SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
November 19, 2003
Amerada Hess Corporation
(Exact name of Registrant as Specified in Charter)
Delaware No. 1 -1204 No. 13-4921002
(State or Other Jurisdiction (Commission File (IRS Employer
of Incorporation) Number) Identification No.)
1185 Avenue of the Americas 10036
New York, New York (Zip Code)
(Address of Principal Executive Offices)
Registrant's telephone number, including area code:
(212) 997-8500
N/A
(Former Name or Former Address, if Changed Since Last Report)
Item 5. Other Events and Regulation FD Disclosure.
This report on Form 8-K is filed in order to disclose the terms of Amerada
Hess Corporation's (the "Company") 12,000,000 shares of 7.00% automatically
convertible equity securities ("ACES") (plus an additional 1,500,000 shares that
may be issued if the underwriters exercise their option), convertible into
common stock, par value $1.00 per share of the Company that were offered by a
prospectus supplement dated November 19, 2003. The Certificate of Designation
filed as an Exhibit to this report sets forth the authorization and designation
of the ACES and fixes their powers, preferences and relative, optional and other
special rights, and their qualifications, limitations and restrictions.
In connection with the offering of ACES we are also disclosing the
underwriting agreement entered into by the Company and Goldman, Sachs & Co., as
representative of the underwriters, dated November 19, 2003 which is filed as an
Exhibit to this report.
Item 7. Financial Statements and Exhibits.
(c) Exhibits
1 Underwriting Agreement, dated November 19, 2003, between Amerada Hess
Corporation and Goldman, Sachs & Co. as representative of the underwriters.
3 Certificate of Designation, Preferences and Relative, Optional and Other
Special Rights and Qualifications, Limitations and Restrictions thereof of
7.00% Mandatory Convertible Preferred Stock of Amerada Hess Corporation.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AMERADA HESS CORPORATION
By: /s/ John Y. Schreyer
-----------------------------------
Name: John Y. Schreyer
Title: Executive Vice President and
Chief Financial Officer
Date: November 21, 2003
EXHIBIT INDEX
Exhibit No. Description
1 Underwriting Agreement, dated November 19, 2003, between Amerada
Hess Corporation and Goldman, Sachs & Co. as representative of
the underwriters.
3 Certificate of Designation, Preferences and Relative, Optional
and Other Special Rights and Qualifications, Limitations and
Restrictions thereof of 7.00% Mandatory Convertible Preferred
Stock of Amerada Hess Corporation.
AMERADA HESS CORPORATION
7.00% Automatically Convertible Equity Securities (ACES)
Underwriting Agreement
November 19, 2003
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
As Representative of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Amerada Hess Corporation, a Delaware corporation (the "Company"), proposes
to issue and sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representative (the
"Representative"), 12,000,000 shares of its 7.00% automatically convertible
equity securities ("ACES"), convertible into common stock, par value $1.00 per
share (the "Stock") of the Company (the "Firm Securities") and, at the election
of the Underwriters, up to an additional 1,500,000 shares of ACES (the "Optional
Securities") (the Firm Securities and the Optional Securities that the
Underwriters elect to purchase pursuant to Section 1 hereof being collectively
called the "Securities"). The Securities will be established by the Certificate
of Designations identified in Schedule I hereto (the "Certificate of
Designations"). If the firm or firms listed in Schedule II hereto include only
the firm or firms listed in Schedule I hereto, then the terms "Underwriters" and
"Representative", as used herein, shall each be deemed to refer to such firm or
firms.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (the file number of which is set forth in Schedule I hereto) on Form
S-3, relating to certain debt securities, convertible debt securities, warrants,
preferred stock, convertible preferred stock and Stock (the "Shelf Securities")
to be issued from time to time by the Company. The Company also has filed with,
or proposes to file with, the Commission pursuant to Rule 424 under the
Securities Act a prospectus supplement specifically relating to the Securities.
The registration statement as amended to the date of this Agreement is
hereinafter referred to as the "Registration Statement" and the related
prospectus covering the
Shelf Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Basic Prospectus". The Basic Prospectus as
supplemented by the prospectus supplement specifically relating to the
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Prospectus". If the Company has filed an
abbreviated registration statement pursuant to Rule 462(b) under the Securities
Act (the "Rule 462 Registration Statement"), then any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462
Registration Statement. Any reference in this Agreement to the Registration
Statement, the Basic Prospectus, any preliminary form of Prospectus (a
"preliminary prospectus") previously filed with the Commission pursuant to Rule
424 or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be; and any reference to "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
any documents filed under the Exchange Act after the date of this Agreement, or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be, which are deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the number of shares of Firm Securities set forth opposite such
Underwriter's name in Schedule II hereto at the purchase price set forth in
Schedule I hereto.
In addition, the Company hereby grants to the Underwriters the right to
purchase at their election up to 1,500,000 Optional Securities, at the purchase
price per share set forth in the paragraph above, for the sole purpose of
covering sales of shares in excess of the number of Firm Securities, provided
that the purchase price per Optional Security shall be reduced by an amount per
share equal to any dividends or distributions declared by the Company and
payable on the Firm Securities but not payable on the Optional Securities. Any
such election to purchase Optional Securities may be exercised only by written
notice from you to the Company, given within a period of 30 calendar days after
the date of this Agreement, setting forth the aggregate number of Optional
Securities to be purchased and the date on which such Optional Securities are to
be delivered, as
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determined by you but in no event earlier than the First Time
of Delivery (as defined in Section 3 hereof) or, unless you and the Company
otherwise agree in writing, earlier than two or later than ten Business Days (as
defined in Section 3 hereof) after the date of such notice.
2. The Company understands that the several Underwriters intend (i) to make
a public offering of their respective portions of the Securities and (ii)
initially to offer the Securities upon the terms set forth in the Prospectus.
3. Payment for the Firm Securities shall be made by wire transfer in
immediately available funds to the account, specified by the Company to the
Representative no later than noon the Business Day (as defined below) prior to
the First Time of Delivery (as defined below), on the date and at the time and
place set forth in Schedule I hereto (or at such other time and place on the
same or such other date, not later than the fifth Business Day thereafter, as
you and the Company may agree in writing). Payment for the Optional Securities
shall be made by wire transfer in immediately available funds to the same
account on the date specified by Goldman, Sachs & Co. in the written notice
given by you of the Underwriters' election to purchase such Optional Securities,
or such other time and date as you and the Company may agree upon in writing.
Such time and date for payment and delivery of the Firm Securities is herein
called the "First Time of Delivery", such time and date for payment and delivery
of the Optional Securities, if not the First Time of Delivery, is herein called
the "Second Time of Delivery", and each such time and date for payment and
delivery with respect to the Securities is referred to herein as a "Closing
Date". As used herein, the term "Business Day" means any day other than a day on
which banks are permitted or required to be closed in New York City.
Payment for the Securities shall be made against delivery by the Company to
the nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of the Securities in such authorized denominations and
registered in such names as Goldman, Sachs & Co. may request upon notice to the
Company, with any transfer taxes payable in connection with the transfer to the
Underwriters of the Securities duly paid by the Company.
4. The Company represents and warrants to each Underwriter that:
(a) the Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of the
Company, threatened by the Commission; and the Registration Statement and
Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) comply, or will comply, as the case
may be, in all material respects with the Securities Act
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and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the date of the
Prospectus and any amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and the
Prospectus, as amended or supplemented at the Closing Date, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the foregoing representations and warranties shall not apply
to statements or omissions in the Registration Statement or the Prospectus
made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use therein;
(b) the documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act, and none of such documents contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents are filed with the Commission, will conform in all material
respects to the requirements of the Exchange Act, and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
(c) the financial statements, and the related notes thereto, included
or incorporated by reference in the Registration Statement and the
Prospectus present fairly in all material respects the consolidated
financial position of the Company and its consolidated subsidiaries as of
the dates indicated and the results of their operations and the changes in
their consolidated cash flows for the periods specified in conformity with
generally accepted accounting principles applied on a consistent basis, and
the supporting schedules included or incorporated by reference in the
Registration Statement present fairly in all material respects the
information required to be stated therein;
(d) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any
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material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, otherwise
than as set forth or contemplated in the Prospectus;
(e) the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such qualification,
other than where the failure to be so qualified or in good standing would
not have a material adverse effect on the Company and its subsidiaries
taken as a whole;
(f) each of Amerada Hess Limited and Hess Oil Virgin Islands Corp.
(the "Significant Subsidiaries") has been duly incorporated and is validly
existing as a corporation under the laws of its jurisdiction of
incorporation, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole; and all the outstanding shares of capital
stock of each Significant Subsidiary of the Company have been duly
authorized and validly issued, are fully-paid and non-assessable, and
(except in the case of foreign subsidiaries, for directors' qualifying
shares) are owned by the Company, directly or indirectly, free and clear of
all liens, encumbrances, security interests and claims;
(g) this Agreement has been duly authorized, executed and delivered by
the Company;
(h) the Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; the shares of Stock initially issuable upon conversion of
the Securities have been duly and validly authorized and reserved for
issuance and, when issued and delivered in accordance with the provisions
of the Securities, will be duly and validly issued, fully paid
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and non-assessable and will conform to the description of the Stock
contained in the Prospectus;
(i) the Certificate of Designations creating the Securities, the
proposed form of which has been furnished to you, will have been duly filed
with the Secretary of State of Delaware on or before the First Time of
Delivery.
