entitled to the
benefits thereunder to the extent provided therein.
By acceptance, the Holder
agrees (i) to treat, for United States federal income tax purposes, the
Debentures as indebtedness of the Debenture Issuer subject to United States
Treasury Regulation section 1.1275-4(b) and the Common Securities as evidence
of indirect beneficial ownership in the Debentures, and (ii) to treat the
comparable yield and projected payment schedule as determined by the Debenture
Issuer as “reasonable” for purposes of Treasury Regulation section 1.1275-4(b).
A-2-3
IN WITNESS
WHEREOF, the Trust has executed this certificate this
day of October, 2007.
|
|
AMG Capital Trust II
|
|
|
|
|
|
By:
|
LaSalle Bank National
Association
|
|
|
|
not in its
individual capacity but solely
|
|
|
|
as Institutional
Administrator
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
Title:
|
A-2-4
REVERSE OF SECURITY
Distributions
payable on each Common Security will be fixed at a rate per annum of 5.15% (the
“Coupon Rate”) of the liquidation amount of $50.00 per Common Security, such
rate being the rate of interest payable on the Debentures to be held by the
Property Trustee. Distributions in arrears for more than one quarterly period
will bear interest thereon compounded quarterly at the Coupon Rate (to the
extent permitted by applicable law). A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has funds available therefor.
Distributions on
the Common Securities will be cumulative, will accrue from the date of original
issuance of the Common Securities and will be payable quarterly in arrears, on
January 15, April 15, July 15 and October 15 of each year, commencing on January
15, 2008, except as otherwise described below. Distributions will be computed
on the basis of a 360-day year consisting of twelve 30-day months. As long as
no event of default has occurred and is continuing under the Indenture, the
Debenture Issuer has the right under the Indenture to defer payments of
interest by extending the interest payment period at any time and from time to
time on the Debentures for a period not exceeding 20 consecutive calendar
quarterly periods, including the first such quarterly period during such
extension period (each an “Extension Period”), provided that no Extension
Period shall end on a date other than an interest payment date for the
Debentures or extend beyond the stated maturity date of the Debentures or any
redemption date therefor. As a consequence of such deferral, Distributions will
also be deferred. Despite such deferral, Distributions will continue to
accumulate with interest thereon (to the extent permitted by applicable law,
but not at a rate exceeding the rate of interest then accruing on the
Debentures) at the Coupon Rate compounded quarterly during any such Extension
Period. Prior to the termination of any such Extension Period, the Debenture
Issuer may further defer payments of interest by further extending such
Extension Period; provided that such Extension Period, together with all such
previous and further extensions within such Extension Period, may not exceed 20
consecutive quarterly periods, including the first quarterly period during such
Extension Period, or end on a date other than an interest payment date for the
Debentures or extend beyond the stated maturity date of the Debentures or any
redemption date therefor. Payments of accrued Distributions will be payable to
Holders as they appear on the books and records of the Trust on the first
record date after the end of the Extension Period. Upon the termination of any
Extension Period and the payment of all amounts then due, the Debenture Issuer
may commence a new Extension Period, subject to the above requirements.
Subject to the
conditions set forth in the Declaration and the Indenture, the Property Trustee
may, at the direction of the Initial Purchaser of Common Securities, at any
time liquidate the Trust and cause the Debentures to be distributed to the
holders of the Securities in liquidation of the Trust or, simultaneous with any
redemption of the Debentures, cause a Like Amount of the Securities to be
redeemed by the Trust.
Under certain
circumstances, the right of the holders of the Common Securities shall be
subordinate to the rights of the holders of the Preferred Securities (as
defined in the Declaration), as provided in the Declaration.
The Common
Securities shall be redeemable as provided in the Declaration.
A-2-5
ASSIGNMENT
FOR VALUE RECEIVED, the
undersigned assigns and transfers this Common Security Certificate to:
(Insert assignee’s
Social Security or Tax Identification Number)
(Insert address
and ZIP code of assignee)
and irrevocably appoints
agent
to transfer this Common Security Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
|
Date:
|
|
|
|
|
|
Signature:
|
|
|
|
(Sign exactly as
your name appears on this Common Security Certificate)
|
|
|
|
Signature
Guarantee*:
|
|
|
|
|
|
|
|
|
|
*
Signature
must be guaranteed by an “eligible guarantor institution” that is a bank,
stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-2-6
EXHIBIT
A-3
Projected
Payment Schedule*
|
Years 0-6
|
|
Years 7-12
|
|
Years 13-18
|
|
Years 19-24
|
|
Years 25-30
|
|
Period
|
|
Projected
Payment
Per
Debenture
|
|
Period
|
|
Projected
Payment
Per
Debenture
|
|
Period
|
|
Projected
Payment
Per
Debenture
|
|
Period
|
|
Projected
Payment
Per
Debenture
|
|
Period
|
|
Projected
Payment
Per
Debenture
|
|
10/18/07-01/15/08
|
|
0.63
|
|
10/16/13-01/15/14
|
|
0.64
|
|
10/16/19-01/15/20
|
|
0.68
|
|
10/16/25-01/15/26
|
|
0.70
|
|
10/16/31-01/15/32
|
|
0.73
|
|
01/16/08-04/15/08
|
|
0.64
|
|
01/16/14-04/15/14
|
|
0.64
|
|
01/16/20-04/15/20
|
|
0.68
|
|
01/16/26-04/15/26
|
|
0.70
|
|
01/16/32-04/15/32
|
|
0.73
|
|
04/16/08-07/15/08
|
|
0.64
|
|
04/16/14-07/15/14
|
|
0.64
|
|
04/16/20-07/15/20
|
|
0.68
|
|
04/16/26-07/15/26
|
|
0.70
|
|
04/16/32-07/15/32
|
|
0.73
|
|
07/16/08-10/15/08
|
|
0.64
|
|
07/16/14-10/15/14
|
|
0.64
|
|
07/16/20-10/15/20
|
|
0.68
|
|
07/16/26-10/15/26
|
|
0.70
|
|
07/16/32-10/15/32
|
|
0.73
|
|
10/16/08-01/15/09
|
|
0.64
|
|
10/16/14-01/15/15
|
|
0.64
|
|
10/16/20-01/15/21
|
|
0.69
|
|
10/16/26-01/15/27
|
|
0.71
|
|
10/16/32-01/15/33
|
|
0.74
|
|
01/16/09-04/15/09
|
|
0.64
|
|
01/16/15-04/15/15
|
|
0.64
|
|
01/16/21-04/15/21
|
|
0.69
|
|
01/16/27-04/15/27
|
|
0.71
|
|
01/16/33-04/15/33
|
|
0.74
|
|
04/16/09-07/15/09
|
|
0.64
|
|
04/16/15-07/15/15
|
|
0.64
|
|
04/16/21-07/15/21
|
|
0.69
|
|
04/16/27-07/15/27
|
|
0.71
|
|
04/16/33-07/15/33
|
|
0.74
|
|
07/16/09-10/15/09
|
|
0.64
|
|
07/16/15-10/15/15
|
|
0.64
|
|
07/16/21-10/15/21
|
|
0.69
|
|
07/16/27-10/15/27
|
|
0.71
|
|
07/16/33-10/15/33
|
|
0.74
|
|
10/16/09-01/15/10
|
|
0.64
|
|
10/16/15-01/15/16
|
|
0.64
|
|
10/16/21-01/15/22
|
|
0.69
|
|
10/16/27-01/15/28
|
|
0.71
|
|
10/16/33-01/15/34
|
|
0.74
|
|
01/16/10-04/15/10
|
|
0.64
|
|
01/16/16-04/15/16
|
|
0.64
|
|
01/16/22-04/15/22
|
|
0.69
|
|
01/16/28-04/15/28
|
|
0.71
|
|
01/16/34-04/15/34
|
|
0.74
|
|
04/16/10-07/15/10
|
|
0.64
|
|
04/16/16-07/15/16
|
|
0.64
|
|
04/16/22-07/15/22
|
|
0.69
|
|
04/16/28-07/15/28
|
|
0.71
|
|
04/16/34-07/15/34
|
|
0.74
|
|
07/16/10-10/15/10
|
|
0.64
|
|
07/16/16-10/15/16
|
|
0.64
|
|
07/16/22-10/15/22
|
|
0.69
|
|
07/16/28-10/15/28
|
|
0.71
|
|
07/16/34-10/15/34
|
|
0.75
|
|
10/16/10-01/15/11
|
|
0.64
|
|
10/16/16-01/15/17
|
|
0.64
|
|
10/16/22-01/15/23
|
|
0.69
|
|
10/16/28-01/15/29
|
|
0.71
|
|
10/16/34-01/15/35
|
|
0.75
|
|
01/16/11-04/15/11
|
|
0.64
|
|
01/16/17-04/15/17
|
|
0.64
|
|
01/16/23-04/15/23
|
|
0.69
|
|
01/16/29-04/15/29
|
|
0.72
|
|
01/16/35-04/15/35
|
|
0.75
|
|
04/16/11-07/15/11
|
|
0.64
|
|
04/16/17-07/15/17
|
|
0.64
|
|
04/16/23-07/15/23
|
|
0.69
|
|
04/16/29-07/15/29
|
|
0.72
|
|
04/16/35-07/15/35
|
|
0.75
|
|
07/16/11-10/15/11
|
|
0.64
|
|
07/16/17-10/15/17
|
|
0.64
|
|
07/16/23-10/15/23
|
|
0.69
|
|
07/16/29-10/15/29
|
|
0.72
|
|
07/16/35-10/15/35
|
|
0.75
|
|
10/16/11-01/15/12
|
|
0.64
|
|
10/16/17-01/15/18
|
|
0.64
|
|
10/16/23-01/15/24
|
|
0.69
|
|
10/16/29-01/15/30
|
|
0.72
|
|
10/16/35-01/15/36
|
|
0.75
|
|
01/16/12-04/15/12
|
|
0.64
|
|
01/16/18-04/15/18
|
|
0.64
|
|
01/16/24-04/15/24
|
|
0.70
|
|
01/16/30-04/15/30
|
|
0.72
|
|
01/16/36-04/15/36
|
|
0.76
|
|
04/16/12-07/15/12
|
|
0.64
|
|
04/16/18-07/15/18
|
|
0.64
|
|
04/16/24-07/15/24
|
|
0.70
|
|
04/16/30-07/15/30
|
|
0.72
|
|
04/16/36-07/15/36
|
|
0.76
|
|
07/16/12-10/15/12
|
|
0.64
|
|
07/16/18-10/15/18
|
|
0.64
|
|
07/16/24-10/15/24
|
|
0.70
|
|
07/16/30-10/15/30
|
|
0.72
|
|
07/16/36-10/15/36
|
|
0.76
|
|
10/16/12-01/15/13
|
|
0.64
|
|
10/16/18-01/15/19
|
|
0.64
|
|
10/16/24-01/15/25
|
|
0.70
|
|
10/16/30-01/15/31
|
|
0.72
|
|
10/16/36-01/15/37
|
|
0.76
|
|
01/16/13-04/15/13
|
|
0.64
|
|
01/16/19-04/15/19
|
|
0.68
|
|
01/16/25-04/15/25
|
|
0.70
|
|
01/16/31-04/15/31
|
|
0.73
|
|
01/16/37-04/15/37
|
|
0.76
|
|
04/16/13-07/15/13
|
|
0.64
|
|
04/16/19-07/15/19
|
|
0.68
|
|
04/16/25-07/15/25
|
|
0.70
|
|
04/16/31-07/15/31
|
|
0.73
|
|
04/16/37-07/15/37
|
|
0.77
|
|
07/16/13-10/15/13
|
|
0.64
|
|
07/16/19-10/15/19
|
|
0.68
|
|
07/16/25-10/15/25
|
|
0.70
|
|
07/16/31-10/15/31
|
|
0.73
|
|
07/16/37-10/15/37
|
|
0.77
|
*
The comparable yield
and the schedule of projected payments are determined on the basis of certain
assumptions and are not determined for any purpose other than for the
determination of interest accruals and adjustments thereof in respect of the
Securities for United States federal income tax purposes. The comparable yield and the schedule of
projected payments do not constitute a projection or representation regarding
the amounts payable on Securities.
A-3-1
Exhibit
4.3
EXECUTION COPY
AFFILIATED
MANAGERS GROUP, INC.
(a Delaware corporation)
INDENTURE
Dated as of
October 17, 2007
LASALLE BANK
NATIONAL ASSOCIATION,
as Debenture Trustee
JUNIOR SUBORDINATED CONVERTIBLE DEBENTURES
TABLE OF
CONTENTS
|
|
|
Page
|
|
ARTICLE I
|
|
|
DEFINITIONS
|
|
|
|
|
|
|
SECTION 1.01.
|
Definitions
|
1
|
|
|
|
|
|
ARTICLE II
|
|
|
SECURITIES
|
|
|
|
|
|
|
SECTION 2.01.
|
Forms Generally
|
12
|
|
SECTION 2.02.
|
Execution and Authentication
|
12
|
|
SECTION 2.03.
|
Form and Payment
|
13
|
|
SECTION 2.04.
|
Global Security
|
13
|
|
SECTION 2.05.
|
Interest
|
14
|
|
SECTION 2.06.
|
Transfer and Exchange
|
15
|
|
SECTION 2.07.
|
Replacement Securities
|
18
|
|
SECTION 2.08.
|
Temporary Securities
|
19
|
|
SECTION 2.09.
|
Cancellation
|
19
|
|
SECTION 2.10.
|
Defaulted Interest
|
20
|
|
SECTION 2.11.
|
CUSIP Numbers
|
20
|
|
SECTION 2.12.
|
Tax Treatment
|
21
|
|
|
|
|
|
ARTICLE III
|
|
|
PARTICULAR
COVENANTS OF THE CORPORATION
|
|
|
|
|
|
|
SECTION 3.01.
|
Payment of Principal and Interest
|
21
|
|
SECTION 3.02.
|
Offices for Notices and Payments, Etc.
|
22
|
|
SECTION 3.03.
|
Appointments to Fill Vacancies in Debenture
Trustee’s Office
|
22
|
|
SECTION 3.04.
|
Provision as to Paying Agent
|
22
|
|
SECTION 3.05.
|
Certificate to Debenture Trustee
|
23
|
|
SECTION 3.06.
|
Compliance with Consolidation Provisions
|
23
|
|
SECTION 3.07.
|
Limitation on Dividends
|
23
|
|
SECTION 3.08.
|
Covenants as to AMG Capital Trust II
|
24
|
|
SECTION 3.09.
|
Payment of Expenses
|
24
|
|
SECTION 3.10.
|
Payment Upon Resignation or Removal
|
25
|
|
|
|
|
|
ARTICLE IV
|
|
|
SECURITYHOLDERS’
LISTS AND REPORTS BY THE
|
|
|
CORPORATION AND
THE DEBENTURE TRUSTEE
|
|
|
|
|
|
|
SECTION 4.01.
|
Securityholders’ Lists
|
26
|
|
SECTION 4.02.
|
Preservation and Disclosure of Lists
|
26
|
|
SECTION 4.03.
|
Reports by the Corporation
|
27
|
|
SECTION 4.04.
|
Reports by the Debenture Trustee
|
28
|
i
|
ARTICLE V
|
|
|
REMEDIES OF THE
DEBENTURE TRUSTEE AND
|
|
|
SECURITYHOLDERS
ON EVENT OF DEFAULT
|
|
|
|
|
|
|
SECTION 5.01.
|
Events of Default
|
28
|
|
SECTION 5.02.
|
Payment of Securities on Default; Suit Therefor
|
30
|
|
SECTION 5.03.
|
Application of Moneys Collected by Debenture Trustee
|
32
|
|
SECTION 5.04.
|
Proceedings by Securityholders
|
32
|
|
SECTION 5.05.
|
Proceedings by Debenture Trustee
|
33
|
|
SECTION 5.06.
|
Remedies Cumulative and Continuing
|
33
|
|
SECTION 5.07.
|
Direction of Proceedings and Waiver of Defaults by
Majority of Securityholders
|
34
|
|
SECTION 5.08.
|
Notice of Defaults
|
35
|
|
SECTION 5.09.
|
Undertaking to Pay Costs
|
35
|
|
SECTION 5.10.
|
Acknowledgment of Rights
|
35
|
|
|
|
|
|
ARTICLE VI
|
|
|
CONCERNING THE
DEBENTURE TRUSTEE
|
|
|
|
|
|
|
SECTION 6.01.
|
Duties and Responsibilities of Debenture Trustee
|
36
|
|
SECTION 6.02.
|
Reliance on Documents, Opinions, Etc.
|
37
|
|
SECTION 6.03.
|
No Responsibility for Recitals, Etc.
|
39
|
|
SECTION 6.04.
|
Debenture Trustee, Authenticating Agent, Paying
Agents, Transfer Agents or Registrar May Own Securities
|
39
|
|
SECTION 6.05.
|
Moneys to Be Held in Trust
|
39
|
|
SECTION 6.06.
|
Compensation and Expenses of Debenture Trustee
|
39
|
|
SECTION 6.07.
|
Officers’ Certificate as Evidence
|
40
|
|
SECTION 6.08.
|
Conflicting Interest of Debenture Trustee
|
40
|
|
SECTION 6.09.
|
Eligibility of Debenture Trustee
|
41
|
|
SECTION 6.10.
|
Resignation or Removal of Debenture Trustee
|
41
|
|
SECTION 6.11.
|
Acceptance by Successor Debenture Trustee
|
42
|
|
SECTION 6.12.
|
Succession by Merger, Etc.
|
43
|
|
SECTION 6.13.
|
Limitation on Rights of Debenture Trustee as a
Creditor
|
43
|
|
SECTION 6.14.
|
Co-trustees and Separate Trustees
|
44
|
|
SECTION 6.15.
|
Authenticating Agents
|
45
|
|
|
|
|
|
ARTICLE VII
|
|
|
CONCERNING THE
SECURITYHOLDERS
|
|
|
|
|
|
|
SECTION 7.01.
|
Action by Securityholders
|
46
|
|
SECTION 7.02.
|
Proof of Execution by Securityholders
|
46
|
|
SECTION 7.03.
|
Who Are Deemed Absolute Owners
|
47
|
|
SECTION 7.04.
|
Securities Owned by Corporation Deemed Not
Outstanding
|
47
|
|
SECTION 7.05.
|
Revocation of Consents; Future Holders Bound
|
47
|
ii
|
ARTICLE VIII
|
|
|
SECURITYHOLDERS’
MEETINGS
|
|
|
|
|
|
|
SECTION 8.01.
|
Purposes of Meetings
|
48
|
|
SECTION 8.02.
|
Call of Meetings by Debenture Trustee
|
48
|
|
SECTION 8.03.
|
Call of Meetings by Corporation or Securityholders
|
48
|
|
SECTION 8.04.
|
Qualifications for Voting
|
49
|
|
SECTION 8.05.
|
Regulations
|
49
|
|
SECTION 8.06.
|
Voting
|
49
|
|
|
|
|
|
ARTICLE IX
|
|
|
AMENDMENTS
|
|
|
|
|
|
|
SECTION 9.01.
|
Without Consent of Securityholders
|
50
|
|
SECTION 9.02.
|
With Consent of Securityholders
|
51
|
|
SECTION 9.03.
|
Compliance with Trust Indenture Act; Effect of
Supplemental Indentures
|
52
|
|
SECTION 9.04.
|
Notation on Securities
|
53
|
|
SECTION 9.05.
|
Evidence of Compliance of Supplemental Indenture to
Be Furnished to Debenture Trustee
|
53
|
|
|
|
|
|
ARTICLE X
|
|
|
CONSOLIDATION,
MERGER, SALE, CONVEYANCE AND LEASE
|
|
|
|
|
|
|
SECTION 10.01.
|
Corporation May Consolidate, Etc., on Certain Terms
|
53
|
|
SECTION 10.02.
|
Successor Corporation to Be Substituted for Corporation
|
54
|
|
SECTION 10.03.
|
Opinion of Counsel to Be Given to Debenture Trustee
|
54
|
|
|
|
|
|
ARTICLE XI
|
|
|
SATISFACTION AND
DISCHARGE OF INDENTURE
|
|
|
|
|
|
|
SECTION 11.01.
|
Discharge of Indenture
|
54
|
|
SECTION 11.02.
|
Deposited Moneys and U.S. Government Obligations to Be
Held in Trust by Debenture Trustee
|
55
|
|
SECTION 11.03.
|
Paying Agent to Repay Moneys Held
|
55
|
|
SECTION 11.04.
|
Return of Unclaimed Moneys
|
56
|
|
SECTION 11.05.
|
Defeasance Upon Deposit of Moneys or U.S. Government
Obligations
|
56
|
|
|
|
|
|
ARTICLE XII
|
|
|
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS,
|
|
|
OFFICERS AND
DIRECTORS
|
|
|
|
|
|
|
SECTION 12.01.
|
Indenture and Securities Solely Corporate
Obligations
|
57
|
iii
|
ARTICLE XIII
|
|
|
PURCHASE AT THE
OPTION OF HOLDER UPON CHANGE IN CONTROL
|
|
|
|
|
|
|
SECTION 13.01.
|
Repurchase Right
|
58
|
|
SECTION 13.02.
|
Notices, Method of Exercised Repurchase Right
|
58
|
|
SECTION 13.03.
|
Repurchase Date; Exercise of Right
|
59
|
|
|
|
|
|
ARTICLE XIV
|
|
|
REDEMPTION OF
SECURITIES
|
|
|
|
|
|
|
SECTION 14.01.
|
Special Event Redemption
|
60
|
|
SECTION 14.02.
|
Optional Redemption by Corporation
|
60
|
|
SECTION 14.03.
|
No Sinking Fund
|
61
|
|
SECTION 14.04.
|
Notice of Redemption; Selection of Securities
|
61
|
|
SECTION 14.05.
|
Payment of Securities Called for Redemption
|
62
|
|
SECTION 14.06.
|
Conversion Arrangement on Call for Redemption
|
62
|
|
|
|
|
|
ARTICLE XV
|
|
|
SUBORDINATION OF
SECURITIES
|
|
|
|
|
|
|
SECTION 15.01.
|
Agreement to Subordinate
|
63
|
|
SECTION 15.02.
|
Default on Senior Indebtedness
|
63
|
|
SECTION 15.03.
|
Liquidation; Dissolution; Bankruptcy
|
64
|
|
SECTION 15.04.
|
Subrogation
|
65
|
|
SECTION 15.05.
|
Debenture Trustee to Effectuate Subordination
|
66
|
|
SECTION 15.06.
|
Notice by the Corporation
|
66
|
|
SECTION 15.07.
|
Rights of the Debenture Trustee; Holders of Senior
Indebtedness
|
67
|
|
SECTION 15.08.
|
Subordination May Not Be Impaired
|
68
|
|
|
|
|
|
ARTICLE XVI
|
|
|
EXTENSION OF
INTEREST PAYMENT PERIOD
|
|
|
|
|
|
|
SECTION 16.01.
|
Extension of Interest Payment Period
|
68
|
|
SECTION 16.02.
|
Notice of Extension
|
69
|
|
|
|
|
|
ARTICLE XVII
|
|
|
CONVERSION OF
SECURITIES
|
|
|
|
|
|
|
SECTION 17.01.
|
Conversion Rights
|
70
|
|
SECTION 17.02.
|
Conversion Procedures
|
72
|
|
SECTION 17.03.
|
Conversion Rate Adjustments
|
75
|
|
SECTION 17.04.
|
Conversion Rate Adjustments Upon Change in Control
|
81
|
|
SECTION 17.05.
|
Share Exchange, Consolidation, Merger or Sale of
Assets
|
83
|
|
SECTION 17.06.
|
Notice of Adjustments of Conversion Rate
|
85
|
|
SECTION 17.07.
|
Prior Notice of Certain Events
|
85
|
|
SECTION 17.08.
|
Debenture Trustee Not Responsible for Determining
Conversion Rate or Adjustments
|
85
|
iv
|
ARTICLE XVIII
|
|
|
CONTINGENT
INTEREST
|
|
|
|
|
|
|
SECTION 18.01.
|
Contingent Interest
|
86
|
|
SECTION 18.02.
|
Payment of Contingent Interest; Contingent Interest
Rights Preserved
|
86
|
|
SECTION 18.03.
|
Bid Solicitation Agent
|
87
|
|
|
|
|
|
ARTICLE XIX
|
|
|
MISCELLANEOUS
PROVISIONS
|
|
|
|
|
|
|
SECTION 19.01.
|
Successors
|
87
|
|
SECTION 19.02.
|
Official Acts by Successor Corporation
|
87
|
|
SECTION 19.03.
|
Surrender of Corporation Powers
|
87
|
|
SECTION 19.04.
|
Addresses for Notices, Etc.
|
87
|
|
SECTION 19.05.
|
Governing Law
|
88
|
|
SECTION 19.06.
|
Evidence of Compliance with Conditions Precedent
|
88
|
|
SECTION 19.07.
|
Business Days
|
89
|
|
SECTION 19.08.
|
Trust Indenture Act to Control
|
89
|
|
SECTION 19.09.
|
Intention of the Parties
|
89
|
|
SECTION 19.10.
|
Table of Contents, Headings, Etc.
|
89
|
|
SECTION 19.11.
|
Execution in Counterparts
|
89
|
|
SECTION 19.12.
|
Separability
|
89
|
|
SECTION 19.13.
|
Assignment
|
89
|
|
|
|
|
|
|
|
|
|
EXHIBIT A – Form of Junior Subordinated Convertible
Debenture
|
|
v
CROSS-REFERENCE
TABLE
|
Trust
Indenture Act
Section
|
|
Indenture
Section
|
|
Section 310
|
(a)(1)
|
|
|
6.09
|
|
|
(a)(2)
|
|
|
6.09
|
|
|
(a)(3)
|
|
|
6.14
|
|
|
(a)(4)
|
|
|
Not Applicable
|
|
|
(a)(5)
|
|
|
6.09; 6.11
|
|
|
(b)
|
|
|
6.08; 6.10; 6.11
|
|
|
(c)
|
|
|
Not Applicable
|
|
Section 311
|
(a)
|
|
|
6.13
|
|
|
(b)
|
|
|
6.13
|
|
|
(c)
|
|
|
Not Applicable
|
|
Section 312
|
(a)
|
|
|
4.01
|
|
|
(b)
|
|
|
4.02
|
|
|
(c)
|
|
|
4.02
|
|
Section 313
|
(a)
|
|
|
4.04(a)
|
|
|
(b)
|
|
|
4.04(a)
|
|
|
(c)
|
|
|
4.04(a); 19.04
|
|
|
(d)
|
|
|
4.04(b)
|
|
Section 314
|
(a)
|
|
|
4.03
|
|
|
(b)
|
|
|
Not Applicable
|
|
|
(c)(1)
|
|
|
6.02; 9.05; 11.05
|
|
|
(c)(2)
|
|
|
6.02; 9.05; 11.05
|
|
|
(c)(3)
|
|
|
Not Applicable
|
|
|
(d)
|
|
|
Not Applicable
|
|
|
(e)
|
|
|
19.06
|
|
|
(f)
|
|
|
Not Applicable
|
|
Section 315
|
(a)
|
|
|
6.01
|
|
|
(b)
|
|
|
5.08
|
|
|
(c)
|
|
|
6.01
|
|
|
(d)
|
|
|
6.01
|
|
|
(e)
|
|
|
5.09
|
|
Section 316
|
(a)
|
|
|
7.04
|
|
|
(a)(1)(A)
|
|
|
5.07
|
|
|
(a)(1)(B)
|
|
|
5.07
|
|
|
(a)(2)
|
|
|
Not Applicable
|
|
|
(b)
|
|
|
5.04; 4.02
|
|
|
(c)
|
|
|
7.01
|
|
Section 317
|
(a)(1)
|
|
|
5.01; 5.05
|
|
|
(a)(2)
|
|
|
5.01; 5.02
|
|
|
(b)
|
|
|
6.05
|
|
Section
|
318 (a)
|
|
|
19.08
|
* This Cross-Reference Table shall not, for any
purpose, be deemed a part of this Indenture.
vi
THIS INDENTURE, dated as of October 17, 2007, between
Affiliated Managers Group, Inc., a Delaware corporation (hereinafter sometimes
called the “Corporation”), and LaSalle Bank National Association, a national
banking association, as debenture trustee (hereinafter sometimes called the “Debenture
Trustee”),
W I T N E
S S E T H
In consideration of the premises, and the purchase of
the Securities (as defined herein) by the holders thereof, the Corporation
covenants and agrees with the Debenture Trustee for the equal and proportionate
benefit of the respective holders from time to time of the Securities, as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01.
Definitions.
The terms defined in this Section 1.01 (except as
herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture shall have the respective meanings specified
in this Section 1.01. All other terms used in this Indenture which are defined
in the Trust Indenture Act (as defined herein), or which are by reference
therein defined in the Securities Act (as defined herein), shall (except as
herein otherwise expressly provided or unless the context otherwise requires)
have the meanings assigned to such terms in said Trust Indenture Act and in
said Securities Act as in force at the date of this Indenture as originally
executed. The following terms have the meanings given to them in the
Declaration: (i) Clearing Agency; (ii) Delaware Trustee; (iii) Property
Trustee; (iv) Administrator; (v) Institutional Administrator; (vi) Preferred
Securities; (vii) Direct Action; (viii) Trust; and (ix) Distributions. All
accounting terms used herein and not expressly defined shall have the meanings
assigned to such terms in accordance with generally accepted accounting
principles, and the term “generally accepted accounting principles” means such
accounting principles as are generally accepted in the U.S. at the time of any
computation. The words “herein,” “hereof” and “hereunder” and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision. The singular includes the plural and
vice versa.
“Additional Sums” shall have the meaning set forth in
Section 2.05(c).
“Affiliate” shall have the meaning given to that term in
Rule 405 under the Securities Act or any successor rule thereunder.
“AMG Capital Trust II” or the “Trust” shall mean AMG
Capital Trust II, a Delaware statutory trust created for the purpose of issuing
its undivided beneficial interests in connection with the issuance of
Securities under this Indenture.
“Associate” shall have the meaning ascribed to such
term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act,
as in effect on the date hereof.
“Authenticating Agent” shall mean any agent or agents
of the Debenture Trustee which at the time shall be appointed and acting
pursuant to Section 6.15.
“Average Closing Price” means (1) with respect to
distributions of rights, warrants or options, the average of the Closing Prices
per share of Common Stock for the five (5) consecutive Trading Days ending
on the date immediately preceding the first public announcement of the
distribution and (2) with respect to other distributions, the average of
the Closing Prices per share of Common Stock for the five (5) consecutive
Trading Days ending on the date immediately preceding the Time of
Determination.
“Bankruptcy Law” shall mean Title 11, U.S. Code, or
any similar federal or state law for the relief of debtors.
“Bid Solicitation Agent” shall have the meaning set
forth in Section 18.03.
“Board of Directors” shall mean either the board of
directors of the Corporation or any duly authorized committee of that board.
“Board Resolution” shall mean a copy of a resolution
certified by the secretary or an assistant secretary of the Corporation 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 Debenture Trustee.
“Business Day” shall mean any day other than a
Saturday or a Sunday or a day on which banking institutions in New York, New
York or Chicago, Illinois are authorized or required by law, regulation or
executive order to close.
“Capital Stock” of any corporation means any and all
shares, interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) stock or other equity
issued by that corporation.
“Cash Percentage” shall have the meaning set forth in
Section 17.01(c).
“Cash Percentage Notice” shall have the meaning set
forth in Section 17.01(c).
“Change in Control” shall have the meaning set forth
in Section 17.04.
“Closing Price” with respect to any securities on any
date means the closing price per share (or, if no closing price is reported,
the average of the bid and ask prices or, if more than one in either case, the
average of the average bid and average ask prices) on such date as reported in
the composite transactions for the principal United States securities exchange
on which such security is traded or, if the security is not listed on a United
States national or regional securities exchange, as reported by the National
Quotation Bureau Incorporated, or if not so available, in such manner as
furnished by any New York Stock Exchange member firm selected from time to time
by the Board of Directors for that purpose, or a price determined in good faith
by the Board of Directors or, to the extent permitted by applicable law, a duly
authorized committee thereof, whose determination shall be conclusive.
“Code” means the Internal Revenue Code of 1986, as
amended from time to time, or any successor legislation.
2
“Commission” shall mean the United States Securities
and Exchange Commission, as from time to time constituted, created under the
Exchange Act, or if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
“Common Securities” shall mean undivided beneficial
interests in the assets of the Trust which are designated as “Common Securities”
and rank
pari passu
with Preferred Securities
issued by the Trust, subject to the terms of the Declaration.
“Common Stock” shall mean the common stock, par value
$0.01 per share, of the Corporation or any other class of stock resulting from
changes or reclassifications of such Common Stock consisting solely of changes
in par value, or from par value to no par value, or from no par value to par
value.
“Compounded Interest” shall have the meaning set forth
in Section 16.01.
“Contingent Interest” means such interest payable in
accordance with the provisions of Article XVIII hereof.
“Contingent Interest Payment Date” shall have the
meaning set forth in Section 18.02.
“Contingent Interest Record Date” shall have the
meaning set forth in Section 18.02.
“Conversion Obligation” shall have the meaning set
forth in 17.02(c)
“Conversion Date” shall have the meaning set forth in
Section 17.02(a).
“Conversion Price” shall mean the quotient obtained by
dividing $50.00 by the Conversion Rate and rounding the result to four decimal
places.
“Conversion Rate” shall have the meaning set forth in
Section 17.01.
“Conversion Reference Period” means (a) for
Securities that are converted during the period beginning on the 30th day prior
to the Maturity Date, the ten consecutive Trading Days beginning on the third
Trading Day following the Maturity Date and (b) in all other instances,
the ten consecutive Trading Days beginning on the third Trading Day following
the Conversion Date.
