Exhibit 4.9


 



GENWORTH FINANCIAL, INC.





and






The Bank of New York,



as Purchase Contract Agent,


 


and


 


The Bank of New York,



as Collateral Agent, Custodial Agent and Securities Intermediary


 




PURCHASE CONTRACT AND PLEDGE AGREEMENT





Dated as of May 24, 2004


 

















 


TABLE OF
CONTENTS


 


	
  ARTICLE 1

  	
   

  	
   

  
	
  DEFINITIONS AND OTHER PROVISIONS OF GENERAL
  APPLICATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.01. 
  Definitions

  	
   

  	
   

  
	
  Section 1.02.  Compliance
  Certificates and Opinions

  	
   

  	
   

  
	
  Section 1.03.  Form of Documents Delivered to Purchase Contract
  Agent.

  	
   

  	
   

  
	
  Section 1.04.  Acts of Holders; Record Dates

  	
   

  	
   

  
	
  Section 1.05. 
  Notices

  	
   

  	
   

  
	
  Section 1.06.  Notice to Holders; Waiver

  	
   

  	
   

  
	
  Section 1.07.  Effect of Headings and Table of Contents

  	
   

  	
   

  
	
  Section 1.08.  Successors and Assigns

  	
   

  	
   

  
	
  Section 1.09. 
  Separability
  Clause

  	
   

  	
   

  
	
  Section 1.10.  Benefits of Agreement

  	
   

  	
   

  
	
  Section 1.11. 
  Governing
  Law

  	
   

  	
   

  
	
  Section 1.12.  Legal Holidays

  	
   

  	
   

  
	
  Section 1.13. 
  Counterparts

  	
   

  	
   

  
	
  Section 1.14.  Inspection of Agreement

  	
   

  	
   

  
	
  Section 1.15.  Appointment of Financial Institution as Agent for
  the Company

  	
   

  	
   

  
	
  Section 1.16. 
  No
  Waiver

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
   

  	
   

  
	
  CERTIFICATE FORMS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01.  Forms of Certificates Generally

  	
   

  	
   

  
	
  Section 2.02.  Form of Purchase Contract Agent’s Certificate of
  Authentication

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
   

  	
   

  
	
  THE UNITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.01.  Amount; Form and Denominations

  	
   

  	
   

  
	
  Section 3.02.  Rights and Obligations Evidenced by the
  Certificates

  	
   

  	
   

  
	
  Section 3.03.  Execution, Authentication, Delivery and Dating

  	
   

  	
   

  
	
  Section 3.04.  Temporary Certificates

  	
   

  	
   

  
	
  Section 3.05.  Registration; Registration of Transfer and Exchange

  	
   

  	
   

  
	
  Section 3.06.  Book-entry Interests

  	
   

  	
   

  
	
  Section 3.07.  Notices to Holders

  	
   

  	
   

  
	
  Section 3.08.  Appointment of Successor Depositary

  	
   

  	
   

  
	
  Section 3.09.  Definitive
  Certificates.

  	
   

  	
   

  
	
  Section 3.10.  Mutilated, Destroyed, Lost and Stolen Certificates

  	
   

  	
   

  
	
  Section 3.11.  Persons Deemed Owners

  	
   

  	
   

  
	
  Section 3.12. 
  Cancellation

  	
   

  	
   

  
	
  Section 3.13.  Creation of Treasury Units by Substitution of
  Treasury Securities

  	
   

  	
   

  
	
  Section 3.14.  Recreation of Corporate Units

  	
   

  	
   

  



 

















 


	
  Section 3.15.  Transfer of Collateral Upon Occurrence of
  Termination Event

  	
   

  	
   

  
	
  Section 3.16.  No Consent to Assumption

  	
   

  	
   

  
	
  Section 3.17. 
  Substitutions

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
   

  	
   

  
	
  THE SENIOR NOTES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01.  Interest Payments; Rights to Interest Payments
  Preserved

  	
   

  	
   

  
	
  Section 4.02.  Payments Prior to or on Purchase Contract
  Settlement Date

  	
   

  	
   

  
	
  Section 4.03.  Notice and Voting

  	
   

  	
   

  
	
  Section 4.04.  Special Event Redemption.

  	
   

  	
   

  
	
  Section 4.05.  Payments to Purchase Contract Agent

  	
   

  	
   

  
	
  Section 4.06.  Payments Held in Trust

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
   

  	
   

  
	
  THE PURCHASE CONTRACTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01.  Purchase of Shares of Common Stock

  	
   

  	
   

  
	
  Section 5.02.  Cash Settlement; Remarketing; Payment of Purchase Price.

  	
   

  	
   

  
	
  Section 5.03.  Issuance of Shares of Common Stock

  	
   

  	
   

  
	
  Section 5.04.  Adjustment of each Fixed Settlement Rate

  	
   

  	
   

  
	
  Section 5.05.  Notice of Adjustments and Certain Other Events

  	
   

  	
   

  
	
  Section 5.06.  Termination Event; Notice.

  	
   

  	
   

  
	
  Section 5.07. 
  Early
  Settlement

  	
   

  	
   

  
	
  Section 5.08.  No Fractional Shares

  	
   

  	
   

  
	
  Section 5.09.  Charges and Taxes

  	
   

  	
   

  
	
  Section 5.10.  Contract Adjustment Payments

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
   

  	
   

  
	
  RIGHTS AND REMEDIES OF HOLDERS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01.  Unconditional Right of Holders to Receive Contract
  Adjustment Payments and To Purchase Shares of Common Stock

  	
   

  	
   

  
	
  Section 6.02.  Restoration
  of Rights and Remedies

  	
   

  	
   

  
	
  Section 6.03.  Rights and
  Remedies Cumulative

  	
   

  	
   

  
	
  Section 6.04.  Delay or
  Omission Not Waiver

  	
   

  	
   

  
	
  Section 6.05.  Undertaking
  for Costs

  	
   

  	
   

  
	
  Section 6.06.  Waiver of
  Stay or Extension Laws

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
   

  	
   

  
	
  THE PURCHASE CONTRACT AGENT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01.  Certain
  Duties and Responsibilities.

  	
   

  	
   

  
	
  Section 7.02.  Notice of
  Default

  	
   

  	
   

  
	
  Section 7.03.  Certain
  Rights of Purchase Contract Agent.

  	
   

  	
   

  



 


ii

















 


	
  Section 7.04.  Not
  Responsible for Recitals or Issuance of Units

  	
   

  	
   

  
	
  Section 7.05.  May Hold
  Units

  	
   

  	
   

  
	
  Section 7.06.  Money Held
  in Custody

  	
   

  	
   

  
	
  Section 7.07.  Compensation
  and Reimbursement.

  	
   

  	
   

  
	
  Section 7.08.  Corporate
  Purchase Contract Agent Required; Eligibility

  	
   

  	
   

  
	
  Section 7.09.  Resignation
  and Removal; Appointment of Successor

  	
   

  	
   

  
	
  Section 7.10.  Acceptance
  of Appointment by Successor

  	
   

  	
   

  
	
  Section 7.11.  Merger,
  Conversion, Consolidation or Succession to Business

  	
   

  	
   

  
	
  Section 7.12.  Preservation
  of Information; Communications to Holders

  	
   

  	
   

  
	
  Section 7.13.  No
  Obligations of Purchase Contract Agent

  	
   

  	
   

  
	
  Section 7.14.  Tax
  Compliance

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
   

  	
   

  
	
  SUPPLEMENTAL AGREEMENTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01.  Supplemental
  Agreements without Consent of Holders

  	
   

  	
   

  
	
  Section 8.02.  Supplemental
  Agreements with Consent of Holders

  	
   

  	
   

  
	
  Section 8.03.  Execution
  of Supplemental Agreements

  	
   

  	
   

  
	
  Section 8.04.  Effect of
  Supplemental Agreements

  	
   

  	
   

  
	
  Section 8.05.  Reference
  to Supplemental Agreements

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
   

  	
   

  
	
  CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER
  OR LEASE

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.01.  Covenant Not To Consolidate, Merge, Convey,
  Transfer or Lease Property except under Certain Conditions

  	
   

  	
   

  
	
  Section 9.02.  Rights and
  Duties of Successor Corporation

  	
   

  	
   

  
	
  Section 9.03.  Officers’
  Certificate and Opinion of Counsel Given to Purchase Contract Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
   

  	
   

  
	
  COVENANTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01.  Performance
  under Purchase Contracts

  	
   

  	
   

  
	
  Section 10.02.  Maintenance
  of Office or Agency

  	
   

  	
   

  
	
  Section 10.03.  Company To
  Reserve Common Stock

  	
   

  	
   

  
	
  Section 10.04.  Covenants
  as to Common Stock; Listing

  	
   

  	
   

  
	
  Section 10.05.  Statements
  of Officers of the Company as to Default

  	
   

  	
   

  
	
  Section 10.06.  ERISA

  	
   

  	
   

  
	
  Section 10.07.  Tax
  Treatment

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
   

  	
   

  
	
  PLEDGE

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.01.  Pledge

  	
   

  	
   

  



 


iii

















 


	
  Section 11.02.  Termination

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  	
   

  	
   

  
	
  ADMINISTRATION OF COLLATERAL

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.01.  Initial
  Deposit of Senior Notes

  	
   

  	
   

  
	
  Section 12.02.  Establishment
  of Collateral Account

  	
   

  	
   

  
	
  Section 12.03.  Treatment
  as Financial Assets

  	
   

  	
   

  
	
  Section 12.04.  Sole
  Control by Collateral Agent

  	
   

  	
   

  
	
  Section 12.05.  Jurisdiction

  	
   

  	
   

  
	
  Section 12.06.  No Other
  Claims

  	
   

  	
   

  
	
  Section 12.07.  Investment
  and Release

  	
   

  	
   

  
	
  Section 12.08.  Statements
  and Confirmations

  	
   

  	
   

  
	
  Section 12.09.  Tax
  Allocations

  	
   

  	
   

  
	
  Section 12.10.  No Other
  Agreements

  	
   

  	
   

  
	
  Section 12.11.  Powers
  Coupled with an Interest

  	
   

  	
   

  
	
  Section 12.12.  Waiver of
  Lien; Waiver of Set-off

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  	
   

  	
   

  
	
  RIGHTS AND REMEDIES OF THE COLLATERAL AGENT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 13.01.  Rights and
  Remedies of the Collateral Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14

  	
   

  	
   

  
	
  REPRESENTATIONS AND WARRANTIES TO

  COLLATERAL AGENT; HOLDER COVENANTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 14.01.  Representations
  and Warranties

  	
   

  	
   

  
	
  Section 14.02.  Covenants

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 15

  	
   

  	
   

  
	
  THE COLLATERAL AGENT, THE CUSTODIAL AGENT
  AND THE SECURITIES INTERMEDIARY

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 15.01.  Appointment,
  Powers and Immunities

  	
   

  	
   

  
	
  Section 15.02.  Instructions
  of the Company

  	
   

  	
   

  
	
  Section 15.03.  Reliance
  by Collateral Agent, Custodial Agent and Securities Intermediary

  	
   

  	
   

  
	
  Section 15.04.  Certain
  Rights

  	
   

  	
   

  
	
  Section 15.05.  Merger,
  Conversion, Consolidation or Succession to Business

  	
   

  	
   

  
	
  Section 15.06.  Rights in
  Other Capacities

  	
   

  	
   

  
	
  Section 15.07.  Non-reliance
  on the Collateral Agent, Custodial Agent and Securities Intermediary

  	
   

  	
   

  
	
  Section 15.08.  Compensation
  and Indemnity

  	
   

  	
   

  
	
  Section 15.09.  Failure to
  Act

  	
   

  	
   

  
	
  Section 15.10.  Resignation
  of Collateral Agent, the Custodial Agent and the Securities Intermediary

  	
   

  	
   

  



 


iv

















 


	
  Section 15.11.  Right to
  Appoint Agent or Advisor

  	
   

  	
   

  
	
  Section 15.12.  Survival

  	
   

  	
   

  
	
  Section 15.13.  Exculpation

  	
   

  	
   

  
	
  Section 15.14.  Expenses,
  Etc

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 16

  	
   

  	
   

  
	
  MISCELLANEOUS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 16.01.  Security Interest
  Absolute

  	
   

  	
   

  
	
  Section 16.02.  Notice of
  Special Event, Special Event Redemption and Termination Event

  	
   

  	
   

  



 


	
  EXHIBITS

  
	
  Exhibit A

  	
  –

  	
  Form of Corporate Units Certificate

  
	
  Exhibit B

  	
  –

  	
  Form of Treasury Units Certificate

  
	
  Exhibit C

  	
  –

  	
  Instruction to Purchase Contract Agent From
  Holder to Create Treasury Units or Corporate Units

  
	
  Exhibit D

  	
  –

  	
  Notice from Purchase Contract Agent to
  Holders Upon Termination Event

  
	
  Exhibit E

  	
  –

  	
  Notice to Settle by Separate Cash

  
	
  Exhibit F

  	
  –

  	
  Reserved

  
	
  Exhibit G

  	
  –

  	
  Instruction from Purchase Contract Agent to
  Collateral Agent (Creation of Treasury Units)

  
	
  Exhibit H

  	
  –

  	
  Instruction from the Collateral Agent to
  the Securities Intermediary (Creation of Treasury Units)

  
	
  Exhibit I

  	
  –

  	
  Instruction from Purchase Contract Agent to
  Collateral Agent (Recreation of Corporate Units)

  
	
  Exhibit J

  	
  –

  	
  Instruction from Collateral Agent to
  Securities Intermediary (Recreation of Corporate Units)

  
	
  Exhibit K

  	
  –

  	
  Notice of Cash Settlement from Collateral
  Agent to Purchase Contract Agent

  
	
  Exhibit L

  	
  –

  	
  Instruction to Custodial Agent Regarding
  Remarketing

  
	
  Exhibit M

  	
  –

  	
  Instruction to Custodial Agent Regarding
  Withdrawal from Remarketing

  



 


v

















 


PURCHASE
CONTRACT AND PLEDGE AGREEMENT, dated as of May 24, 2004, among Genworth
Financial, Inc., a Delaware corporation (the “Company”), The Bank of New
York, a New York banking corporation, acting as purchase contract agent for,
and as attorney-in-fact of, the Holders from time to time of the Units (in such
capacities, together with its successors and assigns in such capacities, the “Purchase
Contract Agent”), and The Bank of New York, as collateral agent
hereunder for the benefit of the Company (in such capacity, together with its
successors in such capacity, the “Collateral Agent”), as custodial agent (in
such capacity, together with its successors in such capacity, the “Custodial Agent”), and as securities
intermediary (as defined in Section 8-102(a)(14) of the UCC) with respect to
the Collateral Account (in such capacity, together with its successors in such
capacity, the “Securities Intermediary”).


 


RECITALS


 


WHEREAS, the Company has duly authorized the execution and delivery of
this Agreement and the Certificates evidencing the Units;


 


WHEREAS, all
things necessary to make the Purchase Contracts, when the Certificates are
executed by the Company and authenticated, executed on behalf of the Holders
and delivered by the Purchase Contract Agent, as provided in this Agreement, the
valid obligations of the Company, and to constitute these presents a valid
agreement of the Company, in accordance with its terms, have been done;


 


WHEREAS,
pursuant to the terms of this Agreement and the Purchase Contracts, the Holders
of the Units have irrevocably authorized the Purchase Contract Agent, as
attorney-in-fact of such Holders, among other things, to execute and deliver
this Agreement on behalf of such Holders and to grant the Pledge provided
herein of the Collateral to secure the Obligations.


 


NOW,
THEREFORE, the parties hereto agree as follows:


 


ARTICLE 1

DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION


 


Section 1.01.  Definitions.  For all purposes of this
Agreement, except as otherwise expressly provided or unless the context otherwise
requires:


 


(a)       the terms
defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular, and nouns and pronouns of the
masculine gender include the feminine and neuter genders;


 


(b)       all accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles in the United States;


 


(c)       the words
“herein,” “hereof” and “hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular Article, Section, Exhibit
or other subdivision;


 


1

















 


(d)       the following
terms which are defined in the UCC shall have the meanings set forth therein: “certificated security,” “control,” “financial asset,” “entitlement
order,” “securities account”
and “security entitlement”; and


 


(e)       the following
terms have the meanings given to them in this Section 1.01(e):


 


“Accounting
Event” has the meaning set forth in the Supplemental Indenture.


 


“Act”
has the meaning, with respect to any Holder, set forth in Section 1.04.


 


“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person.  For the purposes
of this definition, “control” when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.


 


“Agreement”
means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more agreements supplemental hereto entered
into pursuant to the applicable provisions hereof.


 


“Applicable
Market Value” has the meaning set forth in Section 5.01(a).


 


“Applicable
Ownership Interest in the Treasury Portfolio” shall mean, with
respect to a Corporate Unit and the Treasury Portfolio, (i) a 2.5% undivided
beneficial ownership interest in $1,000 face amount of U.S. treasury securities
(or principal or interest strips thereof) included in such Treasury Portfolio
that matures on or prior to May 15, 2007, and (ii) for each scheduled Payment
Date on the Senior Notes that occurs after the Special Event Redemption Date to
and including the Purchase Contract Settlement Date, a 0.024% undivided
beneficial ownership interest in $1,000 face amount of U.S. treasury securities
(or principal or interest strips thereof) included in such Treasury Portfolio
that mature on or prior to the Business Day immediately preceding such
scheduled Payment Date.


 


“Applicable Ownership Interest in Senior Notes”
means, a 2.5% undivided beneficial ownership interest in $1,000 principal
amount of Senior Notes that is a component of a Corporate Unit, and “Applicable
Ownership Interests in Senior Notes” means the aggregate of each
Applicable Ownership Interest in Senior Notes that is a component of each
Corporate Unit then Outstanding.


 


“Applicants”
has the meaning set forth in Section 7.12(b).


 


“Bankruptcy
Code” means Title 11 of the United States Code, or any other law of
the United States that from time to time provides a uniform system of
bankruptcy laws.


 


2

















 


“Beneficial
Owner” means, with respect to a Book-Entry Interest, a Person who is
the beneficial owner of such Book-Entry Interest as reflected on the books of
the Depositary or on the books of a Person maintaining an account with such
Depositary (directly as a Depositary Participant or as an indirect participant,
in each case in accordance with the rules of such Depositary).


 


“Board of
Directors” means the board of directors of the Company or a duly
authorized committee of that board.


 


“Board
Resolution” means one or more resolutions of the Board of Directors,
a copy of which has been certified by the Secretary or an Assistant Secretary
of the Company to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification and delivered to the
Purchase Contract Agent.


 


“Book-Entry
Interest” means a beneficial interest in a Global Certificate,
registered in the name of a Depositary or a nominee thereof, ownership and
transfers of which shall be maintained and made through book entries by such
Depositary as described in Section 3.05(ii).


 


“Business Day”
means any day other than a Saturday or Sunday or any other day on which banking
institutions in New York City, New York are authorized or required by law or
executive order to remain closed; provided that for purposes of the second
paragraph of Section 1.12 only, the term “Business Day” shall also be deemed to
exclude any day on which the Depositary is closed.


 


“Cash” means any coin or currency of the
United States as at the time shall be legal tender for payment of public and
private debts.


 


“Cash Merger”
has the meaning set forth in Section 5.04(b)(ii).


 


“Cash Merger
Early Settlement” has the meaning set forth in Section 5.04(b)(ii).


 


“Cash Merger
Early Settlement Date” has the meaning set forth in Section
5.04(b)(ii).


 


“Cash
Settlement” has the meaning set forth in Section 5.02(a)(i).


 


“Certificate”
means a Corporate Units Certificate or a Treasury Units Certificate, as the
case may be.


 


“Closing
Price” has the meaning set forth in Section 5.01(a).


 


“Code”
means the Internal Revenue Code of 1986, as amended.


 


“Collateral” means the collective reference
to:


 


3

















 


(i) 
the Collateral Account and all investment property and other financial
assets from time to time credited to the Collateral Account and all security
entitlements with respect thereto, including, without limitation, (A) the
Applicable Ownership Interests in Senior Notes and security entitlements
relating thereto (and the Senior Notes and security entitlements relating
thereto delivered to the Collateral Agent in respect of such Applicable
Ownership Interests in Senior Notes), (B) the Applicable Ownership Interests in
the Treasury Portfolio (as specified in clause (i) of the definition of such
term) and security entitlements relating thereto, (C) any Treasury Securities
and security entitlements relating thereto Transferred to the Securities
Intermediary from time to time in connection with the creation of Treasury
Units in accordance with Section 3.13 hereof and (D) payments made by Holders
pursuant to Section 5.02 hereof;


 


(ii) 
all Proceeds of any of the foregoing (whether such Proceeds arise before
or after the commencement of any proceeding under any applicable bankruptcy,
insolvency or other similar law, by or against the pledgor or with respect to
the pledgor); and


 


(iii) 
all powers and rights now owned or hereafter acquired under or with
respect to the Collateral.


 


“Collateral Account” means the securities
account of The Bank of New York,  as
Collateral Agent,  maintained on
the books of the Securities Intermediary and designated “The Bank of New York,
as Collateral Agent of Genworth Financial, Inc., as pledgee of The Bank of New
York, as the Purchase Contract Agent on behalf of and as attorney-in-fact for
the Holders”.


 


“Collateral
Agent” means the Person named as “Collateral Agent” in the first
paragraph of this Agreement until a successor Collateral Agent shall have
become such pursuant to this Agreement, and thereafter “Collateral Agent” shall
mean the Person who is then the Collateral Agent hereunder.


 


“collateral
event of default” has the meaning set forth in Section 13.01(b).


 


“Collateral
Substitution” means (i) with respect to the Corporate Units, (x) the
substitution of the Pledged Applicable Ownership Interests in Senior Notes
included in such Corporate Units with Treasury Securities in an aggregate
principal amount at maturity equal to the aggregate principal amount of such
Pledged Applicable Ownership Interests in Senior Notes, or (y) the substitution
of the Pledged Applicable Ownership Interests in the Treasury Portfolio
included in such Corporate Units with Treasury Securities in an aggregate
principal amount at maturity equal to such Pledged Applicable Ownership
Interests in the Treasury Portfolio, or (ii) with respect to the Treasury
Units, (x) the substitution of the Pledged Treasury Securities included in such
Treasury Units (if the Applicable Ownership Interests in the Treasury Portfolio
have not replaced the Applicable Ownership Interests in Senior Notes as a
component of the Corporate Units) with Senior 


 


4

















 


Notes in an aggregate principal amount equal
to the aggregate principal amount at stated maturity of the Pledged Treasury
Securities, or (y) the substitution of the Pledged Treasury Securities included
in such Treasury Units (if the Applicable Ownership Interests in the Treasury
Portfolio have replaced the Applicable Ownership Interests in Senior Notes as a
component of the Corporate Units) with the Applicable Ownership Interests in
the Treasury Portfolio (as specified in clause (i) of the definition thereof).


 


“Common Stock”
means the Class A common stock, $0.001 par value, of the Company.


 


“Company”
means the Person named as the “Company” in the first paragraph of this
instrument until a successor shall have become such pursuant to the applicable
provision of this Agreement, and thereafter “Company” shall mean such
successor.


 


“Constituent
Person” has the meaning set forth in Section 5.04(b)(i).


 


“Contract
Adjustment Payments” means the payments payable by the Company on
the Special Payment Date or the Payment Dates in respect of each Purchase
Contract, at a rate per year of 2.16% of the Stated Amount per Purchase
Contract.


 


“Corporate
Trust Office” means the office of the Purchase Contract Agent at
which, at any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is located at 101
Barclay Street, 8W, New York, NY 10286 Attention: Corporate Trust Division –
Corporate Finance Unit.


 


“Corporate
Unit” means the collective rights and obligations of a Holder of a
Corporate Units Certificate in respect of the Applicable Ownership Interests in
Senior Notes or the Applicable Ownership Interests in the Treasury Portfolio,
as the case may be, subject in each case (except that the Applicable Ownership
Interests in the Treasury Portfolio as specified in clause (ii) of the
definition of such term shall not be subject to the Pledge) to the Pledge
thereof, and the related Purchase Contract.


 


“Corporate
Units Certificate” means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Corporate Units specified
on such certificate.


 


“Coupon Rate”
has the meaning set forth in the Supplemental Indenture.


 


 “Current Market Price” means, in respect of
a share of Common Stock on any date of determination, the average of the daily
Closing Prices for the 20 consecutive Trading Days ending the earlier of the
day in question and the day before the “ex date” with respect to the issuance
or distribution requiring such computation. 
For purposes of this definition, the term “ex date,” when used with
respect to any issuance or distribution, shall mean the first date on which
Common Stock trades regular way on such exchange or in such market without the
right to receive such issuance or distribution.


 


5

















 


“Custodial
Agent” means the Person named as Custodial Agent in the first
Paragraph of this Agreement until a successor Custodial Agent shall have become
such pursuant to the applicable provisions of this Agreement, and thereafter
“Custodial Agent” shall mean the Person who is then the Custodial Agent
hereunder.


 


“Depositary”
means a clearing agency registered under Section 17A of the Exchange Act that
is designated to act as Depositary for the Units as contemplated by Sections
3.05(ii) and 3.08.


 


“Depositary
Participant” means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Depositary effects
book entry transfers and pledges of securities deposited with the Depositary.


 


“Distributed
Property” has the meaning set forth in Section 5.04(a)(iv).


 


“Dividend
Threshold Amount” has the meaning set forth in Section 5.04(a)(v).


 


“DTC”
means The Depository Trust Company.


 


“Early
Settlement” has the meaning set forth in Section 5.07(a).


 


“Early
Settlement Amount” has the meaning set forth in Section 5.07(b).


 


“Early
Settlement Date” has the meaning set forth in Section 5.07(b).


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.


 


“Exchange Act”
means the Securities Exchange Act of 1934 and any statute successor thereto, in
each case as amended from time to time, and the rules and regulations
promulgated thereunder.


 


“Exchange
Property” has the meaning set forth in Section 5.04(b)(i).


 


“Ex-Dividend
Date” has the meaning set forth in Section 5.04(a)(iv).


 


“Expiration
Date” has the meaning set forth in Section 1.04(e).


 


“Expiration
Time” has the meaning set forth in Section 5.04(a)(vi).


 


“Failed Final
Remarketing” has the meaning set forth in Section 5.02(b)(v).


 


“Failed
Remarketing” has the meaning set forth in Section 5.02(b)(iii).


 


“Final
Remarketing Date” means the third Business Day immediately preceding
the Purchase Contract Settlement Date.


 


6

















 


“Fixed
Settlement Rate” means each of the Minimum Settlement Rate and the
Maximum Settlement Rate.


 


“Global
Certificate” means a Certificate that evidences all or part of the
Units and is registered in the name of the Depositary or a nominee thereof.


 


“Holder”
means, with respect to a Unit, the Person in whose name the Unit evidenced by a
Certificate is registered in the Security Register.


 


“Indenture”
means the Indenture, dated as of May 24, 2004, between the Company and the
Indenture Trustee (including any provisions of the TIA that are deemed
incorporated therein), as amended and supplemented by the Supplemental
Indenture pursuant to which the Senior Notes will be issued.


 


“Indemnitees”
has the meaning set forth in Section 7.07(c).


 


“Indenture
Trustee” means The Bank of New York, a New York banking corporation,
as trustee under the Indenture, or any successor thereto as described in the
Indenture.


 


“Initial
Remarketing Date” means the fifth Business Day immediately preceding
the Purchase Contract Settlement Date.


 


“Issuer Order”
or “Issuer
Request” means a written order or request signed in the name of the
Company by (i) either its Chief Executive Officer, its President or one of its
Vice Presidents, and (ii) either its Corporate Secretary or one of its
Assistant Corporate Secretaries or its Treasurer or one of its Assistant
Treasurers, and delivered to the Purchase Contract Agent.


 


“Losses”
has the meaning set forth in Section 15.08(b).


 


“Maximum
Settlement Rate” has the meaning set forth in Section 5.01(a).


 


“Minimum
Settlement Rate” has the meaning set forth in Section 5.01(a).


 


 “non-electing share” has the meaning set
forth in Section 5.04(b)(i).


 


“NYSE”
has the meaning set forth in Section 5.01(a).


 


“Obligations” means, with respect to each
Holder, all obligations and liabilities of such Holder under such Holder’s
Purchase Contract and this Agreement or any other document made, delivered or
given in connection herewith or therewith, in each case whether on account of
principal, interest (including, without limitation, interest accruing before
and after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to such Holder, whether
or not a claim for post-filing or post-petition interest is allowed in such
proceeding), fees, 


 


7

















 


indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to the
Company or the Collateral Agent or the Securities Intermediary that are
required to be paid by the Holder pursuant to the terms of any of the foregoing
agreements).