(j) the Securities have been duly authorized, and, when issued and
delivered pursuant to this Agreement, will have been duly issued and
delivered and will be fully paid and non-assessable; and the Securities
will conform in all material respects to the descriptions thereof in the
Prospectus;
(k) neither the Company nor any of its subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or in
default under, its Certificate of Incorporation or By-Laws or, except for
violations and defaults which individually and in the aggregate are not
material to the Company and its subsidiaries taken as a whole, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them or any of their respective properties is bound; the
issue and sale of the Securities and the performance by the Company of all
its obligations under the Securities and this Agreement and the
consummation by it of the transactions herein and therein contemplated will
not (A) conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, except for such
conflicts, breaches or defaults as would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole, or (B) result in any
violation of (i) the provisions of the Certificate of Incorporation or the
By-Laws of the Company or any applicable law or statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company, its subsidiaries or any of their respective
properties, except in the case of this clause (ii), for violations that
will not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(l) no consent, approval, authorization, order, license, registration
or qualification of or with any such court or governmental agency or body
is required on the part of the Company for the issue and sale of the
Securities or the consummation by the Company of the
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transactions contemplated by this Agreement, except such consents,
approvals, authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act or as may be
required under state securities or Blue Sky Laws in connection with the
purchase and distribution of the Securities by the Underwriters and except
for those which, if not obtained, will not have a material adverse effect
on the Company and its subsidiaries, taken as a whole;
(m) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending against, or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries or any of their respective
properties or to which the Company or any of its subsidiaries is or may be
a party or to which any property of the Company or any of its subsidiaries
is or may be subject which could individually or in the aggregate
reasonably be expected to have a material adverse effect on the general
affairs, business, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a whole
and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others; and there are no statutes, regulations, contracts or other
documents that are required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or the
Prospectus which are not filed or described as required;
(n) Ernst & Young LLP, who have certified certain financial statements
of the Company and its subsidiaries, are independent public accountants as
required by the Securities Act;
(o) the Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(p) there are no existing or, to the best knowledge of the Company,
threatened labor disputes with the employees of the Company or any of its
subsidiaries which are likely to have a material adverse effect on the
Company and its subsidiaries taken as a whole; and
(q) the Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
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approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
5. The Company covenants and agrees with each of the several Underwriters
as follows:
(a) to file the Prospectus pursuant to Rule 424 under the Securities
Act not later than the Commission's close of business on the second
Business Day following the date of determination of the offering price of
the Securities or, if applicable, such earlier time as may be required by
Rule 424(b);
(b) to furnish to you and counsel for the Underwriters, at the expense
of the Company, a signed copy of the Registration Statement (as originally
filed) and each amendment thereto, in each case including exhibits and
documents incorporated by reference therein and, during the period
mentioned in paragraph (e) below, to furnish each of the Underwriters as
many copies of the Prospectus (including all amendments and supplements
thereto) and documents incorporated by reference therein as you may
reasonably request;
(c) from the date hereof and prior to the Closing Date, to furnish to
you a copy of any proposed amendment or supplement to the Registration
Statement or the Prospectus, for your review, and not to file any such
proposed amendment or supplement to which you reasonably object;
(d) for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, to advise you
promptly, and to confirm such advice in writing, (i) when any amendment to
the Registration Statement shall have become effective, (ii) of any request
by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose, and (iv) of
the receipt by the Company of any notification with respect to any
suspension of the qualification of the Securities for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and to
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use its reasonable best efforts to prevent the issuance of any such stop
order or notification and, if issued, to obtain as soon as possible the
withdrawal thereof;
(e) if, during such period after the first date of the public offering
of the Securities as in the opinion of counsel for the Underwriters a
prospectus relating to the Securities is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur as
a result of which it is necessary to amend or supplement the Prospectus in
order to make the statements as to material facts therein, in the light of
the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at the expense of the
Company, to the Underwriters and to the dealers (whose names and addresses
you will furnish to the Company) to which Securities may have been sold by
you on behalf of the Underwriters and to any other dealers upon request,
such amendments or supplements to the Prospectus as may be necessary so
that the statements as to material facts in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law;
(f) to endeavor to qualify the Securities and the shares of Stock
issuable upon conversion of the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to continue such qualification in effect so long as reasonably
required for distribution of the Securities; provided that the Company
shall not be required to file a general consent to service of process in
any jurisdiction, or become subject to tax or to register as a foreign
corporation in any jurisdiction in which it is not now so registered;
(g) to make generally available to its security holders and to you as
soon as practicable an earnings statement which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder covering a period of at least twelve
months beginning with the first fiscal quarter of the Company occurring
after the "effective date" (as defined in Rule 158) of the Registration
Statement;
(h) so long as the Securities are outstanding, to furnish to you
copies of all reports or other communications (financial or other)
furnished generally to holders of Securities, and copies of any reports and
financial statements filed with the Commission or any national securities
exchange;
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(i) during the period beginning from the date hereof and continuing to
and including the date 90 days after the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of, any securities of
the Company that are substantially similar to the Securities, including but
not limited to any securities that are convertible into or exchangeable
for, or that represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to employee stock
option plans existing on, or upon the conversion or exchange of convertible
or exchangeable securities outstanding as of, the date of this Agreement
and pursuant to the Company's Employees' Savings and Stock Bonus Plan and
the Savings and Stock Bonus Plan for Retail Operations Employees), without
your prior written consent. The foregoing restriction shall not apply to
the filing of a registration statement in respect of any securities of the
Company, including Stock, after the date hereof; provided, that the Company
obtains the prior written consent of Goldman, Sachs & Co.; and
(j) whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
costs and expenses incident to the performance of its obligations
hereunder, including without limiting the generality of the foregoing, all
costs and expenses (i) incident to the preparation, issuance, execution,
and delivery of the Securities and the shares of Stock issuable upon
conversion of the Securities, (ii) incident to the preparation, printing
and filing under the Securities Act of the Registration Statement, the
Prospectus and any preliminary prospectus (including in each case all
exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of eligibility for
investment of the Securities and the shares of Stock issuable upon
conversion of the Securities under the laws of such jurisdictions as the
Underwriters may designate (including reasonable fees of counsel for the
Underwriters and their disbursements), (iv) related to any filing with the
National Association of Securities Dealers, Inc., (v) incident to the
preparation of the Certificate of Designations and the filing of the
Certificate of Designations with the Secretary of State of Delaware, (vi)
in connection with the printing (including word processing and duplication
costs) and delivery of this Agreement, the Preliminary and Supplemental
Blue Sky Memoranda and any Legal Investment Survey and the furnishing to
Underwriters and dealers of copies of the Registration Statement and the
Prospectus, including mailing and shipping, as herein provided, (vii)
payable to rating agencies in connection with the rating of the Securities,
(viii) any expenses incurred by the Company in connection with a "road
show" presentation to potential investors and (ix) the cost and charges of
any transfer agent;
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(k) to file the Certificate of Designations creating the Securities,
the proposed form of which has been furnished to you, with the Secretary of
State of Delaware on or before the First Time of Delivery;
(l) to reserve and keep available at all times, free of preemptive
rights, shares of Stock for the purpose of enabling the Company to satisfy
any obligations to issue shares of its Stock upon conversion of the
Securities; and
(m) to use its commercially reasonable efforts to list, subject to
notice of issuance, the Securities and the shares of Stock issuable upon
conversion of the Securities on the New York Stock Exchange.
6. The several obligations of the Underwriters hereunder shall be subject
to the following conditions:
(a) the representations and warranties of the Company contained herein
are true and correct on and as of the Closing Date as if made on and as of
the Closing Date and the Company shall have complied with all agreements
and all conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission pursuant
to Rule 424 within the applicable time period prescribed for such filing by
the rules and regulations under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission; and all requests for additional information
on the part of the Commission shall have been complied with to your
reasonable satisfaction;
(c) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of (i) any downgrading, (ii) any
intended or potential downgrading or (iii) any review or possible change
that does not indicate an improvement, in the rating accorded any
securities of or guaranteed by the Company by any "nationally recognized
statistical rating organization", as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in the
Prospectus there shall not have been any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, business, management, financial position,
stockholders' equity or results of operations of the Company and its
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subsidiaries, taken as a whole, otherwise than as set forth or contemplated
in the Prospectus, the effect of which in the reasonable judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in the
manner contemplated in the Prospectus; and neither the Company nor any of
its Significant Subsidiaries has sustained since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus;
(e) you shall have received on and as of the Closing Date a
certificate of an executive officer of the Company, with specific knowledge
about the Company's financial matters, to the effect set forth in
subsections (a) through (c) (with respect to the respective
representations, warranties, agreements and conditions of the Company) of
this Section and to the further effect that there has not occurred any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole from that
set forth or contemplated in the Registration Statement.
(f) White & Case LLP, counsel for the Company, shall have furnished to
you their written opinion, dated the Closing Date, in form and substance
satisfactory to you, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus as amended or
supplemented;
(ii) the Company has an authorized capitalization as set forth in
the Prospectus, and the shares of Stock initially issuable upon
conversion of the Securities have been duly and validly authorized and
reserved for issuance and, when issued and delivered in accordance
with the provisions of the Securities, will be duly and validly issued
and fully paid and non-assessable;
(iii) this Agreement has been duly authorized, executed and
delivered by the Company;
12
(iv) the Certificate of Designations creating the Securities has
been duly filed with the Secretary of State of Delaware on or before
the First Time of Delivery.
(v) the Securities have been duly authorized, executed and
delivered by the Company and, when delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable;
(vi) the issue and sale of the Securities and the performance by
the Company of its obligations under the Securities and this Agreement
and the consummation by it of the transactions herein and therein
contemplated will not result in any violation of the provisions of the
Certificate of Incorporation or the By-Laws of the Company or any
applicable law or statute;
(vii) no consent, approval, authorization, order, license,
registration or qualification of or with any governmental agency or
body is required for the issue and sale by the Company of the
Securities or the consummation by the Company of the other
transactions contemplated by this Agreement, except such consents,
approvals, authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act or as
may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the
Underwriter;
(viii) the statements in the Prospectus under "Description of
Preferred Stock" and "Description of Common Stock" and in the
Registration Statement in Item 15, insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present in all material respects the
information called for with respect to such legal matters, documents
or proceedings;
(ix) such counsel (A) does not believe that (except for the
financial statements and financial and statistical data included
therein, as to which such counsel need express no belief) any part of
the Registration Statement (including the documents incorporated by
reference therein) filed with the Commission pursuant to the
Securities Act relating to the Securities, when such part became
effective, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (B) is of the opinion that
the Registration Statement and the Prospectus
13
and any amendments and supplements thereto (except for the financial
statements and financial and statistical data included therein as to
which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act and (C)
does not believe that (except for the financial statements and
financial and statistical data included therein, as to which such
counsel need express no belief) the Registration Statement and the
Prospectus, on the date of this Agreement, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus as amended or
supplemented, if applicable, on the Closing Date contained any untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(x) the Company is not and, after giving effect to the offering
and sale of the Securities, will not be an "investment company" or
entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act; and
(xi) subject to the assumptions and limitations contained
therein, we confirm the opinion set forth in the Prospectus Supplement
under the caption "Certain United States Federal Income Tax
Consequences" regarding the material United States federal income tax
consequences of the offering of ACES.
(g) J. Barclay Collins, Esq., Executive Vice President and General
Counsel of the Company, shall have furnished to you his written opinion,
dated the Closing Date, in form and substance satisfactory to you, to the
effect that:
(i) the Company has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not
have a material adverse effect on the Company and its subsidiaries
taken as a whole;
(ii) each of the Significant Subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws
of its jurisdiction of incorporation with corporate power and
authority to own its properties and conduct its business as
14
described in the Prospectus and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified and in
good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole; and all of the issued shares of
capital stock of each Significant Subsidiary have been duly and
validly authorized and issued, are fully paid and non-assessable, and
(except in the case of foreign subsidiaries, for directors' qualifying
shares) are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims;
(iii) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits or
proceedings pending against or, to the best of such counsel's
knowledge, threatened against or affecting the Company or any of its
subsidiaries or any of their respective properties or to which the
Company or any of its subsidiaries is or may be a party or to which
any property of the Company or its subsidiaries is or may be the
subject which could individually or in the aggregate reasonably be
expected to have a material adverse effect on the general affairs,
business, prospects, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries
taken as a whole; to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others; and such counsel does not know of any
statutes, regulations, contracts or other documents required to be
filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which are
not filed or described as required;
(iv) neither the Company nor any of its Significant Subsidiaries
is, or with the giving of notice or lapse of time or both would be, in
violation of or in default under, its Certificate of Incorporation or
By-Laws (or similar constitutive documents) or any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of its
Significant Subsidiaries is a party or by which it or any of them or
any of their respective properties is bound, except for violations and
defaults which individually and in the aggregate are not material to
the Company and its subsidiaries taken as a whole; the issue and sale
of the Securities
15
and the performance by the Company of its obligations under the
Securities and this Agreement, the issue of Stock upon conversion of
the Securities and the consummation by it of the transactions herein
and therein contemplated will not (A) conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company or
any of the Significant Subsidiaries is a party or by which the Company
or any of the Significant Subsidiaries is bound or to which any of the
property or assets of the Company or any of the Significant
Subsidiaries is subject, except for such conflicts, breaches or
defaults as would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole, and (B) result in any
violation of (x) the provisions of the Certificate of Incorporation or
the By-Laws of the Company or (y) any applicable law or statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company, its subsidiaries or any of their
respective properties except, in the case of this clause (y), for
violations that would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(v) the statements in the Prospectus incorporated by reference
from Item 3 of Part 1 of the Company's Annual Report on Form 10-K for
the year ended December 31, 2002 and as such statements have been
amended or supplemented by the Company's subsequent reports filed on
Form 10-Q or Form 8-K, insofar as such statements constitute a summary
of the legal matters, documents or proceedings referred to therein,
fairly present in all material respects the information called for
with respect to such legal matters, documents or proceedings; and
(vi) such counsel is of the opinion that each document
incorporated by reference in the Registration Statement and the
Prospectus as amended or supplemented (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) complied as to form when filed with the
Commission in all material respects with the Exchange Act and the
rules and regulations of the Commission thereunder.
In rendering such opinions, White & Case LLP and Mr. Collins may rely (A)
as to matters involving the application of laws other than the laws of the
United States and the States of New York and Delaware, to the extent such
counsel deem proper and to the extent specified in such opinion, if at all, upon
an opinion or opinions (in form and substance reasonably satisfactory to
16
Underwriters' counsel) of other counsel reasonably acceptable to the
Underwriters' counsel, familiar with the applicable laws; (B) as to matters of
fact, to the extent such counsel deem proper, on certificates of responsible
officers of the Company and certificates or other written statements of
officials of jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company. The opinion of each such counsel
shall state that the opinion of any such other counsel upon which they relied is
in form satisfactory to such counsel and, in such counsel's opinion, the
Underwriters and they are justified in relying thereon. With respect to the
matters to be covered in subparagraph (ix) of paragraph (f) above White & Case
LLP may state their opinion and belief is based upon their participation in the
preparation of the Registration Statement and the Prospectus and any amendment
or supplement thereto (other than the documents incorporated by reference
therein) and review and discussion of the contents thereof (including the
documents incorporated by reference therein) but is without independent check or
verification except as specified.
The opinions of White & Case LLP and Mr. Collins described above shall be
rendered to the Underwriters at the request of the Company and shall so state
therein.