“Conversion Request” means (a) the irrevocable request
to be given by a Securityholder to the Conversion Agent directing the
Conversion Agent to convert the Securities into shares of Common Stock and (b)
the irrevocable request to be given by a holder of Preferred Securities to the
Conversion Agent directing the Conversion Agent to exchange such stock on
behalf of such holder.
“Conversion Value” means the product of (1) the
Conversion Rate then in effect multiplied by (2) the average of the Volume
Weighted Average Price per share of Common Stock on each of the Trading Days
during the Conversion Reference Period.
3
“Corporation” shall mean Affiliated Managers Group,
Inc., a Delaware corporation, and, subject to the provisions of Article X,
shall include its successors and assigns.
“Corporation Request” or “Corporation Order” shall
mean a written request or order signed in the name of the Corporation by the
Chairman of the Board of Directors, the Chief Executive Officer, the Chief
Financial Officer, a President, a Vice President, the Comptroller or the
Secretary of the Corporation, and delivered to the Debenture Trustee.
“Coupon Rate” shall have the meaning set forth in
Section 2.05.
“CPDI Regulations” shall mean the United States
Treasury Regulations governing contingent payment debt instruments, including
Treasury Regulation section 1.1275-4.
“Current Market
Price” shall mean the average of the daily Closing Prices per share of Common
Stock for the ten consecutive Trading Days ending not later than the earlier of
the date immediately prior to the date in question and the day before the “ex”
date with respect to the issuance, distribution, subdivision or combination
requiring such computation. If another issuance, distribution, subdivision or
combination to which Section 17.03 applies occurs during the period applicable
for calculating “Current Market Price” pursuant to the preceding definition,
then “Current Market Price” shall be appropriately adjusted to reflect the
impact of such issuance, distribution, subdivision or combination on the
Closing Price of the Common Stock during such period. For purposes of this
paragraph, the term “ex” date, when used:
(A)
with
respect to any issuance or distribution, means the first date on which the
Common Stock trades regular way on the relevant exchange or in the relevant
market from which the Closing Price was obtained without the right to receive
such issuance or distribution;
(B)
with
respect to any subdivision or combination of shares of Common Stock, means the
first date on which the Common Stock trades regular way on such exchange or in
such market after the time at which such subdivision or combination becomes
effective; and
(C)
with
respect to any tender or exchange offer, means the first date on which the
Common Stock trades regular way on such exchange or in such market after the
Expiration Time of such offer.
Notwithstanding the foregoing, whenever successive
adjustments to the Conversion Rate are called for pursuant to Section 17.03 such
adjustments shall be made to the Current Market Price as may be necessary or
appropriate to effectuate the intent of Section 17.03 and to avoid unjust or
inequitable results as determined in good faith by the Board of Directors.
“Daily Share Amounts” means, for
each Trading Day of the Conversion Reference Period and each
$50.00 principal amount of Securities surrendered
for conversion, a number of shares (but in no event less than zero)
determined by the following formula:
(Volume
Weighted Average Price per
Conversion Rate in effect
Share
of Common Stock for such Trading Day
x on
the Conversion Date*)
- $50.00
4
Volume
Weighted Average Price per share of Common Stock
for such Trading Day x 10
*appropriately adjusted to take
into account the occurrence on or before such Trading Day of any event which
would require an anti-dilution adjustment
“Debenture Trustee” shall mean the Person identified
as “Debenture Trustee” in the first paragraph hereof, and, subject to the
provisions of Article VI, shall also include its successors and assigns as
Debenture Trustee hereunder.
“Declaration” means the Amended and Restated
Declaration of Trust of the Trust, dated as of October 17, 2007, as amended
from time to time.
“Default” means any event, act or condition that with
notice or lapse of time, or both, would constitute an Event of Default.
“Defaulted Interest” shall have the meaning set forth
in Section 2.10.
“Defeasance Agent” shall have the meaning set forth in
Section 11.05.
“Deferred Interest” shall have the meaning set forth
in Section 16.01.
“Definitive Securities” shall mean those Securities
issued in fully registered certificated form not otherwise in global form.
“Depositary” shall mean, with respect to the
Securities, for which the Corporation shall determine that such Securities will
be issued as a Global Security, The Depository Trust Corporation, New York, New
York, another clearing agency, or any successor registered as a clearing agency
under the Exchange Act or other applicable statute or regulation, which, in
each case, shall be designated by the Corporation pursuant to Section 2.04(d).
“Discharged” shall have the meaning set forth in
Section 11.05.
“Dissolution Event” means the liquidation of the Trust
pursuant to the Declaration, and the distribution of the Securities held by the
Property Trustee to the holders of the Trust Securities issued by the Trust pro
rata in accordance with the Declaration.
“Effective Date” shall have the meaning set forth in
Section 17.04.
“Event of Default” shall mean any event specified in
Section 5.01, continued for the period of time, if any, and after the giving of
the notice, if any, therein designated.
“Ex-Dividend Date” shall have the meaning set forth in
Section 17.03(c)(ii).
“Ex-Dividend Time” shall have the meaning set forth in
the definition of “Time of Determination”.
“Exchange Act” shall mean the Securities Exchange Act
of 1934, as amended from time to time, or any successor legislation.
5
“Exchange Agent” shall have the meaning set forth in
the Declaration.
“Expiration Time” shall have the meaning set forth in
Section 17.03(e).
“Extended Interest Payment Period” shall have the
meaning set forth in Section 16.01.
“Global Security” means, with respect to the
Securities, a Security executed by the Corporation and delivered by the
Debenture Trustee to the Depositary or pursuant to the Depositary’s
instruction, all in accordance with the Indenture, which shall be registered in
the name of the Depositary or its nominee.
“Indebtedness” shall mean, with respect to any Person,
whether recourse is to all or a portion of the assets of the Person and whether
or not contingent, (i) every obligation of the Person for money borrowed; (ii)
every obligation of the Person evidenced by bonds, debentures, notes or other
similar instruments, including obligations incurred in connection with the
acquisition of property, assets or businesses; (iii) every reimbursement
obligation of the Person with respect to letters of credit, banker’s
acceptances or similar facilities issued for the account of the Person; (iv)
every obligation of the Person issued or assumed as the deferred purchase price
of property or services (but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business); (v) every capital
lease obligation of the Person; (vi) all obligations of the Person whether
incurred on or prior to the date of the Indenture or thereafter incurred, for
claims in respect of derivative products, including interest rate, foreign
exchange rate and commodity forward contracts, options and swaps and similar
arrangements; and (vii) every obligation of the type referred to in clauses (i)
through (vi) of another Person and all dividends of another Person the payment
of which, in either case, the first Person has guaranteed or is responsible or
liable for, directly or indirectly, as obligor or otherwise, including such
obligations secured by a lien on any property or asset of the first Person,
whether or not such obligation is assumed by such Person.
“Indebtedness Ranking on a Parity with the Securities”
shall mean Indebtedness, whether outstanding on the date of execution of this
Indenture or hereafter created, assumed or incurred, to the extent such
Indebtedness is expressed by its terms to rank equally with and not prior or
senior to the Securities in the right of payment upon the happening of the
dissolution or winding-up or liquidation or reorganization of the Corporation.
“Indebtedness Ranking Junior to the Securities” shall
mean any Indebtedness, whether outstanding on the date of execution of this
Indenture or hereafter created, assumed or incurred, to the extent such
Indebtedness is expressed by its terms to rank junior to and not equally with
or prior to the Securities (and any other Indebtedness Ranking on a Parity with
the Securities) in right of payment upon the happening of the dissolution or
winding-up or liquidation or reorganization of the Corporation.
“Indenture” shall mean this instrument as originally
executed or, if amended as herein provided, as so amended.
“Interest,” unless otherwise stated in any applicable
provision of this Indenture or the Securities, shall mean, without duplication,
all interest payable hereunder on the principal at the Coupon Rate plus
Compounded Interest, Liquidated Damages, Additional Sums and Contingent
6
Interest, if any, that
may be payable on the Securities pursuant to the terms of the Indenture, and
other amounts payable hereunder with respect to any overdue installment of
principal or Interest.
“Interest Payment Date” shall have the meaning set
forth in Section 2.05(a).
“Investment Company Act” means the Investment Company
Act of 1940 and any statute successor thereto, in such case as amended from
time to time.
“Investment Company Event” means the receipt by the
Corporation and the Trust of an opinion of independent securities counsel
experienced in such matters to the effect that, as a result of (a) any
amendment to, or change (including any announced prospective change) in, any
laws (or any regulations thereunder) of the United States or any rules,
guidelines or policies of any applicable regulatory agency or authority or (b)
any official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of original
issuance of the Preferred Securities, that the Trust is, or within 90 days of
the date of such opinion will be, considered an “investment company” that is
required to be registered under the Investment Company Act.
“Like Amount” means (i) with respect to a redemption
of the Trust Securities, Trust Securities having a liquidation amount equal to
the principal amount of Securities to be paid in accordance with their terms
and (ii) with respect to a distribution of Securities upon the liquidation of
the Trust, Securities having a principal amount equal to the liquidation amount
of the Trust Securities of the holder to whom Securities are distributed.
“Liquidated Damages” shall mean Liquidated Damages
Amount as defined in the Registration Rights Agreement, dated as of October 17,
2007, among the Corporation, the Initial Purchasers (as identified in Schedule
A to the Purchase Agreement) as initial purchasers;
provided,
however
, that Liquidated Damages shall be due and payable only at
the times, in the amounts and to the Persons as provided in the Registration
Rights Agreement.
“Make Whole Shares” shall have the meaning set forth
in Section 17.04(a).
“Market Disruption Event’’ means the occurrence or
existence for more than one half hour period in the aggregate on any scheduled
Trading Day for Common Stock of any suspension or limitation imposed on trading
(by reason of movements in price exceeding limits permitted by the New York
Stock Exchange or otherwise) in Common Stock or in any options, contracts or
future contracts relating to Common Stock, and such suspension or limitation
occurs or exists at any time before 1:00 p.m. (New York City time) on such day.
“Maturity Date” shall mean October 15, 2037.
“Mortgage” shall mean and include any mortgage,
pledge, lien, security interest, conditional sale or other title retention
agreement or other similar encumbrance.
“Non-Book-Entry Preferred Securities” shall have the
meaning set forth in Section 2.04(a)(ii).
7
“Officers” shall mean any of the Chairman of the Board
of Directors, the Chief Executive Officer, a President, a Vice President, the
Chief Financial Officer, the Comptroller or a Secretary of the Corporation.
“Officers’ Certificate” shall mean a certificate
signed by two Officers and delivered to the Debenture Trustee.
“Opinion of Counsel” shall mean a written opinion of
counsel, who may be an employee of the Corporation, and who shall be reasonably
acceptable to the Debenture Trustee.
“Other Debentures” means all junior subordinated
debentures issued by the Corporation from time to time and sold to trusts
established or to be established by the Corporation (if any), in each case
similar to the Trust.
“Other Guarantees” means all guarantees to be issued
by the Corporation with respect to preferred securities (if any) and issued to
other trusts established or to be established by the Corporation (if any), in
each case similar to the Trust.
The term “outstanding” when used with reference to the
Securities, shall mean, subject to the provisions of Section 7.04, as of any
particular time, all Securities authenticated and delivered by the Debenture
Trustee or the Authenticating Agent under this Indenture, except
(a)
Securities
theretofore cancelled by the Debenture Trustee or the Authenticating Agent or
delivered to the Debenture Trustee for cancellation;
(b)
Securities,
or portions thereof, for the payment or redemption of which moneys in the
necessary amount shall have been deposited in trust with the Debenture Trustee
or with any paying agent (other than the Corporation) or shall have been set
aside and segregated in trust by the Corporation (if the Corporation shall act
as its own paying agent); provided that, if such Securities, or portions
thereof, are to be redeemed prior to maturity thereof, notice of such
redemption shall have been given as set forth in Article XIV or provision
satisfactory to the Debenture Trustee shall have been made for giving such
notice; and
(c)
Securities
in lieu of or in substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of Section 2.07 unless proof
satisfactory to the Corporation and the Debenture Trustee is presented that any
such Securities are held by bona fide holders in due course.
“Person” or “persons” shall mean any individual,
corporation, estate, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization, or
government or any agency or political subdivision thereof or any other entity
of whatever nature.
“Post-Distribution Price” shall have the meaning set
forth in Section 17.03(c)(ii).
“Predecessor Security” of any particular Security
means every previous Security evidencing all or a portion of the same debt and
as that evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 2.07
8
in lieu of a lost,
destroyed or stolen security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
“Preferred Securities” shall mean undivided beneficial
interests in the assets of the Trust which are designated as “Preferred
Securities” and rank
pari passu
with
the Common Securities issued by the Trust, subject to the terms of the
Declaration.
“Principal Office of the Debenture Trustee,” or other
similar term, shall mean the office of the Debenture Trustee, at which at any
particular time its corporate trust business shall be administered, which
office at the date of execution of this Indenture is located at 540 West
Madison Street, Suite 2500, Chicago, Illinois
60661, Attn: CDO Trust Services Group - AMG Capital Trust II.
“Property Trustee” shall have the same meaning as set
forth in the Declaration.
“Purchase Agreement” shall mean the Purchase
Agreement, dated October 11, 2007, among the Corporation, the Trust and the
initial purchasers named therein.
“Purchased Shares” shall have the meaning set forth in
Section 17.03(e).
“Quarterly Period” shall have the meaning set forth in
Section 18.01.
“Redemption Date” or “redemption date” or “date fixed
for redemption,” when used with respect to any Security to be redeemed, means
the date fixed for such redemption pursuant to this Indenture.
“Redemption Price” shall mean an amount equal to 100%
of the principal amount of Securities to be redeemed plus accrued and unpaid
Interest (including Contingent Interest, if any) thereon to the date of such
redemption.
“Remaining Shares” shall have the meaning set forth in
Section 17 .01(c).
“Repurchase Date” has the meaning set forth in Section
13.01.
“Repurchase Notice” shall have the meaning set forth
in Section 13.03.
“Repurchase Right” shall have the meaning specified in
Section 13.01.
“Required Cash Amount” shall have the meaning set
forth in Section 17.01(c).
“Responsible Officer” shall mean any officer in the
Principal Office of the Debenture Trustee with direct responsibility for the
administration of the Indenture 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.
“Restricted Securities” shall have the meaning set
forth in Section 2.06(b).
“Securities” or “Security” mean any debt securities or
debt security, as the case may be, authenticated and delivered under this
Indenture.
9
“Securities Act” shall mean the Securities Act of
1933, as amended from time to time, or any successor legislation.
“Securityholder”, “holder of Securities”, “Holder” or
other similar terms shall mean any Person in whose name at the time a
particular Security is registered on the Security Register kept by the
Corporation or the Debenture Trustee for that purpose in accordance with the
terms hereof.
“Security Market Price” shall have the meaning set
forth in Section 18.01.
“Security Register” shall mean (i) prior to a
Dissolution Event, the list of holders provided to the Debenture Trustee
pursuant to Section 4.01, and (ii) following a Dissolution Event, any security
register maintained by a security registrar for the Securities appointed by the
Corporation following the execution of a supplemental indenture providing for
transfer procedures as provided for in Section 2.06(a).
“Senior Indebtedness” shall mean the principal of (and
premium, if any), interest, if any, on and all other obligations with respect
to all Indebtedness, whether outstanding on the date of execution of this
Indenture or hereafter created, assumed or incurred, except Indebtedness Ranking
on a Parity with the Securities or Indebtedness Ranking Junior to the
Securities, and any deferrals, renewals, refinancings, replacements or
extensions of such Senior Indebtedness.
“Special Event” means either an Investment Company
Event or a Tax Event.
“Stock Price” shall have the meaning set forth in
Section 17.04(a).
“Subsidiary” shall mean with respect to any Person,
(i) any corporation at least a majority of the outstanding voting stock of
which is owned, directly or indirectly, by such Person or by one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of
whose outstanding partnership or similar interests shall at the time be owned
by such Person, or by one or more of its Subsidiaries, or by such Person and
one or more of its Subsidiaries and (iii) any limited partnership of which such
Person or any of its Subsidiaries is a general partner. For the purposes of
this definition, “voting stock” means shares, interests, participations or
other equivalents in the equity interest (however designated) in such Person
having ordinary voting power for the election of a majority of the directors
(or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the
occurrence of a contingency.
“Tax Event” shall mean the receipt by the Corporation
and the Trust of an opinion of independent tax counsel experienced in such
matters to the effect that, as a result of (a) any amendment to, change in or
announced prospective change in, the laws or any regulations thereunder of the
United States or any political subdivision or taxing authority thereof or
therein, or (b) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement or decision is announced on or after the date
of original issuance of the Preferred Securities, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days of the date
of such opinion, subject to United States federal income tax with respect to
interest received or accrued
10
on the Securities, (ii)
interest payable by the Corporation on the Securities is not, or within 90 days
of the date of such opinion will not be, deductible by the Corporation, in
whole or in part, for United States federal income tax purposes or (iii) the
Trust is, or will be within 90 days of the date of such opinion, subject to
more than a
de minimis
amount of other taxes, duties
or other governmental charges.
“Tax Original Issue Discount” means the amount of
ordinary interest income on a Security that must be accrued as original issue
discount for United States federal income tax purposes pursuant to Treasury
Regulation section 1.1275-4.
“Tender Expiration Time” shall have the meaning set
forth in Section 17.03(e).
“Time of Determination” means the time and date of the
earlier of (i) the determination of stockholders entitled to receive rights,
warrants or options, dividends or a distribution, in each case, to which
Sections 17.03(b), (c) or (e) applies and (ii) the time (“Ex-Dividend Time”)
immediately prior to the commencement of “ex-dividend” trading for such rights,
warrants or options or distribution on the national or regional exchange or
market on which the Common Stock is then listed or quoted.
“Trading Day” means any day on which (i) there is no
Market Disruption Event and (ii) the New York Stock Exchange is open for
trading, or, if the Common Stock is not listed on the New York Stock Exchange,
any day which the principal national securities exchange on which the Common
Stock is listed is open for trading, or if the Common Stock is not so listed on
a national securities exchange, any Business Day. A “Trading Day” only includes
those days that have a scheduled closing time of 4:00 p.m. (New York City time)
or the then standard closing time for regular trading on the relevant exchange
or trading system.
“Treasury Regulations” means the income tax
regulations, including temporary and proposed regulations, promulgated under
the Code by the United States Treasury, as such regulations may be amended from
time to time (including corresponding provisions of succeeding regulations).
“Trust
Indenture Act” shall mean the Trust Indenture Act of 1939 as in force at the
date of execution of this Indenture, except as provided in Section 9.03;
provided, however
, that, in the event the Trust Indenture
Act is amended after such date, “Trust Indenture Act” shall mean, to the extent
required by any such amendment, the Trust Indenture Act as so amended.
“Trust Securities” shall mean the Preferred Securities
and the Common Securities, collectively.
“Trust Securities Guarantee” shall mean any guarantee
that the Corporation may enter into with LaSalle Bank National Association or
other Persons that operates directly or indirectly for the benefit of holders
of Preferred Securities and the Common Securities, if any.
“U.S. Government Obligations” shall mean securities
that are (i) direct obligations of the United States of America for the payment
of which its full faith and credit is pledged or (ii) obligations 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
11
and credit obligation by
the United States of America, which, in either case under clauses (i) or (ii)
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held
by such custodian for the account of the holder of a depository receipt,
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 depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of interest on or principal of
the U.S. Government Obligation evidenced by such depository receipt.
“Volume Weighted Average Price” means the price per
share of the Common Stock on any Trading Day as displayed on Bloomberg (or any
successor service) page _ AMG
<equity> VAP in respect of the period from 9:30 a.m. to 4:00 p.m. (New
York City time), on such Trading Day; or, if such price is not available, the
market value per share of the Common Stock on such day as determined by a
nationally recognized independent investment banking firm retained for this
purpose by the Corporation.
ARTICLE
II
SECURITIES
SECTION 2.01.
Forms
Generally.
The Securities and the Debenture Trustee’s certificate
of authentication shall be substantially in the form of Exhibit A, the terms of
which are incorporated in and made a part of this Indenture. The Securities may
have notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Corporation is subject or usage. Each Security shall be
dated the date of its authentication. The Securities shall be issued in
denominations of $50.00 and integral multiples thereof.
SECTION 2.02.
Execution
and Authentication.
One Officer shall sign the Securities for the
Corporation by manual or facsimile signature. If an Officer whose signature is
on a Security no longer holds that office at the time the Security is
authenticated, the Security shall nevertheless be valid.
A Security shall not be valid until authenticated by
the manual signature of the Debenture Trustee. The signature of the Debenture
Trustee shall be conclusive evidence that the Security has been authenticated
under this Indenture. The form of Debenture Trustee’s certificate of
authentication to be borne by the Securities shall be substantially as set
forth in Exhibit A hereto.
The Debenture Trustee shall, upon a Corporation Order,
authenticate for original issue up to, and the aggregate principal amount of
Securities outstanding at any time may not exceed, $500,010,000 aggregate
principal amount of the Securities.
12
SECTION 2.03.
Form
and Payment.
Except as provided in Section 2.04, the Securities
shall be issued in fully registered certificated form without interest coupons.
Principal of and Interest on the Securities issued in certificated form will be
payable, the transfer of such Securities will be registrable and such
Securities will be exchangeable for Securities bearing identical terms and provisions
at the office or agency of the Corporation maintained for such purpose under
Section 3.02;
provided, however
, that payment
of Interest with respect to Securities (other than a Global Security) may be
made at the option of the Corporation (i) by check mailed to the holder at such
address as shall appear in the Security Register or (ii) by transfer to an
account maintained by the Person entitled thereto, provided that proper
transfer instructions have been received in writing by the relevant record date.
Notwithstanding the foregoing, so long as the holder of any Securities is the
Property Trustee, the payment of the principal of and Interest on such
Securities held by the Property Trustee will be made at such place and to such
account as may be designated by the Property Trustee.
SECTION 2.04.
Global
Security.
(a)
In
connection with a Dissolution Event,
(i)
if
any Preferred Securities are held in book-entry form, a Like Amount of
Definitive Securities shall be presented to the Debenture Trustee (if an arrangement
with the Depositary has been maintained) by the Property Trustee in exchange
for one or more Global Securities (as may be required pursuant to Section
2.06), to be registered in the name of the Depositary, or its nominee, and
delivered by the Debenture Trustee to the Depositary for crediting to the
accounts of its participants pursuant to the instructions of the
Administrators; the Corporation upon any such presentation shall execute one or
more Global Securities in such aggregate principal amount and deliver the same
to the Debenture Trustee for authentication and delivery in accordance with
this Indenture; and payments on the Securities issued as a Global Security will
be made to the Depositary; and
(ii)
if
any Preferred Securities are held in certificated form, the related Definitive
Securities may be presented to the Debenture Trustee by the Property Trustee
and any Preferred Security certificate which represents Preferred Securities
other than Preferred Securities in book-entry form (“Non-Book-Entry Preferred
Securities”) will be deemed to represent beneficial interests in Securities
presented to the Debenture Trustee by the Property Trustee having an aggregate
principal amount equal to the aggregate liquidation amount of the
Non-Book-Entry Preferred Securities until such Preferred Security certificates
are presented to the security registrar for the Securities for transfer or
reissuance, at which time such Preferred Security certificates will be
cancelled and a Security, registered in the name of the holder of the Preferred
Security certificate or the transferee of the holder of such Preferred Security
certificate, as the case may be, with an aggregate principal amount equal to
the aggregate liquidation amount of the Preferred Security certificate
cancelled, will be executed by the Corporation and delivered to the Debenture
Trustee for authentication and delivery in accordance with this Indenture. Upon
the issuance of such Securities, Securities with an equivalent aggregate
principal
13
amount that
were presented by the Property Trustee to the Debenture Trustee will be
cancelled.
(b)
The
Global Securities shall represent the aggregate amount of outstanding
Securities from time to time endorsed thereon; provided, that the aggregate
amount of outstanding Securities represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges, conversions and
redemptions. Any endorsement of a Global Security to reflect the amount of any
increase or decrease in the amount of outstanding Securities represented
thereby shall be made by the Debenture Trustee, in accordance with instructions
given by the Corporation as required by this Section 2.04.
(c)
The
Global Securities may be transferred, in whole but not in part, only to the Depositary,
another nominee of the Depositary, or to a successor Depositary selected or
approved by the Corporation or to a nominee of such successor Depositary.
(d)
If
at any time the Depositary notifies the Corporation that it is unwilling or
unable to continue as Depositary or the Depositary has ceased to be a clearing
agency registered under the Exchange Act, and a successor Depositary is not
appointed by the Corporation within 90 days after the Corporation receives such
notice or becomes aware of such condition, as the case may be, the Corporation
will execute, and the Debenture Trustee, upon receipt of a Corporation Order,
will authenticate and make available for delivery the Definitive Securities, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security, in exchange for such Global Security,
which shall bear the legends set forth in Section 2.06 hereof and Exhibit A. If
there is an Event of Default, the Depositary shall have the right to exchange
the Global Securities for Definitive Securities. In addition, the Corporation
may at any time determine that the Securities shall no longer be represented by
a Global Security. In the event of such an Event of Default or such a
determination, the Corporation shall execute, and subject to Section 2.07, the
Debenture Trustee, upon receipt of an Officers’ Certificate evidencing such
determination by the Corporation and a Corporation Order, will authenticate and
make available for delivery the Definitive Securities, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security in exchange for such Global Security. Upon the
exchange of the Global Security for such Definitive Securities, in authorized denominations,
the Global Security shall be cancelled by the Debenture Trustee. Such
Definitive Securities issued in exchange for the Global Security shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Debenture Trustee. The Debenture Trustee shall
deliver such Definitive Securities to the Depositary for delivery to the
Persons in whose names such Definitive Securities are so registered.
SECTION 2.05.
Interest.
(a)
Each
Security will bear interest at the rate of 5.15% per annum (the “Coupon Rate”)
from the most recent date to which interest has been paid or duly provided for
or, if no interest has been paid or duly provided for, from October 17, 2007,
until the principal thereof becomes due and payable, and at the Coupon Rate on
any overdue principal and on any overdue installment of Interest (to the extent
that payment of such interest is enforceable under applicable law), compounded
quarterly, payable (subject to the provisions of Article XVI) quarterly in
14
arrears on January 15, April 15, July 15 and October 15 of each year
(each, an “Interest Payment Date”) commencing on January 15, 2008, to the
Person in whose name such Security or any Predecessor Security is registered,
as of 5:00 p.m., New York City time on the regular record date for such
interest installment, which shall be the first day of the month, whether or not
a Business Day, in which the relevant Interest Payment Date occurs.
(b)
Interest
will be computed on the basis of a 360-day year consisting of twelve 30-day
months. In the event that any Interest Payment Date falls on a day that is not
a Business Day, then payment of Interest payable on such date will be made on
the next succeeding day which is a Business Day (and without any Interest or
other payment in respect of any such delay), except that if such next
succeeding Business Day falls in the next succeeding calendar year, then such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date.
(c)
If
at any time the Trust is required to pay any taxes, duties, assessments or
governmental charges of whatever nature, other than withholding taxes, imposed
by the United States, or any other taxing authority, then the Corporation will
be required to pay additional amounts on the Securities. The additional amounts
will be sufficient so that the net amounts received and retained by the Trust
after paying any such taxes, duties, assessments or other governmental charges
will be not less than the amounts the Trust would have received had no such
taxes, duties, assessments or other governmental charges been imposed. The
intention of this clause is that the Trust will be in the same position it
would have been if it did not have to pay such taxes, duties, assessments or
other charges. The amounts payable pursuant to this paragraph are referred to
as “Additional Sums.”
(d)
Contingent
Interest, if any, shall be calculated and paid in accordance with the
provisions of Article XVIII hereof.
SECTION 2.06.
Transfer
and Exchange.
(a)
To
permit registrations of transfers, the Corporation shall execute and the
Debenture Trustee shall authenticate Definitive Securities and Global
Securities at the request of the security registrar for the Securities. All
Definitive Securities and Global Securities issued upon any registration of
transfer or exchange of Definitive Securities or Global Securities shall be the
valid obligations of the Corporation, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Definitive Securities or Global
Securities surrendered upon such registration of transfer or exchange.
No service charge shall be made to a holder for any
registration of transfer or exchange, but the Corporation may require payment
of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith.
The Corporation shall not be required to (i) issue,
register the transfer of or exchange Securities during a period beginning at
the opening of business 15 days before the day of mailing of a notice of
redemption or any notice of selection of Securities for redemption under
Article XIV hereof and ending at the close of business on the day of such
mailing; or (ii) register the
15
transfer of or exchange
of any Securities selected for redemption in whole or in part except, in the
case of any Securities being redeemed in part, any portion thereof not to be redeemed.
Prior to due presentment for the registration of a
transfer of any Security, the Debenture Trustee, the Corporation and any agent
of the Debenture Trustee or the Corporation may deem and treat the Person in
whose name any Security is registered as the absolute owner of such Security
for the purpose of receiving payment of principal of and Interest on such
Securities, and none of the Debenture Trustee, the Corporation and any agents
of the Debenture Trustee or the Corporation shall be affected by notice to the
contrary.
(b)
Every
Security that bears or is required under this Section 2.06(b) to bear the
legend set forth in this Section 2.06(b) (together with any Common Stock issued
upon conversion of the Securities and required to bear the legend set forth in
Section 2.06(c), collectively, the “Restricted Securities”) or Section 2.06(c),
as the case may be, shall be subject to the restrictions on transfer set forth
in this Section 2.06(b) or Section 2.06(c), as the case may be, (including
those set forth in the legends set forth below) unless such restrictions on
transfer shall be waived by written consent of the Corporation, and the Holder
of each such Restricted Security, by such Holder’s acceptance thereof, agrees
to be bound by all such restrictions on transfer. As used in Sections 2.06(b)
and 2.06(c), the term “transfer” encompasses any sale, pledge, transfer or
other disposition whatsoever of any Restricted Security.
Until the expiration of the holding period applicable
to sales thereof under Rule 144(k) under the Securities Act (or any successor
provision) and provided that the holder has not been an Affiliate of the
Corporation at any time during the three-month period preceding such date, any
certificate evidencing such Security and all Securities issued in exchange
therefor or substitution thereof (other than Common Stock, if any, issued upon
conversion thereof, which shall bear the legend set forth in Section 2.06(c),
if applicable) shall bear a legend in substantially the following form, unless
such Security has been sold pursuant to a registration statement that has been
declared effective under the Securities Act (and which continues to be
effective at the time of such transfer), or unless otherwise agreed by the
Corporation in writing, with written notice thereof to the Trustee:
THIS SECURITY AND THE SHARES OF AFFILIATED MANAGERS
GROUP, INC. COMMON STOCK ISSUABLE UPON CONVERSION HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY
STATE SECURITIES LAWS. NEITHER THIS SECURITY, THE SHARES OF UNDERLYING
AFFILIATED MANAGERS GROUP, INC. COMMON STOCK ISSUABLE UPON CONVERSION OF THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS
SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY, PRIOR TO THE DATE (THE ‘‘RESALE RESTRICTION TERMINATION DATE’’)
WHEN THE HOLDER OF THIS SECURITY, OTHER THAN A HOLDER WHO IS AN AFFILIATE OF
AFFILIATED
16
MANAGERS GROUP,
INC., IS ABLE TO SELL THIS SECURITY IMMEDIATELY WITHOUT RESTRICTION OR BEING
SUBJECT TO ANY CONDITIONS PURSUANT TO RULE 144 UNDER THE SECURITIES ACT OR ANY
SUCCESSOR RULE THERETO ONLY (A) TO AFFILIATED MANAGERS GROUP, INC. OR ANY
SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A ‘‘QUALIFIED
INSTITUTIONAL BUYER’’ AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (C) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
AFFILIATED MANAGERS GROUP, INC.’S, AND THE TRANSFER AGENT’S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRANSFER AGENT. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER UPON THE EARLIER OF THE TRANSFER OF THE
SECURITIES EVIDENCED HEREBY PURSUANT TO CLAUSE (C) ABOVE AND THE RESALE
RESTRICTION TERMINATION DATE. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE
HEREOF, AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY
EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (C)
ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
(c)
Until
the expiration of the holding period applicable to sales thereof under Rule
144(k) under the Securities Act (or any successor provision), any stock
certificate representing Common Stock issued upon conversion of such Security
shall bear a legend in substantially the following form, unless such Common
Stock has been sold pursuant to a registration statement that has been declared
effective under the Securities Act (and which continues to be effective at the
time of such transfer) or such Common Stock has been issued upon conversion of
Securities that have been transferred pursuant to a registration statement that
has been declared effective under the Securities Act, or unless otherwise
agreed by the Corporation in writing with written notice thereof to the
transfer agent:
THIS SECURITY HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE ‘‘SECURITIES
ACT’’), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
17
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF,
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE
(THE ‘‘RESALE RESTRICTION TERMINATION DATE’’) WHEN THE HOLDER OF THIS SECURITY
OTHER THAN A HOLDER WHO IS AN AFFILIATE OF AFFILIATED MANAGERS GROUP, INC., IS
ABLE TO SELL THIS SECURITY IMMEDIATELY WITHOUT RESTRICTION OR BEING SUBJECT TO
ANY CONDITIONS PURSUANT TO RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR
RULE THERETO ONLY (A) TO AFFILIATED MANAGERS GROUP, INC. OR ANY SUBSIDIARY
THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A ‘‘QUALIFIED INSTITUTIONAL
BUYER’’ AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO AFFILIATED MANAGERS
GROUP, INC.’S, AND THE DEBENTURE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE DEBENTURE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER UPON THE EARLIER OF THE TRANSFER OF THE SECURITIES
EVIDENCED HEREBY PURSUANT TO CLAUSE (C) ABOVE AND THE RESALE RESTRICTION
TERMINATION DATE. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS
TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (C) ABOVE) A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
(d)
The
Debenture Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global Security) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof. The
Debenture Trustee shall have no responsibility for the actions or omissions of
the Depositary, or the accuracy of the books and records of the Depositary.