 


“Officers’
Certificate” means a certificate signed by (i) either the Company’s
Chief Executive Officer, its President or one of its Vice Presidents, and (ii)
either the Company’s Corporate Secretary or one of its Assistant Corporate
Secretaries or its Treasurer or one of its Assistant Treasurers, and delivered
to the Purchase Contract Agent. Any Officers’ Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Agreement (other than the Officers’ Certificate provided for in Section 10.05)
shall include the information set forth in Section 1.02 hereof.


 


“Opinion of
Counsel” means a written opinion of counsel, who may be counsel to
the Company (and who may be an employee of the Company), and who shall be
reasonably acceptable to the Purchase Contract Agent.  An opinion of counsel may rely on certificates as to matters of
fact.


 


“Outstanding”
means, as of any date of determination, all Units evidenced by Certificates
theretofore authenticated, executed and delivered under this Agreement, except:


 


(i) 
all Units, if a Termination Event has occurred;


 


(ii) 
Units evidenced by Certificates theretofore cancelled by the Purchase
Contract Agent or delivered to the Purchase Contract Agent for cancellation or
deemed cancelled pursuant to the provisions of this Agreement; and


 


(iii) 
Units evidenced by Certificates in exchange for or in lieu of which
other Certificates have been authenticated, executed on behalf of the Holder
and delivered pursuant to this Agreement, other than any such Certificate in
respect of which there shall have been presented to the Purchase Contract Agent
proof satisfactory to it that such Certificate is held by a protected purchaser
in whose hands the Units evidenced by such Certificate are valid obligations of
the Company;


 


provided, however,
that in determining whether the Holders of the requisite number of the Units
have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Units owned by the Company or any Affiliate of the Company
shall be disregarded and deemed not to be Outstanding Units, except that, in
determining whether the Purchase Contract Agent shall be authorized and
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Units that a Responsible Officer of the
Purchase Contract Agent actually knows to be so owned shall be so disregarded.
Units so owned that have been pledged in good faith may be regarded as
Outstanding Units if the pledgee establishes to the satisfaction of the
Purchase Contract 


 


8

















 


Agent the
pledgee’s right so to act with respect to such Units and that the pledgee is
not the Company or any Affiliate of the Company.


 


“Payment Date”
means each February 16, May 16, August 16 and November 16 of each year,
commencing August 16, 2004.


 


“Permitted Investments” means any one of the
following, in each case maturing on the Business Day following the date of
acquisition:


 


(1)     any
evidence of indebtedness with an original maturity of 365 days or less issued,
or directly and fully guaranteed or insured, by the United States of America or
any agency or instrumentality thereof (provided
that the full faith and credit of the United States of America is pledged in
support of the timely payment thereof or such indebtedness constitutes a
general obligation of it);


 


(2)     deposits,
certificates of deposit or acceptances with an original maturity of 365 days or
less of any institution which is a member of the Federal Reserve System having
combined capital and surplus and undivided profits of not less than $500
million at the time of deposit (and which may include the Collateral Agent);


 


(3)     investments
with an original maturity of 365 days or less of any Person that is fully and
unconditionally guaranteed by a bank referred to in clause (2);


 


(4)     repurchase
agreements and reverse repurchase agreements relating to marketable direct
obligations issued or unconditionally guaranteed by the United States of
America or issued by any agency thereof and backed as to timely payment by the
full faith and credit of the United States of America;


 


(5)     investments
in commercial paper, other than commercial paper issued by the Company or its
affiliates, of any corporation incorporated under the laws of the United States
or any State thereof, which commercial paper has a rating at the time of
purchase at least equal to “A-1”
by Standard & Poor’s Ratings Services (“S&P”)
or at least equal to “P-1” by
Moody’s Investors Service, Inc. (“Moody’s”);
and


 


(6)     investments
in money market funds (including, but not limited to, money market funds
managed by the Collateral Agent or an affiliate of the Collateral Agent)
registered under the Investment Company Act of 1940, as amended, rated in the
highest applicable rating category by S&P or Moody’s.


 


“Person”
means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint-stock company, limited liability
company, 


 


9

















 


trust, unincorporated organization or
government or any agency or political subdivision thereof or any other entity
of whatever nature.


 


“Plan”
means an employee benefit plan that is subject to ERISA, a plan or individual
retirement account that is subject to Section 4975 of the Code or any entity
whose assets are considered assets of any such plan.


 


“Pledge”
means the lien and security interest in the Collateral created by this
Agreement.


 


“Pledged Applicable Ownership Interests in Senior Notes”
means the Applicable Ownership Interests in Senior Notes and security
entitlements with respect thereto from time to time credited to the Collateral
Account and not then released from the Pledge.


 


“Pledged Applicable Ownership Interests in the Treasury
Portfolio” means the Applicable Ownership Interests in the Treasury
Portfolio (as specified in clause (i) of the definition thereof) and security
entitlements with respect thereto from time to time credited to the Collateral
Account and not then released from the Pledge.


 


“Pledged Securities” means the Pledged
Applicable Ownership Interests in Senior Notes, the Pledged Applicable
Ownership Interests in the Treasury Portfolio and the Pledged Treasury
Securities, collectively.


 


“Pledged Treasury Securities” means Treasury
Securities and security entitlements with respect thereto from time to time
credited to the Collateral Account and not then released from the Pledge.


 


“Pledge
Indemnitees” has the meaning set forth in Section 15.08(b).


 


“Predecessor
Certificate” means a Predecessor Corporate Units Certificate or a
Predecessor Treasury Units Certificate.


 


“Predecessor
Corporate Units Certificate” of any particular Corporate Units
Certificate means every previous Corporate Units Certificate evidencing all or
a portion of the rights and obligations of the Company and the Holder under the
Corporate Units evidenced thereby; and, for the purposes of this definition,
any Corporate Units Certificate authenticated and delivered under Section 3.10
in exchange for or in lieu of a mutilated, destroyed, lost or stolen Corporate
Units Certificate shall be deemed to evidence the same rights and obligations of
the Company and the Holder as the mutilated, destroyed, lost or stolen
Corporate Units Certificate.


 


“Predecessor
Treasury Units Certificate” of any particular Treasury Units
Certificate means every previous Treasury Units Certificate evidencing all or a
portion of the rights and obligations of the Company and the Holder under the
Treasury Units evidenced thereby; and, for the purposes of this definition, any
Treasury Units Certificate 


 


10

















 


authenticated and delivered under Section
3.10 in exchange for or in lieu of a mutilated, destroyed, lost or stolen
Treasury Units Certificate shall be deemed to evidence the same rights and
obligations of the Company and the Holder as the mutilated, destroyed, lost or
stolen Treasury Units Certificate.


 


“Pro Rata”
shall mean pro rata to each Holder according to the aggregate Stated Amount of
the Units held by such Holder in relation to the aggregate Stated Amount of all
Units outstanding.


 


“Proceeds” has the meaning ascribed thereto
in the UCC and includes, without limitation, all interest, dividends, cash,
instruments, securities, financial assets and other property received,
receivable or otherwise distributed upon the sale (including, without
limitation, any Remarketing), exchange, collection or disposition of any
financial assets from time to time credited to the Collateral Account.


 


“Prospectus”
means the prospectus relating to the delivery of shares or any securities in
connection with an Early Settlement pursuant to Section 5.07 or a Cash Merger
Early Settlement of Purchase Contracts pursuant to Section 5.04(b)(ii), in the
form in which first filed, or transmitted for filing, with the Securities and
Exchange Commission after the effective date of the Registration Statement
pursuant to Rule 424(b) under the Securities Act, including the documents
incorporated by reference therein as of the date of such Prospectus.


 


“Purchase
Contract” means, with respect to any Unit, the contract forming a
part of such Unit and obligating the Company to (i) sell, and the Holder of
such Unit to purchase, shares of Common Stock and (ii) pay the Holder thereof
Contract Adjustment Payments, in each case on the terms and subject to the
conditions set forth in Article 5 hereof.


 


“Purchase
Contract Agent” means the Person named as the “Purchase Contract
Agent” in the first paragraph of this Agreement until a successor Purchase
Contract Agent shall have become such pursuant to the applicable provisions of
this Agreement, and thereafter “Purchase Contract Agent” shall mean such Person
or any subsequent successor who is appointed pursuant to this Agreement.


 


“Purchase
Contract Settlement Date” means May 16, 2007.


 


“Purchase
Contract Settlement Fund” has the meaning set forth in Section 5.03.


 


“Purchase
Price” has the meaning set forth in Section 5.01(a).


 


“Purchased
Shares” has the meaning set forth in Section 5.04(a)(vi).


 


“Put Right”
has the meaning set forth in Section 8.05(a) of the Supplemental Indenture.


 


11

















 


“Quotation
Agent” has the meaning set forth in the Supplemental Indenture.


 


“Record Date”
for any distribution and any Contract Adjustment Payment payable on any Payment
Date means the first day of the calendar month in which the relevant Payment
Date falls.


 


“Redemption
Amount” has the meaning set forth in the Supplemental Indenture.


 


“Redemption
Price” has the meaning set forth in the Supplemental Indenture.


 


“Reference
Price” has the meaning set forth in Section 5.01(a).


 


“Registration
Statement” means a registration statement under the Securities Act
prepared by the Company covering, inter alia, the delivery by the Company of
any securities in connection with an Early Settlement on the Early Settlement
Date or a Cash Merger Early Settlement of Purchase Contracts on the Cash Merger
Early Settlement Date under Section 5.04(b)(ii), including all exhibits thereto
and the documents incorporated by reference in the prospectus contained in such
registration statement, and any post-effective amendments thereto.


 


“Remarketing”
has the meaning set forth in the Remarketing Agreement.


 


“Remarketing
Agent” has the meaning set forth in Section 1.01 of the Supplemental
Indenture.


 


“Remarketing
Agreement” has the meaning set forth in Section 1.01 of the Supplemental
Indenture.


 


“Remarketing
Date” means any of the Initial Remarketing Date, the Second
Remarketing Date or the Final Remarketing Date.


 


“Remarketing
Fee” has the meaning set forth in the Remarketing Agreement.


 


“Remarketing
Price” has the meaning set forth in Section 5.02(b)(iii).


 


“Reorganization
Event” has the meaning set forth in Section 5.04(b)(i).


 


“Reset Rate”
has the meaning set forth in the Remarketing Agreement.


 


“Responsible
Officer” means, when used with respect to the Purchase Contract Agent,
any officer of the Purchase Contract Agent within the Corporate Trust
Division—Corporate Finance Unit (or any successor unit, department or division
of the Purchase Contract Agent) located at the Corporate Trust Office of the
Purchase Contract Agent who has direct responsibility for the administration of
the Agreement and for the purposes of Section 7.03(a), also means, with respect
to a particular corporate trust matter, any other 


 


12

















 


officer, trust officer or person performing
similar functions to whom such matter is referred because of his or her
knowledge of and familiarity of the particular subject.


 


“Restrictive
Legend” means a legend to the following effect:


 


THIS SECURITY
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES LAWS.  THIS SECURITY
MAY NOT BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.


 


“Rights”
has the meaning set forth in Section 5.04(a)(xi).


 


“Second
Remarketing Date” means the fourth Business Day immediately
preceding the Purchase Contract Settlement Date.


 


“Securities
Act” means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time, and the rules and
regulations promulgated thereunder.


 


“Securities
Intermediary” means the Person named as Securities Intermediary in
the first Paragraph of this Agreement until a successor Securities Intermediary
shall have become such pursuant to the applicable provisions of this Agreement,
and thereafter “Securities Intermediary” shall mean such successor or any
subsequent successor.


 


“Security
Register” and “Securities Registrar” have the respective
meanings set forth in Section 3.05.


 


“Senior
Indebtedness” means indebtedness of any kind of the Company (other
than obligations arising under the Company’s $550 million subordinated
Contingent Promissory Note dated as of May 24, 2004 or under the Tax
Matters Agreement, dated as of May 24, by and among, inter alia, General
Electric Company, General Electric Capital Corporation and the Company) unless
the instrument under which such indebtedness is incurred expressly provides
that it is on a parity in right of payment with or subordinate in right of
payment to the Contract Adjustment Payments.


 


“Senior Notes”
means the series of notes designated the 3.84% Senior Notes due 2009 of the
Company.


 


“Separate Senior Notes” means Senior Notes
that have been released from the Pledge following Collateral Substitution and
therefore no longer underlie Corporate Units.


 


“Settlement
Rate” has the meaning set forth in Section 5.01(a).


 


“Special
Event” has the meaning set forth in the Supplemental Indenture.


 


13

















 


“Special
Event Redemption” has the meaning set forth in the Supplemental
Indenture.


 


“Special
Event Redemption Date” has the meaning set forth in the Supplemental
Indenture.


 


“Special
Payment Date” has the meaning set forth in Section 5.10.


 


“Stated
Amount” means $25.


 


“Successful
Remarketing” has the meaning set forth in Section 5.02(b)(iv).


 


“Supplemental
Indenture” means the Supplemental Indenture No. 1 dated as of the
date hereof between the Company and the Indenture Trustee pursuant to which the
Senior Notes are issued.


 


“Tax Event”
has the meaning set forth in the Supplemental Indenture.


 


“Termination
Date” means the date, if any, on which a Termination Event occurs.


 


“Termination
Event” means the occurrence of any of the following events:


 


(i) 
at any time on or prior to the Purchase Contract Settlement Date, a
decree or order by a court having jurisdiction in the premises shall have been
entered adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization of the Company under the Bankruptcy
Code or any other similar applicable Federal or state law and if such judgment,
decree or order shall have been entered more than 60 days prior to the Purchase
Contract Settlement Date, such decree or order shall have continued
undischarged and unstayed for a period of 60 days;


 


(ii) 
at any time on or prior to the Purchase Contract Settlement Date, a
decree or order of a court having jurisdiction in the premises for the
appointment of a receiver or liquidator or trustee or assignee (or other
similar official) in bankruptcy or insolvency of the Company or of all or
substantially all of its property, or for the winding up or liquidation of its
affairs, shall have been entered and if such decree or order shall have been
entered more than 60 days prior to the Purchase Contract Settlement Date, such
judgment, decree or order shall have continued undischarged and unstayed for a
period of 60 days; or


 


(iii) at any time on or prior to the Purchase
Contract Settlement Date, the Company shall institute proceedings to be
adjudicated a voluntary bankrupt, or shall consent to the filing of a
bankruptcy proceeding against it, or shall file a petition or answer or consent
seeking reorganization under the Bankruptcy Code or any other similar
applicable Federal or state law, or shall consent to the filing of any such
petition, or shall consent to the appointment of a receiver or liquidator or 


 


14

















 


trustee or assignee (or other similar
official) in bankruptcy or insolvency of it or of its property, or shall make
an assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due.


 


“Threshold
Appreciation Price” has the meaning set forth in Section 5.01(a).


 


“TIA”
means the Trust Indenture Act of 1939, as amended from time to time, or any
successor legislation.


 


“TRADES” means the Treasury/Reserve Automated
Debt Entry System maintained by the Federal Reserve Bank of New York pursuant
to the TRADES Regulations.


 


“TRADES Regulations” means the regulations
of the United States Department of the Treasury, published at 31 C.F.R. Part
357, as amended from time to time. 
Unless otherwise defined herein, all terms defined in the TRADES
Regulations are used herein as therein defined.


 


“Trading Day”
has the meaning set forth in Section 5.01(a).


 


“Transfer” means (i) in the case of
certificated securities in registered form, delivery as provided in Section
8-301(a) of the UCC, indorsed to the transferee or in blank by an effective
endorsement; (ii) in the case of Treasury Securities, registration of the
transferee as the owner of such Treasury Securities on TRADES; and (iii) in the
case of security entitlements, including, without limitation, security
entitlements with respect to Treasury Securities, a securities intermediary
indicating by book entry that such security entitlement has been credited to
the transferee’s securities account.


 


“Treasury
Portfolio” has the meaning set forth in the Supplemental Indenture.


 


“Treasury
Portfolio Purchase Price” has the meaning set forth in the
Supplemental Indenture.


 


 “Treasury Securities” means zero-coupon U.S.
treasury securities that mature on May 15, 2007 (CUSIP No. 912820BX4).


 


“Treasury
Unit” means, following the substitution of Treasury Securities for
Pledged Applicable Ownership Interests in Senior Notes or Pledged Applicable
Ownership Interests in the Treasury Portfolio, as the case may be, as
collateral to secure a Holder’s obligations under the Purchase Contract, the
collective rights and obligations of a Holder of a Treasury Units Certificate
in respect of such Treasury Securities, subject to the Pledge thereof, and the
related Purchase Contract.


 


“Treasury
Units Certificate” means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Treasury Units specified on
such certificate.


 


15

















 


“Trigger
Event” has the meaning set forth in Section 5.04(a)(iv).


 


“UCC” means the Uniform Commercial Code as
in effect in the State of New York from time to time.


 


“Underwriters”
means the underwriters identified in Schedule 1 to the Underwriting Agreement.


 


“Underwriting
Agreement” means the Underwriting Agreement, dated May 24, 2004,
among the Company, GE Financial Assurance Holdings, Inc. and Morgan Stanley
& Co. Incorporated and Goldman, Sachs & Co., as representative of the
Underwriters, relating to the sale of Corporate Units by GE Financial Assurance
Holdings, Inc.


 


“Unit”
means a Corporate Unit or a Treasury Unit, as the case may be.


 


“Units
Prospectus”
means the registration statement, as amended, filed with the Securities and
Exchange Commission (File No. 333-115019) and the prospectus contained therein
dated May 24, 2004, describing, among other things, the terms of the Units.


 


 “Value”
means, with respect to any item of Collateral on any date, as to (1) Cash, the
amount thereof, (2) Treasury Securities, the aggregate principal amount thereof
at maturity, (3) Applicable Ownership Interests in the Treasury Portfolio (as
specified in clause (i) of the definition of such term), the appropriate
aggregate percentage of the aggregate principal amount at maturity of the
Treasury Portfolio and (4) Applicable Ownership Interests in Senior Notes, the
appropriate aggregate percentage of the aggregate principal amount at maturity
of the underlying Senior Notes.


 


“Vice
President” means any vice president, whether or not designated by a
number or a word or words added before or after the title “vice president.”


 


Section 1.02.  Compliance Certificates and Opinions.  Except as otherwise expressly
provided by this Agreement, upon any application or request by the Company to
the Purchase Contract Agent to take any action in accordance with any provision
of this Agreement, the Company shall furnish to the Purchase Contract Agent an
Officers’ Certificate stating that all conditions precedent, if any, provided
for in this Agreement relating to the proposed action have been complied with
and, if requested by the Purchase Contract Agent, an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions precedent, if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required
by any provision of this Agreement relating to such particular application or
request, no additional certificate or opinion need be furnished.


 


Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Agreement (other than the Officers’ Certificate provided
for in Section 10.05) shall include:


 


16

















 


(i)    a
statement that each individual signing such certificate or opinion has read
such covenant or condition and the definitions herein relating thereto;


 


(ii)   a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based;


 


(iii) a
statement that, in the opinion of each such individual, he or she has made such
examination or investigation as is necessary to enable such individual to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and


 


(iv)  a
statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.


 


Section 1.03.  Form of Documents Delivered to Purchase
Contract Agent.


 


In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents. Any certificate or opinion of
an officer of the Company may be based, insofar as it relates to legal matters,
upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon
which its certificate or opinion is based are erroneous.  Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company unless
such counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.


 


Where any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Agreement, they may, but need not, be consolidated and form one instrument.


 


Section 1.04.  Acts of Holders; Record Dates.  (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Agreement to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Purchase Contract Agent
and, where it is hereby expressly required, to the Company.  Such instrument or instruments (and the
action embodied therein and evidenced thereby) are 


 


17

















 


herein sometimes referred to as the “Act”
of the Holders signing such instrument or instruments.  Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Agreement and (subject to Section 7.01) conclusive in favor of the
Purchase Contract Agent and the Company, if made in the manner provided in this
Section.


 


(b)       The fact and
date of the execution by any Person of any such instrument or writing may be
proved in any manner that the Purchase Contract Agent deems sufficient.


 


(c)       The ownership of
Units shall be proved by the Security Register.


 


(d)       Any request,
demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Unit shall bind every future Holder of the same Unit and the
Holder of every Certificate evidencing such Unit issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Purchase Contract Agent or
the Company in reliance thereon, whether or not notation of such action is made
upon such Certificate.


 


(e)       The Company may
set any date as a record date for the purpose of determining the Holders of
Outstanding Units entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Agreement to be given, made or taken by Holders.  If any record date is set pursuant to this
paragraph, the Holders of the Outstanding Corporate Units and the Outstanding
Treasury Units, as the case may be, on such record date, and no other Holders,
shall be entitled to take the relevant action with respect to the Corporate
Units or the Treasury Units, as the case may be, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken prior to or on the applicable Expiration Date
by Holders of the requisite number of Outstanding Units on such record
date.  Nothing contained in this
paragraph shall be construed to prevent the Company from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically
and with no action by any Person be cancelled and be of no effect), and nothing
contained in this paragraph shall be construed to render ineffective any action
taken by Holders of the requisite number of Outstanding Units on the date such
action is taken.  Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Purchase Contract Agent in
writing and to each Holder in the manner set forth in Section 1.06.


 


With respect
to any record date set pursuant to this Section 1.04(e), the Company may
designate any date as the “Expiration Date” and from time to time may
change the Expiration Date to any later day; provided that no such change
shall be effective unless notice of the proposed new Expiration Date is given
to the Purchase Contract Agent in writing, and to each Holder in the manner set
forth in Section 1.06, prior to or on the existing Expiration Date. If an
Expiration Date is not designated with respect to any record 


 


18

















 


date set pursuant to this Section, the
Company shall be deemed to have initially designated the 180th day after such
record date as the Expiration Date with respect thereto, subject to its right
to change the Expiration Date as provided in this paragraph.  Notwithstanding the foregoing, no Expiration
Date shall be later than the 180th day after the applicable record date.


 


Section 1.05.  Notices. 
All notices, requests, consents and other communications
provided for herein (including, without limitation, any modifications of, or
waivers or consents under, this Agreement) shall be given or made in writing
(including, without limitation, by telecopy) delivered to the intended
recipient at the “Address for Notices”
specified below its name on the signature pages hereof or, as to any party, at
such other address as shall be designated by such party in a notice to the
other parties. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.


 


The Purchase
Contract Agent shall send to the Indenture Trustee at the following address a
copy of any notices in the form of Exhibits C, D, E, G, I or K it sends or
receives:


 


The Bank of New York

101 Barclay Street, 8W

New York, NY 10286

Attention: Corporate Trust Division – Corporate Finance Unit

Fax: 212-815-5707


 


Section 1.06.  Notice to Holders; Waiver.  Where this Agreement provides for
notice to Holders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at its address as it
appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice.  In any case where notice to Holders is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders.  Where
this Agreement provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice.  Waivers of notice by Holders shall be filed
with the Purchase Contract Agent, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.


 


In case by
reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Purchase Contract Agent
shall constitute a sufficient notification for every purpose hereunder.


 


19

















 


Section 1.07.  Effect of Headings and Table of Contents.  The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.


 


Section 1.08.  Successors and Assigns.  This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of the
Company, the Purchase Contract Agent, the Collateral Agent, the Custodial Agent
and the Securities Intermediary, and the Holders from time to time of the Units,
by their acceptance of the same, shall be deemed to have agreed to be bound by
the provisions hereof and to have ratified the agreements of, and the grant of
the Pledge hereunder by, the Purchase Contract Agent.


 


Section 1.09.  Separability
Clause.  In case any
provision in this Agreement or in the Units shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions hereof and thereof shall not in any way be affected or impaired
thereby.


 


Section 1.10.  Benefits of Agreement.  Nothing contained in this
Agreement or in the Units, express or implied, shall give to any Person, other
than the parties hereto and their successors hereunder and, to the extent
provided hereby, the Holders, any benefits or any legal or equitable right,
remedy or claim under this Agreement. The Holders from time to time shall be
beneficiaries of this Agreement and shall be bound by all of the terms and
conditions hereof and of the Units evidenced by their Certificates by their
acceptance of delivery of such Certificates.


 


Section 1.11.  Governing Law.  THIS AGREEMENT AND THE UNITS
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PROVISIONS THEREOF TO
THE EXTENT A DIFFERENT LAW WOULD GOVERN AS A RESULT.  The Company, the Collateral Agent, the Custodial Agent, the
Securities Intermediary and the Holders from time to time of the Units, acting
through the Purchase Contract Agent as their attorney-in-fact, hereby submit to
the nonexclusive jurisdiction of the United States District Court for the
Southern District of New York and of any New York state court sitting in New
York City for the purposes of all legal proceedings arising out of or relating
to this Agreement or the transactions contemplated hereby. The Company, the
Collateral Agent, the Custodial Agent, the Securities Intermediary and the
Holders from time to time of the Units, acting through the Purchase Contract
Agent as their attorney-in-fact, irrevocably waive, to the fullest extent
permitted by applicable law, any objection which they may now or hereafter have
to the laying of the venue of any such proceeding brought in such a court and
any claim that any such proceeding brought in such a court has been brought in
an inconvenient forum.


 


Section 1.12.  Legal Holidays.  In any case where any Payment
Date shall not be a Business Day (notwithstanding any other provision of this
Agreement or the Units), Contract Adjustment Payments or other distributions
shall not be paid on such date, but Contract Adjustment Payments or such other
distributions shall be paid on the next 


 


20

















 


succeeding Business Day, with the same force
and effect as if made on such scheduled Payment Date; provided that no interest
shall accrue or be payable by the Company or to any Holder in respect of such
delay.


 


In any case
where the Purchase Contract Settlement Date or any Early Settlement Date or
Cash Merger Early Settlement Date shall not be a Business Day (notwithstanding
any other provision of this Agreement or the Units), Purchase Contracts shall
not be performed and Early Settlement and Cash Merger Early Settlement shall
not be effected on such date, but Purchase Contracts shall be performed or
Early Settlement or Cash Merger Early Settlement shall be effected, as
applicable, on the next succeeding Business Day with the same force and effect
as if made on such Purchase Contract Settlement Date, Early Settlement Date or
Cash Merger Early Settlement Date, as applicable.


 


Section 1.13.  Counterparts.  This Agreement may be executed in
any number of counterparts by the parties hereto, each of which, when so
executed and delivered, shall be deemed an original, but all such counterparts
shall together constitute one and the same instrument.


 


Section 1.14.  Inspection of Agreement.  A copy of this Agreement shall be
available at all reasonable times during normal business hours at the Corporate
Trust Office for inspection by any Holder or Beneficial Owner.


 


Section 1.15.  Appointment of Financial Institution as
Agent for the Company.  The
Company may appoint a financial institution (which may be the Collateral Agent)
to act as its agent in performing its obligations and in accepting and enforcing
performance of the obligations of the Purchase Contract Agent and the Holders,
under this Agreement and the Purchase Contracts, by giving notice of such
appointment in the manner provided in Section 1.05 hereof.  Any such appointment shall not relieve the
Company in any way from its obligations hereunder.


 


Section 1.16.  No Waiver. 
No failure on the part of the Company, the Purchase Contract
Agent, the Collateral Agent, the Custodial Agent, the Securities Intermediary
or any of their respective agents to exercise, and no course of dealing with
respect to, and no delay in exercising, any right, power or remedy hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise by
the Company, the Collateral Agent, the Custodial Agent, the Securities
Intermediary or any of their respective agents of any right, power or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or remedy.  The remedies
herein are cumulative and are not exclusive of any remedies provided by law.


 


ARTICLE 2

CERTIFICATE FORMS


 


Section 2.01.  Forms of Certificates Generally.  The Certificates (including the
form of Purchase Contract forming part of each Unit evidenced thereby) shall be
in 


 


21

















 


substantially the form set forth in Exhibit A
hereto (in the case of Corporate Units Certificates) or Exhibit B hereto (in
the case of Treasury Units Certificates), with such letters, numbers or other
marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as may be required by the rules of
any securities exchange on which the Units are listed or any depositary
therefor, or as may, consistently herewith, be determined by the officers of
the Company executing such Certificates, as evidenced by their execution of the
Certificates.


 


The definitive
Certificates shall be produced in any manner as determined by the officers of
the Company executing the Units evidenced by such Certificates, consistent with
the provisions of this Agreement, as evidenced by their execution thereof.


 


Every Global Certificate authenticated, executed on behalf of the
Holders and delivered hereunder shall bear a legend substantially in the form
set forth in Exhibit A and Exhibit B for a Global Certificate.


 


Section 2.02.  Form of Purchase Contract Agent’s
Certificate of Authentication.  The
form of the Purchase Contract Agent’s certificate of authentication of the
Units shall be in substantially the form set forth on the form of the
applicable Certificates.