(h) on the date hereof and on the Closing Date, Ernst & Young LLP
shall have furnished to you letters, dated such date, in form and substance
satisfactory to you, containing statements and information of the type
customarily included in accountants "comfort letters" to underwriters with
respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus;
(i) you shall have received on and as of the Closing Date an opinion
of Davis Polk & Wardwell, counsel to the Underwriters, with respect to the
validity of the Securities, the Registration Statement, the Prospectus and
other related matters as you may reasonably request, and such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(j) on or prior to the Closing Date, the Company shall have furnished
to the Representative such further certificates and documents as the
Representative shall reasonably request; and
(k) the Company shall have obtained and delivered to the Underwriters
executed copies of an agreement from John B. Hess, John J. O'Connor, J.
Barclay Collins, F. Borden Walker, and John Y. Schreyer, substantially to
the effect set forth in Subsection 5(i) hereof in form and substance
satisfactory to you.
17
7. The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including without
limitation the reasonable legal fees and other expenses incurred in connection
with any suit, action or proceeding or any claim asserted) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto and as used
during the period specified in Section 5(d) hereof) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representative expressly for use therein and except that
with respect to any preliminary prospectus, such indemnity shall not inure to
the benefit of any Underwriter (or the benefit of any person controlling such
Underwriter) if the person asserting any such losses, claims, damages or
liabilities purchased the Securities that are the subject thereof from such
Underwriter and if such person was not sent or given a copy of the Prospectus at
or prior to confirmation of the sale of such Securities to such person in any
case where such sending or giving is required by the Act and the untrue
statement or omission of a material fact contained in such preliminary
prospectus was corrected in the Prospectus.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Representative expressly for use in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in
18
such proceeding and shall pay the reasonable fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for the Underwriters and such control persons
of Underwriters shall be designated in writing by Goldman, Sachs & Co. and any
such separate firm for the Company, its directors, its officers who sign the
Registration Statement and such control persons of the Company or authorized
representatives shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by the
third sentence of this paragraph, the Indemnifying Person agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after receipt
by such Indemnifying Person of the aforesaid request and (ii) such Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
19
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportions as the net proceeds from the offering
of such Securities (before deducting expenses) received by the Company and the
total underwriting discounts and the commissions received by the Underwriters
bear to the aggregate public offering price of the Securities. The relative
fault of the Company on the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of the Securities set forth opposite their names in
Schedule I hereto, and not joint.
20
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Company set forth in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representative, by notice given to
the Company, if after the execution and delivery of this Agreement and prior to
the respective Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange or the National Association of Securities
Dealers, Inc., (ii) trading of any securities of or guaranteed by the Company
shall have been suspended on any exchange or in any over-the-counter market,
(iii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities or a material
disruption in commercial banking or securities settlement or clearance services
in the United States, or (iv) there shall have occurred any outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war or (v) the occurrence of any other
calamity or crisis or any change in financial or economic conditions in or
affecting the United States, if the effect of any such event specified in clause
(iv) or (v) in the judgment of the Representative, is material and adverse and
which, in the judgment of the Representative, makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall fail
or refuse to purchase Securities which it or they have agreed to purchase under
this Agreement, and the aggregate number of Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate number of the Securities, the other Underwriters
shall be obligated severally in the proportions that the principal amount of
Firm Securities set forth opposite their respective names in Schedule I hereto
bears to the aggregate number of Firm Securities set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as the
Representative may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Securities that any
Underwriter
21
has agreed to purchase pursuant to Section 1 be increased pursuant to this
Section 9 by an amount in excess of one-ninth of such principal amount of
Securities without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate number of Securities with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of
Securities to be purchased, and arrangements satisfactory to you and the Company
for the purchase of such Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and expenses of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of Securities.
11. This Agreement shall inure to the benefit of and be binding upon the
Company, the Underwriters, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
12. Any action by the Underwriters hereunder may be taken by the
Representative alone on behalf of the Underwriters, and any such action taken by
the Representative shall be binding upon the Underwriters. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given at the address set forth in Schedule
I hereto. Notices to the Company shall be given to it at 1185 Avenue of the
Americas, New York, New York 10036, Attention: Corporate Secretary.
22
13. This Agreement may be signed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same instrument.
23
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
Very truly yours,
AMERADA HESS CORPORATION
By: /s/ John Y. Schreyer
------------------------------
Name: John Y. Schreyer
Title: Executive Vice President
and Chief Financial Officer
Accepted: November 19, 2003
GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & Co.
--------------------------------
(Goldman, Sachs & Co.)
Acting severally on behalf of
itself and the several Underwriters
listed in Schedule II hereto.
24
SCHEDULE I
Representatives: Goldman, Sachs & Co.
Underwriting Agreement dated: November 19, 2003
Registration Statement No.: 333-110294
Title of Securities: 7.00% Automatically Convertible Equity
Securities (ACES)
Certificate of Designations: Executed by the Company and to be filed
with the Secretary of State of Delaware
on or before the First Time of Delivery.
Issue size: $600,000,000 (plus $75,000,000 over-
allotment option)
Price to public: $50.00 per ACES
Gross spread 3.00%
Over-allotment option: To the extent the underwriters
sell more than 12,000,000 ACES, the
underwriters have the option to purchase
up to 1,500,000 additional ACES from us
at the public offering price, less
underwriting discounts and commissions,
within 30 days from the date of this
prospectus supplement.
Other Provisions: As set forth in the Prospectus
Supplement dated November 19, 2003
First Time of Delivery: November 25, 2003
Closing Location: Davis Polk & Wardwell
Address for Notices to 85 Broad Street
Underwriters: New York, New York 10004
Attention: Prospectus Department
25
SCHEDULE II
Number of Firm
Securities to be
Purchased
Goldman, Sachs & Co..................................... 7,200,000
Banc of America Securities LLC.......................... 1,200,000
Citigroup Global Markets Inc. .......................... 1,200,000
J.P. Morgan Securities Inc. ............................ 1,200,000
Morgan Stanley & Co. Incorporated....................... 1,200,000
Total............................................. 12,000,000
==========
26
CERTIFICATE OF DESIGNATION, PREFERENCES AND RELATIVE, OPTIONAL AND
OTHER SPECIAL RIGHTS AND QUALIFICATIONS, LIMITATIONS AND
RESTRICTIONS THEREOF
OF
7.00% MANDATORY CONVERTIBLE PREFERRED STOCK
OF
AMERADA HESS CORPORATION
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
Amerada Hess Corporation, (the "Corporation"), a corporation organized and
existing under the General Corporation Law of the State of Delaware (the
"DGCL"), does hereby certify that, pursuant to the provisions of Section 151 of
the DGCL, the Corporation's Board of Directors has adopted the following
resolution, which resolution remains in full force and effect as of the date
hereof:
WHEREAS, the Board of Directors of the Corporation (the "Board") is
authorized within the limitations and restrictions stated in the Company's
Amended and Restated Certificate of Incorporation (the "Certificate of
Incorporation"), to fix by resolution or resolutions the designation of each
series of Preferred Stock of the Company (the "Preferred Stock") and the powers,
preferences and relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof, including, without limiting
the generality of the foregoing, such provisions as may be desired concerning
voting, redemption, dividends, dissolution or the distribution of assets,
conversion or exchange, and such other subjects or matters as may be fixed by
resolution or resolutions of the Board under the DGCL; and
WHEREAS, it is the desire of the Board, pursuant to its authority as
aforesaid, to designate and fix the powers, preferences and relative, optional
and other special rights, and the qualifications, limitations and restrictions
of a series of the Preferred Stock and the number of shares constituting such
series.
NOW, THEREFORE, BE IT RESOLVED, that there is hereby authorized and
designated such a series of the Preferred Stock and that the Board hereby fixes
the designations, powers, preferences and relative, optional and other special
rights, and the qualifications, limitations and restrictions thereof as herein
set forth:
(1) Designation and Amount.
The shares of this series of Preferred Stock shall be designated as "7.00%
Mandatory Convertible Preferred Stock" (the "Convertible Preferred Stock") and
the number of shares constituting such series shall be 13,500,000, with a par
value of $1.00 per share.
(2) Ranking.
The Convertible Preferred Stock shall rank, as to payment of dividends and
distribution of assets upon dissolution, liquidation or winding up of the
Corporation, (a) senior to the Common Stock, (b) senior to any class or series
of capital stock issued by the Corporation which by its terms ranks junior to
the Convertible Preferred Stock, (c) junior to any class or series of capital
stock issued by the Corporation which by its terms ranks senior to the
Convertible Preferred Stock, and (d) pari passu with any other class or series
of capital stock issued by the Corporation.
(3) Dividends.
(a) Dividends on the Convertible Preferred Stock will be payable quarterly
when declared out of legally available funds, on each Dividend Payment Date, at
the annual rate of $3.50 per share. The initial dividend on the Convertible
Preferred Stock for the first Dividend Period, commencing on the date of first
issuance of the Convertible Preferred Stock (assuming a date of first issuance
of November 25, 2003), to but excluding March 1, 2004, will be $0.9333 per
share, and when declared out of legally available funds, will be payable on
March 1, 2004. Each subsequent quarterly dividend on the Convertible Preferred
Stock will be $0.8750 per share. Dividends payable on a Dividend Payment Date
will be payable to Record Holders for the applicable Dividend Payment Date.
(b) The amount of dividends payable on each share of Convertible Preferred
Stock for each full quarterly period will be computed by dividing the annual
dividend by four. The amount of dividends payable for any other period that is
shorter or longer than a full quarterly dividend period will be computed on the
basis of a 360-day year consisting of twelve 30-day months. Declared but unpaid
dividends on the Convertible Preferred Stock shall cumulate from the Dividend
Payment Date on which they become payable, but no interest shall accrue on
accumulated but unpaid dividends on the Convertible Preferred Stock.
(4) Payment Restrictions.
(a) Unless all accrued and unpaid dividends on the Convertible Preferred
Stock for all prior Dividend Periods have been paid, the Corporation may not:
(i) declare or pay any dividend or make any distribution of assets on
any of the Corporation's capital stock that ranks junior to the Convertible
Preferred Stock as to payment of dividends or the distribution of assets
upon dissolution, liquidation or winding up of the Corporation, other than
dividends or distributions in the form of the Corporation's capital stock
that ranks junior to the Convertible Preferred Stock as to payment of
dividends and the distribution of assets upon dissolution, liquidation or
winding up of the Corporation;
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(ii) redeem, purchase or otherwise acquire any of the Corporation's
capital stock that ranks junior to the Convertible Preferred Stock as to
payment of dividends or the distribution of assets upon dissolution,
liquidation or winding up of the Corporation, except upon conversion or
exchange for the Corporation's capital stock that ranks junior to the
Corporation's Convertible Preferred Stock as to payment of dividends and
the distribution of assets upon dissolution, liquidation or winding up of
the Corporation; or
(iii) redeem, purchase or otherwise acquire any Parity Stock, except
for conversion or exchange for the Corporation's capital stock that ranks
junior to the Convertible Preferred Stock as to payment of dividends and
the distribution of assets upon dissolution, liquidation or winding up of
the Corporation.
(5) Voting Rights.
(a) Except as otherwise required by law, the Certificate of Incorporation
or set forth herein, Holders of the Convertible Preferred Stock are not entitled
to any voting rights and their consent shall not be required for the taking of
any corporate action.
(b) So long as any shares of Convertible Preferred Stock are outstanding,
the Corporation will not, without the approval of the Holders of at least
two-thirds of the shares of Convertible Preferred Stock then outstanding, given
in person or by proxy either at a regular meeting or at a special meeting called
for that purpose, at which the Holders of the Convertible Preferred Stock shall
vote separately as a series, amend, alter or repeal (by merger, consolidation,
combination, reclassification or otherwise) any of the provisions of the
Corporation's Certificate of Incorporation, as amended and restated, so as to
affect adversely the powers, preferences, privileges, voting power or rights of
the Holders of the Convertible Preferred Stock; provided that any such amendment
that (i) adversely changes the dividend payable on the Convertible Preferred
Stock, (ii) adversely changes the Liquidation Preference of the Convertible
Preferred Stock or (iii) adversely affects the conversion provisions of the
Convertible Preferred Stock, requires the affirmative approval of each Holder of
Convertible Preferred Stock affected; provided, further, that the amendment of
the provisions of the Corporation's Certificate of Incorporation so as to
authorize or create, or increase the authorized amount of any shares ranking
junior or pari passu as to payment of dividends and distribution of assets upon
dissolution, liquidation or winding up of the Corporation to the Convertible
Preferred Stock shall not be deemed to affect adversely the powers, preferences,
privileges or rights of the Holders of the Convertible Preferred Stock.