SECTION 2.07.
Replacement
Securities.
If any mutilated Security is surrendered to the
Debenture Trustee, or the Corporation and the Debenture Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any
Security, the Corporation shall issue and the Debenture Trustee shall
authenticate a replacement
18
Security if the Debenture
Trustee’s and the Corporation’s requirements, as the case may be, for
replacements of Securities are met. An indemnity bond must be supplied by the
holder that is sufficient in the judgment of the Debenture Trustee and the
Corporation to protect the Corporation, the Debenture Trustee, any agent
thereof or any authenticating agent from any loss that any of them may suffer
if a Security is replaced. The Corporation or the Debenture Trustee may charge
for its expenses in replacing a Security.
Every replacement Security is an obligation of the
Corporation and shall be entitled to all of the benefits of this Indenture
equally and proportionately with all other Securities duly issued hereunder.
SECTION 2.08.
Temporary
Securities.
Pending the preparation of Definitive Securities, the
Corporation may execute, and upon receipt of a Corporation Order the Debenture
Trustee shall authenticate and make available for delivery, temporary
Securities that are printed, lithographed, typewritten, mimeographed or
otherwise reproduced, 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 conclusively evidenced
by their execution of such Securities.
If temporary Securities are issued, the Corporation
shall cause Definitive Securities to be prepared without unreasonable delay.
The Definitive Securities shall be printed, lithographed or engraved, or
provided by any combination thereof, or in any other manner permitted by the
rules and regulations of any applicable securities exchange, all as determined
by the officers executing such Definitive Securities. After the preparation of
Definitive Securities, the temporary Securities shall be exchangeable for
Definitive Securities upon surrender of the temporary Securities at the office
or agency maintained by the Corporation for such purpose pursuant to Section
3.02 hereof, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities, the Corporation shall execute, and the
Debenture Trustee, upon receipt of a Corporation Order, shall authenticate and
make available for delivery, in exchange therefor the same aggregate principal
amount of Definitive Securities of authorized denominations. Until so
exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as Definitive Securities.
SECTION 2.09.
Cancellation.
The Corporation at any time may deliver Securities to
the Debenture Trustee for cancellation. The Debenture Trustee and no one else
shall cancel all Securities surrendered for registration of transfer, exchange,
payment, replacement, conversion or cancellation and shall retain or destroy
cancelled Securities in accordance with its normal practices (subject to the
record retention requirement of the Exchange Act) unless the Corporation
directs them to be returned to it. The Corporation may not issue new Securities
to replace Securities that have been redeemed, converted or paid (except to
evidence any portion that has not been redeemed, converted or paid) or that
have been delivered to the Debenture Trustee for cancellation.
19
SECTION 2.10.
Defaulted
Interest.
Any Interest, or Contingent Interest, if any, on any
Security that is payable, but is not punctually paid or duly provided for, on
any Interest Payment Date or Contingent Interest Payment Date, as applicable
(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 shall be paid by the Corporation, at its
election, as provided in clause (a) or clause (b) below:
(a)
The
Corporation may make payment of any Defaulted Interest on Securities 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 Corporation shall notify the Debenture Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each such Security
and the date of the proposed payment (which date shall be sufficiently in
advance of such notice to permit the Debenture Trustee time to take the actions
contemplated by this Section 2.10), and at the same time the Corporation shall
deposit with the Debenture 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 Debenture 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 Debenture Trustee shall fix a special record
date for the payment of such Defaulted Interest which shall not be more than 15
nor less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Debenture Trustee of the notice of the
proposed payment. The Debenture Trustee shall promptly notify the Corporation
of such special record date and, in the name and at the expense of the
Corporation, shall cause notice of the proposed payment of such Defaulted
Interest and the special record date therefor to be mailed, first class postage
prepaid, to each Securityholder at his or her address as it appears in the
Security Register, not less than 10 days prior to such special record date. Notice
of the proposed payment of such Defaulted Interest and the special record date
therefor having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names such Securities (or their respective Predecessor
Securities) are registered on such special record date and shall be no longer
payable pursuant to the following clause (b).
(b)
The
Corporation may make payment of any Defaulted Interest on any Securities 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 Corporation to the
Debenture Trustee of the proposed payment pursuant to this clause, such manner
of payment shall be deemed practicable by the Debenture Trustee.
SECTION 2.11.
CUSIP
Numbers.
The Corporation in issuing the Securities may use “CUSIP”
numbers (if then generally in use), and, if so, the Debenture Trustee shall use
“CUSIP” numbers in notices of redemption or conversion as a convenience to
Securityholders; 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
20
as contained in any
notice of a redemption or conversion and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption or conversion shall not be affected by any defect in or omission of
such numbers. The Corporation will promptly notify the Debenture Trustee of any
change in the CUSIP numbers.
SECTION 2.12.
Tax
Treatment.
(a)
Each
Holder or beneficial owner of a Security (including the Trust), by its
acquisition of a Security, hereby agrees:
(i)
to
treat the Securities for United States federal and state income tax purposes as
indebtedness of the Corporation that is subject to the CPDI Regulations;
(ii)
to
accrue in gross income such Holder’s or beneficial owner’s pro rata share of
the interest income accruing on the Securities (in accordance with the “noncontingent
bond method” set forth in section 1.1275-4(b) of the CPDI Regulations) on a
constant yield to maturity basis at a “comparable yield” (within the meaning of
the CPDI Regulations and treating the fair market value of the common stock to
be received by such Holder or beneficial owner upon conversion, if any, as a
contingent payment) of 8.0%, compounded quarterly, in accordance with the “projected
payment schedule” (within the meaning of section 1.1275-4(b) of the CPDI
Regulations) determined by the Corporation; and
(iii)
to
treat such comparable yield and projected payment schedule as “reasonable” for
the purposes of the CPDI Regulations.
(b)
The
Corporation hereby agrees (i) to treat the Securities for United States federal
and state income tax purposes as indebtedness of the Corporation that is
subject to the CPDI Regulations; (ii) to treat the comparable yield and
projected payment schedule as “reasonable” for the purposes of the CPDI
Regulations; and (iii) and, to treat the Trust as a grantor trust for United
States Federal income tax purposes.
ARTICLE
III
PARTICULAR COVENANTS OF THE CORPORATION
SECTION 3.01.
Payment
of Principal and Interest.
The Corporation covenants and agrees for the benefit
of the holders of the Securities that it will duly and punctually pay or cause
to be paid the principal of and Interest on the Securities at the place, at the
respective times and in the manner provided herein. Except as provided in
Section 2.03, each installment of Interest on the Securities may be paid by
mailing checks for such Interest payable to the order of the holders of
Securities entitled thereto as they appear in the Security Register. The
Corporation further covenants to pay any and all amounts, including, without
limitation, Additional Sums, as may be required pursuant to Section 2.05(c),
Liquidated Damages, as may be required pursuant to the Registration Rights
Agreement, Compounded Interest, as may be required pursuant to Section 16.01,
and Contingent Interest, as may be required pursuant to Section 18.01.
21
SECTION 3.02.
Offices
for Notices and Payments, Etc.
So long as any of the Securities remain outstanding,
the Corporation will maintain an office or agency where the Securities may be
presented for payment, an office or agency where the Securities may be presented
for registration of transfer and for exchange as in this Indenture provided and
an office or agency where notices and demands to or upon the Corporation in
respect of the Securities or of this Indenture may be served. The Corporation
will give to the Debenture Trustee written notice of the location of any such
office or agency and of any change of location thereof. Until otherwise
designated from time to time by the Corporation in a notice to the Debenture
Trustee, any such office or agency for all of the above purposes shall be the
Principal Office of the Debenture Trustee. In case the Corporation shall fail
to maintain any such office or agency, or shall fail to give such notice of the
location or of any change in the location thereof, presentations and demands
may be made and notices may be served at the Principal Office of the Debenture
Trustee.
In addition to any such office or agency, the
Corporation may from time to time designate one or more offices or agencies
where the Securities may be presented for payment, registration of transfer and
for exchange in the manner provided in this Indenture, and the Corporation may
from time to time rescind such designation, as the Corporation may deem
desirable or expedient. The Corporation will give to the Debenture Trustee
prompt written notice of any such designation or rescission thereof.
SECTION 3.03.
Appointments
to Fill Vacancies in Debenture Trustee’s Office.
The Corporation, whenever necessary to avoid or fill a
vacancy in the office of Debenture Trustee, will appoint, in the manner
provided in Section 6.10, a Debenture Trustee, so that there shall at all times
be a Debenture Trustee hereunder.
SECTION 3.04.
Provision
as to Paying Agent.
(a)
If the Corporation
shall appoint a paying agent other than the Debenture Trustee with respect to
the Securities, it will cause such paying agent to execute and deliver to the
Debenture Trustee an instrument in which such agent shall agree with the
Debenture Trustee, subject to the provision of this Section 3.04,
(i)
that
it will hold all sums held by it as such agent for the payment of the principal
of or Interest on the Securities (whether such sums have been paid to it by the
Corporation or by any other obligor on the Securities) in trust for the benefit
of the holders of the Securities; and
(ii)
that
it will give the Debenture Trustee notice of any failure by the Corporation (or
by any other obligor on the Securities) to make any payment of the principal of
or Interest on the Securities when the same shall be due and payable.
(b)
If the Corporation
shall act as its own paying agent, it will, on or before each due date of the
principal of or Interest on the Securities, set aside, segregate and hold in
trust for the benefit of the holders of the Securities a sum sufficient to pay
such principal or Interest so becoming due and will notify the Debenture
Trustee of any failure to take such action and of any
22
failure by the Corporation (or by any other
obligor under the Securities) to make any payment of the principal of or
Interest on the Securities when the same shall become due and payable.
(c)
Anything in this
Section 3.04 to the contrary notwithstanding, the Corporation may, at any time,
for the purpose of obtaining a satisfaction and discharge with respect to the Securities
hereunder, or for any other reason, pay or cause to be paid to the Debenture
Trustee all sums held in trust for such Securities by the Debenture Trustee or
any paying agent hereunder, as required by this Section 3.04, such sums to be
held by the Debenture Trustee upon the trusts herein contained.
(d)
Anything in this
Section 3.04 to the contrary notwithstanding, the agreement to hold sums in
trust as provided in this Section 3.04 is subject to Sections 11.03 and 11.04.
(e)
The Corporation may
at any time designate additional paying agents or rescind the designation of
any paying agent; provided however, that the Corporation shall always maintain
a paying agent in New York, New York.
SECTION 3.05.
Certificate
to Debenture Trustee.
The Corporation will deliver to the Debenture Trustee
on or before 120 days after the end of each fiscal year of the Corporation,
commencing with the first fiscal year ending after the date hereof, so long as
Securities are outstanding hereunder, an Officers’ Certificate, one of the
signers of which shall be the principal executive, principal financial or
principal accounting officer of the Corporation, stating that in the course of
the performance by the signers of their duties as officers of the Corporation
they would normally have knowledge of any Default by the Corporation in the
performance of any covenants contained herein, stating whether or not they have
knowledge of any such Default and, if so, specifying each such Default of which
the signers have knowledge and the nature thereof. For purposes of this Section
3.05, Default shall be determined without regard to any period of grace or
requirement of notice provided for herein.
SECTION 3.06.
Compliance
with Consolidation Provisions.
The Corporation will not, while any of the Securities
remain outstanding, consolidate with or merge into any other Person or convey,
transfer or lease all or substantially all of its properties to any Person, and
no Person may consolidate with or merge into the Corporation or convey, transfer
or lease all or substantially all of its properties to the Corporation, unless
the provisions of Article X are complied with.
SECTION 3.07.
Limitation
on Dividends.
The Corporation will not, and will not permit any of
its Subsidiaries to, (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any
of the Corporation’s capital stock, (ii) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Corporation (including Other Debentures) that rank
pari passu
with or junior in right of payment to the Securities
or (iii) make any guarantee payments with respect to any guarantee by the
Corporation of the debt securities of any Subsidiary of the Corporation
(including Other Guarantees) if such guarantee ranks
pari passu
with or junior in right of payment to the
23
Securities, if at such
time (1) an event has occurred that with the giving of notice or the lapse of
time, or both, would constitute an Event of Default and the Corporation has not
taken reasonable steps to cure the event, (2) the Corporation shall be in
default with respect to its payment obligations under the Trust Securities
Guarantee or (3) the Corporation shall have given notice of its election of the
exercise of its right to extend the interest payment period pursuant to Section
16.01 and has not rescinded the notice, or any such extension shall be
continuing. The restrictions set forth
in the preceding sentence shall not, however, apply to any of the following:
(a) a payment of dividends or distributions in shares of, or options, warrants
or rights to subscribe for or purchase shares of Common Stock, (b) any
declaration of a dividend in connection with the implementation of, a
shareholder’s rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto,
(c) payments under the Trust Securities Guarantee, (d) a reclassification of
the Corporation’s capital stock or the exchange or conversion of one class or
series of the Corporation’s capital stock for another class or series of the
Corporation’s capital stock, (e) the purchase of fractional interests in shares
of the Corporation’s capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged
and (f) purchases of Common Stock pursuant to any of the Corporation’s
employee, director or agent benefit plans, dividend reinvestment plans, stock
purchase plans or any other contractual obligation of the Corporation other
than a contractual obligation ranking equally with or junior to the Securities.
SECTION 3.08.
Covenants
as to AMG Capital Trust II.
In the event Securities are issued to the Trust or a
trustee of such trust in connection with the issuance of Trust Securities by
the Trust, for so long as such Trust Securities remain outstanding, the
Corporation: (a) will maintain 100% direct or indirect ownership of the Common
Securities of the Trust;
provided, however
,
that any successor of the Corporation, permitted pursuant to Article X, may
succeed to the Corporation’s ownership of such Common Securities, (b) will use
commercially reasonable efforts to cause the Trust to remain a statutory trust,
except in connection with a distribution of Securities to the holders of Trust
Securities in liquidation of the Trust; (c) will not voluntarily terminate,
wind-up or liquidate the Trust, except in connection with (i) a distribution of
the Securities to the holders of the Preferred Securities in liquidation of the
Trust, (ii) the redemption of all of the Preferred Securities and Common
Securities issued by the Trust, (iii) in connection with mergers,
consolidations or amalgamations, in each case as permitted by the Declaration;
(d) will take all actions (or refrain from taking any action), consistent with
the terms and provisions of the Declaration, to cause the Trust to remain
classified as a grantor trust and not as a partnership or an association
taxable as a corporation for United States federal income tax purposes; and (e)
will use its reasonable efforts to ensure that the Trust will not be an “investment
company” for purposes of the Investment Company Act.
SECTION 3.09.
Payment
of Expenses.
The Corporation, in its capacity as borrower with
respect to the Securities, shall:
(a)
pay all costs and
expenses relating to the offering, sale and issuance of the Securities and the
Trust Securities, including commissions to the initial purchasers payable
pursuant to the Purchase Agreement and compensation of the Debenture Trustee in
accordance with the provisions of Section 6.06;
24
(b)
pay all costs and
expenses of the Trust (including, but not limited to, costs and expenses
relating to the organization of the Trust, the offering, sale and issuance of
the Trust Securities (including commissions to the initial purchasers in
connection therewith), the fees and expenses of the Property Trustee, the
Delaware Trustee and the Administrators, the costs and expenses relating to the
operation of the Trust, including, without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of assets of the Trust;
(c)
be primarily and
fully liable for any indemnification obligations arising with respect to the
Declaration;
(d)
pay any and all taxes
duties, assessments and other governmental charges imposed on the Trust by the
United States or any other taxing authority, other than withholding taxes and backup
whithholding taxes, and all liabilities, costs and expenses with respect to
such taxes of the Trust; and
(e)
pay all other fees,
expenses, debts and obligations (other than in respect of the Trust Securities)
related to the Trust.
(f)
The Corporation
acknowledges that any holder of Preferred Securities may enforce the
obligations of the Corporation created under this Section 3.09 pursuant to a
Direct Action by such holder against the Corporation and the Corporation hereby
waives any right or remedy that it has or may have to require that a holder of
the Preferred Securities take action against the Trust or any other person
before proceeding against the Corporation and the Corporation hereby agrees to
execute such additional agreements as may be necessary to give full effect to
the agreement described in this sentence.
SECTION 3.10.
Payment
Upon Resignation or Removal.
Upon termination of this Indenture or the removal or
resignation of the Debenture Trustee, unless otherwise stated, the Corporation
shall pay to the Debenture Trustee all amounts accrued and owing to the
Debenture Trustee to the date of such termination, removal or resignation. Upon
termination of the Declaration or the removal or resignation of the Delaware
Trustee, the Property Trustee or the Institutional Administrator, as the case
may be, pursuant to Section 3.06 or 5.07 of the Declaration, the Corporation
shall pay to the Delaware Trustee, the Property Trustee or the Institutional
Administrator, as the case may be, all amounts accrued and owing to such Person
to the date of such termination, removal or resignation.
25
ARTICLE
IV
SECURITYHOLDERS’ LISTS AND REPORTS BY THE
CORPORATION AND THE DEBENTURE TRUSTEE
SECTION 4.01.
Securityholders’
Lists.
The Corporation covenants and agrees that it will
furnish or cause to be furnished to the Debenture Trustee:
(a)
on each regular
record date for the Securities, a list, in such form as the Debenture Trustee
may reasonably require, of the names and addresses of the Securityholders as of
such record date; and
(b)
at such other times as
the Debenture Trustee may request in writing, within 30 days after the receipt
by the Corporation, 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,
except that, no such lists need be furnished so long as the Debenture Trustee
is in possession thereof by reason of its acting as security registrar for the
Securities.
SECTION 4.02.
Preservation
and Disclosure of Lists.
(a)
The Debenture Trustee
shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of the Securities (1)
contained in the most recent list furnished to it as provided in Section 4.01
or (2) received by it in the capacity of Securities registrar (if so acting)
hereunder. The Debenture Trustee may destroy any list furnished to it as
provided in Section 4.01 upon receipt of a new list so furnished.
(b)
In case three or more
holders of Securities (hereinafter referred to as “applicants”) apply in
writing to the Debenture Trustee and furnish to the Debenture Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other holders of
Securities or with holders of all Securities with respect to their rights under
this Indenture and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Debenture
Trustee shall within 5 Business Days after the receipt of such application, at
its election, either:
(i)
afford
such applicants access to the information preserved at the time by the
Debenture Trustee in accordance with the provisions of Section 4.02(a), or
(ii)
inform
such applicants as to the approximate number of holders of all Securities,
whose names and addresses appear in the information preserved at the time by
the Debenture Trustee in accordance with the provisions of Section 4.02(a), and
as to the approximate cost of mailing to such Securityholders the form of proxy
or other communication, if any, specified in such application.
If the Debenture Trustee shall elect not to afford
such applicants access to such information, the Debenture Trustee shall, upon
the written request of such applicants, mail to each Securityholder whose name
and address appear in the information preserved at the time by
26
the Debenture Trustee in
accordance with the provisions of Section 4.02(a) a copy of the form of proxy
or other communication which is specified in such request with reasonable
promptness after a tender to the Debenture Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five Business Days after such tender, the Debenture
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect that,
in the opinion of the Debenture Trustee, such mailing would be contrary to the
best interests of the holders of Securities of such series or all Securities,
as the case may be, or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Debenture Trustee shall mail copies of such material to
all such Securityholders with reasonable promptness after the entry of such
order and the renewal of such tender; otherwise the Debenture Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c)
Each and every holder
of Securities, by receiving and holding the same, agrees with the Corporation
and the Debenture Trustee that neither the Corporation nor the Debenture
Trustee nor any paying agent shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the holders
of Securities in accordance with the provisions of Section 4.02(b), regardless
of the source from which such information was derived, and that the Debenture
Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 4.02(b).
SECTION 4.03.
Reports
by the Corporation.
(a)
The Corporation
covenants and agrees to file with the Debenture Trustee, within 15 days after
the date on which the Corporation files the same with the Commission, copies of
the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as said Commission may from
time to time by rules and regulations prescribe) which the Corporation may be
required to file with the Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act; or, if the Corporation is not required to file information,
documents or reports pursuant to either of such sections, then to provide to
the Debenture Trustee, such of the supplementary and periodic information,
documents and reports which would have been required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations.
(b)
The Corporation
covenants and agrees to file with the Debenture Trustee and the Commission, in
accordance with the rules and regulations prescribed from time to time by said
Commission, such additional information, documents and reports with respect to
compliance by the Corporation with the conditions and covenants provided for in
this Indenture as may be required from time to time by such rules and
regulations.
27
(c)
The Corporation
covenants and agrees to transmit by mail to all holders of Securities, as the
names and addresses of such holders appear upon the Security Register, within
30 days after the filing thereof with the Debenture Trustee, such summaries of
any information, documents and reports required to be filed by the Corporation
pursuant to Sections 4.03(a) and 4.03(b) as may be required by rules and
regulations prescribed from time to time by the Commission.
(d)
Delivery of such
reports, information and documents to the Debenture Trustee is for
informational purposes only and the Debenture Trustee’s receipt of such shall
not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Corporation’s
compliance with any of its covenants hereunder (as to which the Debenture
Trustee is entitled to rely exclusively on Officers’ Certificates).
SECTION 4.04.
Reports
by the Debenture Trustee.
(a)
The Debenture Trustee
shall transmit to Securityholders such reports concerning the Debenture Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Debenture Trustee shall,
within sixty days after January 1 of each year following the date of this
Indenture, commencing January 1, 2008, deliver to Securityholders a brief
report, which complies with the provisions of such Section 313(a).
(b)
A copy of each such
report shall, at the time of such transmission to Securityholders, be filed by
the Debenture Trustee with each stock exchange, if any, upon which the
Securities are listed, with the Commission and with the Corporation. The
Corporation will promptly notify the Debenture Trustee when the Securities are
listed on any stock exchange.
ARTICLE V
REMEDIES OF THE DEBENTURE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.01.
Events
of Default.
One or more of the following events of default shall
constitute an Event of Default hereunder (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a)
default in the
payment of any Interest (including Contingent Interest, if any) on the
Securities, whether or not such payment is prohibited by the subordination
provisions of Article XV, or any Other Debentures when due, and continuance of
such default for a period of 30 days;
provided, however
,
that a valid extension of an interest payment period by the Corporation in
accordance with the terms hereof shall not constitute a default in the payment
of Interest for this purpose; or
(b)
default in the payment
of any principal of the Securities (whether or not such payment is prohibited
by the subordination provisions of Article XV) or any Other Debentures
28
when due whether at maturity, upon
redemption, by declaration of acceleration of maturity or otherwise; or
(c)
failure by the
Corporation to satisfy its conversion obligations in accordance with the
provisions of Article XVII upon exercise of a holder’s conversion right; or
(d)
default in the
performance, or breach, of any covenant of the Corporation in this Indenture
(other than a covenant a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and continuance of such
default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Corporation by the Debenture Trustee or to
the Corporation and the Debenture Trustee by the holders of at least 25% in
aggregate principal amount of the outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a “Notice of Default” hereunder; or
(e)
a court having
jurisdiction in the premises shall enter a decree or order for relief in
respect of the Corporation in an involuntary case under any applicable
bankruptcy, insolvency, reorganization or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Corporation or for any substantial part
of its property, or ordering the winding-up or liquidation of its affairs and
such decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(f)
the Corporation
shall commence a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, shall consent to the entry of an
order for relief in an involuntary case under any such law, or shall consent to
the appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other similar official) of the Corporation
or of any substantial part of its property, or shall make any general
assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due; or
(g)
the voluntary or
involuntary dissolution, winding-up or termination of the Trust, except in
connection with (i) the distribution of the Securities to the holders of the
Trust Securities in liquidation of the Trust, (ii) the redemption or conversion
of all outstanding Trust Securities of the Trust and (iii) mergers,
consolidations or amalgamations in accordance with the terms and conditions set
forth in Section 3.15 of the Declaration.
If an Event of Default with respect to Securities at
the time outstanding occurs and is continuing, then in every such case the
Debenture Trustee or the holders of not less than 25% in aggregate principal
amount of the Securities then outstanding may declare the principal amount of
all Securities and all accrued and unpaid Interest (including Contingent
Interest) thereon to be due and payable immediately, by a notice in writing to
the Corporation (and to the Debenture Trustee if given by the holders of the
outstanding Securities), and upon any such declaration the same shall become
immediately due and payable. If the Debenture Trustee or the holders of
Securities do not make such a declaration, the holders of at least 25% in
aggregate liquidation amount of the Preferred Securities will have such right.
29
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal of the Securities shall have
been so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, (i) the Corporation shall pay or shall deposit with the Debenture
Trustee a sum sufficient to pay (A) all matured installments of Interest
(including Contingent Interest) upon all the Securities and the principal of
any and all Securities that shall have become due other than by acceleration
(with interest upon such principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
Interest (including Contingent Interest), at the Coupon Rate to the date of
such payment or deposit) and (B) such amount as shall be sufficient to cover
compensation due to the Debenture Trustee and each predecessor Debenture
Trustee, their respective agents, attorneys and counsel, pursuant to Section 6.06,
and (ii) any and all Events of Default under the Indenture, other than the
non-payment of the principal of the Securities which shall have become due
solely by such declaration of acceleration, shall have been cured, waived or
otherwise remedied as provided herein, then, in every such case, the holders of
a majority in aggregate principal amount of the Securities then outstanding, by
written notice to the Corporation and to the Debenture Trustee, may rescind and
annul such declaration and its consequences, but no such waiver or rescission
and annulment shall extend to or shall affect any subsequent Default or shall
impair any right consequent thereon. If the Holders of the Securities fail to
annul such declaration and waive such Default, the holders of a majority in
aggregate liquidation amount of the Preferred Securities shall have such right.
In case the Debenture Trustee shall have proceeded to
enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the Debenture Trustee,
then and in every such case the Corporation, the Debenture Trustee and the
holders of the Securities shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers of the
Corporation, the Debenture Trustee and the holders of the Securities shall
continue as though no such proceeding had been taken.
SECTION 5.02.
Payment
of Securities on Default; Suit Therefor.
The Corporation covenants that (a) in case Default
shall be made in the payment of any installment of Interest (including
Contingent Interest, if any) upon any of the Securities as and when the same
shall become due and payable, and such Default shall have continued for a
period of 30 days, or (b) in case Default shall be made in the payment of the
principal on any of the Securities as and when the same shall have become due
and payable, whether at maturity of the Securities or upon redemption or by
declaration or otherwise, then, upon demand of the Debenture Trustee, the
Corporation will pay to the Debenture Trustee, for the benefit of the holders
of the Securities, the whole amount that then shall have become due and payable
on all such Securities for principal or Interest (including Contingent
Interest, if any) or both, as the case may be, with interest upon the overdue
principal (to the extent that payment of such interest is enforceable under
applicable law and, if the Securities are held by the Trust or a trustee of
such trust, without duplication of any other amounts paid by the Trust or a
trustee in respect thereof) and upon the overdue installments of Interest
(including Contingent Interest, if any) at the rate borne by the Securities;
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including reasonable compensation to the
Debenture
30
Trustee, its agents,
attorneys and counsel, and any other amount due to the Debenture Trustee
pursuant to Section 6.06.
In case the Corporation shall fail forthwith to pay
such amounts upon such demand, the Debenture Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to institute any
actions or proceedings at law or in equity for the collection of the sums so
due and unpaid, and may prosecute any such action or proceeding to judgment or
final decree, and may enforce any such judgment or final decree against the
Corporation or any other obligor on the Securities and collect in the manner
provided by law out of the property of the Corporation or any other obligor on
the Securities, wherever situated, the moneys adjudged or decreed to be
payable.
In case there shall be pending proceedings for the
bankruptcy or for the reorganization of the Corporation or any other obligor on
the Securities under Title 11, United States Code, or any other applicable law,
or in case a receiver or trustee shall have been appointed for the property of
the Corporation or such other obligor, or in the case of any other similar
judicial proceedings relative to the Corporation or other obligor upon the
Securities, or to the creditors or property of the Corporation or such other
obligor, the Debenture Trustee, irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Debenture Trustee shall have made
any demand pursuant to the provisions of this Section 5.02, shall be entitled
and empowered, by intervention in such proceedings or otherwise, to file and
prove a claim or claims for the whole amount of principal and Interest
(including Contingent Interest, if any) owing and unpaid in respect of the
Securities and, in case of any judicial proceedings, to file such proofs of
claim and other papers or documents as may be necessary or advisable in order
to have the claims of the Debenture Trustee (including any claim for amounts
due to the Debenture Trustee pursuant to Section 6.06) and of the
Securityholders allowed in such judicial proceedings relative to the
Corporation or any other obligor on the Securities, or to the creditors or
property of the Corporation or such other obligor, unless prohibited by
applicable law and regulations, to vote on behalf of the holders of the
Securities in any election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency proceedings or
person performing similar functions in comparable proceedings, and to collect
and receive any moneys or other property payable or deliverable on any such
claims, and to distribute the same after the deduction of its charges and
expenses; and any receiver, assignee or trustee in bankruptcy or reorganization
is hereby authorized by each of the Securityholders to make such payments to
the Debenture Trustee, and, in the event that the Debenture Trustee shall
consent to the making of such payments directly to the Securityholders, to pay
to the Debenture Trustee such amounts as shall be sufficient to cover
reasonable compensation to, and expenses of, the Debenture Trustee, each
predecessor Debenture Trustee and their respective agents, attorneys and
counsel, and all other amounts due to the Debenture Trustee pursuant to Section
6.06.
Nothing herein contained shall be construed to
authorize the Debenture Trustee to authorize or consent to or accept or adopt
on behalf of any Securityholder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any holder
thereof or to authorize the Debenture Trustee to vote in respect of the claim
of any Securityholder in any such proceeding. The Debenture Trustee shall be
entitled to participate as a member of any official committee of creditors in
the matters as it deems necessary or advisable.
31
All rights of action and of asserting claims under
this Indenture, or under any of the Securities, may be enforced by the
Debenture Trustee without the possession of any of the Securities, or the
production thereof on any trial or other proceeding relative thereto, and any
such suit or proceeding instituted by the Debenture Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall
be for the ratable benefit of the holders of the Securities.
In any proceedings brought by the Debenture Trustee
(and also any proceedings involving the interpretation of any provision of this
Indenture to which the Debenture Trustee shall be a party) the Debenture
Trustee shall be held to represent all the holders of the Securities, and it
shall not be necessary to make any holders of the Securities parties to any
such proceedings.
SECTION 5.03.
Application
of Moneys Collected by Debenture Trustee.
Any moneys collected by the Debenture Trustee shall be
applied in the following order, at the date or dates fixed by the Debenture
Trustee for the distribution of such moneys, upon presentation of the
Securities in respect of which moneys have been collected, and stamping thereon
the payment, if only partially paid, and upon surrender thereof if fully paid:
First:
To the payment of costs
and expenses of collection applicable to the Securities and all other amounts
due to the Debenture Trustee under Section 6.06;
Second:
To the payment of all
Senior Indebtedness of the Corporation if and to the extent required by Article
XV;
Third:
In case the principal of
the outstanding Securities in respect of which moneys have been collected shall
not have become due and be unpaid, to the payment of the amounts then due and
unpaid upon Securities for principal of and Interest (including Contingent
Interest, if any) on the Securities, in respect of which or for the benefit of
which money has been collected, ratably, without preference of priority of any
kind, according to the amounts due on such Securities for principal and
Interest (including Contingent Interest, if any), respectively; and
Fourth:
To the Corporation.
SECTION 5.04.
Proceedings
by Securityholders.
No holder of any Security shall have any right by
virtue of or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or with respect to
this Indenture or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless such holder previously shall have given to the
Debenture Trustee written notice of an Event of Default and of the continuance
thereof with respect to the Securities specifying such Event of Default, as
hereinbefore provided, and unless also the holders of not less than 25% in
aggregate principal amount of the Securities then outstanding shall have made
written request upon the Debenture Trustee to institute such action, suit or
proceeding in its own name as Debenture Trustee hereunder and shall have
offered to the Debenture Trustee such indemnity reasonably satisfactory to it
as it may require against the costs, expenses and liabilities to be incurred
therein or thereby, and the Debenture Trustee for 60 days after its receipt of
such
32
notice, request and offer
of indemnity shall have failed to institute any such action, suit or
proceeding, it being understood and intended, and being expressly covenanted by
the taker and holder of every Security with every other taker and holder and
the Debenture Trustee, that no one or more holders of Securities 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 holder
of Securities, or to obtain or seek to obtain priority over or preference to
any other such holder, or to enforce any right under this Indenture, except in
the manner herein provided and for the equal, ratable and common benefit of all
holders of Securities.
Notwithstanding any other provisions in this
Indenture, however, the right of any holder of any Security to receive payment
of the principal of and Interest (including Contingent Interest, if any) on
such Security, on or after the same shall have become due and payable, or to
institute suit for the enforcement of any such payment, shall not be impaired
or affected without the consent of such holder and by accepting a Security
hereunder it is expressly understood, intended and covenanted by the taker and
holder of every Security with every other such taker and holder and the
Debenture Trustee, that no one or more holders of Securities shall have any
right in any manner whatsoever by virtue or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of the holders of any
other Securities, or to obtain or seek to obtain priority over or preference to
any other such holder, or to enforce any right under this Indenture, except in
the manner herein provided and for the equal, ratable and common benefit of all
holders of Securities. For the protection and enforcement of the provisions of
this Section, each and every Securityholder and the Debenture Trustee shall be
entitled to such relief as can be given either at law or in equity.