 


ARTICLE 3

THE UNITS


 


Section 3.01.  Amount; Form and Denominations.  The aggregate number of Units
evidenced by Certificates authenticated, executed on behalf of the Holders and
delivered hereunder is limited to 24,000,000, except for Certificates
authenticated, executed and delivered upon registration of transfer of, in
exchange for, or in lieu of, other Certificates pursuant to Section 3.04,
Section 3.05, Section 3.10, Section 3.13, Section 3.14 or Section 8.05.


 


The
Certificates shall be issuable only in registered form and only in
denominations of a single Corporate Unit or Treasury Unit and any integral
multiple thereof.


 


Section 3.02.  Rights and Obligations Evidenced by the
Certificates.  Each
Corporate Units Certificate shall evidence the number of Corporate Units
specified therein, with each such Corporate Unit representing (1) the ownership
by the Holder thereof of an Applicable Ownership Interest in Senior Notes or an
Applicable Ownership Interest in the Treasury Portfolio, as the case may be,
subject to the Pledge of such Applicable Ownership Interest in Senior Note or
Applicable Ownership Interest in the Treasury Portfolio (as specified in clause
(i) of the definition of such term), as the case may be, by such Holder
pursuant to this Agreement, and (2) the rights and obligations of the Holder
thereof and the Company under one Purchase Contract.  The Purchase Contract Agent is hereby authorized, as
attorney-in-fact for, and on behalf of, the Holder of each Corporate Unit, to
pledge, pursuant to Article 11 hereof, the Applicable Ownership Interest in
Senior Notes, or the Applicable Ownership Interest in the Treasury Portfolio
(as specified in clause (i) of 


 


22

















 


the definition of such term) forming a part
of such Corporate Unit, to the Collateral Agent for the benefit of the Company,
and to grant to the Collateral Agent, for the benefit of the Company, a
security interest in the right, title and interest of such Holder in such
Applicable Ownership Interest in Senior Notes or Applicable Ownership Interest
in the Treasury Portfolio (as specified in clause (i) of the definition of such
term) to secure the obligation of the Holder under each Purchase Contract to
purchase shares of Common Stock.  To
effect such Pledge and grant such security interest, the Purchase Contract
Agent on behalf of the Holders of Corporate Units has, on the date hereof,
delivered to the Collateral Agent the Senior Notes underlying the Applicable
Ownership Interests in Senior Notes.


 


Upon the
formation of a Treasury Unit pursuant to Section 3.13, each Treasury Unit
Certificate shall evidence the number of Treasury Units specified therein, with
each such Treasury Unit representing (1) the ownership by the Holder thereof of
a 1/40 or 2.5% undivided beneficial interest in a Treasury Security with a
principal amount equal to $1,000, subject to the Pledge of such interest by
such Holder pursuant to this Agreement, and (2) the rights and obligations of
the Holder thereof and the Company under one Purchase Contract.  The Purchase Contract Agent is hereby
authorized, as attorney-in-fact for, and on behalf of, the Holder of each
Treasury Unit, to pledge, pursuant to Article 11 hereof, such Holder’s interest
in the Treasury Security forming a part of such Treasury Unit to the Collateral
Agent, for the benefit of the Company, and to grant to the Collateral Agent,
for the benefit of the Company, a security interest in the right, title and interest
of such Holder in such Treasury Security to secure the obligation of the Holder
under each Purchase Contract to purchase shares of Common Stock.


 


Prior to the
purchase of shares of Common Stock under each Purchase Contract, such Purchase
Contracts shall not entitle the Holder of a Unit to any of the rights of a
holder of shares of Common Stock, including, without limitation, the right to
vote or receive any dividends or other payments or to consent or to receive
notice as a shareholder in respect of the meetings of shareholders or for the
election of directors of the Company or for any other matter, or any other
rights whatsoever as a shareholder of the Company.


 


Section 3.03.  Execution, Authentication, Delivery and
Dating.  Subject
to the provisions of Section 3.13 and Section 3.14 hereof, upon the execution
and delivery of this Agreement, and at any time and from time to time
thereafter, the Company may deliver Certificates executed by the Company to the
Purchase Contract Agent for authentication, execution on behalf of the Holders
and delivery, together with its Issuer Order for authentication of such
Certificates, and the Purchase Contract Agent in accordance with such Issuer
Order shall authenticate, execute on behalf of the Holders and deliver such
Certificates.


 


The
Certificates shall be executed on behalf of the Company by its Chairman of the
Board of Directors, its Chief Executive Officer, its President, its Treasurer
or one of its Vice Presidents.  The
signature of any of these officers on the Certificates may be manual or
facsimile.


 


23

















 


Certificates
bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificates or did not hold such offices
at the date of such Certificates.


 


No Purchase
Contract evidenced by a Certificate shall be valid until such Certificate has
been executed on behalf of the Holder by the manual signature of an authorized
officer of the Purchase Contract Agent, as such Holder’s attorney-in-fact.  Such signature by an authorized officer of
the Purchase Contract Agent shall be conclusive evidence that the Holder of
such Certificate has entered into the Purchase Contracts evidenced by such
Certificate.


 


Each
Certificate shall be dated the date of its authentication.


 


No Certificate
shall be entitled to any benefit under this Agreement or be valid or obligatory
for any purpose unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by an
authorized officer of the Purchase Contract Agent by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder.


 


Section 3.04.  Temporary Certificates.  Pending the preparation of
definitive Certificates, the Company may execute and deliver to the Purchase
Contract Agent, and the Purchase Contract Agent shall authenticate, execute on
behalf of the Holders, and deliver, in lieu of such definitive Certificates,
temporary Certificates which are in substantially the form set forth in Exhibit
A or Exhibit B hereto, as the case may be, with such letters, numbers or other
marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as may be required by the rules of
any securities exchange on which the Corporate Units or Treasury Units, as the
case may be, are listed, or as may, consistently herewith, be determined by the
officers of the Company executing such Certificates, as evidenced by their
execution of the Certificates.


 


If temporary
Certificates are issued, the Company will cause definitive Certificates to be
prepared without unreasonable delay. 
After the preparation of definitive Certificates, the temporary
Certificates shall be exchangeable for definitive Certificates upon surrender
of the temporary Certificates at the Corporate Trust Office, at the expense of
the Company and without charge to the Holder. 
Upon surrender for cancellation of any one or more temporary Certificates,
the Company shall execute and deliver to the Purchase Contract Agent, and the
Purchase Contract Agent shall authenticate, execute on behalf of the Holder,
and deliver in exchange therefor, one or more definitive Certificates of like
tenor and denominations and evidencing a like number of Units as the temporary
Certificate or Certificates so surrendered. 
Until so exchanged, the temporary Certificates shall in all respects
evidence the same benefits and the same obligations with respect to the Units
evidenced thereby as definitive Certificates.


 


24

















 


Section 3.05.  Registration; Registration of Transfer and
Exchange.  The
Purchase Contract Agent shall keep at the Corporate Trust Office a register (the
“Security
Register”) in which, subject to such reasonable regulations as it
may prescribe, the Purchase Contract Agent shall provide for the registration
of Certificates and of transfers of Certificates (the Purchase Contract Agent,
in such capacity, the “Security Registrar”).  The Security Registrar shall record
separately the registration and transfer of the Certificates evidencing
Corporate Units and Treasury Units.


 


Upon surrender
for registration of transfer of any Certificate at the Corporate Trust Office,
the Company shall execute and deliver to the Purchase Contract Agent, and the
Purchase Contract Agent shall authenticate, execute on behalf of the designated
transferee or transferees, and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of any authorized
denominations, like tenor, and evidencing a like number of Corporate Units or
Treasury Units, as the case may be.


 


At the option
of the Holder, Certificates may be exchanged for other Certificates, of any
authorized denominations and evidencing a like number of Corporate Units or
Treasury Units, as the case may be, upon surrender of the Certificates to be
exchanged at the Corporate Trust Office. 
Whenever any Certificates are so surrendered for exchange, the Company
shall execute and deliver to the Purchase Contract Agent, and the Purchase
Contract Agent shall authenticate, execute on behalf of the Holder, and deliver
the Certificates which the Holder making the exchange is entitled to receive.


 


All Certificates
issued upon any registration of transfer or exchange of a Certificate shall
evidence the ownership of the same number of Corporate Units or Treasury Units,
as the case may be, and be entitled to the same benefits and subject to the
same obligations under this Agreement as the Corporate Units or Treasury Units,
as the case may be, evidenced by the Certificate surrendered upon such
registration of transfer or exchange.


 


Every
Certificate presented or surrendered for registration of transfer or exchange
shall (if so required by the Purchase Contract Agent) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Purchase Contract Agent duly executed by the Holder thereof or
its attorney duly authorized in writing.


 


No service
charge shall be made for any registration of transfer or exchange of a
Certificate, but the Company and the Purchase Contract Agent may require
payment from the Holder of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Certificates, other than any exchanges pursuant to Section 3.04,
Section 3.05(ii) and Section 8.05 not involving any transfer.


 


Notwithstanding
the foregoing, the Company shall not be obligated to execute and deliver to the
Purchase Contract Agent, and the Purchase Contract Agent shall not be obligated
to authenticate, execute on behalf of the Holder and deliver any Certificate in



 


25

















 


exchange for any other Certificate presented
or surrendered for registration of transfer or for exchange on or after the
Business Day immediately preceding the earliest to occur of any Early
Settlement Date with respect to such Certificate, any Cash Merger Early
Settlement Date with respect to such Certificate, the Purchase Contract
Settlement Date or the Termination Date. 
In lieu of delivery of a new Certificate, upon satisfaction of the
applicable conditions specified above in this Section and receipt of
appropriate registration or transfer instructions from such Holder, the
Purchase Contract Agent shall:


 


(i)    if
the Purchase Contract Settlement Date (including upon any Cash Settlement) or
an Early Settlement Date or a Cash Merger Early Settlement Date with respect to
such other Certificate (or portion thereof) has occurred, deliver the shares of
Common Stock issuable in respect of the Purchase Contracts forming a part of
the Units evidenced by such other Certificate (or portion thereof); or


 


(ii)   if
a Termination Event, Early Settlement, or Cash Merger Early Settlement shall
have occurred prior to the Purchase Contract Settlement Date, or a Cash
Settlement shall have occurred, transfer the Senior Notes, the Treasury
Securities, or the Applicable Ownership Interests in the Treasury Portfolio, as
the case may be, underlying such Certificate, in each case subject to the
applicable conditions and in accordance with the applicable provisions of
Section 3.15 and Article 5 hereof.


 


Section 3.06.  Book-entry Interests.  The Certificates, on original
issuance, will be issued in definitive certificated form and will bear the
Restrictive Legend, if required by the Company.  Upon the sale of the Units to the Underwriters pursuant to the
Underwriting Agreement, the Restrictive Legend will be removed and Certificates
will be issued in the form of one or more fully registered Global Certificates,
to be delivered to the Depositary or its custodian by, or on behalf of, the
Company.  The Company hereby designates
DTC as the initial Depositary.  Such
Global Certificates shall initially be registered on the Security Register in
the name of Cede & Co., the nominee of the Depositary, and no Beneficial
Owner will receive a definitive Certificate representing such Beneficial
Owner’s interest in such Global Certificate, except as provided in Section
3.09.  The Purchase Contract Agent shall
enter into an agreement with the Depositary if so requested by the Company.  Following the issuance of such Global
Certificates and unless and until definitive, and fully registered Certificates
have been issued to Beneficial Owners pursuant to Section 3.09:


 


(i)    the
provisions of this Section 3.06 shall be in full force and effect;


 


(ii)   the
Company shall be entitled to deal with the Depositary for all purposes of this
Agreement (including, without limitation, making Contract Adjustment Payments
and receiving approvals, votes or consents hereunder) as the Holder of the
Units and the sole holder of the Global Certificates and shall have no
obligation to the Beneficial Owners; provided that a Beneficial Owner may
directly enforce against the Company, without any consent, proxy, waiver or
involvement of the Depositary of any kind, such Beneficial Owner’s right to
receive a definitive 


 


26

















 


Certificate representing the Units
beneficially owned by such Beneficial Owner, as set forth in Section 3.09;


 


(iii) to
the extent that the provisions of this Section 3.06 conflict with any other
provisions of this Agreement, the provisions of this Section 3.06 shall
control; and


 


(iv)  except
as set forth in the proviso of clause (ii) of this Section 3.06, the rights of
the Beneficial Owners shall be exercised only through the Depositary and shall
be limited to those established by law and agreements between such Beneficial
Owners and the Depositary or the Depositary Participants.  The Depositary will make book-entry
transfers among Depositary Participants and receive and transmit payments of
Contract Adjustment Payments to such Depositary Participants.


 


Transfers of securities evidenced by Global Certificates shall be made
through the facilities of the Depositary, and any cancellation of, or increase
or decrease in the number of, such securities (including the creation of
Treasury Units and the recreation of Corporate Units pursuant to Section 3.13
and Section 3.14 respectively) shall be accomplished by making appropriate
annotations on the Schedule of Increases and Decreases set forth in such Global
Certificate.


 


Section 3.07.  Notices to Holders.  Whenever a notice or other
communication to the Holders is required to be given under this Agreement, the
Company or the Company’s agent shall give such notices and communications to
the Holders and, with respect to any Units registered in the name of the
Depositary or the nominee of the Depositary, the Company or the Company’s agent
shall, except as set forth herein, have no obligations to the Beneficial
Owners.


 


Section 3.08.  Appointment of Successor Depositary.  If the Depositary elects to
discontinue its services as securities depositary with respect to the Units,
the Company may, in its sole discretion, appoint a successor Depositary with
respect to the Units.


 


Section 3.09.  Definitive Certificates.


 


If:


 


(i)    the
Depositary notifies the Company that it is unwilling or unable to continue its
services as securities depositary with respect to the Units and no successor
Depositary has been appointed pursuant to Section 3.08 within 90 days after
such notice;


 


(ii)   the
Depositary ceases to be a “clearing agency” registered under Section 17A of the
Exchange Act when the Depositary is required to be so registered to act as the
Depositary and so notifies the Company, and no successor 


 


27

















 


Depositary has been appointed pursuant to
Section 3.08 within 90 days after such notice;


 


(iii) to
the extent permitted by the Depositary, the Company determines at any time that
the Units shall no longer be represented by Global Certificates and shall
inform such Depositary of such determination and participants in such
Depository elect to withdraw their beneficial interests in the Units from such
Depository, following notification by the Depository of their right to do so;
or


 


(iv)  a
Beneficial Owner requests to exchange such Beneficial Owner’s interest in the
Global Certificates for definitive Certificates in order to exercise or enforce
such Beneficial Owner’s rights under the Units represented by such Global
Certificates;


 


then (x)
definitive Certificates shall be prepared by the Company with respect to such
Units and delivered to the Purchase Contract Agent and (y) upon surrender of
the Global Certificates representing the Units by the Depositary, accompanied
by registration instructions (other than in the case of clause (iv) above), the
Company shall cause definitive Certificates to be delivered to Beneficial
Owners in accordance with instructions provided by the Depositary.  The Company and the Purchase Contract Agent
shall not be liable for any delay in delivery of such instructions and may
conclusively rely on and shall be authorized and protected in relying on, such
instructions.  Each definitive
Certificate so delivered shall evidence Units of the same kind and tenor as the
Global Certificate so surrendered in respect thereof.


 


Section 3.10.  Mutilated, Destroyed, Lost and Stolen
Certificates.  If
any mutilated Certificate is surrendered to the Purchase Contract Agent, the
Company shall execute and deliver to the Purchase Contract Agent, and the
Purchase Contract Agent shall authenticate, execute on behalf of the Holder,
and deliver in exchange therefor, a new Certificate, evidencing the same number
of Corporate Units or Treasury Units, as the case may be, and bearing a Certificate
number not contemporaneously outstanding.


 


If there shall
be delivered to the Company and the Purchase Contract Agent (i) evidence to
their satisfaction of the destruction, loss or theft of any Certificate, and
(ii) such security or indemnity as may be required by them to hold each of them
and any agent of any of them harmless, then, in the absence of notice to the
Company or the Purchase Contract Agent that such Certificate has been acquired
by a protected purchaser, the Company shall execute and deliver to the Purchase
Contract Agent, and the Purchase Contract Agent shall authenticate, execute on
behalf of the Holder, and deliver to the Holder, in lieu of any such destroyed,
lost or stolen Certificate, a new Certificate, evidencing the same number of Corporate
Units or Treasury Units, as the case may be, and bearing a Certificate number
not contemporaneously outstanding.


 


Notwithstanding
the foregoing, the Company shall not be obligated to execute and deliver to the
Purchase Contract Agent, and the Purchase Contract Agent shall not be 


 


28

















 


obligated to authenticate, execute on behalf
of the Holder, and deliver to the Holder, a Certificate on or after the
Business Day immediately preceding the earliest of any Early Settlement Date
with respect to such lost or mutilated Certificate, any Cash Merger Early
Settlement Date with respect to such lost or mutilated Certificate, the
Purchase Contract Settlement Date or the Termination Date.  In lieu of delivery of a new Certificate,
upon satisfaction of the applicable conditions specified above in this Section
and receipt of appropriate registration or transfer instructions from such
Holder, the Purchase Contract Agent shall:


 


(i)    if
the Purchase Contract Settlement Date (including upon any Cash Settlement) or
an Early Settlement Date or a Cash Merger Early Settlement Date with respect to
such lost, stolen, destroyed or mutilated Certificate has occurred, deliver the
shares of Common Stock issuable in respect of the Purchase Contracts forming a
part of the Units evidenced by such Certificate; and


 


(ii)   if
a Termination Event, Cash Merger Early Settlement or an Early Settlement with
respect to such lost or mutilated Certificate shall have occurred prior to the
Purchase Contract Settlement Date or a Cash Settlement shall have occurred,
transfer the Senior Notes, the Treasury Securities or the Applicable Ownership
Interests in the Treasury Portfolio, as the case may be, underlying such
Certificate, in each case subject to the applicable conditions and in
accordance with the applicable provisions of Section 3.15 and Article 5 hereof.


 


Upon the
issuance of any new Certificate under this Section, the Company and the
Purchase Contract Agent may require the payment by the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other fees and expenses (including, without
limitation, the fees and expenses of the Purchase Contract Agent) connected
therewith.


 


Every new Certificate
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Certificate shall constitute an original additional contractual obligation of
the Company and of the Holder in respect of the Units evidenced thereby,
whether or not the destroyed, lost or stolen Certificate (and the Units
evidenced thereby) shall be at any time enforceable by anyone, and shall be
entitled to all the benefits and be subject to all the obligations of this
Agreement equally and proportionately with any and all other Certificates
delivered hereunder.


 


The provisions
of this Section are exclusive and shall preclude, to the extent lawful, all
other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Certificates.


 


Section 3.11.  Persons Deemed Owners.  Prior to due presentment of a
Certificate for registration of transfer, the Company and the Purchase Contract
Agent, and any agent of the Company or the Purchase Contract Agent, may treat
the Person in whose name such Certificate is registered as the owner of the
Units evidenced thereby for purposes of 


 


29

















 


(subject to any applicable record date) any
payment or distribution with respect to the Applicable Ownership Interests in
Senior Notes, or on the Applicable Ownership Interests in the Treasury
Portfolio (as specified in clause (ii) of the definition of such term), as
applicable, payment of Contract Adjustment Payments and performance of the
Purchase Contracts and for all other purposes whatsoever in connection with
such Units, whether or not such payment, distribution, or performance shall be
overdue and notwithstanding any notice to the contrary, and neither the Company
nor the Purchase Contract Agent, nor any agent of the Company or the Purchase
Contract Agent, shall be affected by notice to the contrary.


 


Notwithstanding
the foregoing, with respect to any Global Certificate, nothing contained herein
shall prevent the Company, the Purchase Contract Agent or any agent of the
Company or the Purchase Contract Agent, from giving effect to any written
certification, proxy or other authorization furnished by the Depositary (or its
nominee), as a Holder, with respect to such Global Certificate, or impair, as
between such Depositary and the related Beneficial Owner, the operation of
customary practices governing the exercise of rights of the Depositary (or its
nominee) as Holder of such Global Certificate. 
None of the Company, the Purchase Contract Agent or any agent of the Company
or the Purchase Contract Agent will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Certificate or maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.


 


Section 3.12.  Cancellation.  All Certificates surrendered for
delivery of shares of Common Stock on or after the Purchase Contract Settlement
Date or in connection with an Early Settlement or a Cash Merger Early
Settlement or for delivery of the Senior Notes underlying the Applicable
Ownership Interests in Senior Notes, the Applicable Ownership Interests in the
Treasury Portfolio or Treasury Securities, as the case may be, after the
occurrence of a Termination Event or pursuant to a Cash Settlement, an Early
Settlement or a Cash Merger Early Settlement, a Collateral Substitution, or
upon the registration of transfer or exchange of a Unit, shall, if surrendered
to any Person other than the Purchase Contract Agent, be delivered to the
Purchase Contract Agent along with appropriate written instructions regarding
the cancellation thereof and, if not already cancelled, shall be promptly
cancelled by it. The Company may at any time deliver to the Purchase Contract
Agent for cancellation any Certificates previously authenticated, executed and
delivered hereunder that the Company may have acquired in any manner
whatsoever, and all Certificates so delivered shall, upon an Issuer Order, be
promptly cancelled by the Purchase Contract Agent.  No Certificates shall be authenticated, executed on behalf of the
Holder and delivered in lieu of or in exchange for any Certificates cancelled
as provided in this Section 3.12, except as expressly permitted by this
Agreement.  All cancelled Certificates
held by the Purchase Contract Agent shall be disposed of in accordance with its
customary practices.


 


30

















 


If the Company
or any Affiliate of the Company shall acquire any Certificate, such acquisition
shall not operate as a cancellation of such Certificate unless and until such
Certificate is delivered to the Purchase Contract Agent cancelled or for
cancellation.


 


Section 3.13.  Creation of Treasury Units by Substitution
of Treasury Securities.  (a)
Unless Applicable Ownership Interests in the Treasury Portfolio have replaced
the Applicable Ownership Interests in Senior Notes as a component of the
Corporate Units, and subject to the conditions set forth in this Agreement, a
Holder of Corporate Units may, at any time from and after the date of this
Agreement and prior to 5:00 p.m. (New York City time) on the seventh Business
Day immediately preceding the Purchase Contract Settlement Date, effect a
Collateral Substitution and separate the Senior Notes underlying Applicable
Ownership Interests in Senior Notes in respect of such Holder’s Corporate Units
by substituting for such Applicable Ownership Interests in Senior Notes,
Treasury Securities in an aggregate principal amount at maturity equal to the
aggregate principal amount of the Senior Notes underlying the Applicable
Ownership Interests in Senior Notes; provided that Holders may make Collateral
Substitutions only in integral multiples of 40 Corporate Units.  To effect such substitution, the Holder
must:


 


(1)                                  Transfer
to the Securities Intermediary, for credit to the Collateral Account, Treasury
Securities or security entitlements with respect thereto having a Value equal
to the aggregate principal amount of the Senior Notes underlying the Pledged
Applicable Ownership Interests in Senior Notes for which such Collateral
Substitution is made; and


 


(2)                                  Transfer
the related Corporate Units to the Purchase Contract Agent accompanied by a
notice to the Purchase Contract Agent, substantially in the form of Exhibit C
hereto, whereupon the Purchase Contract Agent shall promptly provide an
instruction to such effect to the Collateral Agent, substantially in the form
of Exhibit G hereto.


 


Upon confirmation that the Treasury Securities described in clause (1)
above or security entitlements with respect thereto have been credited to the
Collateral Account and receipt of the instruction to the Collateral Agent
described in clause (2) above, the Collateral Agent shall release such Pledged
Applicable Ownership Interests in Senior Notes from the Pledge and instruct the
Securities Intermediary by a notice, substantially in the form of Exhibit H
hereto, to Transfer the Senior Notes underlying such Pledged Applicable
Ownership Interests in Senior Notes to the Purchase Contract Agent for
distribution to such Holder, free and clear of the Pledge created hereby.


 


Upon credit to
the Collateral Account of Treasury Securities or security entitlements with
respect thereto delivered by a Holder of Corporate Units and receipt of the
related instruction from the Collateral Agent, the Securities Intermediary
shall promptly Transfer the Senior Notes underlying the appropriate Pledged
Applicable Ownership Interests in Senior Notes to the Purchase Contract Agent
for distribution to such Holder, free and clear of the Pledge created hereby.


 


31

















 


Upon receipt
of the Senior Notes underlying such Pledged Applicable Ownership Interests in
Senior Notes, the Purchase Contract Agent shall promptly:


 


(i)    cancel
the related Corporate Units;


 


(ii)   Transfer
the Senior Notes to the Holder; and


 


(iii) deliver
Treasury Units in book-entry form, or if applicable, authenticate, execute on
behalf of such Holder and deliver Treasury Units in the form of a Treasury
Units Certificate executed by the Company in accordance with Section 3.03
evidencing the same number of Purchase Contracts as were evidenced by the
cancelled Corporate Units.


 


Holders who
elect to separate the Senior Notes by substituting Treasury Securities for
Applicable Ownership Interest in Senior Notes shall be responsible for any fees
or expenses (including, without limitation, fees and expenses payable to the
Collateral Agent) in respect of the substitution, and neither the Company nor
the Purchase Contract Agent shall be responsible for any such fees or expenses.


 


(b)       If Applicable
Ownership Interests in the Treasury Portfolio have replaced Applicable
Ownership Interests in Senior Notes as a component of the Corporate Units, and
subject to the conditions set forth in this Agreement, a Holder of Corporate
Units may, at any time from and after the date of this Agreement and prior to
5:00 p.m. (New York City time) on the seventh Business Day immediately
preceding the Purchase Contract Settlement Date, substitute Treasury Securities
for the Pledged Applicable Ownership Interests in the Treasury Portfolio
included in such Corporate Units, but only in integral multiples of 25,000
Corporate Units.  In such an event, the
Holder shall Transfer Treasury Securities having an aggregate principal amount
at maturity equal to equal to the aggregate Stated Amount of the Purchase
Contracts constituting a part of the Corporate Units for which Collateral
Substitution is being made to the Securities Intermediary, for credit to the
Collateral Account, and the Purchase Contract Agent, Collateral Agent and
Securities Intermediary shall effect a Collateral Substitution for the
appropriate Pledged Applicable Ownership Interests in the Treasury Portfolio in
the manner set forth in clause (a) above.


 


(c)       In the event a
Holder making a Collateral Substitution pursuant to this Section 3.13 fails to
effect a book-entry transfer of the Corporate Units or fails to deliver
Corporate Units Certificates to the Purchase Contract Agent after depositing
Treasury Securities with the Securities Intermediary, any distributions on the
Senior Notes underlying the Applicable Ownership Interests in Senior Notes, or
with respect to the Applicable Ownership Interests in the Treasury Portfolio,
in each case constituting a part of such Corporate Units, shall be held in the
name of the Purchase Contract Agent or its nominee in trust for the benefit of
such Holder, until such Corporate Units are so transferred or the Corporate
Units Certificate is so delivered, as the case may be, or such Holder provides
evidence satisfactory to the Company and the Purchase Contract Agent 


 


32

















 


that such Corporate Units Certificate has
been destroyed, lost or stolen, together with any indemnity that may be
required by the Purchase Contract Agent and the Company.


 


(d)       Except as
described in Section 5.02 or in this Section 3.13 or in connection with a Cash
Settlement, an Early Settlement, a Cash Merger Early Settlement or a
Termination Event, for so long as the Purchase Contract underlying a Corporate
Unit remains in effect, such Corporate Units shall not be separable into its
constituent parts, and the rights and obligations of the Holder in respect of
the Applicable Ownership Interests in Senior Notes or Applicable Ownership
Interests in the Treasury Portfolio, as the case may be, and the Purchase
Contract comprising such Corporate Units may be acquired, and may be
transferred and exchanged, only as a Corporate Unit.


 


Section 3.14.  Recreation of Corporate Units.  (a) Unless Applicable Ownership
Interests in the Treasury Portfolio have replaced Applicable Ownership
Interests in Senior Notes as a component of the Corporate Units, and subject to
the conditions set forth in this Agreement, a Holder of Treasury Units may
recreate Corporate Units at any time from and after the date of this Agreement
and prior to 5:00 p.m. (New York City time) on the seventh Business Day
immediately preceding the Purchase Contract Settlement Date; provided that
Holders of Treasury Units may only recreate Corporate Units in integral
multiples of 40 Treasury Units.  To
recreate Corporate Units, the Holder must:


 


(1)                                  Transfer
to the Securities Intermediary for credit to the Collateral Account Senior
Notes or security entitlements with respect thereto having an aggregate
principal amount equal to the Value of the Pledged Treasury Securities to be
released; and


 


(2)                                  Transfer
the related Treasury Units to the Purchase Contract Agent accompanied by a
notice to the Purchase Contract Agent, substantially in the form of Exhibit C
hereto, whereupon the Purchase Contract Agent shall promptly provide an
instruction to such effect to the Collateral Agent, substantially in the form
of Exhibit I hereto.