(c) If at any time dividends on any shares of Convertible Preferred Stock
or any other class or series of Parity Stock having like voting rights shall be
in arrears for Dividend Periods, that in the aggregate are equivalent to six
calendar quarters, whether or not consecutive, the number of directors
constituting the Board shall be increased by two and the holders of shares of
Convertible Preferred Stock (voting separately as a class with all other series
of Parity Stock upon which like voting rights have been conferred and are
exercisable) will be entitled, by written notice to the Corporation given by the
holders of a majority in liquidation preference of such shares or by ordinary
resolution passed by the holders of a majority in liquidation preference of such
shares present in person or by proxy at a separate general meeting of such
holders convened for this purpose, to appoint at the next annual meeting of the
stockholders of
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the Corporation or at a special meeting called for such purpose, whichever is
earlier, two of the authorized number of the Corporation's directors (each, a
"Preferred Stock Director") at the next annual meeting of stockholders and each
subsequent meeting until all dividends accumulated on the Convertible Preferred
Stock have been fully paid or set aside for payment, to remove any such member
from office and to appoint another person in place of such Preferred Stock
Director. The term of office of such Preferred Stock Directors will terminate
immediately upon the termination of the right of the holders of Convertible
Preferred Stock to vote for directors. Not later than 30 days after such
entitlement arises, if written notice by a majority of the holders of such
shares has not been given as provided for in the preceding sentence, the Board
will convene a separate general meeting for the above purpose. If the Board or
such authorized committee fails to convene such meeting within such 30-day
period, the holders of 10% of the outstanding shares of the Convertible
Preferred Stock and any Parity Stock, considered as a single class, will be
entitled to convene such meeting. The provisions of the Certificate of
Incorporation and By-laws of the Corporation relating to the convening and
conduct of general meetings of stockholders will apply with respect to any such
separate general meeting. Any member of the Board so appointed shall vacate
office and the number of directors constituting the Board shall decrease by two
if, following the event which gave rise to such appointment, the Corporation
shall have resumed the payment of accumulated dividends in full on the
Convertible Preferred Stock and each series of Parity Stock having similar
voting rights.
(d) So long as any of the Convertible Preferred Stock is outstanding, the
Corporation will not, without the approval of the holders of at least two-thirds
of the Convertible Preferred Stock then outstanding and any class or series of
Parity Stock then outstanding, voting together as a single class, given in
person or by proxy either at a regular meeting or at a special meeting called
for that purpose:
(i) issue, authorize or increase the authorized amount of, or issue or
authorize any obligation or security convertible into or evidencing a right
to purchase, any stock of any class ranking senior to the Convertible
Preferred Stock as to dividends or distribution of assets upon dissolution,
liquidation or winding up of the Corporation;
(ii) reclassify any of the Corporation's authorized stock into any
stock of any class, or any obligation or security convertible into or
evidencing a right to purchase such stock, ranking senior to the
Convertible Preferred Stock as to dividends or distribution of assets upon
dissolution, liquidation or winding up of the Corporation; provided, that
the Corporation may issue, authorize or increase the authorized amount of,
or issue or authorize any obligation or security convertible into or
evidencing a right to purchase, any stock ranking junior to or pari passu
with the Convertible Preferred Stock as to dividends or distribution of
assets upon dissolution, liquidation or winding up of the Corporation
without the vote of any Holder of the Convertible Preferred Stock; or
(iii) voluntarily liquidate, dissolve or wind up the Corporation's
affairs, or sell, lease or convey (other than by mortgage) all or
substantially all of the Corporation's property or business, or consolidate
or merge the Corporation with or into any other corporation, except any
such consolidation or merger wherein none of the rights, preferences,
privileges or voting powers of any series of the Corporation's preferred
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stock, including the Convertible Preferred Stock, or the holders thereof
are adversely affected.
(e) In exercising the voting rights set forth in this Section 5, each share
of Convertible Preferred Stock shall have one vote per share.
(6) Liquidation, Dissolution or Winding Up.
(a) In the event of any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, the Holders of the Convertible Preferred Stock
at the time outstanding will be entitled to receive, out of the net assets of
the Corporation available for distribution to stockholders (subject to the
rights of the holders of any stock of the Corporation then outstanding ranking
senior to or pari passu with the Convertible Preferred Stock in respect of
distributions upon liquidation, dissolution or winding up of the Corporation and
before any amount shall be paid or distributed with respect to holders of any
stock of the Corporation then outstanding ranking junior to the Convertible
Preferred Stock in respect of distributions upon liquidation, dissolution or
winding up of the Corporation), a liquidating distribution in the amount of
$50.00 per share, plus an amount equal to the sum of all accrued and unpaid
dividends, whether or not declared, for the then-current Dividend Period and all
prior Dividend Periods. After the payment to the Holders of the Convertible
Preferred Stock of the full amounts provided in this Section 6(a), the Holders
of the Convertible Preferred Stock will have no right or claim to any of the
Corporation's remaining assets.
(b) For the purpose of this Section 6, none of the following shall be
deemed a voluntary or involuntary liquidation, dissolution or winding up of the
Corporation:
(i) the sale of all or substantially all of the Corporation's property
or business;
(ii) the merger or consolidation of the Corporation into or with any
other corporation; or
(iii) the merger or consolidation of any other corporation into or
with the Corporation.
(c) If, upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the amounts payable with respect to the
Convertible Preferred Stock then outstanding are not paid in full as provided in
Section 6(a) hereof, no distribution shall be made on account of any Parity
Stock unless a pro rata distribution is made on the Convertible Preferred Stock.
The Holders of the Convertible Preferred Stock then outstanding and the holders
of any Parity Stock then outstanding shall share ratably in any distribution of
assets upon such liquidation, dissolution or winding up. The amount allocable to
each series of Parity Stock then outstanding will be based on the proportion of
their full respective liquidation preference to the aggregate liquidation
preference of the outstanding shares of each such series.
(d) Written notice of any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, stating the payment date or dates when, and
the place or places where, the amounts distributable to holders of Convertible
Preferred Stock in such circumstances shall be
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payable, shall be given by first-class mail, postage prepaid, mailed not less
than twenty calendar days prior to any payment date stated therein, to the
Holders of Convertible Preferred Stock, at the address shown on the books of the
Corporation or the Transfer Agent; provided, however, that a failure to give
notice as provided above or any defect therein shall not affect the
Corporation's ability to consummate a voluntary or involuntary liquidation,
dissolution or winding up of the Corporation.
(7) Mandatory Conversion on the Mandatory Conversion Date.
(a) Each share of Convertible Preferred Stock will automatically convert
(unless previously converted at the option of the Holder in accordance with
Section 8 hereof, converted at the option of the Corporation pursuant to Section
10 hereof or pursuant to an exercise of a Merger Early Conversion right pursuant
to Section 10 hereof) on the Mandatory Conversion Date, into a number of newly
issued shares of Common Stock equal to the Conversion Rate.
(b) The "Conversion Rate" shall be as follows:
(i) if the Applicable Market Value of the Common Stock is equal to or
greater than $60.20 (the "Threshold Appreciation Price"), the Conversion
Rate shall be equal to 0.8305 shares of Common Stock per share of
Convertible Preferred Stock (the "Minimum Conversion Rate");
(ii) if the Applicable Market Value of the Common Stock is less than
the Threshold Appreciation Price but greater than $48.55 (the "Initial
Price"), the Conversion Rate shall be equal to $50.00 divided by the
Applicable Market Value of the Common Stock;
(iii) if the Applicable Market Value of the Common Stock is less than
or equal to the Initial Price, the Conversion Rate shall be equal to 1.0299
shares of Common Stock per share of Convertible Preferred Stock (the
"Maximum Conversion Rate"); and
(iv) the Minimum Conversion Rate, the Maximum Conversion Rate, the
Threshold Appreciation Price and the Initial Price are each subject to
adjustment in accordance with the provisions of Section 14 hereof.
(c) The Holders of Convertible Preferred Stock on the Mandatory Conversion
Date shall have the right to receive the dividend payment due on such date
(including any accrued and unpaid dividends for prior Dividend Periods), whether
or not declared prior to such date, provided that at such time the Corporation
has legally available assets.
(8) Early Conversion at the Option of the Holder.
(a) Shares of the Convertible Preferred Stock are convertible, in whole or
in part at the option of the Holder thereof ("Early Conversion") at any time
prior to the Mandatory Conversion Date, into shares of Common Stock at the
Minimum Conversion Rate, subject to adjustments as set forth in Section 14
hereof.
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(b) Any written notice of conversion pursuant to Section 8 hereof shall be
duly executed by the Holder, and specify:
(i) the number of shares of Convertible Preferred Stock to be
converted;
(ii) the name(s) in which such Holder desires the shares of Common
Stock issuable upon conversion to be registered and whether such shares of
Common Stock are to be issued in book-entry or certificated form (subject
to compliance with applicable legal requirements if any of such
certificates are to be issued in a name other than the name of the Holder);
(iii) if certificates are to be issued, the address to which such
Holder wishes delivery to be made of such new certificates to be issued
upon such conversion; and
(iv) any other transfer forms, tax forms or other relevant
documentation required and specified by the Transfer Agent, if necessary,
to effect the conversion.
(c) If specified by the Holder in the notice of conversion that shares of
Common Stock issuable upon conversion of the Convertible Preferred Stock shall
be issued to a person other than the Holder surrendering the shares of
Convertible Preferred Stock being converted, the Holder shall pay or cause to be
paid any transfer or similar taxes payable in connection with the shares of
Common Stock so issued.
(d) Upon receipt by the Transfer Agent of a completed and duly executed
notice of conversion as set forth in Section 8(b) and upon surrender of a
certificate representing share(s) of Convertible Preferred Stock to be converted
(if held in certificated form), the Corporation shall, within three Business
Days or as soon as possible thereafter, issue and shall instruct the Transfer
Agent to register the number of shares of Common Stock to which such Holder
shall be entitled upon conversion in the name(s) specified by such Holder in the
notice of conversion. If a Holder elects to hold its shares of Common Stock
issuable upon conversion of the Convertible Preferred Stock in certificated
form, the Corporation shall promptly send or cause to be sent, by hand delivery
(with receipt to be acknowledged) or by first-class mail, postage prepaid, to
the Holder thereof, at the address designated by such Holder in the written
notice of conversion, a certificate or certificates representing the number of
shares of Common Stock to which such Holder shall be entitled upon conversion.
In the event that there shall have been surrendered a certificate or
certificates representing shares of Convertible Preferred Stock, only part of
which are to be converted, the Corporation shall issue and deliver to such
Holder or such Holder's designee in the manner provided in the immediately
preceding sentence a new certificate or certificates representing the number of
shares of Convertible Preferred Stock that shall not have been converted.
(e) The issuance by the Corporation of shares of Common Stock upon a
conversion of shares of Convertible Preferred Stock in accordance with the terms
hereof shall be effective immediately prior to the close of business on the day
of receipt by the Transfer Agent of the notice of conversion and other
documents, if any, set forth in Section 8(b) hereof, compliance with Section
8(c), if applicable, and the surrender by such Holder or such Holder's designee
of the certificate or certificates representing the shares of Convertible
Preferred Stock to be
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converted (if held in certificated form), duly assigned or endorsed for transfer
to the Corporation (or accompanied by duly executed stock powers relating
thereto).
(9) Provisional Conversion.
(a) Prior to the Mandatory Conversion Date, the Corporation may, at its
option, cause the conversion of all, but not less than all, the shares of
Convertible Preferred Stock then outstanding into shares of Common Stock at the
Minimum Conversion Rate for each share of Convertible Preferred Stock, subject
to adjustment as set forth in Section 14 below; provided, however, that the
Closing Price of the Common Stock has exceeded 150% of the Threshold
Appreciation Price for at least 20 Trading Days within a period of 30
consecutive Trading Days ending on the Trading Day prior to the date (the
"Provisional Conversion Notice Date") on which the Corporation notifies the
Holders (pursuant to clause (b) below) that it is exercising its option to cause
the conversion of the Convertible Preferred Stock pursuant to this Section 9.
The Corporation shall be able to cause this conversion only if, in addition to
issuing the Holders shares of Common Stock, the Corporation pays the Holders in
cash (i) an amount equal to any accrued and unpaid dividends on the shares of
Convertible Preferred Stock then outstanding, whether or not declared, and (ii)
the present value of all remaining dividend payments on the shares of
Convertible Preferred Stock then outstanding, through and including the
Mandatory Conversion Date, in each case, out of legally available assets of the
Corporation. The present value of the remaining dividend payments will be
computed using a discount rate equal to the Treasury Yield.