The Corporation and the Debenture Trustee acknowledge
that, pursuant to the Declaration, the holders of Preferred Securities are
entitled, under the circumstances and subject to the limitations set forth
therein, to commence a Direct Action with respect to any Event of Default under
this Indenture and the Securities.
SECTION 5.05.
Proceedings
by Debenture Trustee.
In case an Event of Default occurs with respect to
Securities and is continuing, the Debenture Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by
such appropriate judicial proceedings as the Debenture Trustee shall deem most
effectual to protect and enforce any of such rights, either by suit in equity
or by action at law or by proceeding in bankruptcy or otherwise, whether for
the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture, or
to enforce any other legal or equitable right vested in the Debenture Trustee
by this Indenture or by law.
SECTION 5.06.
Remedies
Cumulative and Continuing.
All powers and remedies given by this Article V to the
Debenture Trustee or to the Securityholders shall, to the extent permitted by
law, be deemed cumulative and not exclusive of any other powers and remedies
available to the Debenture Trustee or the holders of the Securities, by
judicial proceedings or otherwise, to enforce the performance or observance of
the covenants and agreements contained in this Indenture or otherwise established
with respect to the
33
Securities, and no delay
or omission of the Debenture Trustee or of any holder of any of the Securities
to exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such Default or an acquiescence therein; and,
subject to the provisions of Section 5.04, every power and remedy given by this
Article V or by law to the Debenture Trustee or to the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Debenture Trustee or by the Securityholders.
SECTION 5.07.
Direction
of Proceedings and Waiver of Defaults by Majority of Securityholders.
The holders of a majority in aggregate principal
amount of the Securities at the time outstanding shall have the right to direct
the time, method, and place of conducting any proceeding for any remedy
available to the Debenture Trustee, or exercising any trust or power conferred
on the Debenture Trustee;
provided, however
,
that (subject to the provisions of Section 6.01) the Debenture Trustee shall
have the right to decline to follow any such direction if the Debenture Trustee
shall determine that the action so directed would be unjustly prejudicial to
the holders not taking part in such direction or if the Debenture Trustee being
advised by counsel determines that the action or proceeding so directed may not
lawfully be taken or if the Debenture Trustee in good faith by its board of directors
or trustees, executive committee, or a trust committee of directors or trustees
and/or Responsible Officers shall determine that the action or proceedings so
directed would involve the Debenture Trustee in personal liability. Prior to
any declaration accelerating the maturity of the Securities, the holders of a
majority in aggregate principal amount of the Securities at the time
outstanding may on behalf of the holders of all of the Securities waive any
past Default or Event of Default and its consequences except a Default or Event
of Default (a) in the payment of principal of or Interest (including Compounded
Interest, Contingent Interest, Additional Sums and Liquidated Damages, if any)
on any of the Securities (unless such Default has been cured and a sum
sufficient to pay all matured installments of Interest (including Contingent
Interest, if any) and principal due otherwise than by acceleration has been
deposited with the Debenture Trustee) or (b) in respect of covenants or
provisions hereof which cannot be modified or amended without the consent of
the holder of each Security affected;
provided, however
,
that if the Securities are held by the Property Trustee, such waiver or
modification to such waiver shall not be effective until the holders of a majority
in aggregate liquidation amount of Trust Securities shall have consented to
such waiver or modification to such waiver;
provided further
,
that where a consent under this Indenture would require the consent of holders
of more than a majority of the aggregate principal amount of the Securities,
such waiver shall not be effective until the holders of at least the same
proportion in the aggregate stated liquidation amount of Trust Securities shall
have consented to such waiver. Upon any such waiver, the Default covered
thereby shall be deemed to be cured for all purposes of this Indenture and the
Corporation, the Debenture Trustee and the holders of the Securities shall be
restored to their former positions and rights hereunder, respectively; but no such
waiver shall extend to any subsequent or other Default or impair any right
consequent thereon. Whenever any Default or Event of Default hereunder shall
have been waived as permitted by this Section 5.07, said Default or Event of
Default shall for all purposes of the Securities and this Indenture be deemed
to have been cured and to be not continuing.
34
SECTION 5.08.
Notice
of Defaults.
The Debenture Trustee shall, within 90 days after the
occurrence of a Default with respect to the Securities actually known to a
Responsible Officer of the Debenture Trustee, mail to all Securityholders, as
the names and addresses of such holders appear upon the Security Register,
notice of all Defaults known to the Debenture Trustee, unless such Default
shall have been cured before the giving of such notice (the term “Default” for
the purpose of this Section 5.08 being hereby defined to be any of the events
specified in clauses (a), (b), (c), (d), (e), (f) and (g) of Section 5.01, not
including periods of grace, if any, provided for therein, and irrespective of
the giving of written notice specified in clause (d) of Section 5.01); and
provided
that, except in the case of Default in the payment
of the principal of or Interest (including Contingent Interest, if any) on any
of the Securities, the Debenture Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors and/or Responsible Officers of the Debenture
Trustee in good faith determines that the withholding of such notice is in the
interests of the Securityholders; and
provided further
that in the case of any Default of the character specified in Section 5.01(d),
no such notice to Securityholders shall be given until at least 60 days after
the occurrence thereof, but shall be given within 90 days after such
occurrence.
SECTION 5.09.
Undertaking
to Pay Costs.
All parties to this Indenture agree, and each holder
of any Security by his acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Debenture
Trustee for any action taken or omitted by it as Debenture Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys’ fees and expenses, against any party litigant
in such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 5.09
shall not apply to any suit instituted by the Debenture Trustee, to any suit
instituted by any Securityholder, or group of Securityholders, holding in the
aggregate more than 10% in aggregate principal amount of the Securities
outstanding, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of or Interest (including
Contingent Interest, if any) on any Security against the Corporation on or
after the same shall have become due and payable.
SECTION 5.10.
Acknowledgment
of Rights.
If an Event of Default has occurred and is continuing
and such event is attributable to the failure of the Corporation to pay principal
of or Interest (including Contingent Interest, if any) on the Securities when
due (or in connection with a redemption, failure to pay the Redemption Price on
the Redemption Date), the Corporation acknowledges that a holder of Preferred
Securities may commence a Direct Action against the Corporation to compel it to
make such payment to such holder of the principal of or Interest (including
Contingent Interest, if any) on the Securities having a principal amount equal
to the aggregate liquidation amount of the Preferred Securities of such holder
on or after the respective due date specified in the securities. The
Corporation may not amend this Indenture to remove this right to bring a Direct
Action without the prior written consent of the holders of all of the Preferred
Securities. Notwithstanding any payments
35
that the Corporation
makes to a holder of Preferred Securities in connection with a Direct Action,
the Corporation shall remain obligated to pay the principal of and Interest
(including Contingent Interest, if any) on the Securities, and the Corporation
shall be subrogated to the rights of the holder of the Preferred Securities,
and have a right of set-off, with respect to payments on the Preferred
Securities to the extent that the Corporation makes any payments to a holder of
Preferred Securities in any Direct Action.
The holders of the Preferred Securities shall not be
entitled to exercise directly any remedies, other than those described in the
preceding paragraph, available to Holders of the Securities, unless an event of
default exists under the Declaration.
ARTICLE
VI
CONCERNING THE DEBENTURE TRUSTEE
SECTION 6.01.
Duties
and Responsibilities of Debenture Trustee.
With respect to the holders of the Securities issued
hereunder, the Debenture Trustee, prior to the occurrence of an Event of
Default and after the curing or waiving of all Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default has
occurred (which has not been cured or waived), the Debenture Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
No provision of this Indenture shall be construed to
relieve the Debenture Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that
(a)
prior to the
occurrence of an Event of Default and after the curing or waiving of all Events
of Default which may have occurred,
(i)
the
duties and obligations of the Debenture Trustee shall be determined solely by
the express provisions of this Indenture, and the Debenture Trustee shall not
be liable except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Debenture Trustee;
and
(ii)
in
the absence of bad faith on the part of the Debenture Trustee, the Debenture
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Debenture Trustee and conforming to the requirements
of this Indenture; but, in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to the
Debenture Trustee, the Debenture Trustee shall be under a duty to examine the
same to determine whether or not they conform on their face to the requirements
of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein);
36
(b)
the Debenture Trustee
shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Responsible Officers, unless it shall be proved that the
Debenture Trustee was negligent in ascertaining the pertinent facts; and
(c)
the Debenture Trustee
shall not be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the Securityholders
pursuant to Section 5.07, relating to the time, method and place of conducting
any proceeding for any remedy available to the Debenture Trustee, or exercising
any trust or power conferred upon the Debenture Trustee, under this Indenture.
None of the provisions contained in this Indenture
shall require the Debenture Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if it reasonably
believes that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Indenture or adequate indemnity against
such risk 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 Debenture Trustee shall be subject to the
provisions of this Section.
SECTION 6.02.
Reliance
on Documents, Opinions, Etc.
Except as otherwise provided in Section 6.01:
(a)
the Debenture Trustee
may conclusively rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, note, debenture or other paper
or document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b)
any request,
direction, order or demand of the Corporation mentioned herein may be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in
respect thereof be herein specifically prescribed); and any Board Resolution
may be evidenced to the Debenture Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Corporation;
(c)
the Debenture Trustee
may consult with counsel of its selection and any advice or Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(d)
the Debenture Trustee
shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the
Securityholders, pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Debenture Trustee security or
indemnity reasonably satisfactory to the Debenture Trustee against the costs,
expenses and liabilities which may be incurred therein or thereby;
(e)
the Debenture Trustee
shall not be liable for any action taken or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or powers
37
conferred upon it by this Indenture; nothing
contained herein shall, however, relieve the Debenture Trustee of the
obligation, upon the occurrence of an Event of Default (that has not been cured
or waived), to exercise such of the rights and powers vested in it by this
Indenture, and to use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs;
(f)
the Debenture
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, debenture, coupon or other
paper or document, unless requested in writing to do so by the holders of a
majority in aggregate principal amount of the outstanding Securities;
provided, however
, that if the payment within a reasonable
time to the Debenture Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Debenture Trustee, not reasonably assured to the Debenture Trustee by the
security afforded to it by the terms of this Indenture, the Debenture Trustee
may require indemnity reasonably satisfactory to the Debenture Trustee against
such expense or liability as a condition to so proceeding;
(g)
the Debenture Trustee
may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents (including any Authenticating
Agent) or attorneys, and the Debenture Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent or attorney appointed by
it with due care;
(h)
the Debenture Trustee
shall not be charged with knowledge of any Default or Event of Default with
respect to the Securities unless (1) such Default is a Default under Sections
5.01(a) (other than (i) a Default with respect to the payment of Compounded
Interest, Liquidated Damages, Additional Sums or Contingent Interest or (ii) a
Default with respect to any Other Debentures) or 5.01(b) of the Indenture, (2)
a Responsible Officer shall have actual knowledge of such Default or Event of
Default or (3) written notice of such Default or Event of Default shall have
been given to the Debenture Trustee by the Corporation or any other obligor on
the Securities or by any holder of the Securities;
(i)
the Debenture
Trustee shall not be liable for any action taken, suffered or omitted by it in
good faith, without negligence or willful misconduct and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture;
(j)
the rights,
privileges, protections, immunities and benefits given to the Debenture
Trustee, including without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Debenture Trustee in each of its
capacities hereunder, and to each agent, custodian and other Person employed to
act hereunder;
(k)
the Debenture Trustee
may request that the Corporation deliver an Officers’ Certificate setting forth
the names of individuals and/or titles of Officers authorized at such time to
take specified actions pursuant to this Indenture, which Officers’ Certificate
may be signed by any person authorized to sign an Officers’ Certificate,
including any person specified as so authorized in any such certificate
previously delivered and not superseded;
38
(l)
the permissive
rights of the Debenture Trustee to do things enumerated in this Indenture shall
not be construed as duties; and
(m)
in no event shall the
Trustee be liable for the selection of investments or for investment losses
incurred thereon. The Trustee shall have no liability in respect of losses
incurred as a result of the liquidation of any such investment prior to its
stated maturity or the failure of the party directing such investment to
provide timely written investment direction. The Trustee shall have no
obligation to invest or reinvest any amounts held hereunder in the absence of
such written investment direction.
SECTION 6.03.
No
Responsibility for Recitals, Etc.
The recitals contained herein and in the Securities
(except in the certificate of authentication of the Debenture Trustee or the
Authenticating Agent) shall be taken as the statements of the Corporation, and
the Debenture Trustee and the Authenticating Agent assume no responsibility for
the correctness of the same. The Debenture Trustee and the Authenticating Agent
make no representations as to the validity or sufficiency of this Indenture or
of the Securities. The Debenture Trustee and the Authenticating Agent shall not
be accountable for the use or application by the Corporation of any Securities
or the proceeds of any Securities authenticated and delivered by the Debenture
Trustee or the Authenticating Agent in conformity with the provisions of this
Indenture.
SECTION 6.04.
Debenture
Trustee, Authenticating Agent, Paying Agents, Transfer Agents or Registrar May
Own Securities.
The Debenture Trustee or any Authenticating Agent or
any paying agent or any transfer agent or any security registrar for the
Securities, in its individual or any other capacity, may become the owner or
pledgee of Securities with the same rights it would have if it were not
Debenture Trustee, Authenticating Agent, paying agent, transfer agent or
security registrar for the Securities.
SECTION 6.05.
Moneys
to Be Held in Trust.
Subject to the provisions of Section 11.04, all moneys
received by the Debenture Trustee or any paying agent shall, until used or
applied as herein provided, be held in trust for the purpose for which they
were received, but need not be segregated from other funds except to the extent
required by law. The Debenture Trustee and any paying agent shall be under no
liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Corporation. So long as no Event of
Default shall have occurred and be continuing, all interest allowed on any such
moneys shall be paid from time to time upon the written order of the
Corporation, signed by the Chairman of the Board of Directors, the President or
a Vice President or the Treasurer or an Assistant Treasurer of the Corporation.
SECTION 6.06.
Compensation
and Expenses of Debenture Trustee.
The Corporation, as issuer of Securities under this
Indenture, covenants and agrees to pay to the Debenture Trustee from time to
time, and the Debenture Trustee shall be entitled to, such compensation as
shall be agreed to in writing between the Corporation and the Debenture
39
Trustee (which shall not
be limited by any provision of law in regard to the compensation of a trustee
of an express trust), and the Corporation will pay or reimburse the Debenture
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Debenture Trustee in accordance with any of
the provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not regularly in
its employ) except any such expense, disbursement or advance as may arise from
its negligence or bad faith. The Corporation also covenants to indemnify and
defend each of the Debenture Trustee (including in its individual capacity) and
any predecessor Debenture Trustee (and its officers, agents, directors and
employees) for, and to hold it harmless against, any and all loss, damage,
claim, liability or expense including taxes (other than taxes based on the
income of the Debenture Trustee) incurred without negligence or bad faith on
the part of the Debenture Trustee and arising out of or in connection with the
acceptance or administration of this trust, including advancement of the costs
and expenses of defending itself against any claim of liability in the
premises. The obligations of the Corporation under this Section 6.06 to
compensate and indemnify the Debenture Trustee and to pay or reimburse the
Debenture Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness shall be
secured by a lien prior to that of the Securities upon all property and funds
held or collected by the Debenture Trustee as such, except funds held in trust
for the benefit of the holders of particular Securities.
When the Debenture Trustee incurs expenses or renders
services in connection with an Event of Default specified in Section 5.01(e) or
Section 5.01(f), 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.
The provisions of this Section shall survive the
resignation or removal of the Debenture Trustee and the defeasance or other
termination of this Indenture.
SECTION 6.07.
Officers’
Certificate as Evidence.
Except as otherwise provided in Sections 6.01 and
6.02, whenever in the administration of the provisions of this Indenture the
Debenture Trustee shall deem it necessary or desirable that a matter be proved
or established prior to taking or omitting any action hereunder, such matter
(unless other evidence in respect thereof is herein specifically prescribed)
may, in the absence of negligence or bad faith on the part of the Debenture
Trustee, be deemed to be conclusively proved and established by an Officers’
Certificate delivered to the Debenture Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Debenture Trustee, shall
be full warrant to the Debenture Trustee for any action taken or omitted by it
under the provisions of this Indenture upon the faith thereof.
SECTION 6.08.
Conflicting
Interest of Debenture Trustee.
If the Debenture Trustee has or shall acquire any “conflicting
interest” within the meaning of Section 310(b) of the Trust Indenture Act, the
Debenture Trustee and the Corporation shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
40
SECTION 6.09.
Eligibility
of Debenture Trustee.
The Debenture Trustee hereunder shall at all times be
a Person organized and doing business under the laws of the United States of
America or any state or territory thereof or the District of Columbia, or a Person
permitted to act as trustee by the Commission authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000) and subject to supervision or
examination by federal, state, territorial, or District of Columbia authority.
If such Person publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section 6.09 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.
The Corporation may not, nor may any Person directly
or indirectly controlling, controlled by, or under common control with the
Corporation, serve as Debenture Trustee.
In case at any time the Debenture Trustee shall cease
to be eligible in accordance with the provisions of this Section 6.09, the
Debenture Trustee shall resign immediately in the manner and with the effect
specified in Section 6.10.
Notwithstanding an provision in this Indenture to the
contrary, the Person serving as Debenture Trustee also may serve as
Institutional Administrator under the Declaration.
SECTION 6.10.
Resignation
or Removal of Debenture Trustee.
(a)
The Debenture
Trustee, or any trustee or trustees hereafter appointed, may at any time resign
by giving written notice of such resignation to the Corporation and by mailing
notice thereof to the holders of the Securities at their addresses as they
shall appear on the Security Register. Upon receiving such notice of
resignation, the Corporation shall promptly appoint a successor trustee or
trustees by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Debenture Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment within 60 days after the mailing of such notice of
resignation to the affected Securityholders, the resigning Debenture Trustee,
at the expense of the Corporation, may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Securityholder
who has been a bona fide holder of a Security for at least six months may,
subject to the provisions of Section 5.09, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b)
In case at any time
any of the following shall occur:
(i)
the
Debenture Trustee shall fail to comply with the provisions of Section 6.08
after written request therefor by the Corporation or by any Securityholder who
has been a bona fide holder of a Security or Securities for at least six
months, or
41
(ii)
the
Debenture Trustee shall cease to be eligible in accordance with the provisions
of Section 6.09 and shall fail to resign after written request therefor by the
Corporation or by any such Securityholder, or
(iii)
the
Debenture Trustee shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Debenture Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Debenture Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case,
the Corporation may remove the Debenture Trustee and appoint a successor
trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to the Debenture Trustee so removed and one copy to the successor
trustee, or, subject to the provisions of Section 5.09, any Securityholder 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 Debenture Trustee and the
appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the Debenture
Trustee and appoint a successor trustee.
(c)
The holders of a
majority in aggregate principal amount of the Securities at the time
outstanding may at any time remove the Debenture Trustee and nominate a
successor trustee, which shall be deemed appointed as successor trustee unless
within 10 days after such nomination the Corporation objects thereto, or if no
successor trustee shall have been so appointed and shall have accepted
appointment within 30 days after such removal, in which case the Debenture
Trustee so removed or any Securityholder, upon the terms and conditions and
otherwise as in Section 6.10(a) provided, may petition any court of competent
jurisdiction for an appointment of a successor trustee.
(d)
Any resignation or
removal of the Debenture Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section 6.10 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
6.11.
(e)
Notwithstanding
replacement of the Debenture Trustee pursuant to this Section 6.10, the
Corporation’s obligations under Section 6.06 shall continue for the benefit of
the retiring Debenture Trustee.
SECTION 6.11.
Acceptance
by Successor Debenture Trustee.
Any successor trustee appointed as provided in Section
6.10 shall execute, acknowledge and deliver to the Corporation and to its
predecessor trustee an instrument accepting such appointment hereunder, 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, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as trustee herein; but, nevertheless, on the written request of the
Corporation or of the successor trustee, the trustee ceasing to act shall, upon
payment of any amounts then due it pursuant to the provisions of Section 6.06, execute
and deliver an instrument transferring to such successor trustee all the rights
and powers of the trustee so
42
ceasing to act and
shall duly assign, transfer and deliver to such successor trustee all property
and money held by such retiring trustee thereunder. Upon request of any such
successor trustee, the Corporation shall execute any and all instruments in writing
for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or collected by
such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.06.
No
successor trustee shall accept appointment as provided in this Section 6.11
unless at the time of such acceptance such successor trustee shall be qualified
under the provisions of Section 6.08 and eligible under the provisions of
Section 6.09.
Upon
acceptance of appointment by a successor trustee as provided in this Section
6.11, the Corporation shall mail notice of the succession of such trustee
hereunder to the holders of Securities at their addresses as they shall appear
on the Security Register. If the Corporation fails to mail such notice within
10 days after the acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the Corporation.
SECTION 6.12.
Succession
by Merger, Etc.
Any
Person into which the Debenture Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Debenture Trustee shall be a party, or
any Person succeeding to all or substantially all of the corporate trust
business of the Debenture Trustee, shall be the successor of the Debenture
Trustee hereunder without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
In
case at the time such successor to the Debenture Trustee shall succeed to the
trusts created by this Indenture any Securities shall have been authenticated
but not delivered, any such successor to the Debenture Trustee may adopt the
certificate of authentication of any predecessor trustee, and deliver such
Securities so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor to the Debenture Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor trustee; and in all such cases such certificates shall have
the full force which the Securities or this Indenture elsewhere provides that
the certificate of the Debenture Trustee shall have;
provided, however
, that the right to adopt the certificate
of authentication of any predecessor Debenture Trustee or authenticate
Securities in the name of any predecessor Debenture Trustee shall apply only to
its successor or successors by merger, conversion or consolidation.
SECTION 6.13.
Limitation
on Rights of Debenture Trustee as a Creditor.
The
Debenture Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Debenture Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent included
therein.
43
SECTION 6.14.
Co-trustees
and Separate Trustees.
At any
time or times, at the expense of the Corporation and for the purpose of meeting
the legal requirements of any applicable jurisdiction, the Corporation and the
Debenture Trustee shall have power to appoint, and, upon the written request of
the Debenture Trustee or of the holders of at least 25% in principal amount of
the Securities then outstanding, the Corporation shall for such purpose join
with the Debenture Trustee in the execution and delivery of all instruments and
agreements necessary or proper to appoint, one or more Persons approved by the
Debenture Trustee, or to act as separate trustee, jointly with the Debenture
Trustee, or to act as separate trustee, in either case with such powers as may
be provided in the instrument of appointment, and to vest in such Person or
Persons, in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Section. If the
Corporation does not join in such appointment within 15 days after the receipt
by it of a request so to do, or if an Event of Default shall have occurred and
be continuing, the Debenture Trustee alone shall have power to make such
appointment.
Should
any written instrument or instruments from the Corporation be required by any
co-trustee or separate trustee so appointed to more fully confirm to such
co-trustee or separate trustee such property, title, right or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Corporation.
Every
co-trustee or separate trustee shall, to the extent permitted by law, but to
such extent only, be appointed subject to the following conditions:
(a) the Securities shall be authenticated
and delivered, and all rights, powers, duties and obligations hereunder in
respect of the custody of securities, cash and other personal property held by,
or required to be deposited or pledged with, the Debenture Trustee hereunder,
shall be exercised solely, by the Debenture Trustee;
(b) the rights, powers, duties and
obligations hereby conferred or imposed upon the Debenture Trustee in respect
of any property covered by such appointment shall be conferred or imposed upon
and exercised or performed either by the Debenture Trustee or by the Debenture
Trustee and such co-trustee or separate trustee jointly, as shall be provided
in the instrument appointing such co-trustee or separate trustee, except to the
extent that under any law of any jurisdiction in which any particular act is to
be performed, the Debenture Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties and obligations
shall be exercised and performed by such co-trustee or separate trustee;
(c) the Debenture Trustee at any time, by
an instrument in writing executed by it, with the concurrence of the
Corporation, may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section, and, if an Event of Default shall have
occurred and be continuing, the Debenture Trustee shall have power to accept
the resignation of, or remove, any such co-trustee or separate trustee without
the concurrence of the Corporation. Upon the written request of the Debenture
Trustee, the Corporation shall join with the Debenture Trustee in the execution
and delivery of all instruments and agreements, necessary or proper to
effectuate such resignation or removal. A successor to any co-trustee or
separate trustee so resigned or removed may be appointed in the manner provided
in this Section;
44
(d) no co-trustee or separate trustee
hereunder shall be personally liable by reason of any act or omission of the
Debenture Trustee, or any other such trustee hereunder; and
(e) any notice from the holders of
Securities delivered to the Debenture Trustee shall be deemed to have been
delivered to each such co-trustee and separate trustee.
SECTION 6.15.
Authenticating
Agents.
There
may be one or more Authenticating Agents appointed by the Debenture Trustee
upon the request of the Corporation with power to act on its behalf and subject
to its direction in the authentication and delivery of Securities issued upon
exchange or transfer thereof as fully to all intents and purposes as though any
such Authenticating Agent had been expressly authorized to authenticate and
deliver Securities;
provided
that
the Debenture Trustee shall have no liability to the Corporation for any acts
or omissions of the Authenticating Agent with respect to the authentication and
delivery of Securities. Any such Authenticating Agent shall at all times be a corporation
organized and doing business under the laws of the United States or of any
state or territory thereof or of the District of Columbia authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus of
at least $50,000,000 and being subject to supervision or examination by
federal, state, territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually pursuant to law or
the requirements of such authority, then for the purposes of this Section 6.15
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect herein specified in this Section.
Any
corporation into which any Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, consolidation or conversion to which any Authenticating Agent shall be
a party, or any corporation succeeding to the corporate trust business of any
Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section 6.15 without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent.
Any
Authenticating Agent may at any time resign by giving written notice of
resignation to the Debenture Trustee and to the Corporation. The Debenture
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and to the
Corporation. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible under this Section 6.15, the Debenture Trustee may, and upon the
request of the Corporation shall, promptly appoint a successor Authenticating
Agent eligible under this Section 6.15, shall give written notice of such
appointment to the Corporation and the Corporation shall mail notice of such
appointment to all Securityholders as the names and addresses of such holders
appear on the Security Register. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent herein.
45
The
Corporation, as borrower, agrees to pay to any Authenticating Agent from time
to time reasonable compensation for its services. Any Authenticating Agent shall
have no responsibility or liability for any action taken by it as such in
accordance with the directions of the Debenture Trustee.
ARTICLE
VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01.
Action
by Securityholders.
Whenever
in this Indenture it is provided that the holders of a specified percentage in
aggregate principal amount of the Securities may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of taking any such
action the holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by such Securityholders in person or by agent or proxy appointed in
writing, or (b) by the record of such holders of Securities voting in favor
thereof at any meeting of such Securityholders duly called and held in
accordance with the provisions of Article VIII, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such
Securityholders.
If the
Corporation shall solicit from the Securityholders any request, demand,
authorization, direction, notice, consent, waiver or other action, the
Corporation may, at its option, as evidenced by an Officers’ Certificate, fix
in advance a record date for the determination of Securityholders entitled to
give such request, demand, authorization, direction, notice, consent, waiver or
other action, but the Corporation shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other action may be given before or after the record date,
but only the Securityholders of record at the close of business on the record date
shall be deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of outstanding Securities have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the
outstanding Securities shall be computed as of the record date;
provided, however
, that no such
authorization, agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
SECTION 7.02.
Proof
of Execution by Securityholders.
Subject
to the provisions of Section 6.01, 6.02 and 8.05, proof of the execution of any
instrument by a Securityholder or his agent or proxy shall be sufficient if
made in accordance with such reasonable rules and regulations as may be
prescribed by the Debenture Trustee or in such manner as shall be satisfactory
to the Debenture Trustee. The ownership of Securities shall be proved by the
Security Register or by a certificate of the security registrar for the
Securities. The Debenture Trustee may require such additional proof of any
matter referred to in this Section 7.02 as it shall deem necessary.
46
The
record of any Securityholders’ meeting shall be proved in the manner provided
in Section 8.06.
SECTION 7.03.
Who
Are Deemed Absolute Owners.
Prior
to due presentment for registration of transfer of any Security, the
Corporation, the Debenture Trustee, any Authenticating Agent, any paying agent,
any transfer agent and any security registrar for the Securities may deem the
person in whose name such Security shall be registered upon the Security
Register to be, and may treat him as, the absolute owner of such Security
(whether or not such Security shall be overdue) for the purpose of receiving
payment of or on account of the principal of and (subject to Section 2.05)
Interest on such Security and for all other purposes; and neither the Corporation
nor the Debenture Trustee nor any Authenticating Agent nor any paying agent nor
any transfer agent nor any security registrar for the Securities shall be
affected by any notice to the contrary. All such payments so made to any holder
for the time being or upon his order shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for
moneys payable upon any such Security.
SECTION 7.04.
Securities
Owned by Corporation Deemed Not Outstanding.
In
determining whether the holders of the requisite aggregate principal amount of
Securities have concurred in any direction, consent or waiver under this
Indenture, Securities which are owned by the Corporation or any other obligor
on the Securities or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Corporation
or any other obligor on the Securities shall be disregarded and deemed not to
be outstanding for the purpose of any such determination; provided that for the
purposes of determining whether the Debenture Trustee shall be protected in
relying on any such direction, consent or waiver, only Securities which a
Responsible Officer of the Debenture Trustee actually knows are so owned shall
be so disregarded. Securities so owned which have been pledged in good faith
may be regarded as outstanding for the purposes of this Section 7.04 if the
pledgee shall establish to the satisfaction of the Debenture Trustee the
pledgee’s right to vote such Securities and that the pledgee is not the
Corporation or any such other obligor or Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Corporation or any such other obligor. In the case of a dispute as to such
right, any decision by the Debenture Trustee taken upon the advice of counsel
shall be full protection to the Debenture Trustee.
SECTION 7.05.
Revocation
of Consents; Future Holders Bound.
At any
time prior to (but not after) the evidencing to the Debenture Trustee, as
provided in Section 7.01, of the taking of any action by the holders of the
percentage in aggregate principal amount of the Securities specified in this
Indenture in connection with such action, any holder of a Security (or any Security
issued in whole or in part in exchange or substitution therefor), subject to
Section 7.01, the serial number of which is shown by the evidence to be
included in the group of Securities the holders of which have consented to such
action may, by filing written notice with the Debenture Trustee at its
principal office and upon proof of holding as provided in Section 7.02, revoke
such action so far as concerns such Security (or so far as concerns the
principal amount represented by any exchanged or substituted Security). Except
as
47
aforesaid any such
action taken by the holder of any Security shall be conclusive and binding upon
such holder and upon all future holders and owners of such Security, and of any
Security issued in exchange or substitution therefor, irrespective of whether
or not any notation in regard thereto is made upon such Security or any
Security issued in exchange or substitution therefor.
ARTICLE
VIII
SECURITYHOLDERS’ MEETINGS
SECTION 8.01.
Purposes
of Meetings.
A
meeting of Securityholders may be called at any time and from time to time
pursuant to the provisions of this Article VIII for any of the following
purposes:
(a) to give any notice to the Corporation
or to the Debenture Trustee, or to give any directions to the Debenture
Trustee, or to consent to the waiving of any Default hereunder and its
consequences, or to take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of Article V;
(b) to remove the Debenture Trustee and
nominate a successor trustee pursuant to the provisions of Article VI;
(c) to consent to the execution of an
indenture or indentures supplemental hereto pursuant to the provisions of
Section 9.02; or
(d) to take any other action authorized
to be taken by or on behalf of the holders of any specified aggregate principal
amount of such Securities under any other provision of this Indenture or under
applicable law.
SECTION 8.02.
Call
of Meetings by Debenture Trustee.
The
Debenture Trustee may at any time call a meeting of Securityholders to take any
action specified in Section 8.01, to be held at such time and at such place in
New York, New York, as the Debenture Trustee shall determine. Notice of every
meeting of the Securityholders, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
mailed to holders of Securities at their addresses as they shall appear on the
Securities Register. Such notice shall be mailed not less than 20 nor more than
180 days prior to the date fixed for the meeting.
SECTION 8.03.
Call
of Meetings by Corporation or Securityholders.
In
case at any time the Corporation, pursuant to a resolution of the Board of
Directors, or the holders of at least 25% in aggregate principal amount of the
Securities then outstanding, shall have requested the Debenture Trustee to call
a meeting of Securityholders, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Debenture
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Corporation or such Securityholders may
determine the time and the place in New York, New York for such meeting and may
call such meeting to take any action authorized in Section 8.01, by mailing
notice thereof as provided in Section 8.02.
48
SECTION 8.04.
Qualifications
for Voting.
To be
entitled to vote at any meeting of Securityholders a Person shall (a) be a
holder of one or more Securities or (b) be a Person appointed by an instrument
in writing as proxy by a holder of one or more Securities. The only Persons who
shall be entitled to be present or to speak at any meeting of Securityholders
shall be the Persons entitled to vote at such meeting and their counsel and any
representatives of the Debenture Trustee and its counsel and any
representatives of the Corporation and its counsel.
SECTION 8.05.
Regulations.
Notwithstanding
any other provisions of this Indenture, the Debenture Trustee may make such
reasonable regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The
Debenture Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Corporation or by Securityholders as provided in Section 8.03, in which case
the Corporation or the Securityholders calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by majority vote of the
meeting.
Subject
to the provisions of Section 8.04, at any meeting each holder of Securities or
proxy therefor shall be entitled to one vote for each $50.00 principal amount
of Securities held or represented by him;
provided,
however
, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not outstanding and ruled by the chairman
of the meeting to be not outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Securities held by him or instruments in
writing as aforesaid duly designating him as the person to vote on behalf of
other Securityholders. Any meeting of Securityholders duly called pursuant to
the provisions of Section 8.02 or 8.03 may be adjourned from time to time by a
majority of those present, and the meeting may be held as so adjourned without
further notice.