 


Upon
confirmation that the Senior Notes described in clause (1) above or security
entitlements with respect thereto has been credited to the Collateral Account
and receipt of the instruction from the Purchase Contract Agent described in
clause (2) above, the Collateral Agent shall release such
Pledged Treasury Securities from the Pledge and shall instruct the Securities
Intermediary by a notice, substantially in the form of Exhibit J hereto, to
Transfer such Pledged Treasury Securities to the Purchase Contract Agent for
distribution to such Holder, free and clear of the Pledge created hereby.


 


Upon credit to
the Collateral Account of Senior Notes or security entitlements with respect
thereto delivered by a Holder of Treasury Units and receipt of the related instruction
from the Collateral Agent, the Securities Intermediary shall promptly Transfer
the Pledged Treasury Securities to the Purchase Contract Agent for distribution
to such Holder, free and clear of the Pledge created hereby.


 


33

















 


Upon receipt
of such Treasury Securities, the Purchase Contract Agent shall promptly:


 


(i)    cancel
the related Treasury Units;


 


(ii)   Transfer
the Treasury Securities to the Holder; and


 


(iii) deliver
Corporate Units in book-entry form or, if applicable, authenticate, execute on
behalf of such Holder and deliver Corporate Units in the form of a Corporate
Units Certificate executed by the Company in accordance with Section 3.03
evidencing the same number of Purchase Contracts as were evidenced by the
cancelled Treasury Units.


 


Holders who
elect to recreate Corporate Units shall be responsible for any fees or expenses
(including, without limitation, fees and expenses payable to the Collateral
Agent), in respect of the recreation, and neither the Company nor the Purchase
Contract Agent shall be responsible for any such fees or expenses.


 


(b)       If Applicable
Ownership Interests in the Treasury Portfolio have replaced Applicable
Ownership Interests in Senior Notes as a component of the Corporate Units and
subject to the conditions set forth in this Agreement, a Holder of Treasury
Units may at any time from and after the date of this Agreement and prior to
5:00 p.m. (New York City time) on the seventh Business Day immediately
preceding the Purchase Contract Settlement Date substitute the Pledged
Applicable Ownership Interests in the Treasury Portfolio for Treasury
Securities included in such Treasury Units, but only in multiples of 25,000
Treasury Units.  In such an event, the
Holder shall Transfer Applicable Ownership Interests in the Treasury Portfolio
having a Value equal to the aggregate Value of the Treasury Securities for
which substitution is being made to the Securities Intermediary, for credit to
the Collateral Account, and the Purchase Contract Agent, Collateral Agent and
Securities Intermediary shall effect a Collateral Substitution and release the
Pledged Applicable Ownership Interests in the Treasury Portfolio from the
Pledge in the manner set forth in clause (a) above.


 


(c)       Except as
provided in Section 5.02 or in this Section 3.14 or in connection with a Cash
Settlement, an Early Settlement, a Cash Merger Early Settlement or a
Termination Event, for so long as the Purchase Contract underlying a Treasury
Unit remains in effect, such Treasury Unit shall not be separable into its
constituent parts and the rights and obligations of the Holder of such Treasury
Unit in respect of the interest in the Treasury Security and the Purchase
Contract comprising such Treasury Unit may be acquired, and may be transferred
and exchanged, only as a Treasury Unit.


 


Section 3.15.  Transfer of Collateral Upon Occurrence of
Termination Event.  (a)
Upon receipt by the Collateral Agent of written notice pursuant to Section 5.06
hereof from the Company or the Purchase Contract Agent that a Termination Event
has occurred, 


 


34

















 


the Collateral Agent shall release all
Collateral from the Pledge and shall promptly instruct the Securities
Intermediary to Transfer:


 


(i)    any
Senior Notes underlying Pledged Applicable Ownership Interests in Senior Notes
or security entitlements with respect thereto or Pledged Applicable Ownership
Interests in the Treasury Portfolio;


 


(ii)   any
Pledged Treasury Securities;


 


(iii) any
payments by Holders (or the Permitted Investments of such payments) pursuant to
Section 5.02 hereof; and


 


(iv)  any
Proceeds and all other payments the Collateral Agent receives in respect of the
foregoing,


 


to the Purchase Contract Agent for the benefit of the Holders for
distribution to such Holders, in accordance with their respective interests,
free and clear of the Pledge created hereby; provided,
however, if any Holder or
Beneficial Owner shall be entitled to receive Senior Notes in an aggregate
principal amount of less than $1,000, or greater than $1,000 but not in an
integral multiple of $1,000, the Purchase Contract Agent shall request, on
behalf of such Holder or Beneficial Owner, pursuant to Section 2.03 of the
Supplemental Indenture that the Company issue Senior Notes in denominations of
$25, or integral multiples thereof, in exchange for Senior Notes in
denominations of $1,000 or integral multiples thereof; and provided further, if any
Holder shall be entitled to receive less than $1,000 with respect to its
Pledged Applicable Ownership Interests in the Treasury Portfolio or its Pledged
Treasury Securities, the Purchase Contract Agent shall dispose of such Pledged
Applicable Ownership Interests in the Treasury Portfolio or Pledged Treasury
Securities for cash and deliver to such Holder cash in lieu of delivering the
Pledged Applicable Ownership Interests in the Treasury Portfolio or Pledged
Treasury Securities, as the case may be.


 


(b)       Notwithstanding
anything to the contrary in clause (a) of this Section 3.15, if such
Termination Event shall result from the Company’s becoming a debtor under the
Bankruptcy Code, and if the Collateral Agent shall for any reason fail promptly
to effectuate the release and Transfer of all Senior Notes underlying Pledged
Applicable Ownership Interests in Senior Notes, Pledged Applicable Ownership
Interests in the Treasury Portfolio, Pledged Treasury Securities and payments
by Holders (or the Permitted Investments of such payments) pursuant to Section
5.02 and Proceeds and all other payments received by the Collateral Agent in
respect of the foregoing, as the case may be, as provided by this Section 3.15,
the Purchase Contract Agent shall use its best efforts to obtain an opinion of
a nationally recognized law firm to the effect that, notwithstanding the
Company’s being the debtor in such a bankruptcy case, the Collateral Agent will
not be prohibited from releasing or Transferring the Collateral as provided in
this Section 3.15, and shall deliver or cause to be delivered such opinion to
the Collateral Agent within ten days after the occurrence of such Termination
Event, and if (A) the Purchase Contract 


 


35

















 


Agent shall be unable to obtain such opinion
within ten days after the occurrence of such Termination Event or (B) the
Collateral Agent shall continue, after delivery of such opinion, to refuse to
effectuate the release and Transfer of all Senior Notes underlying Pledged
Applicable Ownership Interests in Senior Notes, Pledged Applicable Ownership
Interests in the Treasury Portfolio, Pledged Treasury Securities and the
payments by Holders (or the Permitted Investments of such payments) pursuant to
Section 5.02 hereof and Proceeds and all other payments received by the
Collateral Agent in respect of the foregoing, as the case may be, as provided
in this Section 3.15, then the Purchase Contract Agent shall within fifteen
days after the occurrence of such Termination Event commence an action or
proceeding in the court having jurisdiction of the Company’s case under the
Bankruptcy Code seeking an order requiring the Collateral Agent to effectuate
the release and transfer of all Senior Notes underlying Pledged Applicable
Ownership Interests in Senior Notes, Pledged Applicable Ownership Interest in
the Treasury Portfolio, Pledged Treasury Securities and the payments by Holders
(or the Permitted Investments of such payments) pursuant to Section 5.02 hereof
and Proceeds and all other payments received by the Collateral Agent in respect
of the foregoing, or as the case may be, as provided by this Section 3.15.


 


(c)       Upon the
occurrence of a Termination Event and the Transfer to the Purchase Contract
Agent of the Senior Notes underlying Pledged Applicable Ownership Interests in
Senior Notes, the appropriate Pledged Applicable Ownership Interests in the
Treasury Portfolio or the Pledged Treasury Securities, as the case may be,
pursuant to Section 3.15, the Purchase Contract Agent shall request transfer
instructions with respect to such Senior Notes, Applicable Ownership Interests
in the Treasury Portfolio or Pledged Treasury Securities, as the case may be,
from each Holder by written request, substantially in the form of Exhibit D
hereto, mailed to such Holder at its address as it appears in the Security
Register.


 


(d)       Upon book-entry
transfer of the Corporate Units or the Treasury Units or delivery of a
Corporate Units Certificate or Treasury Units Certificate to the Purchase
Contract Agent with such transfer instructions, the Purchase Contract Agent
shall transfer the Senior Notes underlying Pledged Applicable Ownership
Interests in Senior Notes, the Pledged Applicable Ownership Interests in the
Treasury Portfolio or Pledged Treasury Securities, as the case may be,
underlying such Corporate Units or Treasury Units, as the case may be, to such
Holder by book-entry transfer, or other appropriate procedures, in accordance
with such instructions and, in the case of the Senior Notes underlying Pledged
Applicable Ownership Interests in Senior Notes, in accordance with the terms of
the Supplemental Indenture.  In the
event a Holder of Corporate Units or Treasury Units fails to effect such
transfer or delivery, the Senior Notes underlying Pledged Applicable Ownership
Interests in Senior Notes, the Pledged Applicable Ownership Interests in the
Treasury Portfolio or Pledged Treasury Securities, as the case may be,
underlying such Corporate Units of Treasury Units, as the case may be, and any
distributions thereon, shall be held in the name of the Purchase Contract Agent
or its nominee in trust for the benefit of such Holder, until the earlier to
occur of:


 


36

















 


(i)    the
transfer of such Corporate Units or Treasury Units or surrender of the
Corporate Units Certificate or Treasury Units Certificate or the receipt by the
Company and the Purchase Contract Agent from such Holder of satisfactory
evidence that such Corporate Units Certificate or Treasury Units Certificate
has been destroyed, lost or stolen, together with any indemnity that may be
required by the Purchase Contract Agent and the Company; and


 


(ii)   the
expiration of the time period specified by the applicable law governing
abandoned property in the state in which the Purchase Contract Agent holds such
property.


 


Section 3.16.  No Consent to Assumption.  Each Holder of a Unit, by
acceptance thereof, shall be deemed expressly to have withheld any consent to
the assumption under Section 365 of the Bankruptcy Code or otherwise, of the
Purchase Contract by the Company or its trustee, receiver, liquidator or a
person or entity performing similar functions in the event that the Company
becomes a debtor under the Bankruptcy Code or subject to other similar state or
Federal law providing for reorganization or liquidation.


 


Section 3.17.  Substitutions.  Whenever a Holder has the right
to substitute Treasury Securities, Senior Notes underlying Applicable Ownership
Interests in Senior Notes or the Applicable Ownership Interests in the Treasury
Portfolio (as defined in clause (i) of the definition of such term), as the
case may be, or security entitlements for any of them for financial assets held
in the Collateral Account, such substitution shall not constitute a novation of
the security interest created hereby.


 


ARTICLE 4

THE SENIOR NOTES


 


Section 4.01.  Interest Payments; Rights to Interest
Payments Preserved.  (a)
The Collateral Agent (if the Senior Notes underlying Pledged Applicable
Ownership Interests in Senior Notes are in the name of the Collateral Agent)
shall transfer all income and distributions received by it on account of the
Senior Notes underlying Pledged Applicable Ownership Interests in Senior Notes,
the Pledged Applicable Ownership Interests in the Treasury Portfolio or
Permitted Investments from time to time held in the Collateral Account (ABA
No. 021000018, Global Plus A/C No. 128037, Re: Genworth Financial,
Inc. Collateral Account) to the Purchase Contract Agent for distribution to the
applicable Holders as provided in this Agreement and the Purchase Contracts.


 


(b)       Any payment on
any Senior Note underlying Applicable Ownership Interests in Senior Notes or
any distribution on any Applicable Ownership Interests in the Treasury
Portfolio (as specified in clause (ii) of the definition of such term), as the
case may be, which is paid on any Payment Date shall, subject to receipt
thereof by the Purchase Contract Agent from the Company or from the Collateral
Agent as provided in Section 4.01(a) above, be paid to the Person in whose name
the Corporate Units Certificate (or one or more Predecessor Corporate Units
Certificates) of which such Applicable Ownership 


 


37

















 


Interest in Senior Notes or Applicable
Ownership Interests in the Treasury Portfolio, as the case may be, forms a part
is registered at the close of business on the Record Date for such Payment
Date.


 


(c)       Each Corporate
Units Certificate evidencing Applicable Ownership Interests in Senior Notes or
Applicable Ownership Interests in the Treasury Portfolio delivered under this
Agreement upon registration of transfer of or in exchange for or in lieu of any
other Corporate Units Certificate shall carry the right to accrued and unpaid
interest or distributions, and to accrued interest or distributions, which were
carried by Applicable Ownership Interests in Senior Notes or Applicable
Ownership Interests in the Treasury Portfolio underlying such other Corporate
Units Certificate.


 


(d)       In the case of
any Corporate Unit with respect to which (1) Cash Settlement of the underlying
Purchase Contract is properly effected pursuant to Section 5.02(a) hereof, (2)
Early Settlement of the underlying Purchase Contract is properly effected
pursuant to Section 5.07 hereof, (3) Cash Merger Early Settlement of the
underlying Purchase Contract is properly effected pursuant to Section
5.04(b)(ii) hereof (4) a Collateral Substitution is properly effected pursuant
to Section 3.13, in each case on a date that is after any Record Date and prior
to or on the next succeeding Payment Date, interest in respect of the Senior
Notes underlying Applicable Ownership Interests in Senior Notes or
distributions on Applicable Ownership Interests in the Treasury Portfolio, as
the case may be, underlying such Corporate Unit otherwise payable on such
Payment Date shall be payable on such Payment Date notwithstanding such Cash
Settlement, Early Settlement, Cash Merger Early Settlement or Collateral
Substitution, and such payment or distributions shall, subject to receipt
thereof by the Purchase Contract Agent, be payable to the Person in whose name
the Corporate Units Certificate (or one or more Predecessor Corporate Units
Certificates) was registered at the close of business on the Record Date.


 


(e)       Except as
otherwise expressly provided in Section 4.01(d) hereof, in the case of any
Corporate Unit with respect to which Cash Settlement, Early Settlement or Cash
Merger Early Settlement of the component Purchase Contract is properly
effected, or with respect to which a Collateral Substitution has been effected,
payments attributable to the Senior Notes underlying Applicable Ownership
Interests in Senior Notes or distributions on Applicable Ownership Interests in
the Treasury Portfolio, as the case may be, that would otherwise be payable or
made after the Purchase Contract Settlement Date, Early Settlement Date, Cash
Merger Early Settlement Date or the date of the Collateral Substitution, as the
case may be, shall not be payable hereunder to the Holder of such Corporate
Units; provided,
however,
that to the extent that such Holder continues to hold Separate Senior Notes or
Applicable Ownership Interests in the Treasury Portfolio that formerly
comprised a part of such Holder’s Corporate Units, such Holder shall be
entitled to receive interest on such Separate Senior Notes or distributions on
such Applicable Ownership Interests in the Treasury Portfolio.


 


Section 4.02.  Payments Prior to or on Purchase Contract
Settlement Date.  (a)  Subject
to the provisions of Section 5.02(a), Section 5.04(b)(ii) and Section 5.07, and



 


38

















 


except as provided in Section 4.02(b) below,
if no Termination Event shall have occurred, all payments received by the
Securities Intermediary in respect of (1) the principal amount of the Senior
Notes underlying Pledged Applicable Ownership Interests in Senior Notes,
(2) the Pledged Applicable Ownership Interests in the Treasury Portfolio
and (3) the Pledged Treasury Securities, shall be credited to the Collateral
Account, to be invested in Permitted Investments until the Purchase Contract
Settlement Date, and transferred to the Company on the Purchase Contract
Settlement Date as provided in Section 5.02 hereof. Any balance remaining in
the Collateral Account shall be released from the Pledge and transferred to the
Purchase Contract Agent for the benefit of the applicable Holders for
distribution to such Holders in accordance with their respective interests,
free and clear of the Pledge created hereby. 
The Company shall instruct the Collateral Agent in writing as to the
specific Permitted Investments in which any payments made under this Section
4.02 shall be invested, provided,
however, that if the Company
fails to deliver such instructions by 10:30 a.m. (New York City time) on the
day such payments are received by the Securities Intermediary, the Collateral
Agent shall instruct the Securities Intermediary to invest such payments in the
Permitted Investments described in clause (6) of the definition of Permitted
Investments.  In no event shall the
Collateral Agent be liable for the selection of Permitted Investments or for
investment losses incurred thereon. The Collateral Agent shall have no
liability in respect of losses incurred as a result of the failure of the
Company to provide timely written investment direction.


 


(b)       All payments
received by the Securities Intermediary in respect of (1) the Senior Notes,
(2) the Applicable Ownership Interests in the Treasury Portfolio and (3)
the Treasury Securities or security entitlements with respect thereto, that, in
each case, have been released from the Pledge pursuant hereto shall be
transferred to the Purchase Contract Agent for the benefit of the applicable
Holders for distribution to such Holders in accordance with their respective
interests.


 


Section 4.03.  Notice and Voting.  (a) Subject to Section 4.03(b)
hereof, the Purchase Contract Agent may exercise, or refrain from exercising,
any and all voting and other consensual rights pertaining to the Senior Notes
underlying Pledged Applicable Ownership Interests in Senior Notes or any part
thereof for any purpose not inconsistent with the terms of this Agreement; provided that the Purchase Contract Agent
shall not exercise or shall not refrain from exercising such right, as the case
may be, if, in the judgment of the Purchase Contract Agent, such action would
impair or otherwise have a material adverse effect on the value of all or any
of the Senior Notes underlying Pledged Applicable Ownership Interests in Senior
Notes; and provided  further that the Purchase Contract Agent
shall give the Company and the Collateral Agent at least five Business Days’
prior written notice of the manner in which it intends to exercise, or its
reasons for refraining from exercising, any such right. Upon receipt of any
notices and other communications in respect of any Senior Notes underlying
Pledged Applicable Ownership Interests in Senior Notes, including either notice
of any meeting at which holders of the Senior Notes are entitled to vote or the
solicitation of consents, waivers or proxies of holders of the Senior Notes,
the Collateral Agent shall use reasonable efforts to send promptly to the
Purchase Contract Agent such notice or communication, and as soon as 


 


39

















 


reasonably practicable after receipt of a
written request therefor from the Purchase Contract Agent, to execute and
deliver to the Purchase Contract Agent such proxies and other instruments in
respect of such Senior Notes underlying Pledged Applicable Ownership Interests
in Senior Notes (in form and substance satisfactory to the Collateral Agent) as
are prepared by the Company and delivered to the Purchase Contract Agent with
respect to the Senior Notes underlying Pledged Applicable Ownership Interests
in Senior Notes.


 


(b)       Upon receipt of
notice of any meeting at which holders of Senior Notes are entitled to vote or
upon any solicitation of consents, waivers or proxies of holders of Senior
Notes, the Purchase Contract Agent shall, as soon as practicable thereafter,
mail, first class, postage pre-paid, to the Holders of Corporate Units a
notice:


 


(i)    containing
such information as is contained in the notice or solicitation;


 


(ii)   stating
that each Holder on the record date set by the Purchase Contract Agent therefor
(which, to the extent possible, shall be the same date as the record date set
by the Company for determining the holders of Senior Notes entitled to vote)
shall be entitled to instruct the Purchase Contract Agent as to the exercise of
the voting rights pertaining to the Senior Notes underlying the Applicable
Ownership Interests in Senior Notes that are a component of their Corporate
Units; and


 


(iii) stating
the manner in which such instructions may be given.


 


Upon the
written request of the Holders of Corporate Units on such record date received
by the Purchase Contract Agent at least six days prior to such meeting, the
Purchase Contract Agent shall endeavor insofar as practicable to vote or cause
to be voted, in accordance with the instructions set forth in such requests,
the maximum aggregate principal amount of Senior Notes (rounded down to the
nearest integral multiple of $1,000) as to which any particular voting
instructions are received.  In the
absence of specific instructions from the Holder of Corporate Units, the
Purchase Contract Agent shall abstain from voting the Senior Notes underlying
Applicable Ownership Interests in Senior Notes that are a component of such
Corporate Units.  The Company hereby
agrees, if applicable, to solicit Holders of Corporate Units to timely instruct
the Purchase Contract Agent as to the exercise of such voting rights in order
to enable the Purchase Contract Agent to vote such Senior Notes.


 


(c)       The Holders of
Corporate Units and the Holders of Treasury Units shall have no voting or other
rights in respect of Common Stock.


 


40

















 


Section 4.04.  Special Event Redemption.


 


(a)       If the Company
elects to redeem the Senior Notes following the occurrence of a Special Event
as permitted by the Indenture, it shall notify the Collateral Agent in writing
that a Special Event has occurred and that it intends to redeem the Senior
Notes on the Special Event Redemption Date. 
Upon the occurrence of such Special Event Redemption while Senior Notes
are still credited to the Collateral Account, the Collateral Agent shall, and
is hereby authorized to, instruct the Securities Intermediary to present the
Senior Notes underlying Pledged Applicable Ownership Interests in Senior Notes
for payment as may be required by their respective terms and to direct the
Indenture Trustee to remit the Redemption Price to the Securities Intermediary
for credit to the Collateral Account, on or prior to 12:30 p.m., New York City
time, on such Special Event Redemption Date, by federal funds check or wire
transfer of immediately available funds. 
Upon receipt of such funds by the Securities Intermediary and the credit
thereof to the Collateral Account, the Senior Notes underlying Pledged Applicable
Ownership Interests in Senior Notes shall be released from the Collateral
Account and promptly transferred to the Company.  Upon the crediting of such funds to the Collateral Account, the
Collateral Agent, at the written direction of the Company, shall instruct the
Securities Intermediary to (i) apply an amount equal to the Redemption Amount
of such funds to purchase the Treasury Portfolio from the Quotation Agent, (ii)
credit to the Collateral Account the Applicable Ownership Interests in the
Treasury Portfolio and (iii) promptly remit the remaining portion of such funds
to the Purchase Contract Agent for payment to the Holders of Corporate Units,
in accordance with their respective interests.


 


(b)       Upon the
occurrence of a Special Event Redemption, (i) the Applicable Ownership
Interests in the Treasury Portfolio (as specified in clause (i) of the
definition of such term) will be substituted as Collateral for the Pledged
Applicable Ownership Interests in Senior Notes and will be held by the
Collateral Agent in accordance with the terms hereof to secure the Obligation
of each Holder of Corporate Units, (ii) the Holders of Corporate Units and the
Collateral Agent shall have such rights and obligations, and the Collateral
Agent shall have such security interest, with respect to such Applicable Ownership
Interests in the Treasury Portfolio (as specified in clause (i) of the
definition of such term) as the Holders of Corporate Units and the Collateral
Agent had in respect of the Pledged Applicable Ownership Interests in Senior
Notes, subject to the Pledge thereof, and (iii) any reference in this Agreement
to Applicable Ownership Interests in Senior Notes shall be deemed to be a
reference to such Applicable Ownership Interests in the Treasury Portfolio (as
specified in clause (i) of the definition of such term).  The Company may cause to be made in any
Corporate Units Certificates thereafter to be issued such change in phraseology
and form (but not in substance) as may be appropriate to reflect the
substitution of the Applicable Ownership Interests in the Treasury Portfolio
(as specified in clause (i) of the definition of such term) for Applicable
Ownership Interests in Senior Notes as Collateral.


 


Section 4.05.  Payments to Purchase Contract Agent.  The Securities Intermediary shall
use commercially reasonable efforts to deliver any payments required to be made
by it to the Purchase Contract Agent hereunder to the account designated by the
Purchase Contract Agent for such purpose not later than 12:00 p.m. (New York
City time) on the 


 


41

















 


Business Day such payment is received by the
Securities Intermediary; provided,
however, that if such payment is
received on a day that is not a Business Day or after 11:00 a.m. (New York City
time) on a Business Day, then the Securities Intermediary shall use
commercially reasonable efforts to deliver such payment to the Purchase
Contract Agent no later than 10:30 a.m. (New York City time) on the next
succeeding Business Day.


 


Section 4.06.  Payments Held in Trust.  If the Purchase Contract Agent or
any Holder shall receive any payments on account of financial assets credited
to the Collateral Account (other than interest on the Senior Notes or
distributions on the Applicable Ownership Interests in the Treasury Portfolio (as
specified in clause (ii) of the definition thereof)) and not released therefrom
in accordance with this Agreement, the Purchase Contract Agent or such Holder
shall hold such payments as trustee of an express trust for the benefit of the
Company and, upon receipt of an Officers’ Certificate of the Company so
directing, promptly deliver such payments to the Securities Intermediary for
credit to the Collateral Account or to the Company for application to the
Obligations of the applicable Holder or Holders, and the Purchase Contract
Agent and Holders shall acquire no right, title or interest in any such
payments of principal amounts so received. 
The Purchase Contract Agent shall have no liability under this Section
4.06 unless and until it has been notified in writing that such payment was
delivered to it erroneously and shall have no liability for any action taken,
suffered or omitted to be taken prior to its receipt of such notice.


 


ARTICLE 5

THE PURCHASE CONTRACTS


 


Section 5.01.  Purchase of Shares of Common Stock.  (a) Each Purchase Contract shall
obligate the Holder of the related Unit to purchase, and the Company to sell,
on the Purchase Contract Settlement Date at a price equal to the Stated Amount
(the “Purchase
Price”), a number of newly issued shares of Common Stock (subject to
Section 5.08) equal to the Settlement Rate unless an Early Settlement, a Cash
Merger Early Settlement or a Termination Event with respect to the Units of
which such Purchase Contract is a part shall have occurred.  The “Settlement Rate” is equal to:


 


(i)            If
the Applicable Market Value is greater than or equal to $23.5950 (the “Threshold
Appreciation Price”), 1.0595 shares of Common Stock per Purchase
Contract (the “Minimum Settlement Rate”);


 


(ii)           if
the Applicable Market Value is less than the Threshold Appreciation Price but
greater than $19.5000 (the “Reference Price”), the number of shares of
Common Stock per Purchase Contract having a value (based on the Applicable
Market Value) equal to the Stated Amount;


 


(iii)          if
the Applicable Market Value is less than or equal to the Reference Price,
1.2821 shares of Common Stock per Purchase Contract (the “Maximum Settlement Rate”);


 


42

















 


in each case
subject to adjustment as provided in Section 5.04 (and in each case rounded
upward or downward to the nearest 1/10,000th of a share).


 


The “Applicable
Market Value” means the average of the Closing Price per share of
Common Stock on each of the 20 consecutive Trading Days ending on the third Trading
Day immediately preceding the Purchase Contract Settlement Date, subject to
adjustment as set forth under Section 5.04 hereof.


 


The “Closing
Price” per share of Common Stock on any date of determination means:


 


(i)    the
closing sale price as of the close of the principal trading session (or, if no
closing price is reported, the last reported sale price) per share on the New
York Stock Exchange, Inc. (the “NYSE”) on such date; or


 


(ii)   if
the Common Stock is not listed for trading on the NYSE on any such date, the
closing sale price (or, if no closing price is reported, the last reported sale
price) per share as reported in the composite transactions for the principal
United States securities exchange on which the Common Stock is so listed; or


 


(iii) if
the Common Stock is not so listed on a United States national or regional
securities exchange, the closing sale price (or, if no closing price is
reported, the last reported sale price) per share as reported by The Nasdaq
National Market; or


 


(iv)  if
the Common Stock is not so reported by the Nasdaq National Market, 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


 


(v)    if
the bid price referred to in clause (iv) above is not available, the average of
the mid-point of the last bid and ask prices of the Common Stock on such date
from at least three nationally recognized independent investment banking firms
retained by the Company for purposes of determining the Closing Price.


 


A “Trading Day”
means a day on which the Common Stock (i) 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 (ii) 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.