(b) A written notice (the "Provisional Conversion Notice") shall be sent by
or on behalf of the Corporation, by first class mail, postage prepaid, to the
Holders of record as they appear on the stock register of the Corporation on the
Provisional Conversion Notice Date (i) notifying such Holders of the election of
the Corporation to convert and of the Provisional Conversion Date (as defined
below), which date shall not be less than 30 days nor be more than 60 days after
the Provisional Conversion Notice Date, and (ii) stating the Corporate Trust
Office of the Transfer Agent at which the shares of Convertible Preferred Stock
called for conversion shall, upon presentation and surrender of the
certificate(s) (if such shares are held in certificated form) evidencing such
shares, be converted, and the Minimum Conversion Rate to be applied thereto. The
Corporation shall also issue a press release containing such information and
publish such information on its website on the World Wide Web, provided that
failure to issue such press release or publish such information on the
corporation's website shall not act to prevent or delay conversion pursuant to
this Section 9.
(c) The Corporation shall deliver to the Transfer Agent irrevocable written
instructions authorizing the Transfer Agent, on behalf and at the expense of the
Corporation, to cause the Provisional Conversion Notice to be duly mailed as
soon as practicable after receipt of such irrevocable instructions from the
Corporation and in accordance with the above provisions. The shares of Common
Stock to be issued upon conversion of the Convertible Preferred Stock pursuant
to this Section 9 and all funds necessary for the payment in cash of (1) any
accrued and unpaid dividends on the shares of Convertible Preferred Stock then
outstanding, whether or not declared, and (2) the present value of all remaining
dividend payments on the shares of Convertible Preferred Stock then outstanding
through and including the Mandatory Conversion Date, shall be deposited with the
Transfer Agent in trust at least one Business Day prior to the
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Provisional Conversion Date, for the pro rata benefit of the Holders of record
as they appear on the stock register of the Corporation, so as to be and
continue to be available therefor. Neither failure to mail such Provisional
Conversion Notice to one or more such Holders nor any defect in such Provisional
Conversion Notice shall affect the sufficiency of the proceedings for conversion
as to other Holders.
(d) If a Provisional Conversion Notice shall have been given as
hereinbefore provided, then each Holder shall be entitled to all preferences and
relative, participating, optional and other special rights accorded by this
certificate until and including the Provisional Conversion Date. From and after
the Provisional Conversion Date, upon delivery by the Corporation of the Common
Stock and payment of the funds to the Transfer Agent as described in paragraph
(c) above, the Convertible Preferred Stock shall no longer be deemed to be
outstanding, and all rights of such Holders shall cease and terminate, except
the right of the Holders, upon surrender of certificates therefor, to receive
Common Stock and any amounts to be paid hereunder.
(e) The deposit of monies in trust with the Transfer Agent up to the amount
necessary for the Provisional Conversion shall be irrevocable except that the
Corporation shall be entitled to receive from the Transfer Agent the interest or
other earnings, if any, earned on any monies so deposited in trust, and the
Holders of the shares converted shall have no claim to such interest or other
earnings, and any balance of monies so deposited by the Corporation and
unclaimed by the Holders entitled thereto at the expiration of two years from
the Provisional Conversion Date shall be repaid, together with any interest or
other earnings thereon, to the Corporation, and after any such repayment, the
Holders of the shares entitled to the funds so repaid to the Corporation shall
look only to the Corporation for such payment without interest.
(10) Early Conversion Upon Cash Merger.
(a) In the event of a merger or consolidation of the Corporation of the
type described in Section 14(e) in which the Common Stock outstanding
immediately prior to such merger or consolidation is exchanged for consideration
consisting of at least 30% cash or cash equivalents (any such event, a "Cash
Merger"), then the Holders of the Convertible Preferred Stock shall have the
right to convert their shares of Convertible Preferred Stock prior to the
Mandatory Conversion Date (such right of the Holders to convert their shares
pursuant to this Section 10(a) being the "Merger Early Conversion") as provided
herein.
(b) On or before the fifth Business Day after the consummation of a Cash
Merger, the Corporation or, at the request and expense of the Corporation, the
Transfer Agent, shall give all Holders notice of the occurrence of the Cash
Merger and of the Merger Early Conversion right arising as a result thereof. The
Corporation shall also deliver a copy of such notice to the Transfer Agent. Each
such notice shall contain:
(i) the date, which shall be not less than 20 nor more than 35
calendar days after the date of such notice, on which the Merger Early
Conversion will be effected (such date being the "Merger Early Conversion
Date");
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(ii) the date, which shall be on the Merger Early Conversion Date, by
which the Merger Early Conversion right must be exercised;
(iii) the Conversion Rate in effect on the Trading Day immediately
preceding such Cash Merger (calculated as if the Trading Day immediately
preceding such Cash Merger were the Mandatory Conversion Date) and the kind
and amount of securities, cash and other property receivable per share of
Convertible Preferred Stock by the Holder upon conversion of shares of
Convertible Preferred Stock pursuant to Section 9(d); and
(iv) the instructions a Holder must follow to exercise the Merger
Early Conversion right.
(c) To exercise a Merger Early Conversion right, a Holder shall deliver to
the Transfer Agent at its Corporate Trust Office by 5:00 p.m., New York City
time on the date by which the Merger Conversion Right must be exercised as
specified in the notice, the certificate(s) (if such shares are held in
certificated form) evidencing the shares of Convertible Preferred Stock with
respect to which the Merger Early Conversion right is being exercised, duly
assigned or endorsed for transfer to the Corporation, or accompanied by duly
executed stock powers relating thereto, or in blank, with a written notice to
the Corporation stating the Holder's intention to convert early in connection
with the Cash Merger containing the information set forth in Section 8(b) and
providing the Corporation with payment instructions.
(d) If the Holder exercises its Merger Early Conversion right pursuant to
the terms hereof, on the Merger Early Conversion Date the Corporation shall
deliver or cause to be delivered the net cash, securities and other property
entitled to be received by such exercising Holder, determined by assuming the
Holder had converted its shares of Convertible Preferred Stock immediately
before the Cash Merger at the Conversion Rate calculated in accordance with
Section 7(b) hereof. In the event a Merger Early Conversion right is exercised
by a Holder in accordance with the terms hereof, all references herein to
Mandatory Conversion Date shall be deemed to refer to such Merger Early
Conversion Date.
(e) Upon a Merger Early Conversion, the Transfer Agent shall, in accordance
with the instructions provided by the Holder thereof in the written notice
provided to the Corporation as set forth above, deliver to the Holder such net
cash, securities or other property issuable upon such Merger Early Conversion,
together with payment in lieu of any fraction of a share, as provided herein.
(f) In the event that a Merger Early Conversion is effected with respect to
shares of Convertible Preferred Stock representing less than all the shares of
Convertible Preferred Stock held by a Holder, upon such Merger Early Conversion
the Corporation (or the successor to the Corporation, as the case may be) shall
execute and the Transfer Agent shall, unless otherwise instructed in writing,
authenticate, countersign and deliver to the Holder thereof, at the expense of
the Corporation, a certificate evidencing the shares of Convertible Preferred
Stock as to which Merger Early Conversion was not effected.
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(11) Conversion Procedures.
(a) Dividends on any shares of Convertible Preferred Stock converted to
Common Stock shall cease to accrue, and such shares of Convertible Preferred
Stock shall cease to be outstanding, upon such conversion on the Mandatory
Conversion Date, the Provisional Conversion Date, the Merger Early Conversion
Date or any Early Conversion Date (collectively, a "Conversion Date").
(b) The person or persons entitled to receive the Common Stock issuable
upon such conversion shall be treated for all purposes as the record holder(s)
of such shares of Common Stock as of the close of business on the Mandatory
Conversion Date, the Merger Early Conversion Date, the Provisional Conversion
Date or any Early Conversion Date, as the case may be. No allowance or
adjustment, except as set forth in Section 14, shall be made in respect of
dividends payable to holders of Common Stock of record as of any date prior to
such effective date. Prior to such effective date, shares of Common Stock
issuable upon conversion of any shares of Convertible Preferred Stock shall not
be deemed outstanding for any purpose, and Holders of shares of Convertible
Preferred Stock shall have no rights with respect to the Common Stock (including
voting rights, rights to respond to tender offers for the Common Stock and
rights to receive any dividends or other distributions on the Common Stock) by
virtue of holding shares of Convertible Preferred Stock.
(c) Shares of Convertible Preferred Stock duly converted in accordance with
this Certificate of Designation, or otherwise reacquired by the Corporation,
will resume the status of authorized and unissued Preferred Stock, undesignated
as to series and available for future issuance.
(d) In the event that a holder of shares of Convertible Preferred Stock
shall not by written notice designate the name in which shares of Common Stock
to be issued upon conversion of such shares should be registered or the address
to which the certificate or certificates representing such shares should be
sent, the Corporation shall be entitled to register such shares, and make such
payment, in the name of the Holder of such Convertible Preferred Stock as shown
on the records of the Corporation and to send the certificate or certificates
representing such shares to the address of such holder shown on the records of
the Corporation.
(12) Reservation of Common Stock.
(a) 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 shares of Convertible Preferred Stock as herein provided, 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
shares of Convertible Preferred Stock then outstanding.
(b) Notwithstanding the foregoing, the Corporation shall be entitled to
deliver upon conversion of shares of Convertible Preferred Stock, as herein
provided, 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.
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(c) All shares of Common Stock delivered upon conversion of the Convertible
Preferred Stock shall be duly authorized, validly issued, fully paid and
non-assessable, free and clear of all liens, claims, security interests and
other encumbrances.
(d) The Corporation shall prepare and shall use its best efforts to obtain
and keep in force such governmental or regulatory permits or other
authorizations as may be required by law, and shall comply with all applicable
requirements as to registration or qualification of the Common Stock (and all
requirements to list the Common Stock issuable upon conversion of Convertible
Preferred Stock that are at the time applicable), in order to enable the
Corporation lawfully to issue and deliver to each holder of record of
Convertible Preferred Stock such number of shares of its Common Stock as shall
from time to time be sufficient to effect the conversion of all shares of
Convertible Preferred Stock then outstanding and convertible into shares of
Common Stock.
(e) The Corporation hereby covenants and agrees that, if at any time the
Common Stock shall be listed on the New York Stock Exchange or any other
national securities exchange or automated quotation system, the Corporation
will, if permitted by the rules of such exchange or automated quotation system,
list and keep listed, so long as the Common Stock shall be so listed on such
exchange or automated quotation system, all Common Stock issuable upon
conversion of the Convertible Preferred Stock; provided, however, that if the
rules of such exchange or automated quotation system permit the Corporation to
defer the listing of such Common Stock until the first conversion of Convertible
Preferred Stock into Common Stock in accordance with the provisions hereof, the
Corporation covenants to list such Common Stock issuable upon conversion of the
Convertible Preferred Stock in accordance with the requirements of such exchange
or automated quotation system at such time.
(13) Fractional Shares.
(a) No fractional shares of Common Stock will be issued as a result of any
conversion of shares of Convertible Preferred Stock.
(b) In lieu of any fractional share otherwise issuable in respect of any
mandatory conversion pursuant to Section 7 hereof, any conversion at the option
of the Corporation pursuant to Section 9 hereof or a conversion at the option of
the holder pursuant to Section 8 or Section 10 hereof, the Corporation shall pay
an amount in cash equal to the same fraction of:
(i) in the case of an mandatory conversion pursuant to Section 7 or
Section 9 hereof or a Merger Early Conversion pursuant to Section 10, the
Current Market Price; or
(ii) in the case of an Early Conversion pursuant to Section 8 hereof,
the Closing Price of the Common Stock determined as of the Trading Day
immediately preceding the effective date of conversion.
(14) Anti-Dilution Adjustments to the Fixed Conversion Rates.
(a) Each Fixed Conversion Rate and the number of shares of Common Stock to
be delivered upon any conversion of shares of Convertible Preferred Stock
pursuant to Sections 8 or 9 hereof, shall be subject to the following
adjustments.
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(i) Stock Dividends and Distributions. In case the Corporation shall
pay or make a dividend or other distribution on the Common Stock in shares
of Common Stock, each Fixed Conversion Rate, as in effect at the opening of
business on the day following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution, shall
be increased by dividing such Fixed Conversion Rate by a fraction of which
the numerator shall be the number of shares of Common Stock outstanding at
the close of business on the date fixed for such determination and the
denominator shall be the sum of such number of Shares of Common Stock
outstanding and the total number of shares of Common Stock constituting
such dividend or other distribution, such increase to become effective
immediately after the opening of business on the day following the date
fixed for such determination. For the purposes of this sub-section (i), the
number of shares of Common Stock at the time outstanding shall not include
shares held in the treasury of the Corporation but shall include any shares
issuable in respect of any scrip certificates issued in lieu of fractions
of shares of Common Stock. The Corporation will not pay any dividend or
make any distribution on shares of Common Stock held in the treasury of the
Corporation.