SECTION 8.06.
Voting.
The
vote upon any resolution submitted to any meeting of holders of Securities
shall be by written ballots on which shall be subscribed the signatures of such
holders or of their representatives by proxy and the serial number or numbers
of the Securities held or represented by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Securityholders shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one
or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and
49
showing that said
notice was mailed as provided in Section 8.02. The record shall show the serial
numbers of the Securities voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to
the Corporation and the other to the Debenture Trustee to be preserved by the
Debenture Trustee, the latter to have attached thereto the ballots voted at the
meeting.
Any
record so signed and verified shall be conclusive evidence of the matters
therein stated.
ARTICLE
IX
AMENDMENTS
SECTION 9.01.
Without
Consent of Securityholders.
The
Corporation, when authorized by a Board Resolution, and the Debenture Trustee
may from time to time and at any time amend the Indenture, without the consent
of the Securityholders, for one or more of the following purposes:
(a) to evidence the succession of another
Person to the Corporation, or successive successions, and the assumption by the
successor Person of the covenants, agreements and obligations of the
Corporation pursuant to Article X;
(b) to add additional Events of Default
or to add to the covenants of the Corporation such further covenants,
restrictions or conditions for the protection of the Securityholders as the
Board of Directors and the Debenture Trustee shall consider to be for the
protection of the Securityholders, and to make the occurrence, or the
occurrence and continuance, of a default in any of such additional covenants,
restrictions or conditions a Default or an Event of Default permitting the
enforcement of all or any of the remedies provided in this Indenture as herein
set forth;
provided, however
,
that in respect of any such additional covenant, restriction or condition such
amendment may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such default or may
limit the remedies available to the Debenture Trustee upon such default;
(c) to provide for the issuance under
this Indenture of Securities in coupon form (including Securities registrable
as to principal only) and to provide for exchangeability of such Securities
with the Securities issued hereunder in fully registered form and to make all
appropriate changes for such purpose;
(d) to cure any ambiguity or to correct
or supplement any provision contained herein or in any supplemental indenture
which may be defective or inconsistent with any other provision contained
herein or in any supplemental indenture, or to make such other provisions in
regard to matters or questions arising under this Indenture;
(e) to evidence and provide for the
acceptance of appointment hereunder by a successor trustee with respect to the
Securities;
50
(f) to make provision for transfer
procedures, certification, book-entry provisions and all other matters required
pursuant to Section 2.07 or otherwise necessary, desirable or appropriate in
connection with the issuance of Securities to holders of Preferred Securities
in the event of a distribution of Securities by the Trust following a
Dissolution Event;
(g) to qualify or maintain qualification
of this Indenture under the Trust Indenture Act; or
(h) to ensure that the Trust is not
required to register as an investment company under the Investment Company Act;
or
(i) to make any change that does not
adversely affect the rights of any Securityholder in any material respect;
provided
that any such amendment does not
materially adversely affect the interests of Securityholders or cause the Trust
to be treated other than as a grantor trust for United States federal income
tax purposes.
The
Debenture Trustee is hereby authorized to join with the Corporation in the
execution of any supplemental indenture to effect such amendment, to make any
further appropriate agreements and stipulations which may be therein contained
and to accept the conveyance, transfer and assignment of any property
thereunder, but the Debenture Trustee shall not be obligated to, but may in its
discretion, enter into any such supplemental indenture which affects the Debenture
Trustee’s own rights, duties, privileges or immunities under this Indenture or
otherwise.
Any
amendment to the Indenture authorized by the provisions of this Section 9.01
may be executed by the Corporation and the Debenture Trustee without the
consent of the holders of any of the Securities at the time outstanding,
notwithstanding any of the provisions of Section 9.02.
SECTION 9.02.
With
Consent of Securityholders.
With
the consent (evidenced as provided in Section 7.01) of the holders of a
majority in aggregate principal amount of the Securities at the time
outstanding, the Corporation, when authorized by a Board Resolution, and the
Debenture Trustee may from time to time and at any time amend the Indenture 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 the Securities;
provided, however
, that no such amendment shall, without the
consent of the holders of each Security then outstanding and affected thereby
(i) change the Maturity Date of any Security, or reduce the principal amount
of, or any installment of principal of or Interest on the Securities; (ii)
reduce the rate or extend the time of payment of Interest (including Contingent
Interest, if any); (iii) change any of the provisions of Article XIV relating
to redemption; (iv) change the Conversion Rate except as provided in Section
17.03 and Section 17.04 with respect to adjustment of the Conversion Rate, or
otherwise change the right to convert the Securities in a manner that would be
adverse to Securityholders; (v) make the principal of, or Interest (including
Contingent Interest, if any) payment on, the Securities payable in any coin or
currency other than that provided herein; (vi) change any obligation of the
Corporation to
51
maintain an office
or agency in the places and for the purposes required by the Indenture or
change the place of payment where the Securities or any Interest payment
thereon is payable; (vii) impair or affect the right of any holder of
Securities to institute suit for the payment of the Securities as provided
herein; (viii) reduce the percentage of the principal amount of the Securities
required to consent to modify or amend the Indenture or for any waiver of
compliance with provisions of the Indenture as stated herein or for waiver of
Defaults as stated herein; (ix) make any change adverse to a Holder with
respect to the subordination provisions of Article XV; or (x) modify any of the
foregoing provisions;
provided, however
,
that if the Securities are held by the Trust, no such modification or amendment
referred to in clauses (i) through (x) shall be effective until the holders of
not less than a majority of the aggregate liquidation amount of the Trust
Securities shall have consented to such modification or amendment; and provided
further, however, that where a consent under the Indenture would require the
consent of Securityholders of more than a majority of the principal amount of
the Securities, such modification or amendment shall not be effective until the
holders of at least the same proportion in aggregate stated liquidation amount
of the Trust Securities shall have consented to such modification or amendment.
Upon
the request of the Corporation accompanied by a copy of a resolution of the
Board of Directors certified by its secretary or assistant secretary
authorizing the execution of any supplemental indenture effecting such
amendment, and upon the filing with the Debenture Trustee of evidence of the
consent of Securityholders as aforesaid, the Debenture Trustee shall join with
the Corporation in the execution of such supplemental indenture unless such
supplemental indenture affects the Debenture Trustee’s own rights, duties,
privileges or immunities under this Indenture or otherwise, in which case the
Debenture Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
Promptly
after the execution by the Corporation and the Debenture Trustee of any supplemental
indenture pursuant to the provisions of this Section, the Debenture Trustee, at
the expense of the Corporation, shall transmit by mail, first-class postage
prepaid, a notice, prepared by the Corporation, setting forth in general terms
the substance of such supplemental indenture, to the Securityholders as their
names and addresses appear upon the Security Register. Any failure of the
Debenture Trustee to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
It
shall not be necessary for the consent of the Securityholders under this
Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 9.03.
Compliance
with Trust Indenture Act; Effect of Supplemental Indentures.
Any
supplemental indenture executed pursuant to the provisions of this Article IX
shall comply with the Trust Indenture Act. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article IX, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties, privileges and immunities under this Indenture of the Debenture
Trustee, the Corporation and the holders of Securities shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and
52
conditions of any
such supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.04.
Notation
on Securities.
Securities
authenticated and delivered after the execution of any supplemental indenture
affecting such Securities pursuant to the provisions of this Article IX may
bear a notation in form approved by the Debenture Trustee as to any matter
provided for in such supplemental indenture. If the Corporation or the
Debenture Trustee shall so determine, new Securities so modified as to conform,
in the opinion of the Debenture Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared and executed by the Corporation, authenticated by the Debenture
Trustee or the Authenticating Agent and delivered in exchange for the
Securities then outstanding.
SECTION 9.05.
Evidence
of Compliance of Supplemental Indenture to Be Furnished to Debenture Trustee.
The
Debenture Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive an Officers’ Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article IX.
ARTICLE
X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01.
Corporation
May Consolidate, Etc., on Certain Terms.
The
Corporation may not consolidate with or merge into any other Person or convey,
transfer or lease all or substantially all of its assets to any Person, and no
Person may consolidate with or merge into the Corporation or convey, transfer
or lease all or substantially all of its assets to the Corporation, unless:
(1) the
Corporation is the surviving Person, or the Person formed by or surviving any
such consolidation or merger (if other than the Corporation) or to which such
sale, conveyance, transfer or lease of property is made is a Person organized
and existing under the laws of the United States or any State thereof or the District
of Columbia;
(2) upon
any such consolidation, merger, sale, conveyance, transfer or lease, the due
and punctual payment of the principal of and Interest (including Contingent
Interest, if any) on the Securities according to their tenor and the due and
punctual performance and observance of all the covenants and conditions of this
Indenture to be kept or performed by the Corporation shall be expressly
assumed, by supplemental indenture (which shall conform to the provisions of
the Trust Indenture Act as then in effect) satisfactory in form to the
Debenture Trustee executed and delivered to the Debenture Trustee by the Person
formed by such consolidation, or into which the Corporation shall have been
merged, or by the Person which shall have acquired such property or assets, as
the case may be; and
53
(3) immediately
after giving effect to such consolidation, merger, sale, conveyance, transfer
or lease, no Default or Event of Default shall exist.
SECTION 10.02.
Successor
Corporation to Be Substituted for Corporation.
In
case of any such consolidation, merger, conveyance or transfer and upon the
assumption by the successor corporation, by supplemental indenture, executed
and delivered to the Debenture Trustee and satisfactory in form to the
Debenture Trustee, of the obligation of due and punctual payment of the
principal of and Interest (including Contingent Interest, if any) on all of the
Securities and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed or observed by the
Corporation, such successor Person shall succeed to and be substituted for the
Corporation, with the same effect as if it had been named herein as the party
of the first part, and the Corporation thereupon shall be relieved of any
further liability or obligation hereunder or upon the Securities. Such
successor Person thereupon may cause to be signed, and may issue either in its
own name or in the name of Affiliated Managers Group, Inc., any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Corporation and delivered to the Debenture Trustee or the Authenticating
Agent; and, upon the order of such successor Person instead of the Corporation
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Debenture Trustee or the Authenticating Agent shall
authenticate and deliver any Securities which previously shall have been signed
and delivered by the officers of the Corporation to the Debenture Trustee or
the Authenticating Agent for authentication, and any Securities which such
successor Person thereafter shall cause to be signed and delivered to the
Debenture Trustee or the Authenticating Agent for that purpose. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities
had been issued at the date of the execution hereof.
SECTION 10.03.
Opinion
of Counsel to Be Given to Debenture Trustee.
The
Debenture Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive an Opinion of Counsel as conclusive evidence that any consolidation,
merger, sale, conveyance, transfer or lease, and any assumption, permitted or
required by the terms of this Article X complies with the provisions of this
Article X.
ARTICLE
XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01.
Discharge
of Indenture.
When
(a) the Corporation shall deliver to the Debenture Trustee for cancellation all
Securities theretofore authenticated (other than any Securities which shall
have been destroyed, lost or stolen and which shall have been replaced as
provided in Section 2.07) and not theretofore cancelled, or (b) all the
Securities not theretofore cancelled or delivered to the Debenture Trustee for
cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Debenture Trustee for the giving of
notice of redemption, and the Corporation
54
shall deposit or
cause to be deposited with the Debenture Trustee, in trust, funds for the
purpose and in an amount sufficient to pay on the Maturity Date or upon
redemption all of the Securities (other than any Securities which shall have
been destroyed, lost or stolen and which shall have been replaced as provided
in Section 2.07) not theretofore cancelled or delivered to the Debenture Trustee
for cancellation, including principal and Interest due or to become due to the
Maturity Date or redemption date, as the case may be, but excluding, however,
the amount of any moneys for the payment of principal of or Interest on the
Securities (1) theretofore repaid to the Corporation in accordance with the
provisions of Section 11.04, or (2) paid to any State or to the District of
Columbia pursuant to its unclaimed property or similar laws, and if in either
case the Corporation shall also pay or cause to be paid all other sums payable
hereunder by the Corporation, then this Indenture shall cease to be of further
effect except for the provisions of Sections 2.02, 2.03, 2.04, 2.06, 2.07,
2.10, 2.11, 3.01, 3.02, 3.04, 4.01, 4.02, 5.02, 5.04, 6.05, 6.06, 6.10 and
11.04, Article XVII and Article XVIII, which shall survive until such
Securities shall mature and be paid. Thereafter, Sections 6.06, 6.10 and 11.04
shall survive, and the Debenture Trustee, on demand of the Corporation
accompanied by any Officers’ Certificate and an Opinion of Counsel and at the
cost and expense of the Corporation, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture; the Corporation,
however, hereby agrees to reimburse the Debenture Trustee for any costs or
expenses thereafter reasonably and properly incurred by the Debenture Trustee
in connection with this Indenture or the Securities.
SECTION 11.02.
Deposited
Moneys and U.S. Government Obligations to Be Held in Trust by Debenture
Trustee.
Subject
to the provisions of Section 11.04, all moneys and U.S. Government Obligations
deposited with the Debenture Trustee pursuant to Sections 11.01 or 11.05 shall
be held in trust and applied by it to the payment, either directly or through
any paying agent (including the Corporation if acting as its own paying agent),
to the holders of the particular Securities for the payment of which such
moneys or U.S. Government Obligations have been deposited with the Debenture
Trustee, of all sums due and to become due thereon for principal and Interest.
The
Corporation shall pay and indemnify the Debenture Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 11.05 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.
SECTION 11.03.
Paying
Agent to Repay Moneys Held.
Upon
the satisfaction and discharge of this Indenture all moneys then held by any
paying agent of the Securities (other than the Debenture Trustee) shall, upon
written demand of the Corporation, be repaid to it or paid to the Debenture
Trustee, and thereupon such paying agent shall be released from all further
liability with respect to such moneys.
55
SECTION 11.04.
Return
of Unclaimed Moneys.
Any
moneys deposited with or paid to the Debenture Trustee or any paying agent for
payment of the principal of or Interest on Securities and not applied but remaining
unclaimed by the holders of Securities for two years after the date upon which
the principal of or Interest on such Securities, as the case may be, shall have
become due and payable, shall be repaid to the Corporation by the Debenture
Trustee or such paying agent on written demand; and the holder of any of the
Securities shall thereafter look only to the Corporation for any payment which
such holder may be entitled to collect and all liability of the Debenture
Trustee or such paying agent with respect to such moneys shall thereupon cease.
SECTION 11.05.
Defeasance
Upon Deposit of Moneys or U.S. Government Obligations.
The
Corporation shall be deemed to have been Discharged (as defined below) from its
obligations with respect to the Securities after the applicable conditions set
forth below have been satisfied:
(a) the Corporation shall have deposited
or caused to be deposited irrevocably with the Debenture Trustee or the
Defeasance Agent (as defined below), under the terms of an escrow trust
agreement satisfactory to the Debenture Trustee, as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit of
the holders of the Securities (i) money in an amount, or (ii) U.S. Government
obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment, money at such time or times as payments are
due and payable on the Securities in an amount, or (iii) a combination of (i)
and (ii), sufficient, in the opinion (with respect to (ii) and (iii)) of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Debenture Trustee and the
Defeasance Agent, if any, to pay and discharge each installment of principal of
and Interest on the outstanding Securities on the dates such installments of
principal or Interest are due;
(b) no Default or Event of Default
(including as a result of such deposit) with respect to the Securities shall
have occurred and be continuing on the date of such deposit;
(c) such deposit and the related intended
consequence will not result in any default or event of default under any
material indenture, agreement or other instrument binding upon the Corporation
or its Subsidiaries or any of their properties;
(d) the Corporation shall have delivered
to the Debenture Trustee and the Defeasance Agent, if any, an opinion of
independent tax counsel or a private letter ruling issued by the Internal
Revenue Service satisfactory to the Debenture Trustee to the effect that
holders of the Securities will not recognize income, gain or loss for United
States federal income tax purposes as a result of the exercise of the option
under this Section 11.05 and will be subject to United States federal income
tax on the same amount and in the same manner and at the same times as would
have been the case if such option had not been exercised; and
(e) the Corporation shall have delivered
to the Trustee and the Defeasance Agent, if any, an Officer’s Certificate and
an Opinion of Counsel each stating that all conditions precedent
56
herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.
“Discharged”
means that the Corporation shall be deemed to have paid and discharged the
entire indebtedness represented by, and obligations under, the Securities and
to have satisfied all the obligations under this Indenture relating to the
Securities (and the Debenture Trustee, at the expense of the Corporation, shall
execute proper instruments acknowledging the same), except (A) the rights of
holders of Securities to receive, from the trust fund described in clause (1)
above, payment of the principal of and the Interest on the Securities when such
payments are due; (B) the Corporation’s obligations with respect to the
Securities under Sections 2.06, 2.07, 5.02, 5.04, 6.05 and 11.04 and Article
XVII; and (C) the rights, powers, trusts, duties, privileges and immunities of
the Debenture Trustee hereunder.
“Defeasance
Agent” means another financial institution which is eligible to act as
Debenture Trustee hereunder and which assumes all of the obligations of the
Debenture Trustee necessary to enable the Debenture Trustee to act hereunder.
In the event such a Defeasance Agent is appointed pursuant to this Section, the
following conditions shall apply:
(a) The Debenture Trustee shall have
approval rights over the document appointing such Defeasance Agent and the
document setting forth such Defeasance Agent’s rights and responsibilities; and
(b) The Defeasance Agent shall provide
verification to the Debenture Trustee acknowledging receipt of sufficient money
and/or U.S. Government Obligations to meet the applicable conditions set forth
in this Section 11.05.
No such
defeasance shall be effective to relieve the Corporation from its obligation to
convert the Securities in accordance with their terms.
ARTICLE
XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01.
Indenture
and Securities Solely Corporate Obligations.
No
recourse for the payment of the principal of or Interest on any Security, or
for any claim based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the Corporation in this
Indenture, or in any Security, or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator, stockholder,
officer or director, as such, past, present or future, of the Corporation or of
any successor Person to the Corporation, either directly or through the
Corporation or any successor Person to the Corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the
Securities.
57
ARTICLE
XIII
PURCHASE AT THE OPTION OF HOLDER
UPON CHANGE IN CONTROL
SECTION 13.01.
Repurchase
Right
.
In the
event that a Change in Control shall occur while any of the Securities are
outstanding, each Holder shall have the right (the “Repurchase Right”), at the
Holder’s option to require the Corporation to repurchase, and upon the exercise
of such right the Corporation shall repurchase, all of such Holder’s Securities
not theretofore called for redemption, or any portion of the principal amount
thereof that is equal to $50.00 or any integral multiple thereof (provided that
no single Security may be repurchased in part unless the portion of the
principal amount of such Security to be outstanding after such repurchase is
equal to $50.00 or integral multiples thereof), on the date (the “Repurchase
Date”) that is the 60th day following the effective date of the Change in
Control at a repurchase price in cash equal to 100% of the principal amount of
the Securities to be repurchased, plus accrued and unpaid Interest (including
Deferred Interest and Contingent Interest, if any) to, but excluding, the
Repurchase Date (the “Repurchase Price”).
SECTION 13.02.
Notices,
Method of Exercised Repurchase Right
.
As
promptly as practicable following the date the Corporation publicly announces
such transaction but in no event less than 15 days prior to the anticipated
effective date of a Change in Control, the Corporation shall give to all
Holders of Securities notice of the Change in Control transaction and of the
Repurchase Right set forth herein arising as a result thereof (the “Company
Notice”). The Corporation shall also
deliver a copy of such notice to the Debenture Trustee, in its capacity as such
and as Property Trustee. Each notice of
a Repurchase Right shall state:
(i) a
brief description of the event or events constituting the Change in Control and
the Repurchase Date;
(ii) the
date by which the Repurchase Right must be exercised, which shall be the second
Business Day prior to the Repurchase Date;
(iii) the
Repurchase Price;
(iv) a
description of the procedure which a Holder must follow to exercise a
Repurchase Right, and the place or places where such Securities, are to be
surrendered for payment of the Repurchase Price and accrued and unpaid
Interest, if any;
(v) that
on the Repurchase Date the Repurchase Price and accrued and unpaid Interest, if
any, will become due and payable upon each such Security designated by the
Holder to be repurchased, and that Interest thereon shall cease to accrue on
and after said date;
(vi) the
Conversion Rate then in effect and the place where such Securities may be
surrendered for conversion;
58
(vii) that
the Repurchase Notice is irrevocable and that Securities as to which a
Repurchase Notice has been given may not thereafter be converted;
(viii) the
place or places where such Securities, together with the Repurchase Notice are
to be delivered for payment of the Repurchase Price and accrued and unpaid
Interest, if any; and
(ix) whether
the Conversion Rate will be increased by a number of Make-Whole Shares upon
conversion in accordance with the provisions of Section 17.04.
No
failure of the Corporation to give the foregoing notices or defect therein
shall limit any Holder’s right to exercise a Repurchase Right or affect the
validity of the proceedings for the repurchase of Securities.
SECTION 13.03.
Repurchase
Date; Exercise of Right
.
(a) To exercise the repurchase right set
forth in this Article XIII in respect of all or a portion of the Securities,
the Securityholder thereof shall deliver to the Corporation and Debenture
Trustee, no later than the second Business Day prior to the Repurchase Date, an
irrevocable written notice substantially in the form set forth on the reverse
of the form of Security attached as Exhibit A hereto (the “Repurchase Notice”)
setting forth the principal amount of Securities to be repurchased and, if such
Securities are in certificated form, surrender to the Debenture Trustee the
Securities to be repurchased, duly endorsed or assigned to the Corporation or
in blank. In addition, a holder of Preferred Securities may exercise its right
under the Trust Agreement to exchange such Preferred Securities for Securities
which shall be repurchased by the Corporation by delivering to the Exchange
Agent an irrevocable Notice of Repurchase Election (as such term is defined in
the Declaration) setting forth the information required thereby and directing
the Exchange Agent (i) to exchange such Preferred Security for a portion of the
Securities held by the Trust (at an exchange rate of $50.00 principal amount of
Securities for each Preferred Security), and (ii) to immediately require the
Corporation to repurchase such Securities on the Repurchase Date, on behalf of
such holder of Preferred Securities pursuant to this Article XIII and, if such
Preferred Securities are in certificated form, surrendering such Preferred
Securities, duly endorsed or assigned to the Corporation or in blank. So long
as any Preferred Securities are outstanding, the Trust shall not exercise the
Repurchase Right in respect of any Securities except pursuant to a Notice of
Repurchase Election delivered to the Exchange Agent by a holder of Preferred
Securities.
(b) In the event a Repurchase Right shall
be exercised in accordance with the terms hereof, the Corporation shall pay or
cause to be paid to the Debenture Trustee the Repurchase Price in cash, as
provided above, for payment to the Holder on the Repurchase Date, together with
accrued and unpaid Interest (including Deferred Interest and Contingent
Interest, if any) to the Repurchase Date
payable in cash with respect to the Securities as to which the Repurchase Right
has been exercised.
(c) If any Security (or portion thereof)
surrendered for repurchase shall not be so paid on the Repurchase Date, the
principal amount of such Security (or portion thereof, as the case
59
may be) shall, until paid, bear Interest to
the extent permitted by applicable law from the Repurchase Date at the rate of
Interest on the Security.
Any
Security which is to be repurchased only in part shall be surrendered to the
Debenture Trustee (with, if the Corporation or the Debenture Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Corporation and the Debenture Trustee duly executed by the
Holder thereof or his attorney duly authorized in writing), and the Corporation
shall execute, and the Debenture Trustee shall authenticate and make available
for delivery to the Holder of such Security without service charge, a new
Security or Securities, containing identical terms and conditions, each in an
authorized denomination in aggregate principal amount equal to and in exchange
for the unrepurchased portion of the principal of the Security so surrendered.
The
Corporation shall comply with the requirements of the Securities Exchange Act of
1934 and any other securities laws and regulations thereunder to the extent
such laws and regulations are applicable in connection with the repurchase of
the Securities as a result of a Change in Control.
ARTICLE
XIV
REDEMPTION OF SECURITIES
SECTION 14.01.
Special
Event Redemption.
If, a
Special Event that adversely affects the status of the Trust, the Preferred
Securities or the Securities has occurred and is continuing, the Corporation
shall have the right, at any time following the occurrence of such Special
Event, upon (i) not less than 45 days written notice to the Debenture Trustee
and (ii) not less than 20 days nor more than 60 days written notice to the
Securityholders, to redeem the Securities, in whole (but not in part), at the
Redemption Price. The Redemption Price shall be paid prior to 12:00 noon, New
York City time, on the date of such redemption or such earlier time as the
Corporation determines, provided that the Corporation shall deposit with the
Debenture Trustee an amount sufficient to pay the Redemption Price by 10:00
a.m., New York City time, on the date such Redemption Price is to be paid.
SECTION 14.02.
Optional
Redemption by Corporation.
Subject
to Section 14.01, the Securities shall not be redeemable at the option of the
Corporation prior to October 15, 2012.
The Corporation shall have the right to redeem the Securities, in whole
or in part, on one or more occasions at any time on or after October 15, 2012
if the Closing Price of the Common Stock for 20 Trading Days in a period of 30
consecutive Trading Days ending on the Trading Day prior to the mailing of the
notice of redemption exceeds 130% of the then prevailing Conversion Price.
If the
Securities are only partially redeemed pursuant to this Section 14.02, the
Securities to be redeemed shall be selected on a pro rata basis not more than
60 days prior to the date fixed for redemption from the outstanding Securities
not previously called for redemption,
provided,
60
however
,
that with respect to Securityholders that would be required to hold Securities
with an aggregate principal amount of less than $5,000 but more than an
aggregate principal amount of zero as a result of such pro rata redemption, the
Corporation shall redeem Securities of each such Securityholder so that after
such redemption such Securityholder shall hold Securities either with an
aggregate principal amount of at least $5,000 or such Securityholder no longer
holds any Securities, and shall use such method (including, without limitation,
by lot) as the Corporation shall deem fair and appropriate,
provided further
that any such proration
may be made on the basis of the aggregate principal amount of Securities held
by each Securityholder and may be made by making such adjustments as the
Corporation deems fair and appropriate in order that only Securities in
denominations of $50.00 or integral multiples thereof shall be redeemed. The
Redemption Price shall be paid prior to 12:00 noon, New York City time, on the
date of such redemption or at such earlier time as the Corporation determines,
provided that the Corporation shall deposit with the Debenture Trustee an
amount sufficient to pay the Redemption Price by 10:00 a.m., New York City
time, on the date such Redemption Price is to be paid.
SECTION 14.03.
No
Sinking Fund.
The
Securities are not entitled to the benefit of any sinking fund.
SECTION 14.04.
Notice
of Redemption; Selection of Securities.
In
case the Corporation shall desire to exercise the right to redeem all, or, as
the case may be, any part of the Securities in accordance with their terms, it
shall fix a date for redemption and shall mail a notice of such redemption at
least 20 and not more than 60 days prior to the date fixed for redemption to
the holders of Securities to be so redeemed as a whole or in part at their last
addresses as the same appear on the Security Register. For purposes of the
calculation of the date of redemption and the dates on which notices are given
pursuant to this Section 14.04, a redemption notice shall be deemed to be given
on the day such notice is first mailed by first-class mail, postage prepaid, to
holders. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the holder
receives such notice. In any case, failure to give such notice by mail or any
defect in the notice to the holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
Each
such notice of redemption shall specify the CUSIP number of the Securities to
be redeemed, the date fixed for redemption, the Redemption Price at which the
Securities are to be redeemed (or the method by which such Redemption Price is
to be calculated), the place or places of payment that payment will be made
upon presentation and surrender of the Securities, that Interest accrued to the
date fixed for redemption will be paid as specified in said notice, that on and
after said date Interest thereon or on the portions thereof to be redeemed will
cease to accrue, the then-current Conversion Price, the name and address of the
paying agent and the Conversion Agent, that the Securities called for
redemption may be converted at any time before 5:00 p.m. New York City time on
the Business Day immediately preceding the redemption date and that
Securityholders who wish to convert Securities must satisfy the requirements in
the Indenture and the Securities. If less than all the Securities are to be
redeemed, the notice of redemption shall specify the principal amount of the
Securities to be redeemed. In case any Security is to be redeemed in part only,
the notice of redemption shall state the portion of the
61
principal amount
thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities in
principal amount equal to the portion thereof that has not been redeemed will
be issued.
By
10:00 a.m. New York City time on the redemption date specified in the notice of
redemption given as provided in this Section, the Corporation will deposit with
the Debenture Trustee or with one or more paying agents an amount of money
sufficient to redeem on the redemption date all the Securities so called for
redemption at the appropriate Redemption Price.
The
Corporation will give the Debenture Trustee notice not less than 45 days prior
to the redemption date as to the aggregate principal amount of Securities to be
redeemed and the Debenture Trustee shall select, in such manner as in its sole
discretion it shall deem appropriate and fair, the Securities or portions
thereof (in integral multiples of $50.00, except as otherwise set forth in the
applicable form of Security) to be redeemed.
SECTION 14.05.
Payment
of Securities Called for Redemption.
If
notice of redemption has been given to Securityholders as provided in Section
14.04, the Securities or portions of Securities with respect to which such
notice has been given shall become due and payable on the date and at the place
or places stated in such notice at the Redemption Price (subject to the rights
of holders of Securities at the close of business on a regular record date to
receive Interest in respect of an Interest Payment Date occurring on or prior
to the Redemption Date), and on and after said date (unless the Corporation
shall default in the payment of such Securities at the Redemption Price)
Interest on the Securities or portions of Securities so called for redemption
shall cease to accrue. On presentation and surrender of such Securities at a
place of payment specified in said notice, the said Securities or the specified
portions thereof shall be paid and redeemed by the Corporation at the
Redemption Price (subject to the rights of holders of Securities on the close
of business on a regular record date to receive Interest in respect of an
Interest Payment Date occurring on or prior to the Redemption Date).
Upon
presentation of any Security redeemed in part only, the Corporation shall
execute and the Debenture Trustee shall authenticate and make available for
delivery to the holder thereof, at the expense of the Corporation, a new
Security or Securities of authorized denominations, in principal amount equal
to the portion of the Security so presented that has not been redeemed.
SECTION 14.06.
Conversion
Arrangement on Call for Redemption.
In
connection with any redemption of Securities, the Corporation may arrange for
the purchase and conversion of any Securities by an agreement with one or more
investment bankers or other purchasers to purchase such Securities by paying to
the Trustee in trust for the Holders, on or before the Redemption Date, an
amount not less than the applicable Redemption Price of such Securities.
Notwithstanding anything to the contrary contained in this Article XIV, the
obligation of the Corporation to pay the Redemption Price of such Securities
shall be deemed to be satisfied and discharged to the extent such amount is so
paid by such purchasers. If such an agreement is entered into, a copy of which
shall be filed with the Trustee prior to the Redemption Date, any Securities
not duly surrendered for conversion by the Holders thereof, may, at the
62
option of the
Corporation, be deemed, to the fullest extent permitted by law, acquired by
such purchasers from such Holders and (notwithstanding anything to the contrary
contained in Article XVII) surrendered by such purchasers for conversion, all
as of immediately prior to the close of business on the Redemption Date (and
the right to convert any such Securities shall be deemed to have been extended
through such time), subject to payment of the above amount as aforesaid. At the
written direction of the Corporation, the Debenture Trustee shall hold and
dispose of any such amount paid to it in the same manner as it would monies
deposited with it by the Corporation for the redemption of Securities. Without
the Debenture Trustee’s prior written consent, no arrangement between the
Corporation and such purchasers for the purchase and conversion of any
Securities shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Debenture Trustee as set forth in this
Indenture, and the Corporation agrees to indemnify the Debenture Trustee from,
and hold it harmless against, any and all loss, liability or expense arising
out of or in connection with any such arrangement for the purchase and
conversion of any Securities between the Corporation and such purchasers,
including advancement of the costs and expenses incurred by the Debenture
Trustee in the defense of any claim or liability arising out of or in
connection with the exercise or performance of any of its powers, duties,
responsibilities or obligations under this Indenture. Nothing in the preceding
sentence shall be deemed to limit the rights, privileges, immunities and
protections afforded to the Debenture Trustee in Article VI. Nothing in this
Section 14.06 shall affect the right of the Holders to receive the full
Redemption Price on the Redemption Date.
ARTICLE
XV
SUBORDINATION OF SECURITIES
SECTION 15.01.
Agreement
to Subordinate.
The
Corporation covenants and agrees, and each holder of Securities issued
hereunder likewise covenants and agrees, that the Securities shall be issued
subject to the provisions of this Article XV; and each holder of a Security,
whether upon original issue or upon transfer or assignment thereof, accepts and
agrees to be bound by such provisions.
The
payment by the Corporation of the principal of and Interest on all Securities
issued hereunder shall, to the extent and in the manner hereinafter set forth,
be subordinated and junior in right of payment to all Senior Indebtedness,
whether outstanding at the date of this Indenture or thereafter incurred.
No
provision of this Article XV shall prevent the occurrence of any Default or
Event of Default hereunder.
SECTION 15.02.
Default
on Senior Indebtedness.
In the
event and during the continuation of any default by the Corporation in the
payment of principal, interest or any other payment due on any Senior
Indebtedness, or in the event that any event of default exists with respect to
any Senior Indebtedness that permits the holders of such Senior Indebtedness to
accelerate the maturity of such Senior Indebtedness, or if any judicial
proceeding shall be pending with respect to any such default or event of
default, then, in any such case, no payment shall be made by the Corporation
with respect to the principal
63
(including
redemption payments) of or Interest on the Securities or any other amounts
which may be due on the Securities pursuant to the terms hereof or otherwise.