 


(b)       Each Holder of a
Corporate Unit or a Treasury Unit, by its acceptance of such Unit:


 


(i)    irrevocably
authorizes the Purchase Contract Agent to enter into and perform the related
Purchase Contract on its behalf and in its name as its attorney-


 


43

















 


in-fact (including, without limitation, the
execution of Certificates on behalf of such Holder);


 


(ii)   agrees
to be bound by the terms and provisions of such Unit, including but not limited
to the terms and provisions of the Purchase Contract;


 


(iii) covenants
and agrees to perform its obligations under this Agreement and such Purchase
Contract for so long as such Holder remains a Holder of a Corporate Unit or a
Treasury Unit;


 


(iv)  consents
to the provisions hereof;


 


(v)    irrevocably
authorizes the Purchase Contract Agent to enter into and perform this Agreement
on its behalf and in its name as its attorney-in-fact;


 


(vi)  consents
to, and agrees to be bound by, the Pledge of such Holder’s right, title and
interest in and to the Collateral, including the Applicable Ownership Interests
in Senior Notes and the Applicable Ownership Interests in the Treasury
Portfolio (as specified in clause (i) of the definition of such term) or the
Treasury Securities pursuant to this Agreement, and the delivery of the Senior
Notes underlying such Applicable Ownership Interests in Senior Notes by the
Purchase Contract Agent to the Collateral Agent; and


 


(vii) for
United States federal, state and local income and franchise tax purposes,
agrees to (A) treat its acquisition of the Corporate Units as an acquisition of
the Applicable Ownership Interest in Senior Notes and Purchase Contract
constituting the Corporate Units, (B) treat the Applicable Ownership Interest
in Senior Notes as indebtedness of the Company and (C) treat itself as the
owner of the applicable interests in the Collateral, including the Senior Notes
underlying the Applicable Ownership Interests in Senior Notes, the Applicable
Ownership Interests in the Treasury Portfolio (as specified in clause (i) of
the definition of such term) or the Treasury Securities, as applicable;


 


provided that upon a
Termination Event, the rights of the Holder of such Units under the Purchase
Contract may be enforced without regard to any other rights or obligations.


 


(c)       Each Holder of a
Corporate Unit or a Treasury Unit, by its acceptance thereof, further covenants
and agrees that to the extent and in the manner provided in Section 5.02
hereof, but subject to the terms thereof, on the Purchase Contract Settlement
Date, Proceeds of the Pledged Applicable Ownership Interests in Senior Notes,
the Pledged Applicable Ownership Interests in the Treasury Portfolio or the
Pledged Treasury Securities, as applicable, equal to the Purchase Price shall
be paid by the Collateral Agent to the Company in satisfaction of such Holder’s
obligations under such Purchase Contract and such Holder shall acquire no
right, title or interest in such Proceeds.


 


44

















 


(d)       Upon
registration of transfer of a Certificate, the transferee shall be bound
(without the necessity of any other action on the part of such transferee) by
the terms of this Agreement and the Purchase Contracts underlying such
Certificate and the transferor shall be released from the obligations under
this Agreement and the Purchase Contracts underlying the Certificate so
transferred.  The Company covenants and
agrees, and each Holder of a Certificate, by its acceptance thereof, likewise
covenants and agrees, to be bound by the provisions of this paragraph.


 


Section 5.02.  Cash Settlement; Remarketing; Payment of Purchase
Price.


 


(a)       Cash
Settlement.  (i) Unless (1) a
Termination Event has occurred, (2) a Holder effects an Early Settlement or a
Cash Merger Early Settlement of the underlying Purchase Contract or (3) a
Special Event Redemption has occurred prior to the seventh Business Day
immediately preceding the Purchase Contract Settlement Date, each Holder of
Corporate Units shall have the right to satisfy such Holder’s Obligations on
the Purchase Contract Settlement Date in cash. 
Each Holder of Corporate Units who intends to pay in cash to satisfy
such Holder’s Obligations under the Purchase Contract on the Purchase Contract
Settlement Date shall notify the Purchase Contract Agent by use of a notice in
substantially the form of Exhibit E hereto of his intention to pay in cash (a “Cash Settlement”) the Purchase Price for the Common Stock to be purchased
pursuant to the related Purchase Contract. 
Such notice shall be given prior to 5:00 p.m. (New York City time) on
the seventh Business Day immediately preceding the Purchase Contract Settlement
Date.  Corporate Units Holders may only
effect such a Cash Settlement pursuant to this Section 5.02(a) in integral
multiples of 40 Corporate Units.


 


(ii)   A
Holder of a Corporate Unit who has so notified the Purchase Contract Agent of
his intention to effect a Cash Settlement in accordance with Section 5.02(a)(i)
above shall pay the Purchase Price to the Securities Intermediary for deposit
in the Collateral Account prior to 5:00 p.m. (New York City time) on the sixth
Business Day immediately preceding the Purchase Contract Settlement Date, in
lawful money of the United States by certified or cashiers check or wire
transfer in immediately available funds payable to or upon the order of the
Securities Intermediary.


 


(iii) If
a Holder of a Corporate Unit fails to notify the Purchase Contract Agent of its
intention to make a Cash Settlement in accordance with Section 5.02(a)(i), or
does notify the Purchase Contract Agent as provided in Section 5.02(a)(i) of
its intention to pay the Purchase Price in cash, but fails to make such payment
as required by Section 5.02(a)(ii), such Holder shall be deemed to have
consented to the disposition of the Senior Notes underlying the Pledged
Applicable Ownership Interests in Senior Notes pursuant to each Remarketing as
described in Section 5.02(b) below.


 


(iv)  Promptly
after 5:00 p.m. (New York City time) on the sixth Business Day preceding the
Purchase Contract Settlement Date, the Purchase 


 


45

















 


Contract Agent, based on notices received by
the Purchase Contract Agent pursuant to Section 5.02(a)(i) hereof and notice
from the Securities Intermediary regarding cash received by it prior to such
time, shall notify the Collateral Agent of the aggregate number of Senior Notes
to be remarketed in each Remarketing in a notice substantially in the form of
Exhibit K hereto.


 


(v)    Upon
(1) receipt by the Collateral Agent of a notice from the Purchase Contract
Agent promptly after the receipt by the Purchase Contract Agent of a notice
from a Holder of Corporate Units that such Holder has elected, in accordance
with Section 5.02(a)(i) to effect a Cash Settlement and (2) the payment by such
Holder of the Purchase Price in accordance with Section 5.02(a)(ii) above then the
Collateral Agent shall:


 


(A)               instruct
the Securities Intermediary promptly to invest any such Cash in Permitted
Investments consistent with the instructions of the Company as provided for
below in this Section 5.02(a)(v);


 


(B)               release
from the Pledge the Senior Notes underlying the Applicable Ownership Interest
in Senior Notes related to the Corporate Units as to which such Holder has
effected a Cash Settlement; and


 


(C)               instruct
the Securities Intermediary to Transfer all such Senior Notes to the Purchase
Contract Agent for distribution to such Holder, in each case free and clear of
the Pledge created hereby, whereupon the Purchase Contract Agent shall Transfer
such Senior Notes in accordance with written instructions provided by the
Holder thereof or, if no such instructions are given to the Purchase Contract
Agent by the Holder, the Purchase Contract Agent shall hold such Senior Notes,
and any interest payment thereon, in the name of the Purchase Contract Agent or
its nominee in trust for the benefit of such Holder until the expiration of the
time period specified in the relevant abandoned property laws of the state
where such Senior Notes and interest payments thereon, if any, are held.


 


The Company
shall instruct the Collateral Agent in writing as to the type of Permitted
Investments in which any such Cash shall be invested; provided, however,
that if the Company fails to deliver such written instructions by 10:30 a.m.
(New York City time) on the day such Cash is received by the Collateral Agent
or to be reinvested by the Securities Intermediary, the Collateral Agent shall
instruct the Securities Intermediary to invest such Cash in the Permitted
Investments described in clause (6) of the definition of Permitted Investments.
In no event shall the Collateral Agent or Securities Intermediary be liable for
the selection of Permitted Investments or for investment losses incurred
thereon. The Collateral Agent and Securities Intermediary shall have no
liability in respect of losses incurred as a result of the failure of the
Company to provide timely written investment direction.


 


46

















 


Upon maturity
of the Permitted Investments on the Purchase Contract Settlement Date, the
Collateral Agent shall, and is hereby authorized to, (A) instruct the
Securities Intermediary to remit to the Company on the Purchase Contract
Settlement Date such portion of the proceeds of such Permitted Investments as
is equal to the aggregate Purchase Price under all Purchase Contracts in respect
of which Cash Settlement has been affected as provided in this Section 5.02 to
the Company on the Purchase Contract Settlement Date, and (B) release any
amounts in excess of such amount earned from such Permitted Investments to the
Purchase Contract Agent for distribution to the Holders who have effected Cash
Settlement pro-rata in proportion to the amount paid by such Holders under
Section 5.02(a)(ii) above.


 


(b)       Remarketing.  (i) Unless a Special Event
Redemption or a Termination Event has occurred prior to the Initial Remarketing
Date, in order to dispose of the Senior Notes underlying Pledged Applicable
Ownership Interests in Senior Notes of any Holders of Corporate Units who have
not notified the Purchase Contract Agent of their intention to effect a Cash
Settlement as provided in Section 5.02(a)(i) above, or who have so notified the
Purchase Contract Agent but failed to make such payment as required by Section
5.02(a)(ii) above, the Company shall engage the Remarketing Agent pursuant to
the Remarketing Agreement to sell such Senior Notes.  The Purchase Contract Agent, based on the notices specified
pursuant to Section 5.02(a)(iv), shall notify the Remarketing Agent, promptly
after 5:00 p.m. (New York City time) on the sixth Business Day immediately preceding
the Purchase Contract Settlement Date, of the aggregate principal amount of
Senior Notes attributable to the Pledged Applicable Ownership Interests in
Senior Notes that are to be remarketed. 
Concurrently, the Custodial Agent, based on the notices specified in
clause (ii) below of this Section 5.02(b), will present for Remarketing the
Separate Senior Notes to the Remarketing Agent.


 


(ii)   Prior
to 5:00 p.m. (New York City time) on the seventh Business Day immediately
preceding the Purchase Contract Settlement Date, but no earlier than the
Payment Date immediately preceding such date, holders of Separate Senior Notes
may elect to have their Separate Senior Notes remarketed in all Remarketings
under the Remarketing Agreement by delivering their Separate Senior Notes,
along with a notice of such election, substantially in the form of Exhibit L
attached hereto, to the Custodial Agent. 
After such time, such election shall become an irrevocable election to
have such Separate Senior Notes remarketed in all Remarketings.  The Custodial Agent shall hold the Separate
Senior Notes in an account separate from the Collateral Account in which the
Senior Notes underlying the Pledged Applicable Ownership Interests in Senior
Notes shall be held.  Holders of
Separate Senior Notes electing to have their Separate Senior Notes remarketed
will also have the right to withdraw that election by written notice to the
Custodial Agent, substantially in the form of Exhibit M hereto, on or prior to
5:00 p.m. (New York City time) on the seventh Business Day immediately
preceding the Purchase Contract Settlement Date, and following such notice the
Custodial Agent shall return such Separate Senior notes to such holder.


 


47

















 


(iii) Upon
receipt of notice from the Purchase Contract Agent as set forth in Section
5.02(b)(i) above and receipt of the Separate Senior Notes (if any) from the
Custodial Agent, the Remarketing Agent shall, on the Initial Remarketing Date,
use reasonable efforts to remarket such Senior Notes and such Separate Senior
Notes at a price (the “Remarketing Price”) based on the Reset Rate equal to
100% of the aggregate principal amount of such Senior Notes and such Separate
Senior Notes being remarketed, as provided in the Remarketing Agreement, for
settlement on the Purchase Contract Settlement Date.  If, in spite of using its reasonable efforts, the Remarketing
Agent cannot remarket such Senior Notes and such Separate Senior Notes at the
Remarketing Price (other than to the Company) for any reason, or the
remarketing has not occurred because a condition precedent to the remarketing
has not been fulfilled (in each case, a “Failed Remarketing”) on the Initial
Remarketing Date, the Remarketing Agent shall, on the Second Remarketing Date,
use its reasonable efforts to remarket such Senior Notes and such Separate
Senior Notes at the Remarketing Price for settlement on the Purchase Contract
Settlement Date.  If, in spite of the
Remarketing Agent’s reasonable efforts, a Failed Remarketing shall have
occurred on the Second Remarketing Date, the Remarketing Agent shall, on the
Final Remarketing Date, use reasonable efforts to remarket such Senior Notes
and such Separate Senior Notes at the Remarketing Price for settlement on the
Purchase Contract Settlement Date.


 


(iv)  If
the Remarketing Agent is able to remarket such Senior Notes and such Separate
Senior Notes (if any) in any Remarketing (to parties other than the Company) in
accordance with the Remarketing Agreement (a “Successful Remarketing”), the
Collateral Agent shall:


 


(A)               on
the Purchase Contract Settlement Date, instruct the Securities Intermediary to
Transfer the Senior Notes underlying Pledged Applicable Ownership Interests in
Senior Notes to the Remarketing Agent upon confirmation of deposit by the
Remarketing Agent of the Proceeds of such Remarketing attributable to such
Senior Notes in the Collateral Account; and


 


(B)               on
the Purchase Contract Settlement Date, in consultation with the Purchase
Contract Agent, instruct the Securities Intermediary to remit a portion of such
Proceeds equal to the aggregate principal amount of such Senior Notes to
satisfy in full the Obligations of Holders of Corporate Units to pay the
Purchase Price for the shares of Common Stock under the related Purchase
Contracts, less the amount of any accrued and unpaid Contract Adjustment
Payments payable to such Holders, and to remit the balance of such Proceeds, if
any, to the Purchase Contract Agent for distribution to Holders.


 


On the
Purchase Contract Settlement Date, the Company shall pay the Remarketing Fee to
the Remarketing Agent in accordance with the Remarketing Agreement.  With 


 


48

















 


respect to the remarketed Separate Senior
Notes, upon a Successful Remarketing, any proceeds of the Successful
Remarketing attributable to the Separate Senior Notes will be remitted to the
Custodial Agent for payment on the Purchase Contract Settlement Date to the
holders of Separate Senior Notes who submitted such Separate Senior Notes for
remarketing pursuant hereto.


 


(v)    Following
a Failed Remarketing on the Final Remarketing Date (a “Failed Final Remarketing”),
as of the Purchase Contract Settlement Date, each Holder of any Pledged
Applicable Ownership Interests in Senior Notes, unless such Holder has
delivered the Purchase Price to the Securities Intermediary for deposit in the
Collateral Account prior to 5:00 p.m. (New York City time) on the second
Business Day immediately preceding the Purchase Contract Settlement Date in
lawful money of the United States by certified or cashiers check or wire
transfer in immediately available funds payable to or upon the order of the
Securities Intermediary, shall be deemed to have exercised such Holder’s Put
Right with respect to the Senior Notes underlying such Pledged Applicable
Ownership Interests in Senior Notes and to have elected to have a portion of
the Proceeds of the Put Right set-off against such Holder’s obligation to pay
the aggregate Purchase Price for the shares of Common Stock to be issued under
the related Purchase Contracts in full satisfaction of such Holders’
obligations under such Purchase Contracts. 
Following such set-off, each such Holder’s obligations to pay the
Purchase Price for the shares of Common Stock will be deemed to be satisfied in
full, and the Collateral Agent shall cause the Securities Intermediary to
release the Senior Notes underlying such Pledged Applicable Interests in Senior
Notes from the Collateral Account and shall promptly transfer such Senior Notes
to the Company.  Thereafter, the
Collateral Agent shall promptly remit the remaining portion of the Proceeds of
the Holder’s exercise of the Put Right in excess of the aggregate Purchase
Price for the shares of Common Stock to be issued under such Purchase Contracts
to the Purchase Contract Agent for payment to the Holder of the Corporate Units
to which such Applicable Ownership Interests in Senior Notes relate.


 


(vi)  Not
later than 20 Business Days prior to the Initial Remarketing Date, the Company
shall request the Depositary or its nominee to notify the Beneficial Owners or
Depositary Participants holding Units and Separate Senior Notes of the
procedures to be followed in each Remarketing including, in the case of a
Failed Final Remarketing, the procedures that must be followed by a holder of
Separate Senior Notes if such Holder wishes to exercise its Put Right or by a
Holder if such Holder elects not to exercise its Put Right.


 


(vii) The
Company agrees to use its commercially reasonable efforts to ensure that, if
required by applicable law, (x) a registration statement, including a
prospectus, under the Securities Act with regard to the full amount of the
Senior Notes to be remarketed in each Remarketing in each case in a form that
may be used by the Remarketing Agent in connection with such Remarketing shall
be 


 


49

















 


effective with the Securities and Exchange
Commission and (y) to make available copies of such prospectus.


 


(viii)                
The Company shall issue a press release and cause a notice of any Failed Final
Remarketing to be published on its website (with a copy of such notice to be
provided to the Purchase Contract Agent) before 9:00 a.m. New York City time on
the Business Day immediately following such Failed Final Remarketing.  The press release to be issued under this
subsection shall be published by making a timely release to an appropriate news
agency such as Bloomberg Business News or the Dow Jones News Service.


 


(c)       In the case of a
Treasury Unit or a Corporate Unit (if Applicable Ownership Interests in the
Treasury Portfolio have replaced the Applicable Ownership Interests in Senior
Notes as a component of such Corporate Unit), upon the maturity of the Pledged
Treasury Securities or the appropriate Pledged Applicable Ownership Interests
in the Treasury Portfolio held by the Securities Intermediary on or prior to
the Business Day immediately preceding the Purchase Contract Settlement Date,
the principal amount of the Treasury Securities or the appropriate Pledged
Applicable Ownership Interests in the Treasury Portfolio received by the
Securities Intermediary shall be invested promptly in Permitted
Investments.  On the Purchase Contract
Settlement Date, an amount equal to the Purchase Price for all related Purchase
Contracts shall be remitted to the Company as payment of such Holder’s
Obligations under such Purchase Contracts without receiving any instructions
from the Holder.  In the event the sum
of the Proceeds from either the related Pledged Treasury Securities or the
related Pledged Applicable Ownership Interests in the Treasury Portfolio and
the Proceeds from such Permitted Investments is in excess of the aggregate
Purchase Price, the Collateral Agent shall cause the Securities Intermediary to
distribute such excess, when received by the Securities Intermediary, to the
Purchase Contract Agent for the benefit of the Holder of the related Treasury
Units or Corporate Units, as applicable.


 


(d)       The obligations
of the Holders to pay the Purchase Price are non-recourse obligations and,
except to the extent satisfied by Early Settlement, Cash Merger Early
Settlement or Cash Settlement or terminated upon a Termination Event, are
payable solely out of the proceeds of any Collateral pledged to secure the obligations
of the Holders, and in no event will Holders be liable for any deficiency
between the proceeds of the disposition of Collateral and the Purchase Price.


 


(e)       The Company
shall not be obligated to issue any shares of Common Stock in respect of a Purchase
Contract or deliver any certificates thereof to the Holder of the related Units
unless the Company shall have received payment for the Common Stock to be
purchased thereunder in the manner herein set forth.


 


Section 5.03.  Issuance of Shares of Common Stock.   Unless a Termination Event, an
Early Settlement or a Cash Merger Early Settlement shall have occurred, subject
to Section 5.04(b), on the Purchase Contract Settlement Date upon receipt of
the aggregate 


 


50

















 


Purchase Price payable on all Outstanding
Units in accordance with Section 5.02 above, the Company shall issue and
deposit with the Purchase Contract Agent, for the benefit of the Holders of the
Outstanding Units, one or more certificates representing newly issued shares of
Common Stock registered in the name of the Purchase Contract Agent (or its
nominee) as custodian for the Holders (such certificates for shares of Common
Stock, together with any dividends or distributions for which a record date and
payment date for such dividend or distribution has occurred after the Purchase
Contract Settlement Date, being hereinafter referred to as the “Purchase
Contract Settlement Fund”) to which the Holders are entitled
hereunder.


 


Subject to the foregoing, upon surrender of a
Certificate to the Purchase Contract Agent on or after the Purchase Contract
Settlement Date, Early Settlement Date or Cash Merger Early Settlement Date, as
the case may be, together with settlement instructions thereon duly completed
and executed, the Holder of such Certificate shall be entitled to receive
forthwith in exchange therefor a certificate representing that number of newly
issued whole shares of Common Stock which such Holder is entitled to receive
pursuant to the provisions of this Article 5 (after taking into account all
Units then held by such Holder), together with cash in lieu of fractional
shares as provided in Section 5.08 and any dividends or distributions with
respect to such shares constituting part of the Purchase Contract Settlement
Fund, but without any interest thereon, and the Certificate so surrendered
shall forthwith be cancelled.  Such
shares shall be registered in the name of the Holder or the Holder’s designee as
specified in the settlement instructions provided by the Holder to the Purchase
Contract Agent.  If any shares of Common
Stock issued in respect of a Purchase Contract are to be registered in the name
of a Person other than the Person in whose name the Certificate evidencing such
Purchase Contract is registered (but excluding any Depositary or nominee
thereof), no such registration shall be made unless and until the Person
requesting such registration has paid any transfer and other taxes (including
any applicable stamp taxes) required by reason of such registration in a name
other than that of the registered Holder of the Certificate evidencing such
Purchase Contract or has established to the satisfaction of the Company that
such tax either has been paid or is not payable.


 


Section 5.04.  Adjustment of each Fixed Settlement Rate.  (a) Adjustments for Dividends,
Distributions, Stock Splits, Etc.


 


(i)    In
case the Company shall pay or make a dividend or other distribution on Common
Stock in Common Stock, each Fixed Settlement Rate in effect at the close of
business on the date fixed for the determination of shareholders entitled to
receive such dividend or other distribution shall be increased by multiplying
each Fixed Settlement Rate by a fraction of which:


 


(A)               the
numerator shall be the sum of the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination and the total
number of shares constituting such dividend or other distribution; and


 


51

















 


(B)               the
denominator shall be the number of shares of Common Stock outstanding at the
close of business on the date fixed for such determination,


 


such increase in each Fixed Settlement Rate to become effective
immediately at the opening of business on the Business Day following the date
fixed for such determination.  For the
purposes of this paragraph (i), the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the Company
but shall include any shares issuable in respect of any scrip certificates
issued in lieu of fractions of shares of Common Stock.  The Company agrees that it shall not pay any
dividend or make any distribution on shares of Common Stock held in the treasury
of the Company.


 


(ii)   In
case the Company shall issue rights, warrants or options, other than pursuant
to any dividend reinvestment plans or share purchase plans, to all holders of
its Common Stock entitling them, for a period expiring within 45 days after the
record date for the determination of shareholders entitled to receive such
rights, warrants or options, to subscribe for or purchase shares of Common
Stock at a price per share less than the Current Market Price per share of
Common Stock on the date of announcement of such issuance, each Fixed
Settlement Rate in effect at the close of business on the date of such
announcement shall be increased by multiplying such Fixed Settlement Rate by a
fraction of which:


 


(A)               the
numerator shall be the number of shares of Common Stock outstanding at the
close of business on the date of such announcement plus the number of shares
of Common Stock so offered for subscription or purchase; and


 


(B)               the
denominator shall be the number of shares of Common Stock outstanding at the
close of business on the date of such announcement plus the number of shares
of Common Stock that the aggregate offering price of the total number of shares
of Common Stock so offered for subscription or purchase in the manner described
in this Section 5.04(a)(ii) would purchase at the Current Market Price on the
date of such announcement,


 


such increase in each Fixed Settlement Rate to become effective
immediately after the opening of business on the Business Day following the
date of such announcement.  The Company
agrees that it shall notify the Purchase Contract Agent if any issuance of such
rights, warrants or options is cancelled or not completed following the
announcement thereof and each Fixed Settlement Rate shall thereupon immediately
be readjusted to the Fixed Settlement Rate that would then be in effect if such
issuance had not been declared. For the purposes of this clause (ii), the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include any shares 


 


52

















 


issuable in respect of any scrip certificates issued in lieu of
fractions of shares of Common Stock. 
The Company agrees that it shall not issue any such rights, warrants or
options in respect of shares of Common Stock held in the treasury of the
Company.


 


(iii) In
case outstanding shares of Common Stock shall be subdivided or split into a
greater number of shares of Common Stock, each Fixed Settlement Rate in effect
at the close of business on the day preceding 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, each Fixed Settlement Rate in
effect at the close of business on the day preceding the day upon which such
combination becomes effective shall be proportionately decreased, such increase
or decrease, as the case may be, to become effective immediately at the opening
of business on the Business Day following the day upon which such subdivision,
split or combination becomes effective.


 


(iv)  (w)
In case the Company shall, by dividend or otherwise, distribute to all holders
of its Common Stock evidences of its indebtedness or assets (including shares
of capital stock, securities, cash and property but excluding any rights,
warrants or options referred to in Section 5.04(a)(ii) above, any dividend or
distribution paid exclusively in cash and any dividend or distribution referred
to in Section 5.04(a)(i) above) (any of the foregoing hereinafter in this
Section 5.02(a)(iv) called the “Distributed Property”), each Fixed
Settlement Rate in effect at the close of business on the date fixed for the
determination of shareholders entitled to receive such distribution shall be
adjusted by multiplying each Fixed Settlement Rate by a fraction of which:


 


(A)               the
numerator shall be such Current Market Price per share of Common Stock; and


 


(B)               the
denominator shall be the Current Market Price per share of Common Stock on the
date fixed for such determination 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 (as determined by the Board of Directors, whose
determination shall be conclusive and the basis for which shall be described in
a Board Resolution),


 


such adjustment to each Fixed Settlement Rate to become effective at
the opening of business on the Business Day following the date fixed for the
determination of shareholders entitled to receive such distribution; provided that
if the fair market value of the Distributed Property applicable to one share of
Common Stock is equal to or greater than the Current Market Price on the date
fixed for the determination of stockholders entitled to receive such
distribution, in lieu of the foregoing adjustment, adequate provision shall be
made so that each Holder shall have the 


 


53

















 


right to receive upon settlement the amount of Distributed Property
such Holder would have received had such Holder settled each Purchase Contract
on the date fixed for such determination as if the Purchase Contract Settlement
Date were such date fixed for such determination.  In any case in which this Section 5.04(a)(iv) is applicable,
Section 5.04(a)(ii) shall not be applicable. 
In the event that such dividend or distribution is not so paid or made,
each Fixed Settlement Rate shall again be adjusted to be the Fixed Settlement
Rate that would then be in effect if such dividend or distribution had not been
declared.


 


(x)  Notwithstanding the
foregoing, if the Distributed Property distributed by the Company to all
holders of its Common Stock consist of capital stock of, or similar equity
interests in, a Subsidiary or other business unit of the Company, clause (w)
above shall not apply and instead each Fixed Settlement Rate shall be increased
so that each Fixed Settlement Rate shall be equal to the rate determined by
multiplying each such rate in effect immediately prior to the close of business
on the record date with respect to such distribution by a fraction of which,


 


(A)               the
numerator shall be the sum of (A) the average of the Closing Prices of the
Common Stock for the ten (10) consecutive Trading Days commencing on and
including the fifth Trading Day after the date on which “ex-dividend trading”
commences for such dividend or distribution on the New York Stock Exchange, the
Nasdaq National Market or such other national or regional exchange or market on
which such securities are then listed or quoted (the “Ex-Dividend Date”) plus
(B) the average Closing Prices of the securities distributed in respect of each
share of Common Stock for the ten (10) consecutive Trading Days commencing on
and including the fifth Trading Day after the Ex-Dividend Date; and


 


(B)               the
denominator shall be the average of the Closing Prices of the Common Stock for
the ten (10) consecutive Trading Days commencing on and including the fifth
Trading Day after the Ex-Dividend Date,


 


such adjustment to each Fixed Settlement Rate to become effective
immediately prior to the opening of business on the Business Day following the
record date with respect to such distribution. 
In any case in which this paragraph (x) is applicable, Section
5.02(a)(i), Section 5.02(a)(ii) and paragraph (w) of this Section 5.02(a)(iv)
shall not be applicable.


 


(y)  Notwithstanding anything to
the contrary contained in this Section 5.02(a), rights or warrants distributed
by the Company to all holders of Common Stock entitling the holders thereof to
subscribe for or purchase shares of the Company’s capital stock (either
initially or under certain circumstances), which rights, options or warrants,
until the occurrence of a specified event or events (“Trigger Event”) (i) are
deemed to be transferred with such shares of Common 


 


54

















 


Stock; (ii) are not exercisable; and (iii) are also issued in respect
of future issuances of Common Stock, shall be deemed not to have been
distributed for purposes of this Section 5.04(a) (and no adjustment to each
Fixed Settlement Rate under this Section 5.04(a) will be required) until the
occurrence of the earliest Trigger Event, whereupon such rights, options and
warrants shall be deemed to have been distributed and an appropriate adjustment
(if any is required) to each Fixed Settlement Rate shall be made under this
Section 5.02(a)(iv).  In addition, in
the event of any distribution of rights, options or warrants, or any Trigger
Event with respect thereto that was counted for purposes of calculating a
distribution amount for which an adjustment to each Fixed Settlement Rate under
this Section 5.04(a) was made, (1) in the case of any such rights, options or
warrants that shall all have been redeemed or repurchased without exercise by
any holders thereof, each Fixed Settlement Rate shall be readjusted upon such
final redemption or repurchase to give effect to such distribution or Trigger
Event, as the case may be, as though it were a cash distribution, equal to the
per share redemption or repurchase price received by a holder or holders of
Common Stock with respect to such rights, options or warrants (assuming such
holder had retained such rights, options or warrants), made to all holders of
Common Stock as of the date of such redemption or repurchase, and (2) in the
case of such rights, options or warrants that shall have expired or been
terminated without exercise by any holders thereof, each Fixed Settlement Rate
shall be readjusted as if such rights, options and warrants had not been
issued.