(ii) Subdivisions, Splits and Combinations of the Common Stock. In
case outstanding shares of Common Stock shall be subdivided or split into a
greater number of shares of Common Stock, each Fixed Conversion Rate in
effect at the opening of business on the day following the day upon which
such subdivision or split becomes effective shall be proportionately
increased, and, conversely, in case outstanding shares of Common Stock
shall each be combined into a smaller number of shares of Common Stock,
such Fixed Conversion Rate in effect at the opening of business on the day
following the day upon which such combination becomes effective shall be
proportionately reduced, such increase or reduction, as the case may be, to
become effective immediately after the opening of business on the day
following the day upon which such subdivision, split or combination becomes
effective.
(iii) Issuance of Stock Purchase Rights. In case the Corporation shall
issue rights or warrants to all holders of its Common Stock (other than
rights or warrants issued pursuant to a dividend reinvestment plan or share
purchase plan or other similar plans), entitling such holders, for a period
of up to 45 days, to subscribe for or purchase shares of Common Stock at a
price per share less than the Current Market Price on the date fixed for
the determination of stockholders entitled to receive such rights or
warrants, each Fixed Conversion Rate in effect at the opening of business
on the day following the date fixed for such determination shall be
increased by multiplying such Fixed Conversion Rate by a fraction, the
numerator of which shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase and the denominator of which shall be the number
of shares of Common Stock outstanding at the close of business on the date
fixed for such determination plus the number of shares of Common Stock
which the aggregate offering price of the total number of shares of Common
Stock so offered for subscription or purchase would purchase at such
Current Market Price, such increase to become effective immediately after
the opening of business on the day following the date fixed for such
determination. For the purposes of this clause (iii), the number of shares
of Common Stock at any time outstanding shall not
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include shares held in the treasury of the Corporation but shall include
any shares issuable in respect of any scrip certificates issued in lieu of
fractions of shares of Common Stock. The Corporation shall not issue any
such rights or warrants in respect of shares of Common Stock held in the
treasury of the Corporation.
(iv) Debt or Asset Distribution.
(A) In case the Corporation shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its
indebtedness, shares of capital stock, securities, cash or other
assets (excluding any dividend or distribution referred to in Section
14(a)(i) or Section 14(a)(ii) hereof, any rights or warrants referred
to in Section 14(a)(iii) hereof, any dividend or distribution paid
exclusively in cash and any dividend of shares of capital stock of any
class or series, or similar equity interests, of or relating to a
subsidiary or other business unit in the case of a Spin-Off referred
to in Section 14(a)(iv)(B) below), each Fixed Conversion Rate shall be
adjusted so that it shall equal the rate determined by multiplying
such Fixed Conversion Rate in effect immediately prior to the close of
business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction, the numerator of
which shall be the Current Market Price per share of the Common Stock
on the date fixed for such determination and the denominator of which
shall be such Current Market Price per share of the Common Stock less
the then Fair Market Value of the portion of the assets or evidences
of indebtedness so distributed applicable to one share of Common
Stock, such adjustment to become effective immediately prior to the
opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such distribution.
In any case in which this clause (iv)(A) is applicable, clause (iv)(B)
of this Section 14(a) shall not be applicable.
(B) In the case of a Spin-Off, each Fixed Conversion Rate in
effect immediately before the close of business on the record date
fixed for determination of stockholders entitled to receive that
distribution will be increased by multiplying each Fixed Conversion
Rate by a fraction, the numerator of which is the Current Market Price
per share of the Common Stock plus the Fair Market Value of the
portion of those shares of Capital Stock or similar equity interests
so distributed applicable to one share of Common Stock and the
denominator of which is the Current Market Price per share of the
Common Stock. Any adjustment to the Conversion Rate under this clause
(iv)(B) of this Section 14(a) will occur on the 15th Trading Day from,
but excluding, the "ex-date" with respect to the Spin-Off.
(v) Cash Distributions. In case the Corporation shall distribute cash
to all holders of the Common Stock, each Fixed Conversion Rate will be
adjusted by multiplying such Fixed Conversion Rate by a fraction, the
numerator of which will be the Current Market Price of the Common Stock and
the denominator of which will be the Current Market Price of the Common
Stock minus the amount per share of such dividend or distribution (as
determined below); provided, that no adjustment will be made to either
Fixed Conversion Rate for (i) any dividend or distribution in connection
with the
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liquidation, dissolution or winding up of the Corporation or (ii) any
quarterly cash dividend on the Common Stock to the extent that the
aggregate cash dividend per share of Common Stock in any fiscal quarter
does not exceed $0.30 (the "Dividend Threshold Amount"). The dividend
threshold amount is subject to an inversely proportional adjustment
whenever the Fixed Conversion Rates are adjusted, provided that no
adjustment will be made to the Dividend Threshold Amount for any adjustment
made to the Fixed Conversion Rates pursuant to this clause (v).
If an adjustment is required to be made under this clause (v) as a
result of a distribution that is a quarterly dividend, the adjustment shall
be based upon the amount by which the distribution exceeds the Dividend
Threshold Amount. If an adjustment is required to be made under this clause
as a result of a distribution that is not a quarterly dividend, the
adjustment shall be based upon the full amount of such distribution.
(vi) Self Tender Offers and Exchange Offers. In case a tender or
exchange offer made by the Corporation or any subsidiary of the Corporation
for all or any portion of the Common Stock shall expire and such tender or
exchange offer (as amended upon the expiration thereof) shall require the
payment to stockholders (based on the acceptance, up to any maximum
specified in the terms of the tender or exchange offer, of Purchased Shares
(as defined below in this Section)) of an aggregate consideration per share
of Common Stock having a Fair Market Value that exceeds the Closing Price
per share of the Common Stock as of the Trading Day next succeeding the
last time (the "Expiration Time") tenders could have been made pursuant to
such tender or exchange offer (as it may be amended), then, and in each
such case, immediately prior to the opening of business on the second
Trading Day after the date of the Expiration Time, each Fixed Conversion
Rate shall be adjusted so that the same shall equal the rate determined by
dividing such Fixed Conversion Rate in effect immediately prior to the
close of business on the first Trading Day after the Expiration Time by a
fraction (A) the numerator of which shall be equal to (x) the product of
(I) the Closing Price per share of the Common Stock on the first Trading
Day after the Expiration Time and (II) the number of shares of Common Stock
outstanding (including any tendered shares) at the Expiration Time less (y)
the amount of cash plus the Fair Market Value of the aggregate
consideration payable to stockholders in the tender or exchange offer
(assuming the acceptance, up to any maximum specified in the terms of the
tender or exchange offer, of Purchased Shares), and (B) the denominator of
which shall be equal to the product of (x) the Closing Price per share of
the Common Stock as of the first Trading Day after the Expiration Time and
(y) the number of shares of Common Stock outstanding (including any
tendered shares) as of the Expiration Time less the number of all shares
validly tendered and not withdrawn as of the Expiration Time (the shares
deemed so accepted, up to any such maximum, being referred to as the
"Purchased Shares").
(vii) Third Party Tender Offers and Exchange Offers. In case any
Person other than the Corporation or any subsidiary of the Corporation
makes a payment in respect of a tender offer or exchange offer in which, as
of the last time (the "Offer Expiration Time") that tenders or exchanges
may be made pursuant to such tender or exchange offer (as it shall have
been amended), the Board of Directors is not recommending rejection of the
offer, then each Fixed Conversion Rate in effect immediately prior to the
close of
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business on the date of the Offer Expiration Time will be adjusted by
multiplying such fixed Conversion Rate by a fraction (A) the numerator of
which will be the sum of (x) the Fair Market Value of the aggregate
consideration payable to all holders of Common Stock based on the
acceptance (up to any maximum specified in the terms of the tender or
exchange offer) of all shares validly tendered or exchange and not
withdrawn as of the Offer Expiration Time (the shares deemed so accepted,
up to any such maximum, being referred to as the "Accepted Purchased
Shares") and (y) the product of the number of shares of Common Stock
outstanding less any such Accepted Purchased Shares and the Closing Price
of the Common Stock on the Trading Day next succeeding the Offer Expiration
Time and (B) the denominator of which will be the product of the number of
shares of Common Stock outstanding, including any such Accepted Purchased
Shares, and the Closing Price of the Common Stock on the Trading Day next
succeeding the Offer Expiration Time. Such adjustment shall become
effective as of the opening of business on the day following the Offer
Expiration Time.
The adjustment referred to in this clause (vii) will only be made if
(1) the tender offer or exchange offer is for an amount that increases the
offeror's ownership of common stock to more than 25% of the total shares of
Common Stock outstanding; and (2) the cash and Fair Market Value of any
other consideration included in the payment per share of Common Stock
exceeds the Closing Price of the Common Stock on the Trading Day next
succeeding the Offer Expiration Time.
However, the adjustment referred to in this clause will not be made if
as of the Offer Expiration Time, the offering documents disclose a plan or
an intention to cause the corporation to engage in a consolidation or
merger or a sale of all or substantially all of our assets. In the event
the offeror is obligated to purchase shares pursuant to any such tender or
exchange offer, but such Person is permanently prevented by applicable law
from effecting any such purchases or all such purchases are rescinded, each
Fixed Conversion Rate shall be readjusted to what would have been in effect
if such tender or exchange offer had not been made.
(viii) Rights Plans. To the extent that the Corporation has a rights
plan if effect on any Conversion Date, upon conversion of any Convertible
Preferred Stock Holders shall receive, in addition to the Common Stock, the
rights under such rights plan, unless, prior to such Conversion Date, the
rights have separated from the Common Stock, in which case each Fixed
Conversion Rate will be adjusted at the time of separation of such rights
as if the Corporation made a distribution to all holders of the Common
Stock as described in clause (iv) above.
(b) Adjustment for Tax Reasons. The Corporation may make such increases in
each Fixed Conversion Rate, in addition to any other increases required by this
Section 14, if the Board of Directors deems it advisable to avoid or diminish
any income tax to holders of the Common Stock resulting from any dividend or
distribution of shares (or rights to acquire shares) or from any event treated
as a dividend or distribution for income tax purposes or for any other reasons;
provided that the same proportionate adjustment must be made to each Fixed
Conversion Rate.
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(c) Calculation of Adjustments. All adjustments to the Conversion Rate
shall be calculated to the nearest 1/10,000th of a share (or, if there is not a
nearest 1/10,000 of a share, to the next lower 1/10,000 of a share) of Common
Stock. If an adjustment is made to the Conversion Rate pursuant to Section
14(a)(i), 14(a)(ii), 14(a)(iii), 14(a)(iv), 14(a)(v) or 14(a)(vi), an inversely
proportional adjustment shall also be made to the Threshold Appreciation Price
and the Initial Price. Such adjustment shall be made by dividing each of the
Threshold Appreciation Price and the Initial Price by a fraction, the numerator
of which shall be the Maximum Conversion Rate immediately after such adjustment
pursuant to Section 14(a)(i), 14(a)(ii), 14(a)(iii), 14(a)(iv), 14(a)(v),
14(a)(vi) or 14(a)(vii) and the denominator of which shall be the Maximum
Conversion Rate immediately before such adjustment.
(d) Notice of Adjustment. Whenever each Fixed Conversion Rate is to be
adjusted in accordance with Section 14(a), the Corporation shall: (i) compute
each Fixed Conversion Rate in accordance with Section 14(a) and prepare and
transmit to the Transfer Agent an Officer's Certificate setting forth each Fixed
Conversion Rate, the method of calculation thereof in reasonable detail, and the
facts requiring such adjustment and upon which such adjustment is based; (ii) as
soon as practicable following the occurrence of an event that requires or
permits an adjustment to each Fixed Conversion Rate pursuant to Section 14(a)
hereof (or if the Corporation is not aware of such occurrence, as soon as
practicable after becoming so aware), provide a written notice to the Holders of
the Convertible Preferred Stock of the occurrence of such event; and (iii) as
soon as practicable following the determination of each revised Fixed Conversion
Rate in accordance with Section 14(a) hereof, a statement setting forth in
reasonable detail the method by which the adjustment to each Fixed Conversion
Rate was determined and setting forth each revised Fixed Conversion Rate.