In the
event of the acceleration of the maturity of the Securities, then no payment
shall be made by the Corporation with respect to the principal (including
redemption payments) or Interest on the Securities or any other amounts which
may be due on the Securities pursuant to the terms hereof or otherwise until
the holders of all Senior Indebtedness outstanding at the time of such
acceleration shall receive payment in full (whether in cash, cash equivalents
or any other manner reasonably satisfactory to the holders of Senior
Indebtedness) of such Senior Indebtedness (including any amounts due upon
acceleration).
In the
event that, notwithstanding the foregoing, any payment shall be received by the
Debenture Trustee or otherwise by or for the benefit of the Securityholders
when such payment is prohibited by the preceding paragraphs of this Section 15.02,
such payment shall be held in trust for the benefit of, and shall be paid over
or delivered to, the holders of Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as their respective
interests may appear, but only to the extent that the holders of the Senior
Indebtedness (or their representative or representatives or a trustee) notify
the Debenture Trustee in writing within 90 days of such payment of the amounts
then due and owing on such Senior Indebtedness, and only the amounts specified
in such notice to the Debenture Trustee shall be paid to the holders of such
Senior Indebtedness.
SECTION 15.03.
Liquidation;
Dissolution; Bankruptcy.
Upon
any payment by the Corporation or distribution of assets of the Corporation of
any kind or character, whether in cash, property or securities, to creditors
upon the Corporation’s liquidation, dissolution, winding up, reorganization,
assignment for the benefit of its creditors, marshaling of its assets or any
bankruptcy, insolvency, debt restructuring or similar proceedings in connection
with any insolvency or bankruptcy proceeding involving the Corporation, all
Senior Indebtedness of the Corporation shall first be paid in full (whether in
cash, cash equivalents or any other manner reasonably satisfactory to the
holders of Senior Indebtedness) before any payment is made by the Corporation
on account of the principal of or Interest on the Securities or any other
amounts which may be due on the Securities pursuant to the terms hereof or
otherwise; and upon any such event, any payment by the Corporation, or
distribution of assets of the Corporation of any kind or character, whether in
cash, property or securities, which the Securityholders or the Debenture
Trustee would be entitled to receive from the Corporation, except for the
provisions of this Article XV, shall be paid by the Corporation or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the Securityholders or by the
Debenture Trustee under the Indenture if received by them or it, directly to
the holders of Senior Indebtedness of the Corporation (pro rata to such holders
on the basis of the respective amounts of Senior Indebtedness held by such
holders, as calculated by the Corporation) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Indebtedness may have been issued,
as their respective interests may appear, to the extent necessary to pay all
such Senior Indebtedness in full (whether in cash, cash equivalents or any
other manner reasonably satisfactory to the holders of Senior Indebtedness)
after giving effect to
64
any concurrent
payment or distribution to or for the holders of such Senior Indebtedness,
before any payment or distribution is made to the Securityholders or to the
Debenture Trustee.
In the
event that, notwithstanding the foregoing, any payment or distribution of
assets of the Corporation of any kind or character prohibited by the foregoing,
whether in cash, property or securities, shall be received by the Debenture
Trustee before all Senior Indebtedness is paid in full (whether in cash, cash
equivalents or any other manner reasonably satisfactory to the holders of
Senior Indebtedness), such payment or distribution shall be held in trust for
the benefit of and shall be paid over or delivered to the holders of such
Senior Indebtedness or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, as calculated by the Corporation, for application to the
payment of all Senior Indebtedness remaining unpaid to the extent necessary to
pay all such Senior Indebtedness in full (whether in cash, cash equivalents or
any other manner reasonably satisfactory to the holders of Senior
Indebtedness), after giving effect to any concurrent payment or distribution to
or for the benefit of the holders of such Senior Indebtedness.
The
consolidation of the Corporation with, or the merger of the Corporation into,
another Person or the liquidation or dissolution of the Corporation following
the sale, conveyance, transfer or lease of its property as an entirety, or
substantially as an entirety, to another Person upon the terms and conditions
provided for in Article X of this Indenture shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section
15.03 if such other Person shall, as a part of such consolidation, merger,
sale, conveyance, transfer or lease, comply with the conditions stated in
Article X of this Indenture. Nothing in Section 15.02 or in this Section 15.03
shall apply to claims of, or payments to, the Debenture Trustee under or
pursuant to Section 6.06 of this Indenture.
SECTION 15.04.
Subrogation.
Subject
to the payment in full (whether in cash, cash equivalents or any other manner
reasonably satisfactory to the holders of Senior Indebtedness) of all Senior
Indebtedness, the rights of the Securityholders shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Corporation, as the case
may be, applicable to such Senior Indebtedness until the principal of and
Interest on the Securities shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of such Senior
Indebtedness of any cash, property or securities to which the Securityholders
or the Debenture Trustee would be entitled except for the provisions of this
Article XV, and no payment over pursuant to the provisions of this Article XV
to or for the benefit of the holders of such Senior Indebtedness by
Securityholders or the Debenture Trustee, shall, as between the Corporation,
its creditors other than holders of Senior Indebtedness of the Corporation, and
the holders of the Securities, be deemed to be a payment by the Corporation to
or on account of such Senior Indebtedness. It is understood that the provisions
of this Article XV are and are intended solely for the purposes of defining the
relative rights of the holders of the Securities, on the one hand, and the
holders of such Senior Indebtedness on the other hand.
65
Nothing
contained in this Article XV or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Corporation, its
creditors other than the holders of Senior Indebtedness of the Corporation, and
the holders of the Securities, the obligation of the Corporation, which is
absolute and unconditional, to pay to the holders of the Securities the
principal of and Interest on the Securities as and when the same shall become
due and payable in accordance with their terms, or is intended to or shall
affect the relative rights of the holders of the Securities and creditors of
the Corporation, as the case may be, other than the holders of Senior
Indebtedness of the Corporation, as the case may be, nor shall anything herein
or therein prevent the Debenture Trustee or the holder of any Security from
exercising all remedies otherwise permitted by applicable law upon Default
under the Indenture, subject to the rights, if any, under this Article XV of
the holders of such Senior Indebtedness in respect of cash, property or
securities of the Corporation, as the case may be, received upon the exercise
of any such remedy.
Upon
any payment or distribution of assets of the Corporation referred to in this
Article XV, the Debenture Trustee, subject to the provisions of Article VI of
this Indenture, and the Securityholders shall be entitled to conclusively rely
upon any order or decree made by any court of competent jurisdiction in which
such dissolution, winding-up, liquidation or reorganization proceedings are
pending, or a certificate of the receiver, trustee in bankruptcy, liquidation
trustee, agent or other Person making such payment or distribution, delivered
to the Debenture Trustee or to the Securityholders, for the purposes of
ascertaining the Persons entitled to participate in such distribution, the
holders of Senior Indebtedness and other indebtedness of the Corporation, as
the case may be, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article XV.
SECTION 15.05.
Debenture
Trustee to Effectuate Subordination.
Each
Securityholder by such Securityholder’s acceptance thereof authorizes and
directs the Debenture Trustee on such Securityholder’s behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article XV and appoints the Debenture Trustee such
Securityholder’s attorney-in-fact for any and all such purposes.
SECTION 15.06.
Notice
by the Corporation.
The
Corporation shall give prompt written notice to a Responsible Officer of the
Debenture Trustee of any fact known to the Corporation that would prohibit the
making of any payment of monies to or by the Debenture Trustee in respect of
the Securities pursuant to the provisions of this Article XV. Notwithstanding
the provisions of this Article XV or any other provision of this Indenture, the
Debenture Trustee shall not be charged with knowledge of the existence of any
facts that would prohibit the making of any payment of monies to or by the
Debenture Trustee in respect of the Securities pursuant to the provisions of
this Article XV, unless and until a Responsible Officer of the Debenture
Trustee shall have received written notice thereof from the Corporation or a
holder or holders of Senior Indebtedness or from any trustee therefor; and
before the receipt of any such written notice, the Debenture Trustee, subject
to the provisions of Article VI of this Indenture, shall be entitled in all
respects to assume that no such facts exist;
provided,
however
, that if the Debenture Trustee shall not have received the
notice provided for in this Section 15.06 at least three Business Days prior to
the date upon
66
which by the terms
hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of or Interest on any Security), then,
anything herein contained to the contrary notwithstanding, the Debenture
Trustee shall have full power and authority to receive such money and to apply
the same to the purposes for which they were received, and shall not be
affected by any notice to the contrary that may be received by it within three
Business Days prior to such date.
The
Debenture Trustee, subject to the provisions of Article VI, shall be entitled
to conclusively rely on a written notice delivered to it by a Person
representing himself to be a holder of Senior Indebtedness of the Corporation
or a trustee or a representative on behalf of such holder, as the case may be,
to establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee or a representative on behalf of any such holder or
holders. In the event that the Debenture Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a
holder of such Senior Indebtedness to participate in any payment or distribution
pursuant to this Article XV, the Debenture Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Debenture Trustee as to
the amount of such Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article XV, and,
if such evidence is not furnished, the Debenture Trustee may defer any payment
to such Person pending judicial determination as to the right of such Person to
receive such payment.
Upon
any payment or distribution of assets of the Corporation referred to in this
Article XV, the Debenture Trustee and the Securityholders shall be entitled to
conclusively rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding-up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, liquidating trustee,
custodian, receiver, assignee for the benefit of creditors, agent or other
person making such payment or distribution, delivered to the Debenture Trustee
or to the Securityholders, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of Senior
Indebtedness and other indebtedness of the Corporation, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article XV.
SECTION 15.07.
Rights
of the Debenture Trustee; Holders of Senior Indebtedness.
The
Debenture Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article XV in respect of any Senior Indebtedness at
any time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Debenture Trustee
of any of its rights as such holder.
With
respect to the holders of Senior Indebtedness of the Corporation, the Debenture
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XV, and no implied
covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture against the Debenture Trustee.
The Debenture Trustee shall not be deemed to owe any fiduciary duty to the
holders of such Senior Indebtedness and, subject to the provisions of Article
VI of this Indenture, the
67
Debenture Trustee
shall not be liable to any holder of such Senior Indebtedness if it shall pay
over or deliver to Securityholders, the Corporation or any other Person money
or assets to which any holder of such Senior Indebtedness shall be entitled by
virtue of this Article XV or otherwise.
Nothing
in this Article XV shall apply to claims of, or payments to, the Debenture
Trustee under or pursuant to Section 6.06.
SECTION 15.08.
Subordination
May Not Be Impaired.
No
right of any present or future holder of any Senior Indebtedness of the
Corporation to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Corporation, as the case may be, or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Corporation, as the
case may be, with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or otherwise
be charged with.
Without
in any way limiting the generality of the foregoing paragraph, the holders of
Senior Indebtedness of the Corporation may, at any time and from time to time,
without the consent of or notice to the Debenture Trustee or the
Securityholders, without incurring responsibility to the Securityholders and
without impairing or releasing the subordination provided in this Article XV or
the obligations hereunder of the holders of the Securities to the holders of
such Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, such Senior Indebtedness, or otherwise amend or supplement in any manner
such Senior Indebtedness or any instrument evidencing the same or any agreement
under which such Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing such Senior Indebtedness; (iii) release any Person liable in any
manner for the collection of such Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Corporation, as the case may be,
and any other Person.
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 16.01.
Extension
of Interest Payment Period.
So
long as the Corporation is not in Default in the payment of Interest on the
Securities, the Corporation shall have the right, at any time and from time to
time during the term of the Securities, to defer payments of Interest (other
than Contingent Interest) by extending the interest payment period of such
Securities for a period not exceeding 20 consecutive quarterly periods,
including the first such quarterly period during such extension period (an “Extended
Interest Payment Period”), during which Extended Interest Payment Period no
Interest (other than Contingent Interest) shall be due and payable; provided
that no Extended Interest Payment Period shall end on a date other than an
Interest Payment Date or extend beyond the Maturity Date or, with respect to any
Securities called for redemption, the Redemption Date with respect to such
Securities. To the extent permitted by applicable law, Interest, the payment of
which has been deferred because of the extension of the interest payment period
pursuant to this Section 16.01,
68
will bear interest
thereon at the Coupon Rate compounded quarterly for each quarterly period of
the Extended Interest Payment Period (“Compounded Interest”). At the end of the
Extended Interest Payment Period, the Corporation shall pay all Interest
accrued and unpaid on the Securities, including any Additional Sums, Liquidated
Damages and Compounded Interest (together, “Deferred Interest”) that shall be
payable to the holders of the Securities in whose names the Securities are
registered in the Security Register on the first record date preceding the end
of the Extended Interest Payment Period. Before the termination of any Extended
Interest Payment Period, the Corporation may further defer payments of Interest
(other than Contingent Interest) by further extending such period, provided
that such period, together with all such previous and further extensions within
such Extended Interest Payment Period, shall not exceed 20 consecutive
quarterly periods, including the first such quarterly period during such
Extended Interest Payment Period, end on a date other than an Interest Payment
Date or extend beyond the Maturity Date of the Securities or, with respect to
any Securities called for redemption, the Redemption Date with respect to such
Securities. Upon the termination of any Extended Interest Payment Period and
the payment of all Deferred Interest then due, the Corporation may commence a
new Extended Interest Payment Period, subject to the foregoing requirements. No
Interest (other than Contingent Interest) shall be due and payable during an
Extended Interest Payment Period, except at the end thereof, but the
Corporation may prepay at any time all or any portion of the Interest accrued
during an Extended Interest Payment Period.
The payment of Contingent Interest may not, under any circumstances, be
subject to an Extended Interest Payment Period.
SECTION 16.02.
Notice
of Extension.
(a)
If
the Property Trustee is the only registered holder of the Securities at the
time the Corporation selects an Extended Interest Payment Period or extends an
Extended Interest Payment Period, the Corporation shall give written notice to
the Administrators, the Property Trustee and the Debenture Trustee of its
selection of such Extended Interest Payment Period or its extension of an
Extended Interest Payment Period at least five Business Days before the earlier
of (i) the next date on which Distributions on the Preferred Securities are
payable, or (ii) the date the Property Trustee is required to give notice of
the record date or the payment date of such related Distributions for the first
quarter of such Extended Interest Payment Period to any national stock exchange
or other organization on which the Preferred Securities are listed or quoted,
if any, or to holders of the Preferred Securities as of the record date or the
payment date.
(b)
If
the Property Trustee is not the only holder of the Securities at the time the
Corporation selects an Extended Interest Payment Period or extends an Extended
Interest Payment Period, the Corporation shall give the holders of the
Securities and the Debenture Trustee written notice of its selection of such
Extended Interest Payment Period or its extension of an Extended Interest
Payment Period at least 10 Business Days before the earlier of (i) the Interest
Payment Date for the first quarter of such Extended Interest Payment Period, or
(ii) the date the Corporation is required to give notice of the record date or
payment date of such related Interest payment for the first quarter of such Extended
Interest Payment Period to any national stock exchange or other organization on
which the Securities are listed or quoted, if any, or to Holders of the
Securities as of the record date or the payment date.
69
(c)
The
quarterly period in which any notice is given pursuant to paragraphs (a) or (b)
of this Section 16.02 shall be counted as one of the 20 quarterly periods
permitted in the maximum Extended Interest Payment Period permitted under
Section 16.01.
ARTICLE XVII
CONVERSION OF SECURITIES
SECTION 17.01.
Conversion
Rights.
(a)
Subject
to and upon compliance with the provisions of this Article XVII, the Securities
are convertible, at the option of the Securityholder, at any time before 5:00
pm, New York City time, on the Business Day immediately preceding the date of
repayment of such Securities, whether at stated maturity or upon redemption,
into fully paid and nonassessable shares of Common Stock at an initial
conversion rate of 0.2500 shares of Common Stock for each $50.00 in aggregate
principal amount of Securities (equal to an initial Conversion Price of $200.00
per share of Common Stock), subject to adjustment as described in this Article
XVII (the “Conversion Rate”). Subject to
Section 17.01(b) and (c), a Securityholder may convert any portion of the
principal amount of the Securities into that number of fully paid and
nonassessable shares of Common Stock (calculated as to each conversion to the
nearest 1/100th of a share) obtained by multiplying (x) the quotient obtained
by dividing the principal amount of the Securities to be converted by $50.00 by
(y) the Conversion Rate. In case a Security or portion thereof is called for
redemption, such conversion right in respect of the Security or portion so
called shall expire at 5:00 p.m., New York City time on the Business Day
immediately preceding the corresponding redemption date, unless the Corporation
defaults in making the payment due upon redemption.
(b)
Unless
the Corporation shall have made the election set forth in Section 17.01(c),
upon conversion of the Securities, the Corporation may satisfy its obligation
to deliver shares of Common Stock in the manner set forth in this Section
17.01(b) by electing to pay cash to Holders of Securities surrendered for
conversion in lieu of all or a portion of the shares of Common Stock issuable
upon conversion of such Securities.
Within two Business Days following the Conversion Date, the Corporation
shall deliver to the Holder, through the Conversion Agent, written notice of
whether such Securities shall be converted into Common Stock or paid in cash or
a combination of cash and Common Stock, and if applicable, the percentage of
each share of Common Stock that will be paid in cash in lieu of Common
Stock. The amount of cash payable in
such event in respect of the shares of Common Stock otherwise issuable upon
conversion shall equal the product of (1) the percentage of each share of
Common Stock otherwise issuable upon conversion which the Corporation elects to
pay in cash, (2) the number of shares of Common Stock otherwise issuable upon
conversion of such Security and (3) the average of the Closing Prices of the
Common Stock for each of the 10 consecutive Trading Days commencing on the
third Trading Day following the Conversion Date, appropriately adjusted to take
into account the occurrence during such period of stock splits and similar
events. If the Corporation shall have
notified the Holder that all of such Securities shall be converted into Common
Stock or a combination of cash and Common Stock, the Corporation shall deliver
to the Holder through the Conversion Agent, as promptly as practicable
following the last Trading Day of the applicable 10 consecutive Trading Day
period, a certificate for the number of whole shares of Common Stock issuable
upon the conversion and, if applicable, cash in lieu of
70
such Common Stock and cash in lieu of any
fractional shares pursuant to Section 17.02(c). The Corporation may not change its election
with respect to the consideration to be delivered upon conversion of a Security
once the Corporation has notified the Holder in accordance with this paragraph.
(c)
At
any time prior to the Maturity Date, the Corporation shall have the option to
unilaterally and irrevocably elect to settle its obligation to deliver shares
of Common Stock with respect to Securities to be converted following such
election in cash, and, if applicable, shares of Common Stock. If the Corporation shall make this election,
then if a Holder surrenders its Securities for conversion, such holder will receive,
in respect of each $50.00 principal amount of Securities surrendered for
conversion:
(i)
cash in an amount
equal to the lesser of (A) $50.00 and (B) the Conversion Value (the “Required
Cash Amount”); and
(ii)
if the Conversion
Value is greater than $50.00, a number of shares of Common Stock (the “Remaining
Shares”), equal to the sum of the Daily Share Amounts for each of the ten
consecutive Trading Days in the Conversion Reference Period, subject to the
right of the Corporation to deliver cash in lieu of all or a portion of such
Remaining Shares as described below (the
amounts referred to in Section 17.02(c)(i) and this Section 17.02(c)(ii) so
deliverable upon conversion of the Securities, the “Conversion Obligation”).
On any
day prior to the first Trading Day of the applicable Conversion Reference
Period, the Corporation may specify a percentage of the Daily Share Amount that
will be settled in cash (the “Cash Percentage”) and will notify the
Securityholder of such Cash Percentage through written notice to the Debenture
Trustee (the “Cash Percentage Notice”). If the Corporation elects to specify a
Cash Percentage, the amount of cash that the Corporation will deliver in
respect of each Trading Day in the applicable Conversion Reference Period will
equal the product of: (1) the Cash Percentage, (2) the Daily Share
Amount for such Trading Day, and (3) the Volume Weighted Average Price of
the Common Stock for such Trading Day (provided that after the consummation of
a Change in Control in which the consideration is comprised entirely of cash,
the amount used in this clause (3) will be the cash price per share of
Common Stock received by holders of Common Stock in such Change in Control).
The number of shares deliverable in respect of each Trading Day in the applicable
Conversion Reference Period will be a percentage of the Daily Share Amount
equal to 100% minus the Cash Percentage. If the Corporation does not specify a
Cash Percentage by the start of the applicable Conversion Reference Period, the
Corporation shall settle 100% of the Daily Share Amount for each Trading Day in
the applicable Conversion Reference Period with shares of Common Stock;
provided, however, that the Corporation will pay cash in lieu of fractional
shares otherwise issuable upon conversion of such Security, pursuant to
Section 17.02(c). The Corporation may, at its option, revoke any Cash
Percentage Notice through written notice to the Debenture Trustee prior to the
start of the applicable Conversion Reference Period.
In the
event of a stock split, combination, dividend or any other event resulting in
an adjustment to the Conversion Rate pursuant to Sections 17.03(a), (b), (c),
(d) or (e), during the applicable Conversion Reference Period, appropriate
adjustment to the equation for calculating
71
Conversion Value
and Remaining Shares shall be made, as determined by the Board of Directors.
The
cash and any shares of Common Stock due upon conversion of the Securities shall
be delivered through the Conversion Agent as promptly as practicable following
the end of the Conversion Reference Period applicable to the Securities being
converted but in any event no later than three (3) Business Days following the
last Trading Day of the applicable Conversion Reference Period. Notwithstanding the foregoing, in the event
that a Holder converts Securities “in connection with” a Change in Control in
which the consideration for the Common Stock is comprised entirely of cash, the
Conversion Obligation will be calculated based solely on the Stock Price (as
such term is defined for purposes of Change in Control transactions involving
solely cash consideration) with respect to the transaction and will be deemed
to be an amount equal to the applicable Conversion Rate (including any
adjustment thereto pursuant to Section 17.04) multiplied by such Stock
Price. In such event, the Conversion
Obligation shall be determined and paid to Holders in cash on the third Trading
Day following the surrender of the Securities for conversion.
SECTION 17.02.
Conversion
Procedures.
(a)
To
convert all or a portion of the Securities, the Securityholder thereof shall
deliver to the Conversion Agent an irrevocable Conversion Request setting forth
the principal amount of Securities to be converted, together with the name or
names, if other than the Securityholder, in which the shares of Common Stock
should be issued upon conversion and, if such Securities are in certificated
form, surrender to the Conversion Agent the Securities to be converted, duly
endorsed or assigned to the Corporation or in blank. In addition, a holder of
Preferred Securities may exercise its right under the Declaration to exchange
such Preferred Securities for Securities which shall be converted into Common
Stock by delivering to the Conversion Agent an irrevocable Conversion Request
setting forth the information called for by the preceding sentence and
directing the Conversion Agent (i) to exchange such Preferred Security for a
portion of the Securities held by the Trust (at an exchange rate of $50.00
principal amount of Securities for each Preferred Security), and (ii) to
immediately convert such Securities, on behalf of such Securityholder, into
Common Stock pursuant to this Article XVII and, if such Preferred Securities
are in certificated form, surrendering such Preferred Securities, duly endorsed
or assigned to the Corporation or in blank. So long as any Preferred Securities
are outstanding, the Trust shall not convert any Securities into shares of
Common Stock except pursuant to a Conversion Request delivered to the
Conversion Agent by a holder of Preferred Securities.
Except
as described in this paragraph, no Interest will be payable on Securities
surrendered for conversion with respect to any Interest Payment Date subsequent
to the date of conversion and neither the Trust nor the Corporation shall make,
or be required to make, any payment, allowance or adjustment for accumulated
and unpaid Interest, whether or not in arrears, on Securities surrendered for
conversion. If any Securities are surrendered for conversion between the period
from 5:00 p.m., New York City time, on any record date through and including
the related Interest Payment Date, the Securities surrendered for conversion
must be accompanied by payment from the Securityholder in next day funds of an amount
equal to the Interest payment which the registered holder on such record date
is to receive, and such
72
Securityholder
shall be entitled to receive the Interest payable on the subsequent Interest
Payment Date on the portion of Securities to be converted, notwithstanding the
conversion thereof prior to such Interest Payment Date. The previous sentence
shall not apply in the case of Securities called for redemption on a Redemption
Date between a record date and a related Interest Payment Date and in the case
of any Securities surrendered for conversion after such Securities have been
called for redemption during an Extended Interest Payment Period as described
in the next sentence. If notice of redemption of Securities is mailed or
otherwise given to Securityholders, then, if any Securityholder converts any
Securities into Common Stock on any date on or after the date on which such
notice of redemption is mailed or otherwise given, and if such date of
conversion falls on any day from and including the first day of an Extended
Interest Payment Period and on or prior to the Interest Payment Date upon which
such Extended Interest Payment Period ends, such converting Securityholder
shall be entitled to receive either (i) if the date of such conversion falls after
a record date and on or prior to the next succeeding Interest Payment Date, all
accrued and unpaid Interest on such Securities to such Interest Payment Date,
or (ii) if the date of such conversion does not fall on a date described in
clause (i) above, all accrued and unpaid Interest on such Securities to the
most recent Interest Payment Date prior to the date of such conversion (even
though no Interest was paid on such date), which Interest shall, in either such
case, be paid to such converting Securityholder unless another Securityholder
was the record owner of such Securities as of 5:00 p.m., New York City time on
the record date for which such Interest payment is made, in which case such
Interest payment shall be paid to such other Securityholder. Except as
otherwise set forth above in this paragraph, in the case of any Security which
is converted, Interest (including Tax Original Issue Discount) which is payable
after the date of conversion of such Security shall not be payable, and the
Corporation shall not make nor be required to make any other payment,
adjustment or allowance with respect to accrued but unpaid Interest (including
Tax Original Issue Discount) on the Securities being converted, which shall be
deemed to be paid in full through delivery of the Common Stock (together with
the cash payment, if any, in lieu of fractional shares). If any Security called
for redemption is converted, any money deposited with the Debenture 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 Securityholder) be paid to the
Corporation upon Corporation Request or, if then held by the Corporation, shall
be discharged from such trust.
Each
conversion shall be deemed to have been effected immediately prior to 5:00
p.m., New York City time, on the Business Day on which the Conversion Request
and any other required deliveries were received (the “Conversion Date”) by the
Conversion Agent from the Securityholder or from a holder of the Preferred
Securities effecting a conversion thereof pursuant to its conversion rights
under the Declaration, as the case may be. The person or persons entitled to
receive the Common Stock issuable upon such conversion shall be treated for all
purposes as a record holder or holders of such Common Stock as of the
Conversion Date.
(b)
Subject
to any right of the Securityholder, the fair market value of the fixed number
of shares of Common Stock into which the Securities are convertible (together
with the cash payment, if any, in lieu of fractional shares) shall be treated
as issued, to the extent thereof, (i) first, in exchange for accrued and unpaid
Interest (including Tax Original Issue Discount) on such Securities at the time
of such conversion, and (ii) second, the balance, if any, of such fair market
value of such Common Stock (and any cash payment) shall be treated as issued in
exchange for the principal amount at maturity of the portion of Securities so
converted.
73
(c)
No
fractional shares of Common Stock shall be issued as a result of
conversion. Subject to the immediately
following sentence, in lieu of any such fractional shares, the Corporation
shall pay to the Conversion Agent a cash adjustment in an amount equal to the
same fraction of the Closing Price of such fractional interest on the date on
which the Securities or Preferred Securities, as the case may be, were duly
surrendered to the Conversion Agent for conversion, or, if such day is not a
Trading Day, on the next Trading Day, and the Conversion Agent in turn shall
make such payment, if any, to the Securityholder or the holder of the Preferred
Securities so converted. In the event
that the conversion obligation is settled in accordance with the provisions of
Section 17.01(c), a Holder of a Security otherwise entitled to a fractional
share will receive cash equal to the applicable portion of the arithmetic
average of the Volume Weighted Average price of Common Stock for each of the
ten consecutive Trading Days of the Conversion Reference Period.
(d)
In
the event of the conversion of any Security in part only, a new Security or
Securities for the unconverted portion thereof shall be issued in the name of
the Securityholder thereof upon the cancellation thereof in accordance with
Section 2.9.
(e)
In
effecting the conversion transactions described in this Section 17.02, the
Conversion Agent is acting as agent of the holders of Preferred Securities (in
the exchange of Preferred Securities for Securities) and as agent of the
Securityholders (in the conversion of Securities into Common Stock), as the
case may be, directing it to effect such conversion transactions. The
Conversion Agent is hereby authorized (i) to exchange Preferred Securities for
Securities held by the Trust from time to time in connection with the
conversion of such Preferred Securities in accordance with this Article XVII,
and (ii) to convert all or a portion of the Securities into Common Stock and
thereupon to deliver such shares of Common Stock in accordance with the
provisions of this Article XVII and to deliver to the Trust a new Security or
Securities for any resulting unconverted principal amount.
(f)
Any
certificates representing shares of Common Stock issuable upon conversion of
the Securities shall bear any legend required by Section 2.06.
(g)
The
Corporation shall at all times reserve and keep available out of its authorized
and unissued Common Stock, solely for issuance upon the conversion of the
Securities, free from any preemptive or other similar rights, such number of
shares of Common Stock as shall from time to time be issuable upon the
conversion of all the Securities then outstanding. Notwithstanding the
foregoing, the Corporation shall be entitled to deliver upon conversion of
Securities, shares of Common Stock reacquired and held in the treasury of the
Corporation (in lieu of the issuance of authorized and unissued shares of
Common Stock), so long as any such treasury shares are free and clear of all
liens, charges, security interests or encumbrances. Any shares of Common Stock
issued upon conversion of the Securities shall be duly authorized, validly
issued and fully paid and nonassessable. The Debenture Trustee shall deliver
the shares of Common Stock received upon conversion of the Securities to the
converting Securityholder free and clear of all liens, charges, security
interests and encumbrances, except for United States withholding taxes.
74
SECTION 17.03.
Conversion
Rate Adjustments.
The
Conversion Rate shall be subject to adjustment (without duplication) from time
to time as follows:
(a)
In
case the Corporation shall, while any of the Securities are outstanding,
(i)
pay a dividend or
make a distribution on its Common Stock payable in shares of its Common Stock,
(ii)
subdivide its shares
of Common Stock,
(iii)
combine its outstanding
shares of Common Stock into a smaller number of shares, or
(iv)
issue by recapitalization
or reclassification of its shares of Common Stock any shares of capital stock
of the Corporation,
then the
Conversion Rate in effect immediately prior to such action shall be adjusted so
that the Holder of a Security thereafter converted may receive the number of
shares of Capital Stock of the Corporation which such Holder would have owned
immediately following such action if such Holder had converted the Security
immediately prior to such action;
provided
,
however
, that no
adjustment shall be made to the Conversion Rate pursuant to this Section
17.03(a) as a result of any transaction which results in an adjustment to the
Conversion Rate in accordance with Section 17.04.
The
adjustment shall become effective immediately after the record date in the case
of a dividend or distribution and immediately after the effective date in the
case of a subdivision, combination or reclassification.
If
after an adjustment a Holder of a Security upon conversion of such Security may
receive shares of two or more classes of Capital Stock of the Corporation, the
Conversion Rate shall thereafter be subject to adjustment upon the occurrence
of an action taken with respect to any such class of Capital Stock as is
contemplated by this Article XVII with respect to the Common Stock, on terms
comparable to those applicable to Common Stock in this Article XVII.
(b)
In
case the Corporation shall, while any of the Securities are outstanding,
distribute any rights or warrants to all holders of its Common Stock entitling
them, for a period expiring within 60 days after the record date for such
distribution, to subscribe for or purchase shares of Common Stock or securities
convertible into such shares at a price per share less than (or having a
Conversion Price per share less than) the Average Closing Price, the Conversion
Rate shall be adjusted in accordance with the formula:
|
R’ = R
|
x
|
(O + N)
|
|
|
(O + (N x P) /M)
|
|
where:
75
R’= the adjusted
Conversion Rate.
R = the current
Conversion Rate.
O =
the
number of shares of Common Stock outstanding on the record date for the
distribution to which this Section 17.03(b) is being applied.
N =
the number of additional
shares of Common Stock offered pursuant to the distribution.
P =
the
offering price per share of the additional shares.
M = the Average Closing
Price, minus, in the case of (i) a distribution to which
Section 17.03(a)(iv) applies or (ii) a distribution to which Section 17.03(c)
applies, for which, in each case, (x) the record date shall occur on or
before the record date for the distribution to which this Section 17.03(b)
applies and (y) the Ex-Dividend Time shall occur on or after the date of the
first public announcement for the distribution to which this
Section 17.03(b) applies, the fair market value (on the record date for
the distribution to which this Section 17.03(b) applies) of the
(1)
Capital
Stock of the Corporation distributed in respect of each share of Common Stock
in such Section 17.03(a)(iv) distribution and
(2)
assets
of the Corporation or debt securities or any rights, warrants or options to
purchase securities of the Corporation distributed in respect of each share of
Common Stock in such Section 17.03(c) distribution.
The
Board of Directors shall determine fair market values for the purposes of this
Section 17.03(b).
In the
event the Corporation makes a distribution pursuant to this
Section 17.03(b) which has a per share value equal to more than 15% of the
Closing Price of shares of Common Stock on the day preceding the declaration
date for such distribution, the Corporation will be required to give notice to
the holders of Securities at least 20 days prior to the Ex-Dividend Date for
such distribution.
The
adjustment shall become effective immediately after the record date for the
determination of shareholders entitled to receive the rights, warrants or
options to which this Section 17.03(b) applies. If all of the shares of
Common Stock subject to such rights, warrants or options have not been issued
when such rights, warrants or options expire, then the Conversion Rate shall
promptly be readjusted to the Conversion Rate that would then be in effect had
the adjustment upon the issuance of such rights, warrants or options been made
on the basis of the actual number of shares of Common Stock issued upon the
exercise of such rights, warrants or options.