 


(z)  For purposes of this
Section 5.02(a)(iv) and Section 5.02(a)(i) and Section 5.02(a)(ii), any
dividend or distribution to which this Section 5.02(a)(iv) is applicable that
also includes shares of Common Stock, or rights, options or warrants to
subscribe for or purchase shares of Common Stock (or both), shall be deemed
instead to be (1) a dividend or distribution of the evidences of indebtedness,
assets or shares of capital stock other than such shares of Common Stock or
rights, options or warrants (and any Settlement Rate adjustment required by
this Section 5.02(a)(iv) with respect to such dividend or distribution shall
then be made) immediately followed by (2) a dividend or distribution of such
shares of Common Stock or such rights, options or warrants (and any further
Settlement Rate adjustment required by Section 5.02(a)(i) and Section
5.02(a)(ii) with respect to such dividend or distribution shall then be made),
except (A) the record date of such dividend or distribution shall be deemed to
be “the date fixed for the determination of shareholders entitled to receive
such dividend or other distribution”, “the date fixed for the determination of
shareholders entitled to receive such rights, options or warrants” and “the
date fixed for such determination” within the meaning of Section 5.02(a)(i) and
Section 5.02(a)(ii) and (B) any shares of Common Stock included in such
dividend or distribution shall not be deemed “outstanding at the close of
business on the date fixed for the determination of shareholders entitled to
receive such dividend or other 


 


55

















 


distribution” or “outstanding at the close of business on the date
fixed for such determination” within the meaning of Section 5.02(a)(i).


 


(v)    In
case the Company shall make any dividend or distribution consisting exclusively
of cash to all holders of outstanding shares of Common Stock (excluding (I) any
dividend or distribution in connection with the liquidation, dissolution or
termination of the Company, or (II) any cash dividend on Common Stock to the
extent that the aggregate cash dividend per share of Common Stock in any fiscal
quarter does not exceed $0.065 (the “Dividend Threshold Amount”)), then each
Fixed Settlement Rate will be adjusted by multiplying each Fixed Settlement
Rate in effect immediately prior to the close of business on the record date
with respect to such dividend or distribution by a fraction of which,


 


(A)               the
numerator is the Current Market Price on the date fixed for the determination
of stockholders entitled to receive such distribution, minus the Dividend Threshold
Amount; and


 


(B)               the
denominator is such Current Market Price, minus the amount per share of such dividend
or distribution,


 


such adjustment to each Fixed Settlement Rate
to be effective immediately prior to the opening of business on the Business
Day following the date fixed for the determination of stockholders entitled to
receive such distribution; provided that if an adjustment is required
to be made under this clause as a result of a distribution that is not a
regular quarterly dividend, the Dividend Threshold Amount will be deemed to be
zero; and
provided further that if the portion of the cash so distributed
applicable to one share of Common Stock is equal to or greater than the Current
Market Price on the date fixed for the determination of stockholders entitled
to receive such distribution, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Holder shall have the right to receive
upon settlement the amount of cash such Holder would have received had such
Holder settled each Purchase Contract on the date fixed for such determination
as if the Purchase Contract Settlement Date were such date fixed for such
determination.  The Dividend Threshold
Amount is subject to adjustment from time to time in a manner inversely
proportional to any adjustment made to each Fixed Settlement Rate under this
Section 5.02.


 


(vi)  In
case a tender or exchange offer made by the Company or any subsidiary of the
Company 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 of consideration per share of Common Stock having a
fair market value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a resolution of the Board of Directors)
that as of the last time at which tenders or exchanges may be made pursuant to
such tender or exchange offer (as it may be amended) (the “Expiration 


 


56

















 


Time”)
exceeds the Closing Price of a share of Common Stock on the Trading Day next
succeeding the Expiration Time, each Fixed Settlement Rate shall be increased
so that the same shall equal the rate determined by multiplying each Fixed
Settlement Rate in effect immediately prior to the Expiration Time by a
fraction of which,


 


(A)               the
numerator shall be equal to the sum of (1) the fair market value, as determined
by the Board of Directors (as described above in this Section 5.04(a)(vi)), of
the aggregate consideration payable for all shares of Common Stock that the
Company or a subsidiary of the Company, as the case may be, purchased in such
tender or exchange offer (the “Purchased Shares”) and (2) the product of
the number of shares of Common Stock outstanding, less any Purchased Shares,
and the Closing Price of the Common Stock on the Trading Day next succeeding
the Expiration Time, and


 


(B)               the
denominator shall be equal to the product of the number of shares of Common
Stock outstanding, including the Purchased Shares, and the Closing Price of the
Common Stock on the Trading Day next succeeding the Expiration Time,


 


such adjustment to each Fixed Settlement Rate to become effective
immediately prior to the opening of business on the Business Day following the
Expiration Time.  If the Company is
obligated to purchase shares pursuant to any such tender or exchange offer, but
the Company is permanently prevented by applicable law from effecting any such
purchases or all such purchases are rescinded, each Fixed Settlement Rate shall
again be adjusted to be the Fixed Settlement Rate that would then be in effect if
such tender or exchange offer had not been made.


 


(vii) The
reclassification of Common Stock into securities including securities other
than Common Stock (other than any reclassification upon a Reorganization Event
to which Section 5.04(b) applies) shall be deemed to involve:


 


(A)               a
distribution of such securities other than Common Stock to all holders of
Common Stock (and the effective date of such reclassification shall be deemed
to be “the date fixed for the determination of shareholders entitled to receive
such distribution” and the “date fixed for such determination” within the
meaning of paragraph (iv) of this Section); and


 


(B)               a
subdivision, split or combination, as the case may be, of the number of shares
of Common Stock outstanding immediately prior to such reclassification into the
number of shares of Common Stock outstanding immediately thereafter (and the
effective date of such reclassification shall be deemed to be “the day upon
which such 


 


57

















 


subdivision or split becomes effective” or
“the day upon which such combination becomes effective”, as the case may be,
and “the day upon which such subdivision, split or combination becomes
effective” within the meaning of this Section 5.04(a)(iii).


 


(viii)                [Reserved.]


 


(ix)  All
adjustments to each Fixed Settlement Rate shall be calculated to the nearest
1/10,000th of a share of Common Stock (or if there is not a nearest 1/10,000th
of a share, to the next lower 1/10,000th of a share).  If any adjustments are made to each Fixed Settlement Rate
pursuant to this Section 5.04(a), an adjustment shall also be made to the
Applicable Market Value solely to determine which of clauses (i), (ii) or (iii)
of the definition of Settlement Rate in Section 5.01(a) will apply on the
Purchase Contract Settlement Date or any Cash Merger Early Settlement
Date.  Such adjustment shall be made by
multiplying the Applicable Market Value by the Adjustment Factor.  The “Adjustment Factor” means, initially, a
fraction the numerator of which shall be the Maximum Settlement Rate
immediately after the first adjustment to each Fixed Settlement Rate pursuant
to this Section 5.04(a) and the denominator of which shall be the Maximum
Settlement Rate immediately prior to such adjustment.  Each time an adjustment is required to be made to each Fixed
Settlement Rate pursuant to this Section 5.04(a), the Adjustment Factor shall
be multiplied by a fraction the numerator of which shall be the Maximum
Settlement Rate immediately after such adjustment to each Fixed Settlement Rate
pursuant to this Section 5.04(a) and the denominator of which shall be the
Maximum Settlement Rate immediately prior to such adjustment.  Notwithstanding the foregoing, if any
adjustment to each Fixed Settlement Rate is required to be made pursuant to the
occurrence of any of the events contemplated by this Section 5.04(a) during the
period taken into consideration for determining the Applicable Market Value,
the 20 individual Closing Prices used to determine the Applicable Market Value
shall be adjusted rather than the Applicable Market Value and the Applicable
Market Value shall be determined by (A) multiplying the Closing Prices for
Trading Days prior to such adjustment to each Fixed Settlement Rate by the
Adjustment Factor in effect prior to such adjustment, (B) multiplying the
Closing Prices for Trading Days following such adjustment by the Adjustment
Factor reflecting such adjustment, and (C) dividing the sum of all such
adjusted Closing Prices by 20.


 


(x)   The
Company may, but shall not be required to, make such increases in each Fixed
Settlement Rate, in addition to those required by this Section 5.04(a), as the
Board of Directors considers to be advisable. 
The Company may make such a discretionary adjustment only if it makes
the same proportionate adjustment to each Fixed Settlement Rate.


 


(xi)  If
the Company hereafter adopts any stockholder rights plan involving the issuance
of preference share purchase rights or other similar rights 


 


58

















 


(the “Rights”) to all holders of the Common
Stock, a Holder shall be entitled to receive upon settlement of any Purchase
Contract, in addition to the shares of Common Stock issuable upon settlement of
such Purchase Contract, the related Rights for the Common Stock, unless such
Rights under the future stockholder rights plan have separated from the Common
Stock at the time of conversion, in which case each Fixed Settlement Rate shall
be adjusted as provided in Section 5.04(a)(iv) on the date such Rights separate
from the Common Stock.


 


(b)       Adjustment for
Consolidation, Merger or Other Reorganization Event.


 


(i)    In
the event of:


 


(A)               any
consolidation or merger of the Company with or into another Person (other than
a merger or consolidation in which the Company is the continuing corporation
and in which the shares of Common Stock outstanding immediately prior to the
merger or consolidation are not exchanged for cash, securities or other
property of the Company or another corporation);


 


(B)               any
sale, transfer, lease or conveyance to another Person of the property of the
Company as an entirety or substantially as an entirety;


 


(C)               any
statutory share exchange of the Company with another Person (other than in
connection with a merger or acquisition); or


 


(D)               any
liquidation, dissolution or termination of the Company other than as a result
of or after the occurrence of a Termination Event (any event described in
clauses (A), (B), (C) and (D), a “Reorganization Event”),


 


each Holder
will receive, in lieu of shares of Common Stock, on the Purchase Contract
Settlement Date or any Early Settlement Date with respect to each Purchase
Contract forming a part thereof, the kind and amount of securities, cash and
other property receivable upon such Reorganization Event (without any interest
thereon, and without any right to dividends or distribution thereon if such
dividends or distributions have a record date that is prior to the Purchase
Contract Settlement Date) by a Holder of one share of Common Stock (the “Exchange
Property”), multiplied by the applicable Settlement Rate.  The kind and amount of Exchange Property
will be determined assuming such holder of one Share of Common Stock is not a
Person with which the Company consolidated or into which the Company merged or
which merged into the Company or to which such sale or transfer was made, as
the case may be (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 Company and
non-affiliates and such Holder failed to exercise its rights of election, if
any, as to the kind or amount of securities, cash and other property receivable
upon such Reorganization Event (provided 


 


59

















 


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 a Person other than a
Constituent Person or an Affiliate thereof and in respect of which rights of
election shall not have been exercised (“non-electing share”), then for the purpose
of this Section 5.04(b)(i) the kind and amount of securities, cash and other
property receivable upon such Reorganization Event shall be deemed to be the
kind and amount so receivable per share by a plurality of the non-electing
shares).


 


For purposes
of determining the applicable Settlement Rate under this Section 5.04(b)(i) and
Section 5.04(b)(ii), the term “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; provided that prior to the separation of
the Rights or any similar stockholder rights from the Common Stock, such Rights
or similar stockholder rights shall be deemed to have no value.  For the purposes of this paragraph only, 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 and the term “Trading Day” shall be deemed to refer to any publicly
traded securities that comprise all or part of the Exchange Property.


 


In the event
of such a Reorganization Event, the Person formed by such consolidation, merger
or exchange or the Person that acquires the assets of the Company or, in the
event of a liquidation, dissolution or termination of the Company, the Company
or a liquidating trust created in connection therewith, shall execute and
deliver to the Purchase Contract Agent an agreement supplemental hereto
providing that each Holder of an Outstanding Unit shall have the rights
provided by this Section 5.04(b)(i). 
Such supplemental agreement shall provide for adjustments which, for
events subsequent to the effective date of such supplemental agreement, shall
be, in the sole judgment of the parties executing such agreement, as nearly
equivalent as may be practicable to the adjustments provided for in this
Section 5.04. The above provisions of this Section 5.04 shall similarly apply
to successive Reorganization Events.


 


(ii)   In
the event, prior to the Purchase Contract Settlement Date, of a consolidation
or merger of the Company with or into another Person, any merger of another
Person into the Company (other than a merger that does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock), or the sale by the Company of all or substantially all of its
assets, in each case in which 30% or more of the total consideration paid to
the Company’s shareholders consists of cash or cash equivalents (a “Cash Merger”),
then a Holder 


 


60

















 


of a Unit may settle (“Cash Merger Early Settlement”)
its Purchase Contract, upon the conditions set forth below, at the Settlement
Rate in effect immediately prior to the closing of the Cash Merger; provided that
no Cash Merger Early Settlement will be permitted pursuant to this Section
5.04(b)(ii) unless, at the time such Cash Merger Early Settlement is effected,
there is an effective Registration Statement with respect to any securities to
be issued and delivered in connection with such Cash Merger Early Settlement,
if such a Registration Statement is required (in the view of counsel, which
need not be in the form of a written opinion, for the Company) under the
Securities Act.  If such a Registration
Statement is so required, the Company covenants and agrees to use its
commercially reasonable efforts to (x) have in effect a Registration Statement
covering any securities to be delivered in respect of the Purchase Contracts
being settled and (y) provide a Prospectus in connection therewith, in each
case in a form that may be used in connection with such Cash Merger Early
Settlement.  If a Holder elects a Cash
Merger Early Settlement of some or all of its Purchase Contracts, such Holder
shall be entitled to receive, on the Cash Merger Early Settlement Date, the
aggregate amount of any accrued and unpaid Contract Adjustment Payments, with
respect to such Purchase Contracts.  The
Company shall pay such amount as a credit against the amount otherwise payable
by such Holder to effect such Cash Merger Early Settlement.


 


Within five Business Days of the completion of a Cash Merger, the
Company shall provide written notice to Holders of such completion of a Cash
Merger, which shall specify the deadline for submitting the notice to settle
early in cash pursuant to this Section 5.04(b)(ii), the date on which such Cash
Merger Early Settlement shall occur (which date shall be at least five days
after the date of such written notice by the Company, but which shall in no
event be later than the earlier of 20 days after the date of such written
notice by the Company and the fifth Business Day immediately preceding the
Purchase Contract Settlement Date) (the “Cash Merger Early Settlement Date”), the
applicable Settlement Rate and the amount (per share of Common Stock) of cash,
securities and other consideration receivable by the Holder, including the
amount of Contract Adjustment Payments receivable, upon settlement.


 


Corporate Units Holders (unless Applicable Ownership Interests in the
Treasury Portfolio have replaced Applicable Ownership Interests in Senior Notes
as a component of the Corporate Units) and Treasury Units Holders may only
effect Cash Merger Early Settlement pursuant to this Section 5.04(b)(ii) in
integral multiples of 40 Corporate Units or Treasury Units, as the case may
be.  If Applicable Ownership Interests
in the Treasury Portfolio have replaced Applicable Ownership Interests in
Senior Notes as a component of the Corporate Units, Corporate Units Holders may
only effect Cash Merger Early Settlement pursuant to this Section 5.04(b)(ii)
in multiples of 25,000 Corporate Units. 
Other than the provisions relating to timing of notice and settlement,
which shall be as set forth in 


 


61

















 


the immediately preceding paragraph, the provisions of Section 5.01
shall apply with respect to a Cash Merger Early Settlement pursuant to this
Section 5.04(b)(ii).


 


In order to exercise the right to effect Cash Merger Early Settlement
with respect to any Purchase Contracts, the Holder of the Certificate
evidencing Units shall deliver, no later than 5:00 p.m. (New York City time) on
the third Business Day immediately preceding the Cash Merger Early Settlement
Date, such Certificate to the Purchase Contract Agent at the Corporate Trust
Office duly endorsed for transfer to the Company or in blank with the form of
Election to Settle Early on the reverse thereof duly completed and accompanied
by payment (payable to the Company in immediately available funds) in an amount
equal to the result of:


 


(i)            the product of (A)
the Stated Amount times (B) the number of Purchase Contracts with respect to
which the Holder has elected to effect Cash Merger Early Settlement, less


 


(ii)           the amount of any
accrued and unpaid Contract Adjustment Payments (except when the Cash Merger
Early Settlement Date falls after any Record Date and prior to the next
succeeding Payment Date).


 


Upon receipt of such Certificate and payment of such funds, the
Purchase Contract Agent shall pay the Company from such funds the related
Purchase Price pursuant to the terms of the related Purchase Contracts, and
notify the Collateral Agent that all the conditions necessary for a Cash Merger
Early Settlement by a Holder have been satisfied pursuant to which the Purchase
Contract Agent has received from such Holder, and paid to the Company as
confirmed in writing by the Company, the related Purchase Price.


 


Upon receipt by the Collateral Agent of the notice from the Purchase
Contract Agent set forth in the immediately preceding paragraph, the Collateral
Agent shall release from the Pledge, (1) the Senior Notes underlying the
Pledged Applicable Ownership Interests in Senior Notes or the Pledged
Applicable Ownership Interests in the Treasury Portfolio, in the case of a
Holder of Corporate Units or (2) the Pledged Treasury Securities, in the case
of a Holder of Treasury Units, in each case with a Value equal to the product
of (x) the Stated Amount and (y) the number of Purchase Contracts as to which
such Holder has elected to effect Cash Merger Early Settlement, and shall
instruct the Securities Intermediary to Transfer all such Pledged Applicable
Ownership Interests in the Treasury Portfolio or Senior Notes underlying
Pledged Applicable Ownership Interests in Senior Notes or Pledged Treasury
Securities, as the case may be, to the Purchase Contract Agent for distribution
to such Holder, in each case free and clear of the Pledge created hereby.


 


If a Holder properly effects an effective Cash Merger Early Settlement
in accordance with the provisions of this Section 5.04(b)(ii), the Company will
deliver 


 


62

















 


(or will cause the Collateral Agent to deliver) to the Holder on the
Cash Merger Early Settlement Date:


 


(A)               the
kind and amount of securities, cash and other property receivable upon such
Cash Merger by a Holder of the number of shares of Common Stock issuable on
account of each Purchase Contract if the Purchase Contract Settlement Date had
occurred immediately prior to such Cash Merger (based on the Settlement Rate in
effect at such time), assuming such Holder of Common Stock is not a Constituent
Person or an Affiliate of a Constituent Person to the extent such Cash Merger
provides for different treatment of Common Stock held by Affiliates of the
Company and non-affiliates and such Holder failed to exercise its rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such Cash Merger (provided that if the kind or amount of
securities, cash and other property receivable upon such Cash Merger is not the
same for each non-electing share, then for the purpose of this Section
5.04(b)(ii), the kind and amount of securities, cash and other property
receivable upon such Cash Merger 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).  For the avoidance
of doubt, for the purposes of determining the Applicable Market Value (in
connection with determining the appropriate Settlement Rate to be applied in
the foregoing sentence), the date of the closing of the Cash Merger shall be
deemed to be the Purchase Contract Settlement Date;


 


(B)               the
Senior Notes, the Applicable Ownership Interests in the Treasury Portfolio or
Treasury Securities, as the case may be, related to the Purchase Contracts with
respect to which the Holder is effecting a Cash Merger Early Settlement; and


 


(C)               if
so required under the Securities Act, a Prospectus as contemplated by this
Section 5.04(b)(ii).


 


The Corporate Units or the Treasury Units of
the Holders who do not elect Cash Merger Early Settlement in accordance with
the foregoing will continue to remain outstanding and be subject to settlement
on the Purchase Contract Settlement Date in accordance with the terms hereof.


 


(c)       All calculations
and determinations pursuant to this Section 5.04 shall be made by the Company
or its agent and the Purchase Contract Agent shall have no responsibility with
respect to this Agreement.


 


Section 5.05.  Notice of Adjustments and Certain Other
Events.  (a)
Whenever the Fixed Settlement Rates are adjusted as herein provided, the
Company shall within 10 Business Days following the occurrence of an event that
requires an adjustment to each 


 


63

















 


Fixed Settlement Rate pursuant to Section 5.04 (or if the Company is
not aware of such occurrence, as soon as practicable after becoming so aware):


 


(i)    compute
each adjusted Fixed Settlement Rate in accordance with Section 5.04 and prepare
and transmit to the Purchase Contract Agent an Officers’ Certificate setting
forth each Fixed Settlement Rate, the method of calculation thereof in
reasonable detail, and the facts requiring such adjustment and upon which such
adjustment is based; and


 


(ii)   provide
a written notice to the Holders of the Units of the occurrence of such event
and a statement in reasonable detail setting forth the method by which the
adjustment to each Fixed Settlement Rate was determined and setting forth each
adjusted Fixed Settlement Rate.


 


(b)       The Purchase
Contract Agent shall not at any time be under any duty or responsibility to any
Holder to determine whether any facts exist which may require any adjustment of
each Fixed Settlement Rate, or with respect to the nature or extent or
calculation of any such adjustment when made, or with respect to the method
employed in making the same.  The
Purchase Contract Agent shall be fully authorized and protected in relying on
any Officers’ Certificate delivered pursuant to Section 5.05(a)(i) and any
adjustment contained therein and the Purchase Contract Agent shall not be
deemed to have knowledge of any adjustment unless and until it has received
such certificate. The Purchase Contract Agent shall not be accountable with
respect to the validity or value (or the kind or amount) of any shares of
Common Stock, or of any securities or property, which may at the time be issued
or delivered with respect to any Purchase Contract; and the Purchase Contract Agent
makes no representation with respect thereto. 
The Purchase Contract Agent shall not be responsible for any failure of
the Company to issue, transfer or deliver any shares of Common Stock pursuant
to a Purchase Contract or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article 5.


 


Section 5.06.  Termination Event; Notice.


 


The Purchase
Contracts and all obligations and rights of the Company and the Holders
thereunder, including, without limitation, the rights of the Holders to receive
and the obligation of the Company to pay any Contract Adjustment Payments
(including any accrued and unpaid Contract Adjustment Payments), and the rights
and obligations of Holders to purchase Common Stock, shall immediately and
automatically terminate, without the necessity of any notice or action by any
Holder, the Purchase Contract Agent or the Company, if, prior to or on the
Purchase Contract Settlement Date, a Termination Event shall have occurred.


 


Upon and after
the occurrence of a Termination Event, the Units shall thereafter represent the
right to receive the Senior Notes underlying the Applicable Ownership Interests
in Senior Notes, the Treasury Securities or the Applicable Ownership Interests
in the Treasury Portfolio, as the case may be, forming part of such Units, in
accordance with 


 


64

















 


the provisions of Section 3.15 hereof. 
Upon the occurrence of a Termination Event, the Company shall promptly
but in no event later than two Business Days thereafter give written notice to
the Purchase Contract Agent, the Collateral Agent and the Holders, at their
addresses as they appear in the Security Register.


 


Section 5.07.  Early Settlement.  (a)  Subject to and upon
compliance with the provisions of this Section 5.07, at the option of the
Holder thereof, Purchase Contracts underlying Units may be settled early (“Early
Settlement”) at any time after May 28, 2005 but prior to 5:00
p.m. (New York City time) on the seventh Business Day immediately preceding the
Purchase Contract Settlement Date (in the case of Corporate Units, unless a
Special Event Redemption has occurred) or the second Business Day immediately
preceding the Purchase Contract Settlement Date (in the case of Treasury Units
or Corporate Units after the occurrence of a Special Event Redemption); provided that
no Early Settlement will be permitted pursuant to this Section 5.07 unless, at
the time such Early Settlement is effected, there is an effective Registration
Statement with respect to any securities to be issued and delivered in
connection with such Early Settlement, if such a Registration Statement is
required (in the view of counsel, which need not be in the form of a written
opinion, for the Company) under the Securities Act.  If such a Registration Statement is so required, the Company
covenants and agrees to use its commercially reasonable best efforts to (i)
have in effect a Registration Statement covering any securities to be delivered
in respect of the Purchase Contracts being settled and (ii) provide a
Prospectus in connection therewith, in each case in a form that may be used in
connection with such Early Settlement (it being understood that if there is a
material business transaction or development that has not yet been publicly
disclosed, the Company will not be required to provide such a Prospectus, and
the right to effect Early Settlement will not be available, until the Company
has publicly disclosed such transaction or development, provided that the Company
will use its commercially reasonable efforts to make such disclosure as soon as
it is commercially reasonable to do so).


 


(b)       In order to
exercise the right to effect Early Settlement with respect to any Purchase
Contracts, the Holder of the Certificate evidencing Units (in the case of
Certificates in definitive certificated form) shall deliver, at any time prior
to 5:00 p.m. (New York City time) on the seventh Business Day immediately
preceding the Purchase Contract Settlement Date (in the case of Corporate
Units, unless a Special Event Redemption has occurred) or the second Business
Day immediately preceding the Purchase Contract Settlement Date (in the case of
Treasury Units or Corporate Units after the occurrence of a Special Event
Redemption), such Certificate to the Purchase Contract Agent at the Corporate
Trust Office duly endorsed for transfer to the Company or in blank with the
form of Election to Settle Early on the reverse thereof duly completed and
accompanied by payment (payable to the Company in immediately available funds)
in an amount (the “Early Settlement Amount”) equal to the sum
of:


 


(i)    the
product of (A) the Stated Amount and (B) the number of Purchase Contracts with
respect to which the Holder has elected to effect Early Settlement, plus,


 


65

















 


(ii)   if
such delivery is made with respect to any Purchase Contracts during the period
from the close of business on any Record Date next preceding any Payment Date
to the opening of business on such Payment Date, an amount equal to the
Contract Adjustment Payments payable on such Payment Date with respect to such
Purchase Contracts.


 


In the case of
Book-Entry Interests, each Beneficial Owner electing Early Settlement must
deliver the Early Settlement Amount to the Purchase Contract Agent along with a
facsimile of the Election to Settle Early form duly completed, make book-entry
transfer of such Book-Entry Interests and comply with the applicable procedures
of the Depositary.


 


Except as
provided in Section 5.10(d), no payment shall be made upon Early Settlement of
any Purchase Contract on account of any Contract Adjustment Payments accrued on
such Purchase Contract or on account of any dividends on the Common Stock
issued upon such Early Settlement.  If
the foregoing requirements are first satisfied with respect to Purchase
Contracts underlying any Units at or prior to 5:00 p.m. (New York City time) on
a Business Day, such day shall be the “Early Settlement Date” with respect to such
Units and if such requirements are first satisfied after 5:00 p.m. (New York
City time) on a Business Day or on a day that is not a Business Day, the Early
Settlement Date with respect to such Units shall be the next succeeding
Business Day.


 


Upon the
receipt of such Certificate and Early Settlement Amount from the Holder, the
Purchase Contract Agent shall pay to the Company such Early Settlement Amount,
the receipt of which payment the Company shall confirm in writing. The Purchase
Contract Agent shall then notify the Collateral Agent that (A) such Holder has
elected to effect an Early Settlement, which notice shall set forth the number
of such Purchase Contracts as to which such Holder has elected to effect Early
Settlement, (B) the Purchase Contract Agent has received from such Holder, and
paid to the Company as confirmed in writing by the Company, the related Early
Settlement Amount and (C) all conditions to such Early Settlement have been
satisfied.


 


Upon receipt
by the Collateral Agent of the notice from the Purchase Contract Agent set
forth in the preceding paragraph, the Collateral Agent shall release from the
Pledge, (1) in the case of a Holder of Corporate Units, the Senior Notes
underlying the Pledged Applicable Ownership Interest in Senior Notes, or the
Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case
may be, relating to the Purchase Contracts to which Early Settlement is
effected, or (2) in the case of a Holder of Treasury Units, Pledged Treasury
Securities, in each case with a Value equal to the product of (x) the Stated
Amount times (y) the number of Purchase Contracts as to which such Holder has
elected to effect Early Settlement, and shall instruct the Securities
Intermediary to Transfer all such Pledged Applicable Ownership Interests in the
Treasury Portfolio or Senior Notes underlying such Pledged Applicable Ownership
Interests in Senior Notes or Pledged Treasury Securities, as the case may be,
to the Purchase Contract Agent for distribution to such Holder, in each case
free and clear of the Pledge created hereby.


 


66

















 


Holders of
Corporate Units and Treasury Units may only effect Early Settlement pursuant to
this Section 5.07 in integral multiples of 40 Treasury Units.  If Applicable Ownership Interests in the
Treasury Portfolio have replaced Applicable Ownership Interests in Senior Notes
as a component of the Corporate Units, Corporate Units Holders may only effect
Early Settlement pursuant to this Section 5.07 in integral multiples of 25,000
Corporate Units.