(e) Reorganization Events. In the event of:
(i) any consolidation or merger of the Corporation with or into
another Person (other than a merger or consolidation in which the
Corporation is the continuing corporation and in which the Common Stock
outstanding immediately prior to the merger or consolidation is not
exchanged for cash, securities or other property of the Corporation or
another Person);
(ii) any sale, transfer, lease or conveyance to another Person of all
or substantially all of the property and assets of the Corporation;
(iii) any reclassification of Common Stock into securities including
securities other than Common Stock; or
(iv) any statutory exchange of securities of the Corporation with
another Person (other than in connection with a merger or acquisition) (any
such event specified in this Section 14(e), a "Reorganization Event");
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each share of Convertible Preferred Stock immediately prior to such
Reorganization Event shall, after such Reorganization Event, be convertible into
the kind of securities, cash and other property receivable in such
Reorganization Event (without any interest thereon and without any right to
dividends or distribution thereon which have a record date that is prior to the
conversion date) per share of Common Stock (the "Exchange Property") by a holder
of Common Stock that (1) is not a person with which the Corporation consolidated
or into which the Corporation merged or which merged into the Corporation or to
which such sale or transfer was made, as the case may be (any such person, a
"Constituent Person"), or an Affiliate of a Constituent Person to the extent
such Reorganization Event provides for different treatment of Common Stock held
by Affiliates of the Corporation and non-Affiliates, and (2) failed to exercise
his rights of election, if any, as to the kind or amount of securities, cash and
other property receivable upon such Reorganization Event (provided that if the
kind or amount of securities, cash and other property receivable upon such
Reorganization Event is not the same for each share of Common Stock held
immediately prior to such Reorganization Event by other than a Constituent
Person or an Affiliate thereof and in respect of which such rights of election
shall not have been exercised ("Non-electing Share"), then, for the purpose of
this Section 14(e) the kind and amount of securities, cash and other property
receivable upon such Reorganization Event by each Non-electing Share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
Non-electing Shares). The amount of Exchange Property receivable upon conversion
of any Convertible Preferred Stock shall be determined based upon the Conversion
Rate in effect on such Conversion Date. The applicable Conversion Rate shall be
(x) the Minimum Conversion Rate, in the case of an Early Conversion Date or a
Provisional Conversion Date, and (y) determined based upon the definition of
Conversion Rate set forth in Section 7, in the case of the Mandatory Conversion
Date or a Merger Early Conversion Date.
For purposes of this Section 14(e), "Applicable Market Value" shall be
deemed to refer to the Applicable Market Value of the Exchange Property and such
value shall be determined (A) with respect to any publicly traded securities
that compose all or part of the Exchange Property, based on the Closing Price of
such securities, (B) in the case of any cash that composes all or part of the
Exchange Property, based on the amount of such cash and (C) in the case of any
other property that composes all or part of the Exchange Property, based on the
value of such property, as determined by a nationally recognized independent
investment banking firm retained by the Company for this purpose. For purposes
of this Section 14(e), the term "Closing Price" shall be deemed to refer to the
closing sale price, last quoted bid price or mid-point of the last bid and ask
prices, as the case may be, of any publicly traded securities that comprise all
or part of the Exchange Property. For purposes of this Section 14(e), references
to Common Stock in the definition of "Trading Day" shall be replaced by
references to any publicly traded securities that comprise all or part of the
Exchange Property.
The above provisions of this Section 14(e) shall similarly apply to
successive Reorganization Events and the provisions of Section 14 shall apply to
any shares of capital stock of the Corporation (or any successor) received by
the holders of Common Stock in any such Reorganization Event.
The Corporation shall, within 20 days of the occurrence of any
Reorganization Event, provide written notice of such occurrence of such event
and of the kind and amount of the cash, securities or other property that
constitutes the Exchange Property. The Corporation shall also
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issue a press release containing such information and publish such information
on its website on the World Wide Web. Failure to deliver such notice shall not
affect the operation of this Section 14(e).
(15) Replacement Stock Certificates.
(a) If physical certificates are issued, and any of the Convertible
Preferred Stock certificates shall be mutilated, lost, stolen or destroyed, the
Corporation shall, at the expense of the Holder, issue, in exchange and in
substitution for and upon cancellation of the mutilated Convertible Preferred
Stock certificate, or in lieu of and substitution for the Convertible Preferred
Stock certificate lost, stolen or destroyed, a new Convertible Preferred Stock
certificate of like tenor and representing an equivalent amount of shares of
Convertible Preferred Stock, but only upon receipt of evidence of such loss,
theft or destruction of such Convertible Preferred Stock certificate and
indemnity, if requested, satisfactory to the Corporation and the Transfer Agent.
(b) The Corporation is not required to issue any certificates representing
the Convertible Preferred Stock on or after the Mandatory Conversion Date or any
Provisional Conversion Date. In lieu of the delivery of a replacement
certificate following the Mandatory Conversion Date or any Provisional
Conversion Date, the Transfer Agent, upon delivery of the evidence and indemnity
described above, will deliver the shares of Common Stock issuable pursuant to
the terms of the Convertible Preferred Stock evidenced by the certificate.
(16) Transfer Agent and Registrar.
The duly appointed Transfer Agent and Registrar for the Convertible
Preferred Stock shall be The Bank of New York. The Corporation may, in its sole
discretion, remove the Transfer Agent in accordance with the agreement between
the Corporation and the Transfer Agent; provided that the Corporation shall
appoint a successor transfer agent who shall accept such appointment prior to
the effectiveness of such removal. Upon any such removal or appointment, the
Corporation shall send notice thereof by first-class mail, postage prepaid, to
the Holders of the Convertible Preferred Stock.
(17) Form.
(a) Convertible Preferred Stock shall be issued in the form of one or more
permanent global shares of Convertible Preferred Stock in definitive, fully
registered form with the global legend (the "Global Shares Legend"), as set
forth on the form of Convertible Preferred Stock certificate attached hereto as
Exhibit A (each, a "Global Preferred Share"), which is hereby incorporated in
and expressly made a part of this Certificate. The Global Preferred Share may
have notations, legends or endorsements required by law, stock exchange rules,
agreements to which the Corporation is subject, if any, or usage (provided that
any such notation, legend or endorsement is in a form acceptable to the
Corporation). The Global Preferred Share shall be deposited on behalf of the
holders of the Convertible Preferred Stock represented thereby with the
Registrar, at its New York office, as custodian for DTC or a Depositary, and
registered in the name of the Depositary or a nominee of the Depositary, duly
executed by the Corporation and countersigned and registered by the Registrar as
hereinafter provided. The aggregate number of
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shares represented by each Global Preferred Share may from time to time be
increased or decreased by adjustments made on the records of the Registrar and
the Depositary or its nominee as hereinafter provided. This Section 17(a) shall
apply only to a Global Preferred Share deposited with or on behalf of the
Depositary. The Corporation shall execute and the Registrar shall, in accordance
with this Section, countersign and deliver initially one or more Global
Preferred Shares that (i) shall be registered in the name of Cede & Co. or other
nominee of the Depositary and (ii) shall be delivered by the Registrar to Cede &
Co. or pursuant to instructions received from Cede & Co. or held by the
Registrar as custodian for the Depositary pursuant to an agreement between the
Depositary and the Registrar. Members of, or participants in, the Depositary
("Agent Members") shall have no rights under this Certificate with respect to
any Global Preferred Share held on their behalf by the Depositary or by the
Registrar as the custodian of the Depositary or under such Global Preferred
Share, and the Depositary may be treated by the Corporation, the Registrar and
any agent of the Corporation or the Registrar as the absolute owner of such
Global Preferred Share for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Corporation, the Registrar or any
agent of the Corporation or the Registrar from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
impair, as between the Depositary and its Agent Members, the operation of
customary practices of the Depositary governing the exercise of the rights of a
holder of a beneficial interest in any Global Preferred Share. Owners of
beneficial interests in Global Preferred Shares shall not be entitled to receive
physical delivery of certificated shares of Convertible Preferred Stock, unless
(x) DTC is unwilling or unable to continue as Depositary for the Global
Preferred Share and the Corporation does not appoint a qualified replacement for
DTC within 90 days, (y) DTC ceases to be a "clearing agency" registered under
the Exchange Act or (z) the Corporation decides to discontinue the use of
book-entry transfer through DTC (or any successor Depositary). In any such case,
the Global Preferred Share shall be exchanged in whole for definitive shares of
Convertible Preferred Stock in registered form, with the same terms and of an
equal aggregate Liquidation Preference. Definitive shares of Convertible
Preferred Stock shall be registered in the name or names of the Person or Person
specified by DTC in a written instrument to the Registrar.
(b) (i) An Officer shall sign the Global Preferred Share for the
Corporation, in accordance with the Corporation's bylaws and applicable law, by
manual or facsimile signature.
(ii) If an Officer whose signature is on a Global Preferred Share no
longer holds that office at the time the Transfer Agent authenticates the
Global Preferred Share, the Global Preferred Share shall be valid
nevertheless.
(iii) A Global Preferred Share shall not be valid until an authorized
signatory of the Transfer Agent manually countersigns Global Preferred
Share. The signature shall be conclusive evidence that the Global Preferred
Share has been authenticated under this Certificate. Each Global Preferred
Share shall be dated the date of its authentication.
(18) Miscellaneous.
(a) All notices referred to herein shall be in writing, and, unless
otherwise specified herein, all notices hereunder shall be deemed to have been
given upon the earlier of receipt thereof or three business days after the
mailing thereof if sent by registered or certified mail
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(unless first-class mail shall be specifically permitted for such notice under
the terms of this Certificate of Amendment) with postage prepaid, addressed: (i)
if to the Corporation, to its office at 1185 Avenue of the Americas, NY, NY
10036 (Attention: the Secretary) or to the Transfer Agent at its Corporate Trust
Office, or other agent of the Corporation designated as permitted by this
Certificate of Amendment, or (ii) if to any Holder of the Convertible Preferred
Stock or holder of shares of Common Stock, as the case may be, to such Holder at
the address of such Holder as listed in the stock record books of the
Corporation (which may include the records of any transfer agent for the
Convertible Preferred Stock or Common Stock, as the case may be), or (iii) to
such other address as the Corporation or any such Holder, as the case may be,
shall have designated by notice similarly given.
(b) The Corporation shall pay any and all stock transfer and documentary
stamp taxes that may be payable in respect of any issuance or delivery of shares
of Convertible Preferred Stock or shares of Common Stock or other securities
issued on account of Convertible Preferred Stock pursuant hereto or certificates
representing such shares or securities. The Corporation shall not, however, be
required to pay any such tax that may be payable in respect of any transfer
involved in the issuance or delivery of shares of Convertible Preferred Stock or
Common Stock or other securities in a name other than that in which the shares
of Convertible Preferred Stock with respect to which such shares or other
securities are issued or delivered were registered, or in respect of any payment
to any person other than a payment to the registered holder thereof, and shall
not be required to make any such issuance, delivery or payment unless and until
the person otherwise entitled to such issuance, delivery or payment has paid to
the Corporation the amount of any such tax or has established, to the
satisfaction of the Corporation, that such tax has been paid or is not payable.
(19) Definitions.
Unless otherwise defined herein, capitalized terms used in this Certificate
of Amendment shall have the following meanings:
"Accepted Purchased Shares" shall have the meaning set forth in Section
14(a)(vii) hereof.
"Affiliate" shall have the meaning given to that term in Rule 405 of the
Securities Act of 1933, as amended, or any successor rule thereunder.
"Agent Members" shall have the meaning set forth in Section 17(a) hereof.
"Applicable Market Value" means the average of the Closing Prices per share
of the Common Stock on each of the 20 consecutive Trading Days ending on the
third Trading Day immediately preceding the Mandatory Conversion Date.
"Bankruptcy Law" means Title 11, United States Code, or any similar federal
or state law for the relief of debtors.
"Board" shall have the meaning set forth in the Preamble hereof.
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"Business Day" means any day other than a Saturday or Sunday or any other
day on which banks in The City of New York are authorized or required by law or
executive order to close.
"Cash Merger" shall have the meaning set forth in Section 10(a) hereof.
"Certificate of Incorporation" shall have the meaning set forth in the
Preamble hereof.
"Closing Price" means, as of any date of determination, the closing sale
price or, if no closing sale price is reported, the last reported sale price of
the Common Stock on the New York Stock Exchange on that date. If the Common
Stock is not then traded on the New York Stock Exchange on any date of
determination, the Closing Price of the Common Stock on any date of
determination means the closing sale price as reported in the composite
transactions for the principal U.S. securities exchange on which the Common
Stock is so listed or quoted, or if the Common Stock is not so listed or quoted
on a U.S. national or regional securities exchange, as reported by the Nasdaq
stock market, or, if no closing price for the Common Stock is so reported, the
last quoted bid price for the Common Stock in the over-the-counter market as
reported by the National Quotation Bureau or similar organization or, if that
bid price is not available, the market value of the Common Stock on that date as
determined by a nationally recognized independent investment banking firm
retained by us for this purpose.