76
No
adjustment shall be made under this Section 17.03(b) if the application of
the formula stated above in this Section 17.03(b) would result in a value
of R’ that is equal to or less than the value of R.
(c)
(i)
In
case the Corporation shall, while any of the Securities are outstanding,
distribute to all holders of its Common Stock any of its assets (including
shares of any Subsidiary or business unit of the Corporation, but excluding
distributions of Capital Stock or equity interests referred to in
Section 17.03(c)(ii)), or debt securities or any rights, warrants or
options to purchase securities of the Corporation (including securities or
cash, but excluding (x) distributions of Capital Stock referred to in
Section 17.03(a) and distributions of rights, warrants or options referred
to in Section 17.03(b) and (y) cash dividends or other cash
distributions referred to in Section 17.03(d)), the Conversion Rate shall
be adjusted, subject to the provisions of Section 17.03(c)(iii), in
accordance with the formula:
where:
R’ = the adjusted Conversion Rate.
R = the current Conversion Rate.
M =
the Average Closing
Price, minus, in the case of a distribution to which Section 17.03(a)(iv)
applies, for which (i) the record date shall occur on or before the record
date for the distribution to which this Section 17.03(c)(i) applies and
(ii) the Ex-Dividend Time shall occur on or after the date of the Time of
Determination for the distribution to which this Section 17.03(c)(i)
applies, the fair market value (on the record date for the distribution to
which this Section 17.03(c)(i) applies) of any Capital Stock of the
Corporation distributed in respect of each share of Common Stock in such
Section 17.03(a)(iv) distribution.
F =
the fair market
value (on the record date for the distribution to which this
Section 17.03(c)(i) applies) of the assets, securities, rights, warrants
or options to be distributed in respect of each share of Common Stock in the
distribution to which this Section 17.03(c)(i) is being applied
(including, in the case of cash dividends or other cash distributions giving
rise to an adjustment, all such cash distributed concurrently).
The
Board of Directors shall determine fair market values for the purposes of this
Section 17.03(c)(i).
The
adjustment shall become effective immediately after the record date for the
determination of shareholders entitled to receive the distribution to which
this Section 17.03(c)(i) applies.
(ii)
In
case the Corporation shall, while any of the Securities are outstanding, pay a
dividend or make a distribution to all holders of its Common Stock consisting
of Capital Stock of
77
any class or
series, or similar equity interests, of or relating to a Subsidiary or other
business unit of the Corporation, then the Conversion Rate shall be adjusted in
accordance with the formula:
R’ = R x (1 + F/M)
R’ = the adjusted Conversion Rate.
R = the current Conversion Rate.
M =
the average of the
Post-Distribution Prices of the Common Stock for the 10 Trading Days commencing
on and including the fifth Trading Day after the date on which “ex-dividend trading”
commences for such dividend or distribution on the principal United States
exchange or market which such securities are then listed or quoted (the “Ex-Dividend
Date”).
F =
the fair market
value of the securities distributed in respect of each share of Common Stock to
which this Section 17.03(c)(ii) shall apply which shall equal the number
of securities distributed in respect of each share of Common Stock multiplied
by the average of the Post-Distribution Prices of those securities distributed for
the 10 Trading Days commencing on and including the fifth Trading Day after the
Ex-Dividend Date.
“Post-Distribution
Price” of Capital Stock or any similar equity interest on any date means the
closing per unit sale price (or, if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and the average ask prices) on such date for trading
of such units on a “when issued” basis without due bills (or similar concept)
as reported in the composite transactions for the principal United States
securities exchange on which such Capital Stock or equity interest is traded
or, if the Capital Stock or equity interest, as the case may be, is not listed
on a United States national or regional securities exchange, as reported by the
National Quotation Bureau Incorporated; provided that if on any date such units
have not traded on a “when issued” basis, the Post-Distribution Price shall be
the closing per unit sale price (or, if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and the average ask prices) on such date for trading
of such units on a “regular way” basis without due bills (or similar concept) as
reported in the composite transactions for the principal United States
securities exchange on which such Capital Stock or equity interest is traded
or, if the Capital Stock or equity interest, as the case may be, is not listed
on a United States national or regional securities exchange, as reported by the
National Quotation Bureau Incorporated. In the absence of such quotation, the
Corporation shall be entitled to determine the Post-Distribution Price on the
basis of such quotations which reflect the post-distribution value of the
Capital Stock or equity interests as it considers appropriate.
(iii)
In
the event that, with respect to any distribution to which
Section 17.03(c)(i) would otherwise apply, the difference between “M-F” as
defined in the formula set forth in Section 17.03(c)(i) is less than $1.00
or “F” is equal to or greater than “M”, then the adjustment provided by
Section 17.03(c)(i) shall not be made.
78
(iv)
In
the event the Corporation makes a distribution pursuant to this
Section 17.03(c) which has a per share value equal to more than 15% of the
Closing Price of shares of Common Stock on the day preceding the declaration
date for such distribution, the Corporation will be required to give notice to
the holders of Securities at least 20 days prior to the Ex-Dividend Date for
such distribution.
(d)
In
case the Corporation shall, while any of the Securities are outstanding,
distribute to all or substantially all holders of its Common Stock any dividend
or other distribution paid exclusively in cash (excluding any dividend or
distribution in connection with the liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary), the Conversion Rate shall
be adjusted in accordance with the formula:
where,
R’ = the adjusted Conversion Rate;
R = the Conversion Rate in effect immediately prior to
the Time of Determination;
M =
the average of the Closing
Prices of the Common Stock for the five consecutive Trading Days prior to the
Trading Day immediately preceding the Time of Determination; and
C =
the amount in cash
per share the Corporation distributes to holders of the Common Stock (and for
which no adjustment has been made).
(e)
In
case the Corporation shall, while any of the Securities are outstanding, make a
payment of cash or other consideration to holders of Common Stock in respect of
a tender offer or exchange offer, other than an odd-lot offer, for the Common
Stock, and the value of the aggregate cash and other consideration paid for
such Common Stock, expressed as an amount per share of Common Stock validly
tendered or exchanged pursuant to such tender offer or exchange offer, exceeds
the Closing Price of the Common Stock on the Trading Day immediately following
the last time (the “Expiration Time”) on which tenders or exchanges may be made
pursuant to the tender or exchange offer, then the Conversion Rate shall be
adjusted in accordance with the formula:
|
R’ = R
|
x
|
F + (P x O)
|
|
|
O’ x P
|
|
where,
R = the Conversion Rate in effect on the Expiration
Time;
R’ = the Conversion Rate in effect immediately after
the Expiration Time;
79
F =
the fair market
value (as determined by the Board of Directors) of the aggregate value of all
cash and any other consideration paid or payable for shares of Common Stock
validly tendered or exchanged and not withdrawn as of the Expiration Time (the “Purchased
Shares”);
O =
the number of shares
of Common Stock outstanding immediately after the Expiration Time less any Purchased
Shares;
O’ =
the number of shares of
Common Stock outstanding immediately after the Expiration Time, including any
Purchased Shares; and
P = the Closing Price of
the Common Stock on the Trading Day next succeeding the Expiration Time.
Such
increase (if any) shall become effective immediately prior to the opening of
business on the day following the Expiration Time. In the event that the
Corporation is obligated to purchase shares pursuant to any such tender offer,
but the Corporation is prevented by applicable law from effecting any such
purchases or all such purchases are rescinded, the Conversion Rate shall again
be adjusted to be the Conversion Rate that would then be in effect if such
tender or exchange offer had not been made. If the application of this
Section 17.03(e) to any tender or exchange offer would result in a
decrease in the Conversion Rate, no adjustment shall be made for such tender or
exchange offer under this Section 17.03(e).
(f)
The
Corporation may make such increases in the Conversion Rate, in addition to
those required by Subsections (a) through (e), as it considers to be advisable
to avoid or diminish any income tax to holders of Common Stock or rights to
purchase Common Stock resulting from any dividend or distribution of stock (or
rights to acquire stock) or from any event treated as such for income tax
purposes. The Corporation from time to time may, to the extent permitted by
law, increase the Conversion Rate by any
amount for any period of time if the period is at least 20 days upon notice by
the Corporation of at least 15 days, the increase is irrevocable during the
period, and the Board of Directors shall have made a determination that such
increase would be in the best interest of the Corporation, which determination
shall be conclusive. Whenever the Conversion Rate is increased pursuant to the
preceding sentence, the Corporation shall mail to Securityholders of record a
notice of the increase at least fifteen days prior to the date the increased
Conversion Rate takes effect, and such notice shall state the increased
Conversion Rate and the period it shall be in effect.
(g)
Anything
in this Section 17.03 to the contrary notwithstanding, no adjustment of the
Conversion Rate will be made upon: (a) the issuance of any shares of Common
Stock pursuant to any present or future plan providing for the reinvestment of
dividends or interest payable on securities of the Corporation and the
investment of additional optional amounts in shares of Common Stock under any
such plan, or (b) the issuance of any shares of Common Stock or options or
rights pursuant to any present or future employee benefit plan or program, or
(c) the issuance of any shares of Common Stock pursuant to any option, warrant,
right or any exercisable, exchangeable or convertible security outstanding as
of the date on which the Securities are first issued, or (d) the issuance of
rights under any shareholder rights plan, or (e) a change in the par value or a
change to no par value of the Common Stock. To the extent the
80
Securities become convertible into cash, no
adjustments need be made thereafter as to the cash and interest will not accrue
on the cash.
(h)
No
adjustment in the Conversion Rate shall be required unless such adjustment
would require an increase or decrease of at least 1% in the Conversion Rate;
provided, however
, that any adjustments
which by reason of this Section 17.03(h) are not required to be made shall be
carried forward and taken into account in determining whether any subsequent
adjustment shall be required. The adjusted Conversion Rate will be rounded to
four decimal places. Notwithstanding the
foregoing, all adjustments not previously made shall have effect with respect
to any conversion of the Securities that have been called for redemption.
(i)
If
any action would require adjustment of the Conversion Rate pursuant to more
than one of the provisions described above, only one adjustment shall be made
and such adjustment shall be the amount of adjustment that has the highest
absolute value to the Securityholders.
(j)
Notwithstanding
the foregoing, in no event will the Conversion Rate exceed 0.3824 (as adjusted
pursuant to Sections 17.03(a), (b), (c), (d) and (e) above).
SECTION 17.04.
Conversion
Rate Adjustments Upon Change in Control.
(a)
If
a Change in Control occurs prior to October 15, 2017 and a Holder elects to
convert its Securities in connection with such Change in Control, the
Corporation will increase the applicable Conversion Rate for the Securities
surrendered for conversion by a number of additional shares of Common Stock
(the “Make-Whole Shares”), as described in this Section 17.04. A
conversion of Securities will be deemed for the purposes of this
Section 17.04 to be “in connection with” a Change in Control transaction
if the notice of conversion of the Securities is received by the Conversion
Agent from and including the date that is ten Trading Days prior to the
anticipated effective date of the Change in Control, up to and including the
Trading Day prior to the related purchase date.
The
number of Make-Whole Shares will be determined by reference to the table below
and is based on the date which such Change in Control transaction becomes
effective (the “Change in Control Effective Date”) and the price (the “Stock
Price”) paid per share of Common Stock in such Change in Control transaction.
If the holders of Common Stock receive only cash in the Change in Control
transaction, the Stock Price shall be the cash amount paid per share of Common
Stock. Otherwise, the Stock Price shall be the average of the Closing Prices of
the Common Stock on the ten consecutive Trading Days up to but excluding the
Change in Control Effective Date.
The
Stock Prices set forth in the first column of the table below will be adjusted
as of any date on which the Conversion Rate is adjusted. The adjusted Stock
Prices will equal the Stock Prices applicable immediately prior to such
adjustment, multiplied by a fraction, the numerator of which is the applicable
Conversion Rate immediately prior to the adjustment giving rise to the Stock
Price adjustment and the denominator of which is the applicable Conversion Rate
as so adjusted. In addition, the number
of additional Make-Whole Shares shall be subject to
81
adjustment in the
same manner as the Conversion Rate is in accordance with the provisions of
Section 17.03(a)-(e).
|
Stock Price
|
|
Make-Whole
Premium (Increase in Applicable Conversion Rate)
|
|
On
Effective Date
|
|
10/17/2007
|
|
10/15/2008
|
|
10/15/2009
|
|
10/15/2010
|
|
10/15/2011
|
|
10/15/2012
|
|
10/15/2013
|
|
10/15/2014
|
|
10/15/2015
|
|
10/15/2016
|
|
10/15/2017
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$130.77
|
|
0.1324
|
|
0.1324
|
|
0.1324
|
|
0.1324
|
|
0.1324
|
|
0.1324
|
|
0.1324
|
|
0.1324
|
|
0.1324
|
|
0.1324
|
|
0.1324
|
|
$135.00
|
|
0.1251
|
|
0.1228
|
|
0.1215
|
|
0.1210
|
|
0.1210
|
|
0.1209
|
|
0.1209
|
|
0.1209
|
|
0.1209
|
|
0.1209
|
|
0.1204
|
|
$140.00
|
|
0.1171
|
|
0.1145
|
|
0.1129
|
|
0.1122
|
|
0.1122
|
|
0.1121
|
|
0.1121
|
|
0.1121
|
|
0.1121
|
|
0.1121
|
|
0.1071
|
|
$145.00
|
|
0.1099
|
|
0.1069
|
|
0.1049
|
|
0.1041
|
|
0.1040
|
|
0.1039
|
|
0.1039
|
|
0.1039
|
|
0.1039
|
|
0.1039
|
|
0.0948
|
|
$150.00
|
|
0.1034
|
|
0.1000
|
|
0.0977
|
|
0.0966
|
|
0.0964
|
|
0.0963
|
|
0.0963
|
|
0.0963
|
|
0.0963
|
|
0.0963
|
|
0.0833
|
|
$155.00
|
|
0.0974
|
|
0.0936
|
|
0.0909
|
|
0.0895
|
|
0.0892
|
|
0.0891
|
|
0.0891
|
|
0.0891
|
|
0.0891
|
|
0.0891
|
|
0.0726
|
|
$160.00
|
|
0.0921
|
|
0.0880
|
|
0.0849
|
|
0.0832
|
|
0.0828
|
|
0.0827
|
|
0.0827
|
|
0.0827
|
|
0.0827
|
|
0.0827
|
|
0.0625
|
|
$165.00
|
|
0.0870
|
|
0.0825
|
|
0.0797
|
|
0.0768
|
|
0.0761
|
|
0.0761
|
|
0.0761
|
|
0.0761
|
|
0.0761
|
|
0.0761
|
|
0.0530
|
|
$170.00
|
|
0.0827
|
|
0.0779
|
|
0.0740
|
|
0.0715
|
|
0.0706
|
|
0.0705
|
|
0.0705
|
|
0.0705
|
|
0.0705
|
|
0.0705
|
|
0.0441
|
|
$175.00
|
|
0.0785
|
|
0.0733
|
|
0.0689
|
|
0.0659
|
|
0.0647
|
|
0.0646
|
|
0.0646
|
|
0.0646
|
|
0.0646
|
|
0.0646
|
|
0.0357
|
|
$200.00
|
|
0.0627
|
|
0.0564
|
|
0.0504
|
|
0.0452
|
|
0.0415
|
|
0.0407
|
|
0.0407
|
|
0.0407
|
|
0.0407
|
|
0.0407
|
|
0.0000
|
|
$225.00
|
|
0.0522
|
|
0.0455
|
|
0.0386
|
|
0.0317
|
|
0.0252
|
|
0.0217
|
|
0.0217
|
|
0.0217
|
|
0.0217
|
|
0.0217
|
|
0.0000
|
|
$250.00
|
|
0.0449
|
|
0.0382
|
|
0.0309
|
|
0.0232
|
|
0.0147
|
|
0.0050
|
|
0.0050
|
|
0.0050
|
|
0.0050
|
|
0.0050
|
|
0.0000
|
|
$275.00
|
|
0.0398
|
|
0.0334
|
|
0.0263
|
|
0.0188
|
|
0.0102
|
|
0.0000
|
|
0.0000
|
|
0.0000
|
|
0.0000
|
|
0.0000
|
|
0.0000
|
|
$300.00
|
|
0.0360
|
|
0.0300
|
|
0.0234
|
|
0.0163
|
|
0.0084
|
|
0.0000
|
|
0.0000
|
|
0.0000
|
|
0.0000
|
|
0.0000
|
|
0.0000
|
If the
exact Stock Prices and effective dates are not set forth in the table, then:
(i)
if the Stock Price
is between two Stock Price amounts in the table or the effective date is
between two dates in the table, the Make-Whole Shares issued upon conversion of
the Securities will be determined by a straight-line interpolation between the
number of Make-Whole Shares set forth for the higher and lower Stock Price
amounts and the two dates in the table, as applicable, based on a 365-day year,
(ii)
if the Stock Price
exceeds $300.00 per share, subject to adjustment as set forth herein, no
Make-Whole Shares will be issued upon conversion of the Securities; and
(iii)
if the Stock Price is
less than $130.77 per share, subject to adjustment as set forth herein, no
Make-Whole Shares will be issued upon conversion of the Securities.
The
adjustment to the Conversion Rate set forth in this Section 17.04(a) shall be
subject to the provisions of Section 17.03(j).
(b)
A
“Change in Control” shall be deemed to have occurred at such time as either of
the following events shall occur:
(i)
There shall be
consummated any consolidation or merger of the Corporation pursuant to which
the Common Stock would be converted into cash, securities or other property, in
each case other than a consolidation or merger of the Corporation in which the
holders of Common Stock immediately prior to the consolidation or merger have,
directly or indirectly, at least a majority of the total voting
82
power in the aggregate of all classes of capital stock of the
continuing or surviving corporation immediately after such consolidation or
merger; or
(ii)
A report on Schedule
13D or TO (or any successor schedule, form or report) pursuant to the Exchange
Act shall be filed which discloses that any person, including such person’s
Affiliates or Associates (for these purposes only, as the term “person” is used
in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the
beneficial owner (as the term “beneficial owner” is defined under Rule 13d-3 or
any successor rule or regulation promulgated under the Exchange Act) of 50% or
more of the voting power of the Common Stock or other capital stock into which
the Common Stock is reclassified or changed; provided, however, that a person
shall not be deemed to be a beneficial owner of, or to own beneficially, (A)
any securities tendered pursuant to a tender or exchange offer made by or on
behalf of such person or any such person’s Affiliates or Associates until such
tendered securities are accepted for purchase or exchange thereunder, or (B)
any securities if such beneficial ownership (1) arises solely as a result of a
revocable proxy delivered in response to a proxy or consent solicitation made
pursuant to the applicable rules and regulations under the Exchange Act, and
(2) is not also then reportable on Schedule 13D (or any successor schedule)
under the Exchange Act.
(c)
Notwithstanding
the provisions of Section 17.04(b),
(i)
a Change in
Control shall not be deemed to have occurred by virtue of the Corporation, any
subsidiary, any employee stock ownership plan or any other employee benefit
plan of the Corporation or any subsidiary, or any person holding the Common
Stock for or pursuant to the terms of any such employee benefit plan, filing or
becoming obligated to file a report under or in response to Schedule 13D or
Schedule TO (or any successor schedule, form or report) under the Exchange Act
disclosing beneficial ownership by it of shares of the Common Stock, whether in
excess of 50% or otherwise; and
(ii)
it will not
constitute a Change in Control if 100% of the consideration for the Common
Stock (excluding cash payments for fractional shares and cash payments made in
respect of dissenters’ appraisal rights and cash payment of the required cash
payment, if any) in the transaction or transactions constituting the Change in
Control consists of common stock traded on a United States national securities
exchange, or which will be so traded or quoted when issued or exchanged in
connection with the Change in Control, and as a result of such transaction or
transactions the Securities become convertible solely into such common stock.
SECTION 17.05.
Share
Exchange, Consolidation, Merger or Sale of Assets.
In the
case of the following events (each, a “business combination”):
(1)
Any recapitalization,
reclassification or change of the Common Stock, other than a change in par
value, or from par value to no par value, or from no par value to par value, or
as a result of a subdivision or combination;
83
(2)
A consolidation,
merger or binding share exchange of the Corporation with another Person; or
(3)
A sale, conveyance or
lease to another corporation of all or substantially all of the Corporation’s
property and assets in each case as a result of which holders of Common Stock
are entitled to receive stock, other securities, other property or assets
(including cash or any combination thereof) with respect to or in exchange for
Common Stock,
then
the Corporation or the successor or purchasing corporation, as the case may be,
shall execute a supplemental indenture which shall provide that the Holders of
the Securities then outstanding will be entitled thereafter to convert
Securities into the kind and amount of shares of stock, other securities or
other property or assets (including cash or any combination thereof) which they
would have owned or been entitled to receive upon such business combination had
such Securities been converted into Common Stock immediately prior to such
business combination. In the event holders of Common Stock have the opportunity
to elect the form of consideration to be received in such business combination,
the Corporation will make adequate provision whereby the Holders of the
Securities shall have a reasonable opportunity to determine the form of
consideration into which all of the Securities, treated as a single class,
shall be convertible from and after the effective date of such business
combination. Such determination shall be based on the weighted average of
elections made by Holders of the Securities who participate in such
determination, shall be subject to any limitations to which all of the holders
of Common Stock are subject, such as pro-rata reductions applicable to any
portion of the consideration payable in such business combination and shall be
conducted in such a manner as to be completed by the date which is the earliest
of (a) the deadline for elections to be made by holders of Common Stock, and
(b) two Trading Days prior to the anticipated effective date. The Corporation
will provide notice of the opportunity to determine the form of such
consideration, as well as notice of the determination made by Holders of the
Securities (and the weighted average of elections), by issuing a press release,
or providing other appropriate notice, and by providing a copy of such notice
to the Debenture Trustee. In the event the effective date is delayed beyond the
initially anticipated effective date, Holders of the Securities shall be given
the opportunity to make subsequent similar determinations in regard to such
delayed effective date. The Corporation may not become a party to any such
transaction unless its terms are materially consistent with the provisions of
this Section 17.05. None of the foregoing provisions shall affect the right of
a Holder of Securities to convert its Securities into shares of Common Stock
prior to the effective date of the business combination.
The
Corporation shall cause notice of the execution of such supplemental indenture
to be mailed to each holder, at the address of such holder as it appears on the
security Register, within 20 days after execution thereof. Failure to deliver
such notice shall not affect the legality or validity of such supplemental
indenture.
The
above provisions of this Section 17.05 shall similarly apply to successive
reclassifications, mergers, consolidations, statutory share exchanges,
combinations, sales and conveyances.
84
If
this Section 17.05 applies to any event or occurrence, Section 17.03 shall not
apply to such event or occurrence.
SECTION 17.06.
Notice
of Adjustments of Conversion Rate.
Whenever
the Conversion Rate is adjusted as herein provided:
(a)
The
Corporation shall compute the adjusted Conversion Rate and shall prepare an
Officers’ Certificate setting forth the adjusted Conversion Rate and showing in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed with the Debenture Trustee, the Conversion
Agent and the transfer agent for the Preferred Securities and the Securities;
and
(b)
A
notice stating that the Conversion Rate has been adjusted and setting forth the
adjusted Conversion Rate shall as soon as practicable be mailed by the
Corporation to all record holders of Preferred Securities and the Securities at
their last addresses as they appear upon the stock transfer books of the
Corporation and the Trust and the Corporation shall issue a press release and publish
such determination on the Corporation’s website.
SECTION 17.07.
Prior
Notice of Certain Events.
In
case the Corporation takes any action which would require an adjustment to the
Conversion Rate, there occurs any event to which the provisions of Section
17.05 would apply or there is a dissolution or liquidation of the Corporation,
then the Corporation shall (1) if any Preferred Securities are outstanding,
cause to be filed with the Property Trustee and the transfer agent for the
Preferred Securities, and shall cause to be mailed to the holders of record of
the Preferred Securities, at their last addresses as they shall appear upon the
securities register of the Trust, or (2) shall cause to be mailed to all
Securityholders at their last addresses as they shall appear in the Security
Register, at least fifteen days prior to the applicable record or effective
date hereinafter specified, a notice briefly describing the event and stating
the proposed record of effective date.
No failure to mail such notice or any defect therein or in the mailing
thereof shall affect the validity of the corporate action required to be
specified in such notice).
SECTION 17.08.
Debenture
Trustee Not Responsible for Determining Conversion Rate or Adjustments.
Neither
the Debenture Trustee nor any Conversion Agent shall at any time be under any
duty or responsibility to any Securityholder to determine whether any facts
exist which may require any adjustment of the Conversion Rate, or with respect
to the nature or extent of any such adjustment when made, or with respect to
the method employed, or herein or in any supplemental indenture provided to be
employed, in making the same. Neither the Debenture Trustee nor any Conversion
Agent shall be accountable with respect to the validity or value (or the kind
of account) of any shares of Common Stock or of any securities or property,
which may at any time be issued or delivered upon the conversion of any
Security; and neither the Debenture Trustee nor any Conversion Agent makes any
representation with respect thereto. Neither the Debenture Trustee nor any
Conversion Agent shall be responsible for any failure of the Corporation to
make any cash payment or to issue, transfer or deliver any shares of Common
Stock or stock certificates or other securities or property upon the surrender
of any Security for
85
the purpose of
conversion, or to comply with any of the covenants of the Corporation contained
in Article III or this Article XVII.
ARTICLE XVIII
CONTINGENT INTEREST
SECTION 18.01.
Contingent
Interest.
Subject
to Section 18.02, the Corporation shall make Contingent Interest payments to
the Holders during any quarterly period from January 16 to April 15, April 16
to July 15, July 16 to October 15 and October 16 to January 15 (each a “Quarterly
Period”), commencing with the Quarterly Period commencing October 16, 2012, if,
but only if, the average of the Security Market Prices for the Preferred
Securities, or, following any Dissolution Event, for the $50.00 principal
amount of Securities for the ten Trading Days ending on the third Trading Day
immediately preceding the first day of the applicable Quarterly Period equals
130% or more of the stated liquidation amount per Preferred Security of $50.00
or $50.00 principal amount of Securities. During any Quarterly Period when
Contingent Interest is payable pursuant to this Section 18.01, each Contingent
Interest payment due and payable per $50.00 principal amount of the Securities
in respect of any applicable Quarterly Period, shall equal the annual rate of
0.25% of the average of the Security Market Prices for the ten Trading Day
measuring period referred to in the immediately preceding sentence. Contingent
Interest shall be calculated on the basis of a 360-day year of twelve 30-day
months.
“Security
Market Price” of the Preferred Securities (or of the Securities, following any
Dissolution Event) on any date of determination means the average of the
secondary market bid quotations per Preferred Security (or per $50.00 principal
amount of Securities following any Dissolution Event) obtained by the Bid
Solicitation Agent for 50,000 Preferred Securities (or $2,500,000 principal
amount of Securities following any Dissolution Event) at approximately 4:00
p.m., New York City time, on such date of determination from three independent
nationally recognized securities dealers selected by the Corporation; provided
that if three such bids cannot reasonably be obtained by the Bid Solicitation
Agent, but two such bids are obtained, then the average of the two bids shall
be used, and if only one such bid can reasonably be obtained by the Bid
Solicitation Agent, that one bid shall be used. If the Bid Solicitation Agent
cannot reasonably obtain at least one bid for 50,000 Preferred Securities (or
$2,500,000 principal amount of Securities following any Dissolution Event) from
a nationally recognized securities dealer or in the Corporation’s reasonable
judgment the bid quotations are not indicative of the secondary market value of
the Preferred Securities (or of the Securities, following any Dissolution
Event), then the Security Market Price of the Preferred Securities (or of the
Securities, following any Dissolution Event) will equal (a) the then applicable
Conversion Rate of the Securities multiplied by (b) the average Closing Price
of the Common Stock on the ten Trading Days ending on such determination date.
SECTION 18.02.
Payment
of Contingent Interest; Contingent Interest Rights Preserved.
If
payable, Contingent Interest on a Security shall be paid to the Person who is the
Holder of that Security on the 14th day preceding the last day of the relevant
Quarterly Period (the “Contingent Interest Record Date”). Such payments shall
be paid on the last day of the Quarterly
86
Period (in each
case, a “Contingent Interest Payment Date”). Except as provided in Section
2.03, each payment of Contingent Interest on any Security shall be paid (A) if
such Security is held in the form of a Global Security, in same-day funds by
transfer to an account maintained by the payee located inside the United
States, or (B) if such Security is held in certificated form, by check, mailed
to the address of such Holder as set forth in the Security Register. In the
case of a Global Security, interest payable on any Contingent Interest Payment
Date will be paid to the Depositary for the purpose of permitting the
Depositary to credit the interest received by it in respect of such Global
Security to the accounts of the beneficial owners thereof. Upon determination
that Holders of Securities will be entitled to receive Contingent Interest
during a Quarterly Period, the Corporation will issue a press release and use
its reasonable best efforts to post such information on its website or through
such other public medium as the Corporation may use at the time.
SECTION 18.03.
Bid
Solicitation Agent.
The
Corporation shall appoint a bid solicitation agent (the “Bid Solicitation Agent”)
to act pursuant to Section 18.01 when directed by the Corporation in writing to
do so. The Corporation may change the Bid Solicitation Agent at its discretion;
provided, however, that the Bid Solicitation Agent may not be an Affiliate of
the Corporation. The Bid Solicitation Agent shall initially be the Property
Trustee.
ARTICLE XIX
MISCELLANEOUS PROVISIONS
SECTION 19.01.
Successors.
All
the covenants, stipulations, promises and agreements in this Indenture
contained by the Corporation shall bind its successors and assigns whether so
expressed or not.
SECTION 19.02.
Official
Acts by Successor Corporation.
Any
act or proceeding by any provision of this Indenture authorized or required to
be done or performed by any board, committee or officer of the Corporation
shall and may be done and performed with like force and effect by the like
board, committee or officer of any corporation that shall at the time be the
lawful sole successor of the Corporation.
SECTION 19.03.
Surrender
of Corporation Powers.
The
Corporation by instrument in writing executed by authority of 2/3 (two-thirds)
of its Board of Directors and delivered to the Debenture Trustee may surrender
any of the powers reserved to the Corporation, and thereupon such power so
surrendered shall terminate both as to the Corporation, as the case may be, and
as to any successor Person.
SECTION 19.04.
Addresses
for Notices, Etc.
Any
notice, direction, request or demand which by any provision of this Indenture
is required or permitted to be given or served on any party by the other party
or by the holders of Securities may be given or served by being deposited
postage prepaid by first class mail,
87
registered or
certified mail, overnight courier service or telecopy (confirmed by one of the
foregoing) addressed (unless another address is provided by a party by written
notice to the other party), as follows:
If to
the Corporation:
Affiliated Managers
Group, Inc.
600 Hale Street
Prides Crossing,
Massachusetts 01965
Telecopy:
617-747-3380
Telephone:
617 747-3300
Attention:
Chief Financial
Officer
If to
the Debenture Trustee:
LaSalle Bank National
Association
540 West Madison Street
Suite 2500
Chicago, Illinois 60661
Telecopy:
312-904-0524
Telephone:
312-904-0283
Attention:
CDO Trust
Services Group – AMG Capital Trust II
Any
notice or communication to a Securityholder shall be mailed by first-class mail
to his or her address shown on the register kept by the security registrar for
the Securities.
SECTION 19.05.
Governing
Law.
This
Indenture and each Security shall be deemed to be a contract made under the
laws of the State of New York, and for all purposes shall be governed by and
construed in accordance with the laws of said State.
SECTION 19.06.
Evidence
of Compliance with Conditions Precedent.
Upon
any application or demand by the Corporation to the Debenture Trustee to take
any action under any of the provisions of this Indenture, the Corporation shall
furnish to the Debenture Trustee an Officers’ Certificate stating that in the
opinion of the signers all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Each
certificate or opinion provided for in this Indenture and delivered to the
Debenture Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (except certificates delivered pursuant to
Section 3.05) shall include: (1) a statement that the Person making such
certificate or opinion has read such covenant or condition; (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 such Person, 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
88
been complied
with; and (4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
SECTION 19.07.
Business
Days.
In any
case where the date of payment of principal of or Interest on the Securities
will not be a Business Day, the payment of such principal of or Interest on the
Securities need not be made on such date but may be made on the next succeeding
Business Day, with the same force and effect as if made on the due date
therefor and no Interest shall accrue for the period from and after such date,
except that if such next succeeding Business Day falls in the next succeeding
calendar year, then such payment shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date.
SECTION 19.08.
Trust
Indenture Act to Control.
If and
to the extent that any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by Sections 310 to 318, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
SECTION 19.09.
Intention
of the Parties.
It is
the intention of the parties hereto that the Securities be classified for
United States federal income tax purposes as indebtedness of the Corporation.
The provisions of this Indenture shall be interpreted to further this intention
of the parties.
SECTION 19.10.
Table
of Contents, Headings, Etc.
The
table of contents and the titles and headings of the articles and sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 19.11.
Execution
in Counterparts.
This
Indenture may be executed in any number of counterparts, each of which shall be
an original, but such counterparts shall together constitute but one and the
same instrument.
SECTION 19.12.
Separability.
In
case any one or more of the provisions contained in this Indenture or in the
Securities shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not
affect any other provisions of this Indenture or of the Securities, but this
Indenture and the Securities shall be construed as if such invalid or illegal
or unenforceable provision had never been contained herein or therein.
SECTION 19.13.
Assignment.