 


Upon Early
Settlement of the Purchase Contracts, the rights of the Holders to receive and
the obligation of the Company to pay any Contract Adjustment Payments
(including any accrued and unpaid Contract Adjustment Payments) with respect to
such Purchase Contracts shall immediately and automatically terminate, except
as provided in Section 5.10(d).


 


(c)       Upon Early
Settlement of Purchase Contracts by a Holder of the related Units, the Company
shall issue, and the Holder shall be entitled to receive, a number of shares of
Common Stock (or in the case of an Early Settlement following a Reorganization
Event, a number of units of Exchange Property) equal to the Minimum Settlement
Rate for each Purchase Contract as to which Early Settlement is effected.


 


(d)       No later than
the third Business Day after the applicable Early Settlement Date, the Company
shall cause the shares of Common Stock issuable upon Early Settlement of
Purchase Contracts to be issued and delivered, together with payment in lieu of
any fraction of a share, as provided in Section 5.08.


 


(e)       Upon Early
Settlement of any Purchase Contracts, and subject to receipt of shares of
Common Stock from the Company and the Senior Notes, the Applicable Ownership
Interests in the Treasury Portfolio or Treasury Securities, as the case may be,
from the Securities Intermediary, as applicable, the Purchase Contract Agent
shall, in accordance with the instructions provided by the Holder thereof on
the applicable form of Election to Settle Early on the reverse of the
Certificate evidencing the related Units:


 


(i)    transfer
to the Holder the Senior Notes, the Applicable Ownership Interests in the
Treasury Portfolio or Treasury Securities, as the case may be, related to such
Units,


 


(ii)   deliver
to the Holder a certificate or certificates for the full number of shares of
Common Stock issuable upon such Early Settlement, together with payment in lieu
of any fraction of a share, as provided in Section 5.08, and


 


(iii) if
so required under the Securities Act, deliver a Prospectus for the shares of
Common Stock issuable upon such Early Settlement as contemplated by Section
5.07(a).


 


(f)       In the event
that Early Settlement is effected with respect to Purchase Contracts underlying
less than all the Units evidenced by a Certificate, upon such Early 


 


67

















 


Settlement the Company shall execute and the Purchase Contract Agent
shall execute on behalf of the Holder, authenticate and deliver to the Holder
thereof, at the expense of the Company, a Certificate evidencing the Units as
to which Early Settlement was not effected.


 


Section 5.08.  No Fractional Shares.  No fractional shares or scrip
representing fractional shares of Common Stock shall be issued or delivered upon
settlement on the Purchase Contract Settlement Date, or upon Early Settlement
or Cash Merger Early Settlement of any Purchase Contracts.  If Certificates evidencing more than one
Purchase Contract shall be surrendered for settlement at one time by the same
Holder, the number of full shares of Common Stock which shall be delivered upon
settlement shall be computed on the basis of the aggregate number of Purchase
Contracts evidenced by the Certificates so surrendered.  Instead of any fractional share of Common
Stock which would otherwise be deliverable upon settlement of any Purchase
Contracts on the Purchase Contract Settlement Date, or upon Early Settlement or
Cash Merger Early Settlement, the Company, through the Purchase Contract Agent,
shall make a cash payment in respect of such fractional interest in an amount
equal to the percentage of such fractional share multiplied by the Applicable
Market Value calculated as if the date of such settlement were the Purchase
Contract Settlement Date.  The Company
shall provide the Purchase Contract Agent from time to time with sufficient
funds to permit the Purchase Contract Agent to make all cash payments required
by this Section 5.08 in a timely manner.


 


Section 5.09.  Charges and Taxes.  The Company will pay all stock
transfer and similar taxes attributable to the initial issuance and delivery of
the shares of Common Stock pursuant to the Purchase Contracts; provided,
however,
that the Company shall not be required to pay any such tax or taxes which may
be payable in respect of any exchange of or substitution for a Certificate
evidencing a Unit or any issuance of a share of Common Stock in a name other
than that of the registered Holder of a Certificate surrendered in respect of
the Units evidenced thereby, other than in the name of the Purchase Contract
Agent, as custodian for such Holder, and the Company shall not be required to
issue or deliver such share certificates or Certificates unless or until the
Person or Persons requesting the transfer or issuance thereof shall have paid
to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.


 


Section 5.10.  Contract Adjustment Payments.  (a) Subject to Section 5.10(d)
and Section 5.10(e) through (q), the Company shall pay, on each Payment Date,
the Contract Adjustment Payments payable in respect of each Purchase Contract
for the period from and including the immediately preceding Payment Date on
which Contract Adjustment Payments were paid (or if none, the Special Payment
Date) to but excluding such Payment Date to the Person in whose name a
Certificate is registered at the close of business on the Record Date relating
to such Payment Date.  Contract
Adjustment Payments on Global Certificates will be made by wire transfer of
immediately available funds to the Depositary. 
If the book-entry system for the Units has been terminated, the Contract
Adjustment Payments will be payable at the office of the Purchase Contract
Agent in the 


 


68

















 


Borough of Manhattan, City of New York, New York maintained for that
purpose or, at the option of the Company, by check mailed to the address of the
Person entitled thereto at such Person’s address as it appears on the Security
Register as of the Record Date, or by wire transfer to the account designated
by such Person by a prior written notice to the Purchase Contract Agent.  If any Payment Date is not a Business Day,
then payment of the Contract Adjustment Payments payable on such date will be
made on the next succeeding day that is a Business Day (and without any
interest in respect of any such delay). 
Contract Adjustment Payments payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months.  The Contract Adjustment Payments will accrue from (and including)
May 24, 2004 to (but excluding) the earliest of (1) the Purchase Contract
Settlement Date, (ii) the Payment Date immediately preceding any Early
Settlement Date and (iii) any Cash Merger Early Settlement Date.


 


In addition,
the Company shall pay on May 28, 2004 (the “Special Payment Date”), the
Contract Adjusted Payments accrued from and including May 24, 2004 to but
excluding the Special Payment Date to the Person in whose name a Certificate is
registered at the close of business on the Business Day immediately preceding
the Special Payment Date.  The Contract
Adjustment Payments payable on the Special Payment Date shall be paid by wire
transfer to the account designated by the Person entitled to receive such
payment by prior notice to the Company and the Purchase Contract Agent.


 


(b)       Upon the
occurrence of a Termination Event, the Company’s obligation to pay future
Contract Adjustment Payments (including any accrued Contract Adjustment Payments)
shall cease.


 


(c)       Each Certificate
delivered under this Agreement upon registration of transfer of or in exchange
for or in lieu of (including as a result of a Collateral Substitution or the
recreation of Corporate Units) any other Certificate shall carry the right to
accrued and unpaid Contract Adjustment Payments, which right was carried by the
Purchase Contracts underlying such other Certificates.


 


(d)       In the case of
any Unit with respect to which Early Settlement or Cash Merger Early Settlement
of the underlying Purchase Contract is effected on a date that is after any
Record Date and prior to or on the next succeeding Payment Date, Contract
Adjustment Payments otherwise payable on such Payment Date shall be payable on
such Payment Date notwithstanding such Early Settlement or Cash Merger Early
Settlement, and such Contract Adjustment Payments shall be paid to the Person
in whose name the Certificate evidencing such Unit is registered at the close
of business on such Record Date.  Except
as otherwise expressly provided in the immediately preceding sentence, and the
right to receive accrued and unpaid Contract Adjustment Payments as set forth
in Section 5.04(b)(ii), in the case of any Unit with respect to which Early
Settlement or Cash Merger Early Settlement of the underlying Purchase Contract
is effected, Contract Adjustment Payments that would otherwise be payable after
the Early Settlement or Cash Merger Early Settlement Date with respect to such
Purchase Contract shall not be payable.


 


69

















 


(e)       The Company’s
obligations with respect to Contract Adjustment Payments will be subordinated
and junior in right of payment to the Company’s obligations under any Senior
Indebtedness as set forth in this Section 5.10.


 


(f)       In the event (x)
of any payment by, or distribution of assets of, the Company of any kind or
character, whether in cash, property or securities, to creditors upon any
dissolution, winding-up, liquidation or reorganization of the Company, whether
voluntary or involuntary or in bankruptcy, insolvency, receivership or other
proceedings, or (y) subject to the provisions of Section 5.10(h) below, that
(A) a default shall have occurred and be continuing with respect to the payment
of principal, interest or any other monetary amounts due and payable on any
Senior Indebtedness and such default shall have continued beyond the period of
grace, if any, specified in the instrument evidencing such Senior Indebtedness
(and the Purchase Contract Agent shall have received written notice thereof
from the Company or one or more holders of Senior Indebtedness or their
representative or representatives or the trustee or trustees under any
indenture pursuant to which any such Senior Indebtedness may have been issued),
or (B) the maturity of any Senior Indebtedness shall have been accelerated
because of a default in respect of such Senior Indebtedness (and the Purchase
Contract Agent shall have received written notice thereof from the Company or
one or more holders of Senior Indebtedness or their representative or
representatives or the trustee or trustees under any indenture pursuant to
which any such Senior Indebtedness may have been issued), then:


 


(i)    the
holders of all Senior Indebtedness shall first be entitled to receive, in the
case of clause (x) above, payment of all amounts due or to become due upon all
Senior Indebtedness and, in the case of subclauses (A) and (B) of clause (y)
above, payment of all amounts due thereon, or provision shall be made for such
payment in money or money’s worth, before the Holders of any of the Units are
entitled to receive any Contract Adjustment Payments on the Purchase Contracts
underlying the Units;


 


(ii)   any
payment by, or distribution of assets of, the Company of any kind or character,
whether in cash, property or securities, to which the Holders of any of the
Units would be entitled except for the provisions of Section 5.10(e) through
(q), including any such payment or distribution that may be payable or
deliverable by reason of the payment of any other indebtedness of the Company
being subordinated to the payment of such Contract Adjustment Payments on the
Purchase Contracts underlying the Units, shall be paid or delivered by the
Person making such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the representative or
representatives of the holders of Senior Indebtedness or to the trustee or
trustees under any indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of such Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full of all
Senior Indebtedness remaining unpaid after giving effect to any concurrent
payment or distribution (or provision therefor) 


 


70

















 


to the holders of such Senior Indebtedness,
before any payment or distribution is made of such Contract Adjustment Payments
to the Holders of such Units; and


 


(iii) in
the event that, notwithstanding the foregoing, any payment by, or distribution
of assets of, the Company of any kind or character, whether in cash, property
or securities, including any such payment or distribution that may be payable
or deliverable by reason of the payment of any other indebtedness of the
Company being subordinated to the payment of Contract Adjustment Payments on
the Purchase Contracts underlying the Units, shall be received by the Purchase
Contract Agent or the Holders of any of the Units when such payment or
distribution is prohibited pursuant to Section 5.10(e) through (q), such
payment or distribution shall be paid over to the representative or
representatives of the holders of Senior Indebtedness or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
such Senior Indebtedness may have been issued, ratably as aforesaid, for
application to the payment of all Senior Indebtedness remaining unpaid until
all such Senior Indebtedness shall have been paid in full, after giving effect
to any concurrent payment or distribution (or provision therefor) to the
holders of such Senior Indebtedness.


 


(g)      For purposes of
Section 5.10(e) through (q), the words “cash, property or securities” shall not
be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other Person provided for by a
plan of reorganization or readjustment, the payment of which is subordinated at
least to the extent provided in Section 5.10(e) through (q) with respect to
such Contract Adjustment Payments on the Units to the payment of all Senior
Indebtedness which may at the time be outstanding; provided that (i) the Senior
Indebtedness is assumed by the Person, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the holders of the
Senior Indebtedness are not, without the consent of each such holder adversely
affected thereby, altered by such reorganization or readjustment;


 


(h)      Any failure by
the Company to make any payment on or perform any other obligation under Senior
Indebtedness, other than any indebtedness incurred by the Company or assumed or
guaranteed, directly or indirectly, by the Company for money borrowed (or any
deferral, renewal, extension or refunding thereof) or any indebtedness or
obligation as to which the provisions of Section 5.10(e) through (q) shall have
been waived by the Company in the instrument or instruments by which the
Company incurred, assumed, guaranteed or otherwise created such indebtedness or
obligation, shall not be deemed a default or event of default if (i) the
Company shall be disputing its obligation to make such payment or perform such
obligation and (ii) either (A) no final judgment relating to such dispute shall
have been issued against the Company which is in full force and effect and is
not subject to further review, including a judgment that has become final by
reason of the expiration of the time within which a party may seek further
appeal or review, and (B) in the event a judgment that is subject to further
review or appeal has been issued, the Company shall in good faith be
prosecuting an appeal or other proceeding for review and a stay of execution
shall have been obtained pending such appeal or review.


 


71

















 


(i)       Subject to the
irrevocable payment in full of all Senior Indebtedness, the Holders of the
Units shall be subrogated (equally and ratably with the holders of all
obligations of the Company which by their express terms are subordinated to
Senior Indebtedness of the Company to the same extent as payment of the
Contract Adjustment Payments in respect of the Purchase Contracts underlying
the Units is subordinated and which are entitled to like rights of subrogation)
to the rights of the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to the
Senior Indebtedness until all such Contract Adjustment Payments owing on the
Units shall be paid in full, and as between the Company, its creditors other
than holders of such Senior Indebtedness and the Holders, no such payment or
distribution made to the holders of Senior Indebtedness by virtue of Section
5.10(e) through (q) that otherwise would have been made to the Holders shall be
deemed to be a payment by the Company on account of such Senior Indebtedness,
it being understood that the provisions of Section 5.10(e) through (q) are and
are intended solely for the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of Senior Indebtedness, on the other
hand.


 


(j)       Nothing
contained in Section 5.10(e) through (q) or elsewhere in this Agreement or in
the Units is intended to or shall impair, as among the Company, its creditors
other than the holders of Senior Indebtedness and the Holders, the obligation
of the Company, which is absolute and unconditional, to pay to the Holders such
Contract Adjustment Payments on the Units as and when the same shall become due
and payable in accordance with their terms, or is intended to or shall affect
the relative rights of the Holders and creditors of the Company other than the
holders of Senior Indebtedness, nor shall anything herein or therein prevent
the Purchase Contract Agent or any Holder from exercising all remedies
otherwise permitted by applicable law upon default under this Agreement,
subject to the rights, if any, under Section 5.10(e) through (q), of the
holders of Senior Indebtedness in respect of cash, property or securities of
the Company received upon the exercise of any such remedy.


 


(k)      Upon payment or
distribution of assets of the Company referred to in Section 5.10(e) through
(q), the Purchase Contract Agent and the Holders shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which any
such dissolution, winding up, liquidation or reorganization proceeding
affecting the affairs of the Company is pending or upon a certificate of the
trustee in bankruptcy, receiver, assignee for the benefit of creditors,
liquidating trustee or trustee or other person making any payment or
distribution, delivered to the Purchase Contract Agent or to the Holders, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to these Section
5.10(e) through (q).


 


(l)       The Purchase
Contract Agent shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself to be a holder of Senior Indebtedness
(or a trustee or representative on behalf of such holder) to establish that
such notice has been 


 


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given by a holder of Senior Indebtedness or a trustee or representative
on behalf of any such holder or holders. In the event that the Purchase
Contract Agent determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to Section 5.10(e) through
(q), the Purchase Contract Agent may request such Person to furnish evidence to
the reasonable satisfaction of the Purchase Contract Agent as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under Section 5.10(e) through (q), and,
if such evidence is not furnished, the Purchase Contract Agent may defer
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.


 


(m)     Nothing contained
in Section 5.10(e) through (q) shall affect the obligations of the Company to
make, or prevent the Company from making, payment of the Contract Adjustment
Payments, except as otherwise provided in these Section 5.10(e) through (q).


 


(n)      Each Holder, by
its acceptance thereof, authorizes and directs the Purchase Contract Agent on
its behalf to take such action as may be necessary or appropriate to effectuate
the subordination provided in Section 5.10(e) through (q) and appoints the
Purchase Contract Agent as its attorney-in-fact for any and all such purposes.


 


(o)       The Company
shall give prompt written notice to the Purchase Contract Agent of any fact
known to the Company that would prohibit the making of any payment of moneys to
or by the Purchase Contract Agent in respect of the Units pursuant to the
provisions of this Section. Notwithstanding the provisions of Section 5.10(e)
through (q) or any other provisions of this Agreement, the Purchase Contract
Agent shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment of moneys to or by the Purchase
Contract Agent, or the taking of any other action by the Purchase Contract
Agent, unless and until the Purchase Contract Agent shall have received written
notice thereof mailed or delivered to the Purchase Contract Agent at its
Corporate Trust Office from the Company, any Holder, or the holder or
representative of any Senior Indebtedness; provided that if at least two Business
Days prior to the date upon which by the terms hereof any such moneys may
become payable for any purpose, the Purchase Contract Agent shall not have
received with respect to such moneys the notice provided for in this Section,
then, anything herein contained to the contrary notwithstanding, the Purchase
Contract Agent shall have full power and authority to receive such moneys and
to apply the same to the purpose for which they were received and shall not be
affected by any notice to the contrary that may be received by it within two
Business Days prior to or on or after such date.


 


(p)       The Purchase
Contract Agent in its individual capacity shall be entitled to all the rights
set forth in this Section 5.10 with respect to any Senior Indebtedness at the
time held by it, to the same extent as any other holder of Senior Indebtedness
and nothing in this Agreement shall deprive the Purchase Contract Agent of any
of its rights as such holder.


 


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(q)       No right of any
present or future holder of any Senior Indebtedness to enforce the
subordination herein shall at any time or in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or by any noncompliance
by the Company with the terms, provisions and covenants of this Agreement,
regardless of any knowledge thereof which any such holder may have or be
otherwise charged with.


 


(r)       Nothing in this
Section 5.10 shall apply to claims of, or payments to, the Purchase Contract
Agent under or pursuant to Section 7.07.


 


(s)       With respect to
the holders of Senior Indebtedness, (i) the duties and obligations of the
Purchase Contract Agent shall be determined solely by the express provisions of
this Agreement; (ii) the Purchase Contract Agent shall not be liable to any
such holders if it shall, acting in good faith, mistakenly pay over or
distribute to the Holders or to the Company or any other Person cash, property
or securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Section 5.10 or otherwise; (iii) no implied covenants or
obligations shall be read into this Agreement against the Purchase Contract
Agent; and (iv) the Purchase Contract Agent shall not be deemed to be a
fiduciary as to holders of such Senior Indebtedness.


 


ARTICLE 6

RIGHTS AND REMEDIES OF HOLDERS


 


Section 6.01.  Unconditional Right of Holders to Receive
Contract Adjustment Payments and To Purchase Shares of Common Stock.  Each Holder of a Unit shall have
the right, which is absolute and unconditional, (i) subject to Article 5, to
receive each Contract Adjustment Payment with respect to the Purchase Contract
comprising part of such Unit on the respective Payment Date for such Unit
pursuant to the terms hereof and (ii) except upon and following a Termination
Event, to purchase shares of Common Stock pursuant to such Purchase Contract
and, in each such case, to institute suit for the enforcement of any such right
to receive Contract Adjustment Payments and the right to purchase shares of
Common Stock, and such rights shall not be impaired without the consent of such
Holder.


 


Section 6.02.  Restoration of Rights and Remedies.  If any Holder has instituted any
proceeding to enforce any right or remedy under this Agreement and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company and such Holder shall be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of such Holder shall continue as though no
such proceeding had been instituted.


 


Section 6.03.  Rights and Remedies Cumulative.  Except as otherwise provided with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Certificates in the last paragraph of Section 3.10, no right or remedy herein
conferred upon or reserved to the Holders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition 


 


74

















 


to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.


 


Section 6.04.  Delay or Omission Not Waiver.  No delay or omission of any
Holder to exercise any right upon a default or remedy upon a default shall
impair any such right or remedy or constitute a waiver of any such right.  Every right and remedy given by this Article
6 or by law to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by such Holders.


 


Section 6.05.  Undertaking for Costs.  All parties to this Agreement
agree, and each Holder of a Unit, by its acceptance of such Unit shall be
deemed to have agreed, that any court of competent jurisdiction may in its
discretion require, in any suit for the enforcement of any right or remedy
under this Agreement, or in any suit against the Purchase Contract Agent for
any action taken, suffered or omitted by it as Purchase Contract Agent, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys’ fees and costs against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; provided that the provisions of this
Section shall not apply to any suit instituted by the Purchase Contract Agent,
to any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% of the Outstanding Units, or to any suit instituted by
any Holder for the enforcement of interest on any Senior Notes owed pursuant to
such Holder’s Applicable Ownership Interests in Senior Notes or Contract
Adjustment Payments on or after the respective Payment Date therefor in respect
of any Unit held by such Holder, or for enforcement of the right to purchase
shares of Common Stock under the Purchase Contracts constituting part of any Unit
held by such Holder.


 


Section 6.06.  Waiver of Stay or Extension Laws.  The Company covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Agreement; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Purchase
Contract Agent or the Holders, but will suffer and permit the execution of
every such power as though no such law had been enacted.


 


ARTICLE 7

THE PURCHASE CONTRACT AGENT


 


Section 7.01.  Certain Duties and Responsibilities.


 


(a)       The Purchase
Contract Agent:


 


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(i)    undertakes
to perform, with respect to the Units, such duties and only such duties as are
specifically set forth in this Agreement and the Remarketing Agreement to be
performed by the Purchase Contract Agent and no implied covenants or
obligations shall be read into this Agreement or the Remarketing Agreement against
the Purchase Contract Agent; and


 


(ii)   in
the absence of bad faith on its part, may, with respect to the Units,
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Purchase Contract Agent and conforming to the requirements of this Agreement or
the Remarketing Agreement, as applicable, but in the case of any certificates
or opinions which by any provision hereof are specifically required to be
furnished to the Purchase Contract Agent, the Purchase Contract Agent shall be
under a duty to examine the same to determine whether or not they conform to
the requirements of this Agreement or the Remarketing Agreement, as applicable
(but need not confirm or investigate the accuracy of the mathematical
calculations or other facts stated therein).


 


(b)       No provision of
this Agreement or the Remarketing Agreement shall be construed to relieve the
Purchase Contract Agent from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:


 


(i)    this
Section 7.01(b) shall not be construed to limit the effect of Section 7.01(a);


 


(ii)   the
Purchase Contract Agent shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be conclusively determined
by a court of competent jurisdiction that the Purchase Contract Agent was
negligent in ascertaining the pertinent facts; and


 


(iii) no
provision of this Agreement or the Remarketing Agreement shall require the
Purchase Contract Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.


 


(c)       Whether or not
therein expressly so provided, every provision of this Agreement and the
Remarketing Agreement relating to the conduct or affecting the liability of or
affording protection to the Purchase Contract Agent shall be subject to the
provisions of this Section.


 


(d)       The Purchase
Contract Agent is authorized to execute and deliver the Remarketing Agreement in
its capacity as Purchase Contract Agent.


 


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Section 7.02.  Notice of Default.  Within 30 days after the occurrence of any default by
the Company hereunder of which a Responsible Officer of the Purchase Contract
Agent has actual knowledge, the Purchase Contract Agent shall transmit by mail
to the Company and the Holders, as their names and addresses appear in the
Security Register, notice of such default hereunder, unless such default shall
have been cured or waived.


 


Section 7.03.  Certain Rights of Purchase Contract Agent.


 


Subject to the
provisions of Section 7.01:


 


(a)       the Purchase
Contract Agent may, in the absence of bad faith, conclusively rely and shall be
fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;


 


(b)       any request or
direction of the Company mentioned herein shall be sufficiently evidenced by an
Officers’ Certificate, Issuer Order or Issuer Request, and any resolution of
the Board of Directors of the Company may be sufficiently evidenced by a Board
Resolution;


 


(c)       whenever in the
administration of this Agreement or the Remarketing Agreement the Purchase
Contract Agent shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting to take any action hereunder or
thereunder, the Purchase Contract Agent (unless other evidence be herein
specifically prescribed in this Agreement) may, in the absence of bad faith on
its part, conclusively rely upon an Officers’ Certificate of the Company;


 


(d)       the Purchase
Contract Agent may consult with counsel of its selection and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;


 


(e)       the Purchase
Contract Agent shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the Purchase
Contract Agent, in its discretion, may make reasonable further inquiry or
investigation into such facts or matters related to the execution, delivery and
performance of the Purchase Contracts as it may see fit, and, if the Purchase
Contract Agent shall determine to make such further inquiry or investigation,
it shall be entitled to examine the relevant books, records and premises of the
Company, personally or by agent or attorney;


 


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(f)       the Purchase
Contract Agent may execute any of the powers hereunder or perform any duties
hereunder either directly or by or through agents, attorneys, custodians or
nominees or an Affiliate of the Purchase Contract Agent and the Purchase
Contract Agent shall not be responsible for any misconduct or negligence on the
part of any agent, attorney, custodian or nominee or an Affiliate appointed with
due care by it hereunder;


 


(g)      the Purchase
Contract Agent shall be under no obligation to exercise any of the rights or
powers vested in it by this Agreement at the request or direction of any of the
Holders pursuant to this Agreement, unless such Holders shall have offered to
the Purchase Contract Agent security or indemnity satisfactory to the Purchase
Contract Agent against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;


 


(h)      the Purchase Contract
Agent shall not be liable for any action taken, suffered, or omitted to be
taken by it in the absence of bad faith or negligence by it and believed by it
to be authorized and within the discretion or rights or powers conferred upon
it by this Agreement;


 


(i)       the Purchase
Contract Agent shall not be deemed to have notice of any adjustment to each
Fixed Settlement Rate, the occurrence of a Termination Event or any default
hereunder unless a Responsible Officer of the Purchase Contract Agent has
actual knowledge thereof or unless written notice of any event which is in fact
such a default is received by a Responsible Offer at the Corporate Trust Office
of the Purchase Contract Agent, and such notice references the Units or this
Agreement;


 


(j)       the Purchase
Contract Agent may request that the Company deliver an Officers’ Certificate
setting forth the names of individuals and/or titles of officers authorized at
such time to take specified actions pursuant to this Agreement, which Officers’
Certificate may be signed by any person authorized to sign an Officers’
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded;


 


(k)      the rights,
privileges, protections, immunities and benefits given to the Purchase Contract
Agent, including, without limitation, its right to be indemnified, are extended
to, and shall be enforceable by, the Purchase Contract Agent in each of its
capacities hereunder, and to each officer, director, employee of the Purchase
Contract Agent and each agent, custodian and other Person employed, in any
capacity whatsoever, by the Purchase Contract Agent to act hereunder and shall
survive the resignation or removal of the Purchase Contract Agent and the
termination of this Agreement; and


 


(l)       the Purchase
Contract Agent shall not be required to initiate or conduct any litigation or
collection proceedings hereunder and shall have no responsibilities with
respect to any default hereunder except as expressly set forth herein.


 


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Section 7.04.  Not Responsible for Recitals or Issuance of
Units.  The recitals
contained herein, in the Remarketing Agreement and in the Certificates shall be
taken as the statements of the Company, and the Purchase Contract Agent assumes
no responsibility for their accuracy or validity.  The Purchase Contract Agent makes no representations as to the
validity or sufficiency of either this Agreement or of the Units or the Pledge
or the Collateral or the Remarketing Agreement and shall have no responsibility
for perfecting or maintaining the perfection of any security interest in the
Collateral. The Purchase Contract Agent shall not be accountable for the use or
application by the Company of the proceeds in respect of the Purchase
Contracts.


 


Section 7.05.  May Hold Units.  Any Security Registrar or any other agent of the
Company, or the Purchase Contract Agent and its Affiliates, in their individual
or any other capacity, may become the owner or pledgee of Units and may
otherwise deal with the Company, the Collateral Agent or any other Person with
the same rights it would have if it were not Security Registrar or such other
agent, or the Purchase Contract Agent. 
The Company may become the owner or pledgee of Units.


 


Section 7.06.  Money Held in Custody.  Money held by the Purchase
Contract Agent in custody hereunder need not be segregated from the Purchase
Contract Agent’s other funds except to the extent required by law or provided
herein.  The Purchase Contract Agent
shall be under no obligation to invest or pay interest on any money received by
it hereunder except as otherwise provided hereunder or agreed in writing with
the Company.


 


Section 7.07.  Compensation and Reimbursement.