"Common Stock" as used in this Certificate of Amendment means the
Corporation's Common Stock, par value $1.00 per share, as the same exists at the
date of filing of this Certificate relating to the Convertible Preferred Stock,
or any other class of stock resulting from successive 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.
However, subject to the provisions of Section 14(e), shares of Common Stock
issuable on conversion of shares of Convertible Preferred Stock shall include
only shares of the class designated as Common Stock of the Corporation at the
date of the filing of this instrument with the Secretary of State of the State
of Delaware or shares of any class or classes resulting from any
reclassification or reclassifications thereof and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation and which
are not subject to redemption by the Corporation; provided that if at any time
there shall be more than one such resulting class, the shares of each such class
then so issuable shall be substantially in the proportion which the total number
of shares of such class resulting from all such reclassifications bears to the
total number of shares of all classes resulting from all such reclassifications.
"Conversion Date" shall have the meaning set forth in Section 11(a) hereof.
"Conversion Rate" shall have the meaning set forth in Section 7(b) hereof.
"Convertible Preferred Stock" shall have the meaning set forth in Section 1
hereof.
"Corporate Trust Office" means the principal corporate trust office of the
Transfer Agent at which, at any particular time, its corporate trust business
shall be administered.
"Corporation" shall have the meaning set forth in the Preamble hereof.
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"Current Market Price" per share of Common Stock on any date means the
average of the daily Closing Prices for the five consecutive Trading Days
preceding the earlier of the day preceding the date in question and the day
before the "ex date" with respect to the issuance or distribution requiring such
computation. The term "ex date," when used with respect to any issuance or
distribution, means the first date on which the Common Stock trades without the
right to receive the issuance or distribution. For the purposes of determining
the adjustment to the Conversion Rate for the purposes of Section 14(a)(iv)(B)
hereof the Current Market Price per share of Common Stock means the average of
the Closing Prices over the first ten Trading Days commencing on and including
the fifth Trading Day following the "ex-date" for such distribution.
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
"Depositary" means DTC or its nominee or any successor appointed by the
Corporation.
"DGCL" shall have the meaning set forth in the Preamble hereof.
"Dividend Payment Date" means the 1st calendar day of March, June,
September and December of each year, or the following Business Day if the 1st is
not a business day.
"Dividend Period" means the period ending on the day before a Dividend
Payment Date and beginning on the preceding Dividend Payment Date or, if there
is no preceding Dividend Payment Date, on the first date of issuance of the
Convertible Preferred Stock.
"Dividend Threshold Amount" shall have the meaning set forth in Section
14(a)(v) hereof.
"DTC" means The Depository Trust Company.
"Early Conversion" shall have the meaning set forth in Section 8(a) hereof.
"Early Conversion Date" means the effective date of any early conversion of
Convertible Preferred Stock pursuant to Section 8 hereof.
"Exchange Property" shall have the meaning set forth in Section 14 (e)(iv)
hereof.
"Expiration Time" shall have the meaning set forth in Section 14(a)(vi)
hereof.
"Fair Market Value" means (a) in the case of any Spin-Off, the average of
the closing sale prices of those securities over the first 10 Trading Days
commencing on and including the fifth Trading Day following the "ex-date" with
respect to such Spin-Off, and (b) in all other cases the fair market value as
determined in good faith by the Board, whose determination shall be conclusive
and described in a resolution of the Board.
"Global Preferred Share" shall have the meaning set forth in Section 17(a)
hereof.
"Global Shares Legend" shall have the meaning set forth in Section 17(a)
hereof.
-23-
"Fixed Conversion Rates" means the Maximum Conversion Rate and the Minimum
Conversion Rate.
"Holder" means the person in whose name the shares of the Convertible
Preferred Stock are registered, which may be treated by the Corporation and the
Transfer Agent as the absolute owner of the shares of Convertible Preferred
Stock for the purpose of making payment and settling conversions and for all
other purposes.
"Initial Price" shall have the meaning set forth in Section 7(b) hereof.
"Liquidation Preference" means, as to the Convertible Preferred Stock,
$50.00 per share.
"Mandatory Conversion Date" means December 1, 2006 or as otherwise
calculated pursuant to Section 10(b)(iii), or 14(e), as applicable.
"Maximum Conversion Rate" shall have the meaning set forth in Section
7(b)(iii) hereof.
"Merger Early Conversion" shall have the meaning set forth in Section 10(a)
hereof.
"Merger Early Conversion Date" shall have the meaning set forth in Section
10(b) hereof.
"Minimum Conversion Rate" shall have the meaning set forth in Section
7(b)(i) hereof.
"Non-electing Share" shall have the meaning set forth in Section 14(e)(iv)
hereof.
"Offer Expiration Time" shall have the meaning set forth in Section
14(a)(vii) hereof.
"Officer's Certificate" means a certificate of the Corporation, signed by
any duly authorized Officer of the Corporation.
"Parity Stock" means capital stock of the Corporation that ranks pari passu
with the Convertible Preferred Stock as to payment of dividends or the
distribution of assets upon dissolution, liquidation or winding up of the
Corporation.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, limited
liability company or trust.
"Preferred Stock" shall have the meaning set forth in the Preamble hereof.
"Preferred Stock Director" shall have the meaning set forth in Section 5
hereof.
"Provisional Conversion Date" means the date fixed for conversion of shares
of Convertible Preferred Stock into shares of Common Stock pursuant to Section 9
above or, if the Corporation shall default in the cash payment of (1) an amount
equal to any accrued and unpaid dividends on the shares of Convertible Preferred
Stock then outstanding, whether or not declared, and (2) the present value of
all remaining dividend payments on the shares of Convertible Preferred Stock
then outstanding, through and including the Mandatory Conversion Date, in
connection with such conversion on such date, the date the Corporation actually
makes such payment.
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"Provisional Conversion Notice" shall have the meaning set forth in Section
9(b) hereof.
"Provisional Conversion Notice Date" shall have the meaning set forth in
Section 9(a) hereof.
"Purchased Shares" shall have the meaning set forth in Section 14(a)(vi)
hereof.
"Record Date" means the 15th calendar day of the month prior to the month
in which the applicable Dividend Payment Date falls.
"Record Holder" means the Holder of record of the Convertible Preferred
Stock as they appear on the stock books of the Corporation at the close of
business on a Record Date.
"Reorganization Event" shall have the meaning set forth in Section 14(e)
hereof.
"Spin-Off" means a dividend or other distribution of shares of capital
stock of any class or series, or similar equity interests, of or relating to a
subsidiary or other business unit of the Corporation.
"Threshold Appreciation Price" shall have the meaning set forth in Section
7(b) hereof.
"Trading Day" means a day on which the Common Stock:
(a) is not suspended from trading on any national or regional
securities exchange or association or over-the-counter market at the close
of business; and
(b) has traded at least once on the national or regional securities
exchange or association or over-the-counter market that is the primary
market for the trading of the Common Stock.
"Transfer Agent" means The Bank of New York acting as transfer agent and
registrar for the Convertible Preferred Stock, and its successors and assigns.
"Treasury Yield" means the yield to maturity at the time of computation of
U.S. Treasury securities with a constant maturity (as compiled and published in
the most recent Federal Reserve Statistical Release H.15 (519) that has become
publicly available at least two Business Days prior to the Provisional
Conversion Date (or, if such Statistical Release is no longer published, any
publicly available source for similar market data)) most nearly equal to the
then remaining term to the Mandatory Conversion Date; provided, however, that if
the then remaining term to the Mandatory Conversion Date is not equal to the
constant maturity of a U.S. Treasury security for which a weekly average yield
is given, the Treasury Yield shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average yields
of U.S. Treasury securities for which such yields are given, except that if the
then remaining term to the Mandatory Conversion Date is less than one year, the
weekly average yield on actually traded U.S. Treasury securities adjusted to a
constant maturity of one year shall be used.
-25-
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designation
to be duly executed by the undersigned this 21st day of November, 2003.
AMERADA HESS CORPORATION
By: /s/ John Y. Schreyer
--------------------------------
Name: John Y. Schreyer
Title: Executive Vice President
and Chief Financial Officer
Amerada Hess Corporation
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EXHIBIT A
FORM OF 7.00% MANDATORY CONVERTIBLE PREFERRED STOCK
Number: ___ ____________ Shares
CUSIP NO.: 023551401
7.00% Mandatory Convertible Preferred Stock
(par value $1.00 per share)
(liquidation preference $50.00 per share)
OF
AMERADA HESS CORPORATION
FACE OF SECURITY
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY 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 IN AS MUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE CERTIFICATE
OF DESIGNATIONS REFERRED TO BELOW.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH REGISTRAR AND
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS.
AMERADA HESS CORPORATION, a Delaware corporation (the "Corporation"), hereby
certifies that Cede & Co. or registered assigns (the "Holder") is the registered
owner of fully paid and non-assessable shares of preferred stock of the
Corporation designated the 7.00% Mandatory Convertible Preferred Stock, par
value $1.00 per share and liquidation preference $50.00 per share (the
"Convertible Preferred Stock"). The shares of Convertible Preferred Stock are
transferable on the books and records of the Registrar, 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 Convertible Preferred Stock
represented hereby are issued and shall in all respects be subject to the
provisions of the Certificate of Designations of the Corporation dated November
___, 2003, as the same may be amended from time to time in accordance with its
terms (the "Certificate of Designations"). Capitalized terms used herein but not
defined shall have the respective meanings given them in the Certificate of
Designations. The Corporation will provide a copy of the Certificate of
Designations to a Holder without charge upon written request to the Corporation
at its principal place of business.
Reference is hereby made to select provisions of the Convertible Preferred Stock
set forth on the reverse hereof, and to the Certificate of Designations, which
select provisions and the Certificate of Designations shall for all purposes
have the same effect as if set forth at this place.
Upon receipt of this certificate, the Holder is bound by the Certificate of
Designations and is entitled to the benefits thereunder.
Unless the Transfer Agent's Certificate of Authentication hereon has been
properly executed, the shares of Convertible Preferred Stock evidenced hereby
shall not be entitled to any benefit under the Certificate of Designations or be
valid or obligatory for any purpose.
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IN WITNESS WHEREOF, Amerada Hess Corporation has executed this certificate as of
the date set forth below.
AMERADA HESS CORPORATION
By:
------------------------------------
Name:
Title:
Dated: _______________________
-29-
TRANSFER AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the certificates representing shares of Convertible Preferred
Stock referred to in the within mentioned Certificate of Designations.
THE BANK OF NEW YORK,
as Transfer Agent
By:
------------------------------------
Name:
Title: Authorized Signatory
Dated: ____________________
-30-
REVERSE OF SECURITY
AMERADA HESS CORPORATION
7.00% Mandatory Convertible Preferred Stock
Dividends on each share of Convertible Preferred Stock shall be payable in cash
at a rate per annum set forth on the face hereof or as provided in the
Certificate of Designations.
The shares of Convertible Preferred Stock shall be convertible into the
Corporation's Common Stock in the manner and according to the terms set forth in
the Certificate of Designations.
As required under Delaware law, the Corporation shall furnish to any Holder upon
request and without charge, a full summary statement of the designations, voting
rights, preferences, limitations and special rights of the shares of each class
or series authorized to be issued by the Corporation so far as they have been
fixed and determined.
-31-
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers the shares of
Convertible Preferred Stock evidenced hereby to:
- ----------------------------------------------------------------
- ----------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- ----------------------------------------------------------------
(Insert address and zip code of assignee)
- ----------------------------------------------------------------
- ----------------------------------------------------------------
and irrevocably appoints:
- ----------------------------------------------------------------
agent to transfer the shares of Convertible Preferred Stock evidenced hereby on
the books of the Transfer Agent and Registrar. The agent may substitute another
to act for him or her.
Date: __________________
Signature: ______________________
(Sign exactly as your name appears on the other side of this Convertible
Preferred Stock Certificate)
Signature Guarantee: _____________________(1)
___________________
(1) Signature must be guaranteed by an "eligible guarantor institution" (i.e., 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.
-32-
SCHEDULE A
SCHEDULE OF EXCHANGES FOR GLOBAL SECURITY
The initial number of shares of Convertible Preferred Stock represented by
this Global Preferred Share shall be __________. The following exchanges of a
part of this Global Preferred Share have been made:
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Amount of Number of
increase in shares
Amount of number of represented by
decrease in shares this Global
number of shares represented by Preferred
represented by this Share
Date this Global following Signature of
of Global Preferred Preferred such decrease authorized officer
Exchange Share Share or increase of Registrar
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