The
Corporation will have the right at all times to assign any of its respective
rights or obligations under this Indenture to a direct or indirect wholly owned
Subsidiary of the
89
Corporation,
provided that, in the event of any such assignment, the Corporation will remain
primarily liable for all such obligations. Subject to the foregoing, the
Indenture is binding upon and inures to the benefit of the parties thereto and
their respective successors and assigns. This Indenture may not otherwise be
assigned by the parties thereto.
[SIGNATURE PAGE FOLLOWS]
90
LaSalle Bank National Association hereby accepts the
trusts in this indenture declared and provided, upon the terms and conditions
hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written.
|
|
AFFILIATED MANAGERS GROUP, INC.
|
|
|
|
|
|
|
|
|
By
|
/s/ John Kingston, III
|
|
|
|
|
Name: John Kingston, III
|
|
|
|
Title: Executive Vice President & General
|
|
|
|
Counsel
|
Indenture
|
|
LASALLE BANK NATIONAL ASSOCIATION,
|
|
|
|
as Debenture Trustee
|
|
|
|
|
|
|
|
|
By
|
/s/ Greg Myers
|
|
|
|
|
Name: Greg Myers
|
|
|
|
|
Title: VP
|
|
Indenture
EXHIBIT A
[Include
the following legend on all Global Securities.]
THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR A
NOMINEE OF THE DEPOSITORY TRUST COMPANY. THIS SECURITY IS EXCHANGEABLE FOR
NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY TRUST
COMPANY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITORY TRUST COMPANY TO A NOMINEE OF THE
DEPOSITORY TRUST COMPANY OR BY A NOMINEE OF THE DEPOSITORY TRUST COMPANY TO THE
DEPOSITORY TRUST COMPANY OR ANOTHER NOMINEE OF THE DEPOSITORY TRUST COMPANY OR
TO A SUCCESSOR CLEARING AGENCY OR TO A NOMINEE OF SUCH SUCCESSOR) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS
THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
[Include
the following legends on all Securities, including Global Securities, unless
otherwise determined by the Corporation in accordance with applicable law.]
THIS
SECURITY AND THE SHARES OF AFFILIATED MANAGERS GROUP, INC. COMMON STOCK
ISSUABLE UPON CONVERSION HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY, THE SHARES OF UNDERLYING AFFILIATED MANAGERS GROUP, INC. COMMON
STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF,
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE
(THE ‘‘RESALE RESTRICTION TERMINATION DATE’’) WHEN THE HOLDER OF THIS SECURITY,
OTHER THAN A HOLDER WHO IS AN AFFILIATE OF AFFILIATED
A-1
MANAGERS
GROUP, INC., IS ABLE TO SELL THIS SECURITY IMMEDIATELY WITHOUT RESTRICTION OR
BEING SUBJECT TO ANY CONDITIONS PURSUANT TO RULE 144 UNDER THE SECURITIES ACT
OR ANY SUCCESSOR RULE THERETO ONLY (A) TO AFFILIATED MANAGERS GROUP, INC. OR
ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A ‘‘QUALIFIED
INSTITUTIONAL BUYER’’ AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (C) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
AFFILIATED MANAGERS GROUP, INC.’S, AND THE TRANSFER AGENT’S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRANSFER AGENT. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER UPON THE EARLIER OF THE TRANSFER OF THE
SECURITIES EVIDENCED HEREBY PURSUANT TO CLAUSE (C) ABOVE AND THE RESALE
RESTRICTION TERMINATION DATE. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE
HEREOF, AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY
EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (C)
ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL
REVENUE CODE, THE ISSUE PRICE OF EACH SECURITY IS $49.50 PER $50.00 OF
PRINCIPAL AMOUNT, THE ISSUE DATE IS OCTOBER 17, 2007 AND THE COMPARABLE YIELD
IS 8.00% PER ANNUM.
THE HOLDER OF THIS SECURITY, BY ACCEPTANCE THEREOF,
AGREES (I) TO TREAT THE SECURITY AS INDEBTEDNESS OF THE CORPORATION FOR UNITED STATES
FEDERAL INCOME TAX PURPOSES THAT IS SUBJECT TO TREASURY REGULATION SECTION
1.1275-4(B), AND (II) TO TREAT THE COMPARABLE YIELD AND PROJECTED PAYMENT
SCHEDULE AS DETERMINED BY THE CORPORATION AS “REASONABLE” FOR PURPOSES OF
TREASURY REGULATION 1.1275-4(B).
U.S.
HOLDERS OF THIS SECURITY MAY OBTAIN THE PROJECTED PAYMENT SCHEDULE FOR THIS
SECURITY BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO AFFILIATED
MANAGERS GROUP, INC., 600 HALE STREET,
PRIDES CROSSING, MASSACHUSETTS 01965, ATTN.: CHIEF FINANCIAL OFFICER.
BY ITS
ACQUISITION OF THIS CERTIFICATE THE HOLDER REPRESENTS THAT EITHER (I) IT IS NOT
AN EMPLOYEE BENEFIT PLAN OR OTHER SIMILAR
A-2
RETIREMENT PLAN OR
ARRANGEMENT, WHETHER OR NOT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE “CODE”) (OR ANY SIMILAR LAWS OR REGULATIONS), OR AN
ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE THE ASSETS OF ANY SUCH
PLANS AND ARRANGEMENTS UNDER U.S. DEPARTMENT OF LABOR REGULATIONS OR SECTION
3(42) OF ERISA, TAKING INTO ACCOUNT SECTION 611(F) OF THE PENSION PROTECTION
ACT OF 2006 (EACH, A “PLAN”) AND NO PART OF THE ASSETS TO BE USED BY THE HOLDER
TO ACQUIRE AND/OR HOLD THIS CERTIFICATE OR ANY INTEREST THEREIN CONSTITUTES
PLAN ASSETS OF ANY PLAN OR (II) THE ACQUISITION, HOLDING AND, IF APPLICABLE,
CONVERSION OF THIS CERTIFICATE WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED
TRANSACTION UNDER TITLE I OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION UNDER
ANY OTHER APPLICABLE LAWS AND REGULATIONS THAT ARE SIMILAR TO THE PROVISIONS OF
TITLE I OF ERISA OR SECTION 4975 OF THE CODE.
A-3
Principal Amount: $500,010,000
Affiliated Managers Group, Inc.
5.15% JUNIOR SUBORDINATED CONVERTIBLE DEBENTURE
DUE October 15, 2037
Affiliated
Managers Group, Inc., a Delaware corporation (the “Corporation”, which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to LaSalle Bank National Association as
Property Trustee for AMG Capital Trust II or registered assigns, the principal
sum of Five Hundred Million Ten Thousand
Dollars ($500,010,000) on October 15, 2037 (the “Maturity Date”), unless
previously redeemed, repurchased or converted, and to pay interest on the
outstanding principal amount hereof from October 17, 2007, or from the most
recent interest payment date (each such date, an “Interest Payment Date”) to
which interest has been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on January 15, April 15, July 15 and
October 15 of each year, commencing January 15, 2008, at the rate of 5.15% per
annum until the principal hereof shall have become due and payable, and on any
overdue principal and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment
of Interest at the same rate per annum compounded quarterly, including any
Liquidated Damages Amount (as defined in the Registration Rights Agreement),
Contingent Interest and any Additional Sums. The amount of Interest, if any,
payable on any Interest Payment Date or Contingent Interest Payment Date, as
the case may be, shall be computed on the basis of a 360-day year of twelve
30-day months. In the event that any date on which the principal of or Interest
on this Security is payable is not a Business Day, then the payment payable on
such date will be made on the next succeeding day that is a Business Day (and
without any Interest or other payment in respect of any such delay), except
that if such next succeeding Business Day falls in the next calendar year, then
such payment shall be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on such date. Pursuant to the
Indenture, in certain circumstances the Corporation will be required to pay
Additional Sums, Liquidated Damages Amount, Compounded Interest and Contingent
Interest with respect to this Security.
The
Interest installment 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, as
defined in said Indenture) is registered at the close of business on the
regular record date for such interest installment, which shall be as of 5:00
p.m., New York City time, on the first day of the month, whether or not a
Business Day, in the month in which the relevant Interest Payment Date occurs.
Any such Interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the Holders on such regular record date and
shall 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 to be fixed by the Debenture Trustee for the payment of such
defaulted Interest, notice whereof shall be given to the holders of Securities
not less than 10 days prior to such special record date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
A-4
securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
The principal
of and Interest on this Security shall be payable at the office or agency of
the Debenture Trustee maintained for that purpose in any coin or currency of
the United States of America that at the time of payment is legal tender for
payment of public and private debts;
provided,
however
, that, payment of Interest may be made at the option of the
Corporation by (i) check mailed to the holder at such address as shall appear
in the Security Register or (ii) by transfer to an account maintained by the Person
entitled thereto, provided that proper written transfer instructions have been
received by the relevant record date;
provided,
further,
Contingent Interest, if any, shall be paid in accordance
with the provisions of Section 18.02 of the Indenture. Notwithstanding the
foregoing, so long as the Holder of this Security is the Property Trustee, the
payment of the principal of and Interest (including Contingent Interest, if
any) on this Security will be made at such place and to such account as may be
designated by the Property Trustee.
The
indebtedness evidenced by this Security is, to the extent provided in the
Indenture, subordinate and junior in right of payment to the prior payment in
full of all Senior Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Debenture Trustee on his or her behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Debenture Trustee his or her
attorney-in-fact for any and all such purposes. Each holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon said provisions.
This
Security shall not be entitled to any benefit under the Indenture hereinafter
referred to, be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by or on behalf of
the Debenture Trustee.
By its
acceptance of this Security, the Securityholder agrees (i) to treat the
Security as indebtedness of the Corporation for United States federal income
tax purposes that is subject to United States Treasury Regulation section
1.1275-4(b), and (ii) to treat the comparable yield and projected payment
schedule as determined by the Corporation as “reasonable” for purposes of
Treasury Regulation section 1.1275-4(b).
The
provisions of this Security are continued on the reverse side hereof and such
provisions shall for all purposes have the same effect as though fully set
forth at this place.
A-5
IN
WITNESS WHEREOF, the Corporation has caused this instrument to be duly executed
and sealed this day of October, 2007.
|
|
AFFILIATED MANAGERS GROUP,
INC.
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
Title:
|
|
CERTIFICATE OF AUTHENTICATION
This Certificate
represents Securities referred to in the within-mentioned Indenture.
|
|
LASALLE BANK
NATIONAL
|
|
|
ASSOCIATION, not
in its individual capacity
|
|
|
but solely as
Debenture Trustee
|
|
|
|
|
|
By
|
|
|
|
|
|
Authorized
Signatory
|
|
A-6
REVERSE OF SECURITY
This
Security is one of the Securities of the Corporation (herein sometimes referred
to as the “Securities”), specified in the Indenture, all issued or to be issued
under and pursuant to an Indenture, dated as of October 17, 2007 (the “Indenture”),
duly executed and delivered between the Corporation and LaSalle Bank National
Association as Debenture Trustee (the “Debenture Trustee”), to which Indenture
reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Debenture Trustee,
the Corporation and the holders of the Securities. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
1.
Redemption
.
Upon the occurrence and continuation of a Special Event, the Corporation shall
have the right, at any time following the occurrence of such Special Event, to
redeem this Security in whole (but not in part) at the Redemption Price. In addition, the Corporation shall have the
right to redeem this Security, in whole at any time or, in part from time to
time, on or after October 15, 2012 at the Redemption Price if the Closing Price
of the Corporation’s Common Stock for 20 Trading Days in a period of 30
consecutive Trading Days ending on the Trading Day prior to the mailing of the
notice of redemption exceeds 130% of the then prevailing Conversion Price. This Security shall not otherwise be subject
to redemption at the option of the Corporation.
The
Redemption Price shall be paid prior to 12:00 noon, New York City time, on the
date of such redemption or at such earlier time as the Corporation determines,
provided, that the Corporation shall deposit with the Debenture Trustee an
amount sufficient to pay the Redemption Price by 10:00 a.m. New York City time
on the date such Redemption Price is to be paid. Any redemption pursuant to
this paragraph will be made upon not less than 20 days nor more than 60 days
notice. If the Securities are only partially redeemed by the Corporation
pursuant to an optional redemption described in the preceding paragraph, the
particular Securities to be redeemed shall be selected on a pro rata basis not
more than 60 days prior to the date fixed for redemption from the outstanding
Securities not previously called for redemption,
provided, however
, that with respect to Securityholders that
would be required to hold Securities with an aggregate principal amount of less
than $5,000 but more than an aggregate principal amount of zero as a result of
such pro rata redemption, the Corporation shall redeem Securities of each such
Securityholder so that after such redemption such Securityholder shall hold
Securities either with an aggregate principal amount of at least $5,000 or such
Securityholder no longer holds any Securities and shall use such method
(including, without limitation, by lot) as the Corporation shall deem fair and
appropriate, provided, further, that any such proration may be made on the
basis of the aggregate principal amount of Securities held by each
Securityholder thereof and may be made by making such adjustments as the
Corporation deems fair and appropriate in order that only Securities in
denominations of $50.00 or integral multiples thereof shall be redeemed.
In the
event of redemption of this Security in part only, a new Security or Securities
for the portion hereof that has not been redeemed will be issued in the name of
the holder hereof upon the cancellation hereof.
A-7
2.
Conversion
.
(a) Subject to and upon compliance with the provisions of Article XVII of the
Indenture, the Securities are convertible, at the option of the Securityholder,
at any time before 5:00 p.m., New York City time, on the Business Day
immediately preceding the date of repayment of such Securities, whether at
stated maturity or upon redemption, into fully paid and nonassessable shares of
Common Stock at an initial conversion rate of 0.2500 shares of Common Stock for
each $50.00 in aggregate principal amount of Securities (equal to an initial
Conversion Price of $200.00 per share of Common Stock), subject to adjustment
as described in the Indenture. A Securityholder may convert any portion of the
principal amount of the Securities into that number of fully paid and
nonassessable shares of Common Stock (calculated as to each conversion to the
nearest 1/100th of a share) in the manner prescribed by the Indenture. Upon conversion of the Securities, the
Corporation may satisfy its obligation to deliver shares of Common Stock by
delivering cash and/or shares of Common Stock, all as set forth in Article XVII
of the Indenture. In case a Security or
portion thereof is called for redemption, such conversion right in respect of
the Security or portion so called shall expire at 5:00 p.m., New York City time
on the Business Day immediately preceding the corresponding redemption date,
unless the Corporation defaults in making the payment due upon redemption.
(b) To convert all or a portion of the Securities,
the Securityholder thereof shall deliver to the Conversion Agent an irrevocable
Conversion Request setting forth the principal amount of Securities to be
converted, together with the name or names, if other than the Securityholder,
in which the shares of Common Stock should be issued upon conversion and, if
such Securities are in certificated form, surrender to the Conversion Agent the
Securities to be converted, duly endorsed or assigned to the Corporation or in
blank. In addition, a holder of Preferred Securities may exercise its right
under the Declaration to exchange such Preferred Securities for Securities
which shall be converted into Common Stock by delivering to the Conversion
Agent an irrevocable Conversion Request setting forth the information called
for by the preceding sentence and directing the Conversion Agent (i) to
exchange such Preferred Security for a portion of the Securities held by the
Trust (at an exchange rate of $50.00 principal amount of Securities for each
Preferred Security), and (ii) to immediately convert such Securities, on behalf
of such Securityholder, into Common Stock pursuant to Article XVII of the
Indenture and, if such Preferred Securities are in certificated form,
surrendering such Preferred Securities, duly endorsed or assigned to the
Corporation or in blank.
(c) Except as described in this
paragraph, no Interest will be payable on Securities surrendered for conversion
with respect to any Interest Payment Date subsequent to the date of conversion
and neither the Trust nor the Corporation shall make, or be required to make,
any payment, allowance or adjustment for accumulated and unpaid Interest,
whether or not in arrears, on Securities surrendered for conversion. If any
Securities are surrendered for conversion between the period from 5:00 p.m.,
New York City time, on any record date through and including the related
Interest Payment Date, the Securities surrendered for conversion must be
accompanied by payment in next day funds of an amount equal to the Interest payment
which the registered holder on such record date is to receive, and such
Securityholder shall be entitled to receive the Interest payable on the
subsequent Interest Payment Date on the portion of Securities to be converted,
notwithstanding the conversion thereof prior to such Interest Payment Date. The
previous sentence shall not apply in the case of Securities called for
redemption on a redemption date between a record date and a related Interest
Payment Date and in the case of any Securities surrendered for conversion after
such Securities have been called for redemption
A-8
during an Extended
Interest Payment Period, in which event Interest with respect to such
Securities shall be payable to the extent provided in the Indenture. Except as
otherwise set forth above in this paragraph, in the case of any Security which
is converted, Interest (including Tax Original Issue Discount) which is payable
after the date of conversion of such Security shall not be payable, and the
Corporation shall not make nor be required to make any other payment,
adjustment or allowance with respect to accrued but unpaid Interest (including
Tax Original Issue Discount) on the Securities being converted, which shall be
deemed to be paid in full through delivery of the Common Stock (together with
the cash payment, if any, in lieu of fractional shares).
(d) Subject to any right of the
Securityholder, the fair market value of the fixed number of shares of Common
Stock into which the Securities are convertible (together with the cash
payment, if any, in lieu of fractional shares) shall be treated as issued, to
the extent thereof, (i) first, in exchange for accrued and unpaid Interest
(including Tax Original Issue Discount) on such Securities at the time of such
conversion, and (ii) second, the balance, if any, of such fair market value of
such Common Stock (and any cash payment) shall be treated as issued in exchange
for the principal amount at maturity of the portion of Securities so converted.
(e) No fractional shares of Common Stock
shall be issued as a result of conversion, but in lieu thereof, the Corporation
shall pay to the Conversion Agent a cash adjustment in the amount determined in
accordance with the provisions of Article XVII of the Indenture.
3.
Contingent
Interest
. Subject to the conditions
of the Indenture and this Security, the Corporation shall pay Contingent
Interest to the Holders during any Quarterly Period, with the initial Quarterly
Period commencing on October 16, 2012, if, but only if, the average of the
Security Market Prices of the Preferred Securities, or, following any
Dissolution Event, of the Securities for the ten Trading Days ending on the
third Trading Day immediately preceding the first day of the applicable
Quarterly Period equals 130% or more of the liquidation amount of $50.00 per
Preferred Security or $50.00 principal amount of Securities. The amount of Contingent Interest payable per
$50.00 principal amount of Securities in respect of any Quarterly Period shall
equal the annual rate of 0.25% of the average of the Security Market Prices for
the ten Trading Day measuring period.
4.
Repurchase
.
Upon the occurrence of a Change in Control, Holders shall have the right to
require the Corporation to repurchase all or any portion of their Securities
that is an integral multiple of $50.00 at a Repurchase Price equal to 100% of
the principal amount of the Securities to be repurchased plus accrued and
unpaid interest to the Repurchase Date.
To exercise the Repurchase Right following a Change in Control, the Securityholder
shall be required to deliver an irrevocable Repurchase Notice and otherwise
comply with the applicable provisions of Article XIII of the Indenture. In addition, a holder of Preferred Securities
may exercise its right under the Declaration to exchange such Preferred
Securities for Securities which shall be repurchased by the Corporation
following a Change in Control by delivering to the Exchange Agent an
irrevocable Notice of Repurchase Election and directing the Conversion Agent
(i) to exchange such Preferred Security for a portion of the Securities held by
the Trust (at an exchange rate of $50.00 principal amount of Securities for
each Preferred Security), and (ii) to immediately tender such Securities, on
behalf of such Securityholder, for repurchase pursuant to
A-9
Article XIII of the Indenture and, if such Preferred
Securities are in certificated form, surrendering such Preferred Securities,
duly endorsed or assigned to the Corporation or in blank.
5.
Acceleration
. In case an Event of Default, as defined in
the Indenture, shall have occurred and be continuing, the principal of all of
the Securities and all accrued and unpaid Interest (including Contingent
Interest) thereon may be declared, and upon such declaration shall become, due
and payable, in the manner, with the effect and subject to the conditions
provided in the Indenture.
6.
Modification
and Waiver
. The Indenture contains
provisions permitting the Corporation and the Debenture Trustee, with the
consent of the holders of a majority in aggregate principal amount of the
Securities at the time outstanding, as defined in the Indenture, to execute
supplemental indentures for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of the Indenture or of
modifying in any manner the rights of the holders of the Securities;
provided, however
, that no such
supplemental indenture shall, without the consent of each holder of Securities
then outstanding and affected thereby, thereby (i) change the Maturity Date of
any Security, or reduce the principal amount of, or any installment of
principal of or Interest on the Securities; (ii) reduce the rate or extend the
time of payment of Interest (including Contingent Interest, if any); (iii)
change any of the provisions of Article XIV of the Indenture relating to
redemption; (iv) change the Conversion Rate except as provided in Section 17.03
and Section 17.04 of the Indenture with respect to adjustment of the Conversion
Rate, or otherwise change the right to convert the Securities in a manner that
would be adverse to Securityholders; (v) make the principal of, or Interest
(including Contingent Interest, if any) payment on, the Securities payable in
any coin or currency other than that provided in the Indenture; (vi) change any
obligation of the Corporation to maintain an office or agency in the places and
for the purposes required by the Indenture or change the place of payment where
the Securities or Interest payment thereon is payable; (vii) impair or affect the
right of any holder of Securities to institute suit for the payment of the
Securities as provided in the Indenture; (viii) reduce the percentage of the
principal amount of the Securities required to consent to modify or amend the
Indenture or for any waiver of compliance with provisions of the Indenture as
stated in the Indenture or for waiver of Defaults as stated in the Indenture;
(ix) make any change adverse to a Holder with respect to the subordination
provisions of Article XV of the Indenture; or (x) modify any of the foregoing
provisions;
provided, however
,
that if the Securities are held by the Trust, no such modification or amendment
referred to in clauses (i) through (x) shall be effective until the holders of
not less than a majority of the aggregate liquidation amount of the Trust
Securities shall have consented to such modification or amendment; and
provided further
, that where a consent
under the Indenture would require the consent of the Securityholders of more
than a majority of the principal amount of the Securities, such modification or
amendment shall not be effective until the holders of at least the same
proportion in aggregate stated liquidation amount of the Trust Securities shall
have consented to such modification or amendment. The Indenture also contains
provisions permitting the holders of a majority in aggregate principal amount
of the Securities at the time outstanding, on behalf of all of the holders of
the Securities, prior to any declaration accelerating the maturity of the Securities,
to waive any past Default or Event of Default and its consequences, except
(i) a Default in the payment of the principal of or Interest on any of the
Securities or (ii) a Default in respect of any covenant or provision under
which the Indenture cannot be modified or amended without the consent of each
holder of Securities then outstanding. Any such consent or waiver by
A-10
the holder of this Security (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such Holder and
upon all future holders and owners of this Security and of any Security issued
in exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Security.
7.
No
Impairment
. No reference herein to
the Indenture and no provision of this Security or of the Indenture shall alter
or impair the obligation of the Corporation, which is absolute and
unconditional, to pay the principal of and Interest (including Contingent
Interest, if any) on this Security at the time and place and at the rate and in
the money herein prescribed.
8.
Extension
of Interest Payment Period
. So long
as the Corporation is not in Default in the payment of Interest on the
Securities, the Corporation shall have the right, at any time and from time to
time during the term of the Securities, to defer payments of Interest (other
than Contingent Interest) by extending the interest payment period of such
Securities for a period not exceeding 20 consecutive quarterly periods,
including the first such quarterly period during such extension period (an “Extended
Interest Payment Period”), during which Extended Interest Payment Period no
Interest (other than Contingent Interest) shall be due and payable; provided
that no Extended Interest Payment Period shall end on a date other than an
Interest Payment Date or extend beyond the Maturity Date or, with respect to
any Securities called for redemption, the Redemption Date with respect to such
Securities. At the end of any Extended Interest Payment Period, the Corporation
shall pay all Interest then accrued and unpaid (together with interest thereon
at the rate specified for the Securities to the extent that payment of such
interest is enforceable under applicable law). Before the termination of any
such Extended Interest Payment Period, the Corporation may further defer
payments of Interest (other than Contingent Interest) by further extending such
Extended Interest Payment Period, provided that such Extended Interest Payment
Period, together with all such previous and further extensions within such
Extended Interest Payment Period, (i) shall not exceed 20 consecutive quarterly
periods, including the first quarterly period during such Extended Interest Payment
Period, (ii) shall not end on any date other than an Interest Payment Date, and
(iii) shall not extend beyond the Maturity Date of the Securities or, with
respect to any Securities called for redemption, the Redemption Date with
respect to such Securities. Upon the termination of any such Extended Interest
Payment Period and the payment of all accrued and unpaid Interest and any
additional amounts then due, the Corporation may commence a new Extended
Interest Payment Period, subject to the foregoing requirements. The payment of Contingent Interest may not,
under any circumstances, be subject to an Extended Interest Payment Period.
9.
Limitation
on Dividends
. The Corporation will
be precluded from engaging in the transaction set forth in Section 3.07 of the
Indenture, if at the time of such transaction (1) an event has occurred with
the giving of notice or the lapse of time, or both, would constitute an Event
of Default and the Corporation has not taken reasonable steps to cure the
event, (2) the Corporation shall be in default with respect to its payment
obligations under the Trust Securities Guarantee or (3) the Corporation shall
have given notice of its election of the exercise of its right to extend the
interest payment period pursuant to Section 16.01 of the Indenture and any such
extension shall be continuing.
A-11
10.
Liquidation
of Trust
. Subject to the applicable
provisions of the Declaration, the Corporation will have the right at any time
to liquidate the Trust and cause the Securities to be distributed to the
holders of the Trust Securities in liquidation of the Trust.
11.
Denominations,
Transfer and Exchange
. The Securities are issuable only in registered form
without coupons in minimum denominations of $50.00 and any integral multiple
thereof. As provided in the Indenture and subject to the transfer restrictions
limitations as may be contained herein and therein from time to time, this
Security is transferable by the holder hereof on the Security Register of the
Corporation, upon surrender of this Security for registration of transfer at
the office or agency of the Corporation accompanied by a written instrument or
instruments of transfer in form satisfactory to the Corporation or the
Debenture Trustee duly executed by the holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of authorized
denominations and for the same aggregate principal amount and series will be
issued to the designated transferee or transferees. No service charge will be
made for any such registration of transfer, but the Corporation may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in relation thereto.
12.
Persons
Deemed Owners
. Prior to due
presentment for registration of transfer of this Security, the Corporation, the
Debenture Trustee, any authenticating agent, any paying agent, any transfer
agent and the registrar may deem and treat the holder hereof as the absolute
owner hereof (whether or not this Security shall be overdue and notwithstanding
any notice of ownership or writing hereon made by anyone other than the
security registrar for the Securities) for the purpose of receiving payment of
or on account of the principal hereof and (subject to the Indenture) Interest
due hereon and for all other purposes, and neither the Corporation nor the
Debenture Trustee nor any authenticating agent nor any paying agent nor any
transfer agent nor any registrar shall be affected by any notice to the
contrary.
13.
No
Recourse Against Others
. No recourse
shall be had for the payment of the principal of or Interest on this Security,
or for any claim based hereon, or otherwise in respect hereof, or based on or
in respect of the Indenture, against any incorporator, stockholder, officer or
director, past, present or future, as such, of the Corporation or of any
predecessor or successor Person, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of
the consideration for the issuance hereof, expressly waived and released.
14.
Indenture;
Trust Indenture Act of 1939
. The
terms of this Security include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, as in effect on the date
hereof or, from and after the date that the Indenture shall be qualified
thereunder, as in effect on such date. This Security is subject to all such
terms, and the holder of this Security is referred to the Indenture and said
Act for a statement of them. In the case of any conflict between the provisions
of this Security and the Indenture, the provisions of the Indenture shall
control. The Corporation will furnish to any Holder, upon written request and
without charge, a copy of the Indenture. Requests may be made to: Affiliated
Managers Group, Inc., 600 Hale Street, Prides Crossing, Massachusetts 01965,
Attention: Chief Financial Officer.
A-12
15.
Abbreviations
and Definitions
. Customary
abbreviations may be used in the name of a Holder or an assignee, such as: TEN
COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST (=
Custodian) and U/G/M/A (= Uniform Gifts to Minors Act). All terms used in this
Security that are defined in the Indenture shall have the meanings assigned to
them in the Indenture.
16.
Governing
Law
. THE INDENTURE AND THE SECURITIES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
A-13
CONVERSION REQUEST
To: Affiliated
Managers Group, Inc.
The
undersigned owner of these Securities hereby irrevocably exercises the option
to convert these Securities, or the portion below designated, into Common Stock
(as such term is defined in the Indenture, dated October 17, 2007, between
Affiliated Managers Group, Inc. and LaSalle Bank National Association, as
Debenture Trustee (the “Indenture”)) in accordance with the terms of the
Indenture.
The
undersigned does also hereby direct that the shares issuable and deliverable
upon conversion, together with any check in payment for fractional shares, be
issued in the name of and delivered to the undersigned, unless a different name
has been indicated in the assignment below. If shares are to be issued in the
name of a person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto.
Any
holder, upon the exercise of its conversion rights in accordance with the terms
of the Indenture and the Securities, agrees to be bound by the terms of the
Registration Rights Agreement relating to the Common Stock issuable upon
conversion of the Securities and agrees to appoint the Conversion Agent for the
purpose of effecting the conversion of the Securities into shares of Common
Stock.
Date: Principal
Amount of Securities to be converted:
If a
name or names other than the undersigned, please indicate in the spaces below
the name or names in which the shares of Common Stock are to be issued, along
with the address or addresses of such person or persons.
(Sign exactly as
your name appears on the other side of this certificate) (for conversion of
definitive Securities only)
Please print or
Typewrite Name and Address, Including Zip Code, and Social Security or Other
Identifying Number.
A-14
* (Signature must be guaranteed by
an “eligible guarantor institution” that is, a bank, stockbroker, savings and
loan association or credit union meeting the requirements of the Registrar,
which requirements include membership or participation in the Securities
Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee
program” as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended).
A-15
REPURCHASE NOTICE
TO:
Affiliated
Managers Group, Inc.
The
undersigned registered owner of this Security hereby acknowledges receipt of a
notice from Affiliated Managers Group, Inc. (the “Corporation”) as to the
occurrence of a Change in Control with respect to the Corporation and requests
and instructs the Corporation to repay the entire principal amount of this
Security, or the portion thereof (which is $50.00 principal amount or an
integral multiple thereof) below designated, in accordance with the terms of
the Indenture referred to in this Security, together with interest (including
Contingent Interest and Liquidated Damages Amount, if any) accrued and unpaid
to, but excluding, such date, to the registered holder hereof, in cash as
specified in the Corporation’s notice.
|
Dated:
|
|
|
Your Name:
|
|
|
|
|
|
(Print your name
exactly as it appears on the
|
|
|
|
face of this
Security)
|
|
|
|
|
|
|
|
|
|
|
Your Signature:
|
|
|
|
|
|
(Sign exactly as
your name appears on
|
|
|
|
the face of this
Security)
|
|
|
|
|
|
|
|
|
|
|
Signature
Guarantee*:
|
|
|
|
|
|
|
|
|
|
|
|
Principal amount
to be converted (if less than all): $
*
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-16
ASSIGNMENT
FOR
VALUE RECEIVED, the undersigned assigns and transfers $
principal amount of this Security to:
(Insert assignee’s
social security or tax identification number)
(Insert address
and zip code of assignee)
and irrevocably appoints
agent to transfer this Security on the books of the Corporation. The agent may
substitute another to act for him or her.
(Sign exactly as
your name appears on the other side of this Certificate)
*
(Signature
must be guaranteed by an “eligible guarantor institution” that is, a bank,
stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended).
A-17
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF RESTRICTED SECURITIES
This
certificate relates to $
principal amount of Securities held in (check applicable space)
book-entry or
definitive form by the undersigned.
(A)
The
undersigned has requested the Debenture Trustee by written order to exchange or
register the transfer of Securities.
(B)
The
undersigned confirms that such Securities are being (check one box below):
|
(1)
|
o
|
|
transferred to
Affiliated Managers Group, Inc. or a Subsidiary thereof; or
|
|
|
|
|
|
|
(2)
|
o
|
|
transferred
pursuant to and in compliance with Rule 144A under the Securities Act of
1933, as amended; or
|
|
|
|
|
|
|
(3)
|
o
|
|
transferred
pursuant to an available exemption from the registration requirements of the
Securities Act of 1933, as amended; or
|
|
|
|
|
|
|
(4)
|
o
|
|
transferred
pursuant to an effective registration statement under the Securities Act of
1933, as amended.
|
|
|
|
|
|
|
|
Unless the box
below is checked, the undersigned confirms that such Securities are not being
transferred to an “affiliate” of Affiliated Managers Group, Inc. as defined
in Rule 144 under the Securities Act of 1933, as amended (an “Affiliate”):
|
|
|
|
|
|
|
(5)
|
o
|
|
The transferee
is an Affiliate of Affiliated Managers Group, Inc.
|
Unless
one of the boxes (1) through (4) in (B) above is checked, the Debenture Trustee
will refuse to register any of the Securities evidenced by this certificate in
the name of any person other than the registered Holder thereof;
provided, however
, that if box (3) is
checked, the Debenture Trustee may require, prior to registering any such
transfer of the Securities such legal opinions, certifications and other
information as the Debenture Trustee has reasonably requested to confirm that
such transfer is being made pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act of 1933, as
amended such as the exemption provided by Rule 144 under such Act.
Signature
Guarantee:*
* (Signature must be guaranteed by
an “eligible guarantor institution” that is, a bank, stockbroker, savings and
loan association or credit union meeting the requirements of the Registrar,
which requirements include membership or participation in the Securities
Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee
program” as may be
A-18
determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.)
A-19