 


The Company
agrees:


 


(a)       to pay to the
Purchase Contract Agent compensation for all services rendered by it hereunder
and under the Remarketing Agreement as the Company and the Purchase Contract
Agent shall from time to time agree in writing;


 


(b)       except as
otherwise expressly provided for herein, to reimburse the Purchase Contract
Agent upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Purchase Contract Agent in accordance with any
provision of this Agreement and the Remarketing Agreement (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel) in connection with the negotiation, preparation, execution and
delivery and performance of this Agreement and the Remarketing Agreement and
any modification, supplement or waiver of any of the terms thereof, except any
such expense, disbursement or advance as may be attributable to its negligence,
willful misconduct or bad faith; and


 


(c)       to indemnify the
Purchase Contract Agent and any predecessor Purchase Contract Agent and each of
its directors, officers, agents and employees (collectively, with the Purchase
Contract Agent, the “Indemnitees”) for, and to hold each
Indemnitee harmless against, any loss, claim, damage, fine, penalty, liability
or expense (including 


 


79

















 


reasonable fees and expenses of counsel) incurred without negligence,
willful misconduct or bad faith on its part, arising out of or in connection
with the acceptance or administration of its duties hereunder and the
Remarketing Agreement, including the Indemnitees’ reasonable costs and expenses
of defending themselves against any claim (whether asserted by the Company, a
Holder or any other Person) or liability in connection with the exercise or
performance of any of the Purchase Contract Agent’s powers or duties hereunder
or thereunder.


 


The provisions
of this Section shall survive the resignation and removal of the Purchase
Contract Agent the satisfaction or discharge of the Units and the Purchase
Contracts and the termination of this Agreement.


 


Section 7.08.  Corporate Purchase Contract Agent Required;
Eligibility.  There shall at
all times be a Purchase Contract Agent hereunder which shall be a Person
organized and doing business under the laws of the United States of America,
any State thereof or the District of Columbia, authorized under such laws to
exercise corporate trust powers, having (or being a member of a bank holding
company having) a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by Federal or State authority and having a
corporate trust office in the Borough of Manhattan, New York City, if there be
such a Person in the Borough of Manhattan, New York City, qualified and
eligible under this Article and willing to act on reasonable terms.  If such Person publishes or files reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published or filed.  If at any time the
Purchase Contract Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.


 


Section 7.09.  Resignation and Removal; Appointment of
Successor.  (a)  No
resignation or removal of the Purchase Contract Agent and no appointment of a
successor Purchase Contract Agent pursuant to this Article shall become
effective until the acceptance of appointment by the successor Purchase
Contract Agent in accordance with the applicable requirements of Section 7.10.


 


(b)       The Purchase
Contract Agent may resign at any time by giving written notice thereof to the
Company 60 days prior to the effective date of such resignation.  If the instrument of acceptance by a
successor Purchase Contract Agent required by Section 7.10 shall not have been
delivered to the Purchase Contract Agent within 30 days after the giving of
such notice of resignation, the resigning Purchase Contract Agent may petition,
at the expense of the Company, any court of competent jurisdiction for the appointment
of a successor Purchase Contract Agent.


 


(c)       The Purchase
Contract Agent may be removed at any time by Act of the Holders of a majority
in number of the Outstanding Units delivered to the Purchase 


 


80

















 


Contract Agent and the Company.  If the instrument of acceptance by a
successor Purchase Contract Agent required by Section 7.10 shall not have been
delivered to the Purchase Contract Agent within 30 days after such Act, the
Purchase Contract Agent being removed may petition any court of competent
jurisdiction for the appointment of a successor Purchase Contract Agent.


 


(d)       If at any time:


 


(i)    the
Purchase Contract Agent fails to comply with Section 310(b) of the TIA, as if
the Purchase Contract Agent were an indenture trustee under an indenture
qualified under the TIA, and shall fail to resign after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a
Unit for at least six months;


 


(ii)   the
Purchase Contract Agent shall cease to be eligible under Section 7.08 and shall
fail to resign after written request therefor by the Company or by any such
Holder; or


 


(iii) the
Purchase Contract Agent shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Purchase Contract Agent or of its
property shall be appointed or any public officer shall take charge or control
of the Purchase Contract Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,


 


then, in any
such case, (i) the Company by a Board Resolution may remove the Purchase
Contract Agent, or (ii) any Holder who has been a bona fide Holder of a Unit
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Purchase Contract Agent and the appointment of a successor Purchase Contract
Agent.


 


(e)       If the Purchase
Contract Agent shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Purchase Contract Agent for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Purchase
Contract Agent and shall comply with the applicable requirements of Section
7.10.  If no successor Purchase Contract
Agent shall have been so appointed by the Company and accepted appointment in
the manner required by Section 7.10, any Holder who has been a bona fide Holder
of a Unit for at least six months, on behalf of itself and all others similarly
situated, or the Purchase Contract Agent may petition, at the expense of the
Company,  any court of competent
jurisdiction for the appointment of a successor Purchase Contract Agent.


 


(f)       The Company
shall give, or shall cause such successor Purchase Contract Agent to give,
notice of each resignation and each removal of the Purchase Contract Agent and
each appointment of a successor Purchase Contract Agent by mailing written
notice of such event by first-class mail, postage prepaid, to all Holders as
their names and addresses 


 


81

















 


appear in the applicable Security Register.
Each notice shall include the name of the successor Purchase Contract Agent and
the address of its Corporate Trust Office.


 


Section 7.10.  Acceptance of Appointment by Successor.  (a) In case of the appointment
hereunder of a successor Purchase Contract Agent, every such successor Purchase
Contract Agent so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Purchase Contract Agent an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Purchase Contract Agent shall become effective and such successor Purchase
Contract Agent, without any further act, deed or conveyance, shall become
vested with all the rights, powers, agencies and duties of the retiring
Purchase Contract Agent; but, on the request of the Company or the successor
Purchase Contract Agent, such retiring Purchase Contract Agent shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Purchase Contract Agent all the rights, powers and trusts of the
retiring Purchase Contract Agent and duly assign, transfer and deliver to such
successor Purchase Contract Agent all property and money held by such retiring
Purchase Contract Agent hereunder.


 


(b)       Upon request of
any such successor Purchase Contract Agent, the Company shall execute any and
all instruments for more fully and certainly vesting in and confirming to such
successor Purchase Contract Agent all such rights, powers and agencies referred
to in clause (a) of this Section 7.10.


 


(c)       No successor
Purchase Contract Agent shall accept its appointment unless at the time of such
acceptance such successor Purchase Contract Agent shall be qualified and
eligible under this Article 7.


 


Section 7.11.  Merger, Conversion, Consolidation or
Succession to Business.  Any
Person into which the Purchase Contract Agent may be merged or converted or
with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Purchase Contract Agent shall be a
party, or any Person succeeding to all or substantially all the corporate trust
business of the Purchase Contract Agent, shall be the successor of the Purchase
Contract Agent hereunder, provided that such Person shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto.  In case any Certificates shall
have been authenticated and executed on behalf of the Holders, but not
delivered, by the Purchase Contract Agent then in office, any successor by
merger, conversion or consolidation to such Purchase Contract Agent may adopt
such authentication and execution and deliver the Certificates so authenticated
and executed with the same effect as if such successor Purchase Contract Agent
had itself authenticated and executed such Units.


 


Section 7.12.  Preservation of Information; Communications
to Holders.  (a) The Purchase
Contract Agent shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders received by the Purchase
Contract Agent in its capacity as Security Registrar.


 


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(b)       If three or more
Holders (herein referred to as “Applicants”) apply in writing to the
Purchase Contract Agent, and furnish to the Purchase Contract Agent reasonable
proof that each such Applicant has owned a Unit for a period of at least six
months preceding the date of such application, and such application states that
the Applicants desire to communicate with other Holders with respect to their
rights under this Agreement or under the Units and is accompanied by a copy of
the form of proxy or other communication which such Applicants propose to
transmit, then the Purchase Contract Agent shall mail to all the Holders copies
of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Purchase Contract Agent of the
materials to be mailed and of payment, or provision for the payment, of the
reasonable expenses of such mailing.


 


Section 7.13.  No Obligations of Purchase Contract
Agent.  Except to the extent
otherwise expressly provided in this Agreement, the Purchase Contract Agent
assumes no obligations and shall not be subject to any liability under this
Agreement, the Remarketing Agreement or any Purchase Contract in respect of the
obligations of the Holder of any Unit thereunder.  The Company agrees, and each Holder of a Certificate, by its
acceptance thereof, shall be deemed to have agreed, that the Purchase Contract
Agent’s execution of the Certificates on behalf of the Holders shall be solely
as agent and attorney-in-fact for the Holders, and that the Purchase Contract
Agent shall have no obligation to perform such Purchase Contracts on behalf of
the Holders, except to the extent expressly provided in Article Five
hereof.  Anything contained in this
Agreement to the contrary notwithstanding, in no event shall the Purchase
Contract Agent or its officers, directors, employees or agents be liable under
this Agreement or the Remarketing Agreement for (i) indirect, incidental,
special, punitive, or consequential loss or damage of any kind whatsoever,
including lost profits, whether or not the likelihood of such loss or damage
was known to the Purchase Contract Agent and regardless of the form of action
or (ii) any failure or delay in the performance of its obligations under this
Agreement arising out of or caused directly or indirectly, by acts of God;
earthquake; fires; floods; wars; civil or military disturbances; terrorist
acts; sabotage; epidemics; riots; interruptions, loss or malfunctions of
utilities; accidents; labor disputes; or acts of civil or military authority or
governmental actions; it being understood that the Purchase Contract Agent
shall use reasonable efforts which are consistent with accepted practices in
the banking industry to resume performance as soon as practicable under such
circumstances.


 


Section 7.14.  Tax Compliance.  (a) The Purchase Contract Agent, on its own behalf and
on behalf of the Company, will comply with all applicable certification,
information reporting and withholding (including “backup” withholding)
requirements imposed by applicable tax laws, regulations or administrative
practice with respect to (i) any payments made with respect to the Units or
(ii) the issuance, delivery, holding, transfer, redemption or exercise of
rights under the Units.  Such compliance
shall include, without limitation, the preparation and timely filing of
required returns and the timely payment of all amounts required to be withheld
to the appropriate taxing authority or its designated agent.


 


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(b)       The Purchase
Contract Agent shall comply in accordance with the terms hereof with any
reasonable written direction received from the Company with respect to the
execution or certification of any required documentation and the application of
such requirements to particular payments or Holders or in other particular
circumstances, and may for purposes of this Agreement conclusively rely on any
such direction in accordance with the provisions of Section 7.01(a) hereof.


 


(c)       The Purchase
Contract Agent shall maintain all appropriate records documenting compliance
with such requirements, and shall make such records available, on written
request, to the Company or its authorized representative within a reasonable
period of time after receipt of such request.


 


ARTICLE 8

SUPPLEMENTAL AGREEMENTS


 


Section 8.01.  Supplemental Agreements without Consent of
Holders.  Without the consent
of any Holders, the Company, when authorized by a Board Resolution, the
Purchase Contract Agent, the Collateral Agent, the Custodial Agent and the
Securities Intermediary at any time and from time to time, may enter into one
or more agreements supplemental hereto, in form satisfactory to the Company and
the Purchase Contract Agent, to:


 


(a)       evidence the succession
of another Person to the Company, and the assumption by any such successor of
the covenants of the Company herein and in the Certificates;


 


(b)       evidence and
provide for the acceptance of appointment hereunder by a successor Purchase
Contract Agent, Collateral Agent, Securities Intermediary or Custodial Agent;


 


(c)       add to the
covenants of the Company for the benefit of the Holders, or surrender any right
or power herein conferred upon the Company;


 


(d)       make provision
with respect to the rights of Holders pursuant to the requirements of Section
5.04(b); or


 


(e)       except as
provided for in Section 5.04, cure any ambiguity, to correct or supplement any
provisions herein that may be inconsistent with any other provision herein, or
to make such other provisions in regard to matters or questions arising under
this Agreement that do not adversely affect the interests of any Holders, provided
that any amendment made solely to conform the provisions of this Agreement to
the description of the Units and the Purchase Contracts contained in the Units
Prospectus will not be deemed to adversely affect the interests of the Holders.


 


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Section 8.02.  Supplemental Agreements with Consent of
Holders.  With the consent of
the Holders of not less than a majority of the Outstanding Units voting
together as one class, including without limitation the consent of the Holders
obtained in connection with a tender or an exchange offer, by Act of said
Holders delivered to the Company, the Purchase Contract Agent, the Company, the
Collateral Agent, the Securities Intermediary and the Custodial Agent, as the
case may be, when authorized by a Board Resolution, and the Purchase Contract
Agent may enter into an agreement or agreements supplemental hereto for the
purpose of modifying in any manner the terms of the Purchase Contracts, or the
provisions of this Agreement or the rights of the Holders in respect of the
Units; provided,
however, that, except as contemplated herein, no such supplemental
agreement shall, without the consent of the Holder of each outstanding Purchase
Contract affected thereby,


 


(a)       change any
Payment Date;


 


(b)       change the
amount or the type of Collateral required to be Pledged to secure a Holder’s
obligations under the Purchase Contract (except for the rights of holders of
Corporate Units to substitute Treasury Securities for the Pledged Applicable
Ownership Interests in Senior Notes or the Pledged Applicable Ownership
Interests in the Treasury Portfolio, as the case may be, or the rights of
Holders of Treasury Units to substitute Senior Notes or the Applicable
Ownership Interests in the Treasury Portfolio (as specified in clause (i) of
the definition of such term), as applicable, for the Pledged Treasury Securities),
impair the right of the Holder of any Purchase Contract to receive
distributions on the related Collateral or otherwise adversely affect the
Holder’s rights in or to such Collateral;


 


(c)       impair the
Holders’ right to institute suit for the enforcement of any Purchase Contract
or any Contract Adjustment Payments;


 


(d)       except as set
forth in Section 5.04, reduce the number of shares of Common Stock or the
amount of any other property to be purchased pursuant to any Purchase Contract,
increase the price to purchase shares of Common Stock or any other property
upon settlement of any Purchase Contract or change the Purchase Contract
Settlement Date or the right to Early Settlement or Cash Merger Early
Settlement or otherwise adversely affect the Holder’s rights under the Purchase
Contract in any material respect;


 


(e)       reduce any
Contract Adjustment Payments or change any place where, or the coin or currency
in which, any Contract Adjustment Payment is payable; or


 


(f)       reduce the
percentage of the outstanding Purchase Contracts whose Holder’s consent is
required for any modification or amendment to the provisions of this Agreement
or the Purchase Contracts;


 


provided that if any
amendment or proposal referred to above would adversely affect only the
Corporate Units or the Treasury Units, then only the affected class of Holders
as of the 


 


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record date
for the Holders entitled to vote thereon will be entitled to vote on such
amendment or proposal, and such amendment or proposal shall not be effective
except with the consent of Holders of not less than a majority of such class;
and provided, further,
that the unanimous consent of the Holders of each outstanding Purchase Contract
of such class affected thereby shall be required to approve any amendment or
proposal specified in clauses (a) through (f) of this Section 8.02.


 


It shall not
be necessary for any Act of Holders under this Section to approve the
particular form of any proposed supplemental agreement, but it shall be
sufficient if such Act shall approve the substance thereof.


 


Section 8.03.  Execution of Supplemental Agreements.  In executing, or accepting the
additional agencies created by any supplemental agreement permitted by this
Article or the modifications thereby of the agencies created by this Agreement,
the Purchase Contract Agent, the Collateral Agent, the Securities Intermediary
and the Custodial Agent shall be protected, and (subject to Section 7.01 with
respect to the Purchase Contract Agent) shall be fully authorized and protected
in relying upon, an Officers’ Certificate and an Opinion of Counsel stating
that the execution of such supplemental agreement is authorized or permitted by
this Agreement and that any and all conditions precedent to the execution and
delivery of such supplemental agreement have been satisfied.  The Purchase Contract Agent, the Collateral
Agent, the Securities Intermediary and the Custodial Agent may, but shall not
be obligated to, enter into any such supplemental agreement which affects their
own rights, duties or immunities under this Agreement or otherwise.


 


Section 8.04.  Effect of Supplemental Agreements.  Upon the execution of any
supplemental agreement under this Article, this Agreement shall be modified in
accordance therewith, and such supplemental agreement shall form a part of this
Agreement for all purposes; and every Holder of Certificates theretofore or
thereafter authenticated, executed on behalf of the Holders and delivered
hereunder, shall be bound thereby.


 


Section 8.05.  Reference to Supplemental Agreements.  Certificates authenticated,
executed on behalf of the Holders and delivered after the execution of any
supplemental agreement pursuant to this Article may, and shall if required by
the Purchase Contract Agent, bear a notation in form approved by the Purchase
Contract Agent as to any matter provided for in such supplemental
agreement.  If the Company shall so
determine, new Certificates so modified as to conform, in the opinion of the
Purchase Contract Agent and the Company, to any such supplemental agreement may
be prepared and executed by the Company and authenticated, executed on behalf
of the Holders and delivered by the Purchase Contract Agent in exchange for
outstanding Certificates.


 


ARTICLE 9

CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE


 


Section 9.01.  Covenant Not To Consolidate, Merge, Convey,
Transfer or Lease Property except under Certain Conditions.  The Company covenants that it
will not merge 


 


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or consolidate with any other Person or sell,
convey, transfer, or otherwise dispose of all or substantially all of its
assets to any other Person, unless:


 


(a)       either the
Company shall be the continuing corporation, or the successor Person (if other
than the Company) shall be a corporation or limited liability company organized
and existing under the laws of the United States of America or a state thereof
or the District of Columbia and such corporation or limited liability company,
as the case may be, shall expressly assume the due and punctual performance and
observance of all the obligations of the Company under the Purchase Contracts,
this Agreement (including the Pledge provided for herein), the Indenture
(including any supplement thereto) and the Remarketing Agreement by one or more
supplemental agreements in form reasonably satisfactory to the Purchase
Contract Agent and the Collateral Agent, executed and delivered to the Purchase
Contract Agent and the Collateral Agent by such corporation or limited
liability company, as the case may be; and


 


(b)       the Company or
such successor corporation or limited liability company, as the case may be,
shall not, immediately after such merger or consolidation, or such sale,
conveyance, transfer or other disposition, be in default of payment obligations
under the Purchase Contracts, this Agreement, the Indenture (including any
supplement thereto) or the Remarketing Agreement or in material default in the
performance of any other covenants under any of the foregoing agreements.  In the event of any such merger,
consolidation, sale, conveyance (other than by way of lease), transfer or other
disposition, the predecessor company may be dissolved, wound up and liquidated at
any time thereafter.


 


Section 9.02.  Rights and Duties of Successor
Corporation.  In case of any
such merger, consolidation, sale, conveyance (other than by way of lease),
transfer, or other disposition and upon any such assumption by a successor
Person in accordance with Section 9.01, such successor corporation or limited
liability company shall succeed to and be substituted for the Company with the
same effect as if it had been named herein as the Company, and the Company
shall be relieved of any for their obligations under this Agreement and under
the Units.  Such successor corporation
or limited liability company thereupon may cause to be signed, and may issue
either in its own name or in the name of Genworth Financial, Inc. any or all of
the Certificates evidencing Units issuable hereunder which theretofore shall
not have been signed by the Company and delivered to the Purchase Contract
Agent; and, upon the order of such successor corporation or limited liability
company, instead of the Company, and subject to all the terms, conditions and limitations
in this Agreement prescribed, the Purchase Contract Agent shall authenticate
and execute on behalf of the Holders and deliver any Certificates which
previously shall have been signed and delivered by the officers of the Company
to the Purchase Contract Agent for authentication and execution, and any
Certificate evidencing Units which such successor corporation or limited
liability company thereafter shall cause to be signed and delivered to the
Purchase Contract Agent for that purpose. 
All the Certificates issued shall in all respects have the same legal
rank and benefit under this Agreement as the Certificates theretofore or
thereafter issued in accordance with the terms of this Agreement as though all
of such Certificates had been issued at the date of the execution hereof.


 


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In case of any
such merger, consolidation, sale, conveyance, transfer, or other disposition
such change in phraseology and form (but not in substance) may be made in the Certificates
evidencing Units thereafter to be issued as may be appropriate.


 


Section 9.03.  Officers’ Certificate and Opinion of Counsel
Given to Purchase Contract Agent.  The
Purchase Contract Agent, subject to Section 7.01 and Section 7.03, shall
receive an Officers’ Certificate and an Opinion of Counsel as conclusive
evidence that any such merger, consolidation, sale, conveyance, transfer, or
other disposition, and any such assumption, complies with the provisions of
this Article and that all conditions precedent to the consummation of any such
merger, consolidation, sale, conveyance, transfer or other disposition have
been met.


 


ARTICLE 10

COVENANTS


 


Section 10.01.  Performance under Purchase Contracts.  The Company covenants and agrees
for the benefit of the Holders from time to time of the Units that it will duly
and punctually perform its obligations under the Purchase Contracts in
accordance with the terms of the Purchase Contracts and this Agreement.


 


Section 10.02.  Maintenance of Office or Agency.  The Company will maintain in the
Borough of Manhattan, City of New York, New York an office or agency where
Certificates may be presented or surrendered for acquisition of shares of
Common Stock upon settlement of the Purchase Contracts on the Purchase Contract
Settlement Date or upon Early Settlement or Cash Merger Early Settlement and
for transfer of Collateral upon occurrence of a Termination Event, where
Certificates may be surrendered for registration of transfer or exchange, or
for a Collateral Substitution and where notices and demands to or upon the
Company in respect of the Units and this Agreement may be served. The Company
will give prompt written notice to the Purchase Contract Agent of the location,
and any change in the location, of such office or agency. The Company initially
designates the Corporate Trust Office of the Purchase Contract Agent as such
office of the Company.  If at any time
the Company shall fail to maintain any such required office or agency or shall
fail to furnish the Purchase Contract Agent with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office, and the Company hereby appoints the Purchase Contract
Agent as its agent to receive all such presentations, surrenders, notices and
demands.


 


The Company
may also from time to time designate one or more other offices or agencies
where Certificates may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
City of New York, New York for such purposes. 
The Company will give prompt written notice to the Purchase Contract
Agent of any such designation or rescission and of any change in the location
of any such other office or agency. The Company hereby designates as the place
of payment for the 


 


88

















 


Units the Corporate Trust Office and appoints
the Purchase Contract Agent at its Corporate Trust Office as paying agent in
such city.


 


Section 10.03.  Company To Reserve Common Stock.  The Company shall at all times
prior to the Purchase Contract Settlement Date reserve and keep available, free
from preemptive rights, out of its authorized but unissued Common Stock the
full number of shares of Common Stock issuable against tender of payment in
respect of all Purchase Contracts constituting a part of the Units evidenced by
Outstanding Certificates.


 


Section 10.04.  Covenants as to Common Stock; Listing.  (a)  The Company covenants that
all shares of Common Stock which may be issued against tender of payment in
respect of any Purchase Contract constituting a part of the Outstanding Units
will, upon issuance, be duly authorized, validly issued, fully paid and
nonassessable.


 


The Company
further covenants that, if at any time the Common Stock shall be listed on the
NYSE or any other national securities exchange or automated quotation system,
the Company 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 Settlement of Purchase Contracts; provided, however,
that, if the rules of such exchange or automated quotation system permit the
Company to defer the listing of such Common Stock until the date on which any
Purchase Contract is first settled in accordance with the provisions of this
Agreement, the Company covenants to list such Common Stock issuable upon
settlement of the Purchase Contracts in accordance with the requirements of
such exchange or automated quotation system no later than at such time.


 


Section 10.05.  Statements of Officers of the Company as to
Default.  The Company will
deliver to the Purchase Contract Agent, within 120 days after the end of each
fiscal year of the Company (which as of the date hereof is December 31) ending
after the date hereof, an Officers’ Certificate, stating whether or not to the
knowledge of the signers thereof the Company is in default in the performance
and observance of any of the terms, provisions and conditions of this
Agreement, and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.


 


Section 10.06.  ERISA. 
Each Holder from time to time of the Units that is a Plan or
who used assets of a Plan to purchase Units hereby represents that either (i)
no portion of the assets used by such Holder to acquire the Corporate Units
constitutes assets of the Plan or (ii) the purchase or holding of the Corporate
Units by such purchaser or transferee will not constitute a non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code
or similar violation under any applicable laws.


 


Section 10.07.  Tax Treatment.  The Company covenants and agrees, and by acceptance of
a Unit, each Holder will be deemed to have agreed, for United States federal,
state and local income and franchise tax purposes, to (i) treat a Holder’s
acquisition of the 


 


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Corporate Units as the acquisition of the
Applicable Ownership Interests in Senior Notes and Purchase Contract
constituting the Corporate Units, (ii) treat each Holder as the owner of the
applicable interest in the Collateral, including the Senior Notes underlying
the Applicable Ownership Interests in Senior Notes, Applicable Ownership
Interests in the Treasury Portfolio or the Treasury Securities and (iii) to
allocate all of a Holder’s purchase price for a Corporate Unit to the
Applicable Ownership Interests in Senior Notes so that each Holder’s initial
tax basis in each Purchase Contract will be $0.00 and the initial tax basis in
each Applicable Ownership Interest in Senior Notes will be $25.00.


 


ARTICLE 11

PLEDGE


 


Section 11.01.  Pledge. 
Each Holder, acting through the Purchase Contract Agent as
such Holder’s attorney-in-fact, and the Purchase Contract Agent, acting solely
as such attorney-in-fact, hereby pledges and grants to the Collateral Agent, as
agent of and for the benefit of the Company, a continuing first priority
security interest in and to, and a lien upon and right of set-off against, all
of such Person’s right, title and interest in and to the Collateral to secure
the prompt and complete payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of the Obligations. The Collateral
Agent shall have all of the rights, remedies and recourses with respect to the
Collateral afforded a secured party by the UCC, in addition to, and not in
limitation of, the other rights, remedies and recourses afforded to the
Collateral Agent by this Agreement.


 


Section 11.02.  Termination.  As to each Holder, the Pledge created hereby shall
terminate upon the satisfaction of such Holder’s Obligations. Upon such
termination, the Collateral Agent shall instruct the Securities Intermediary to
Transfer such portion of the Collateral attributable to such Holder to the
Purchase Contract Agent for distribution to such Holder, free and clear of the
Pledge created hereby.


 


ARTICLE 12

ADMINISTRATION OF COLLATERAL


 


Section 12.01.  Initial Deposit of Senior Notes.  (a)  Prior to or concurrently
with the execution and delivery of this Agreement, the Purchase Contract Agent,
on behalf of the initial Holders of the Corporate Units, shall Transfer to the
Securities Intermediary, for credit to the Collateral Account, the Applicable
Ownership Interests in Senior Notes and the Senior Notes underlying such
Applicable Ownership Interests in Senior Notes or security entitlements
relating thereto and the Securities Intermediary shall indicate by book-entry
that a securities entitlement with respect to such Applicable Ownership
Interests in Senior Notes has been credited to the Collateral Account.


 


(b)       The Collateral
Agent may, at any time or from time to time, in its sole discretion, cause any
or all securities or other property underlying any financial assets credited to
the Collateral Account to be registered in the name of the Securities 


 


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Intermediary, the Collateral Agent or their
respective nominees; provided, however, that unless any Event
of Default (as defined in the Indenture) shall have occurred and be continuing,
the Collateral Agent agrees not to cause any Senior Notes to be so
re-registered.


 


Section 12.02.  Establishment of Collateral Account.  The Securities Intermediary
hereby confirms that:


 


(a)       the Securities
Intermediary has established the Collateral Account;


 


(b)       the Collateral
Account is a securities account;


 


(c)       subject to the
terms of this Agreement, the Securities Intermediary shall identify in its records
the Collateral Agent as the entitlement holder entitled to exercise the rights
that comprise any financial asset credited to the Collateral Account;


 


(d)       all property
delivered to the Securities Intermediary pursuant to this Agreement, including
any Applicable Ownership Interests in the Treasury Portfolio (as specified in
clause (i) of the definition thereof) or Treasury Securities and the Permitted
Investments, will be credited promptly to the Collateral Account; and


 


(e)       all securities
or other property underlying any financial assets credited to the Collateral
Account shall be (i) registered in the name of the Purchase Contract Agent and
indorsed to the Securities Intermediary or in blank, (ii) registered in the
name of the Securities Intermediary or (iii) credited to another securities
account maintained in the name of the Securities Intermediary. In no case will
any financial asset credited to the Collateral Account be registered in the
name of the Purchase Contract Agent (in its capacity as such) or any Holder or
specially indorsed to the Purchase Contract Agent (in its capacity as such) or
any Holder, unless such financial asset has been further indorsed to the
Securities Intermediary or in blank.


 


Section 12.03.  Treatment as Financial Assets.  Each item of property (whether
investment property, financial asset, security, instrument or cash) credited to
the Collateral Account shall be treated as a financial asset.


 


Section 12.04.  Sole Control by Collateral Agent.  Except as provided in Section
15.01, at all times prior to the termination of the Pledge, the Collateral
Agent shall have sole control of the Collateral Account, and the Securities
Intermediary shall take instructions and directions, and comply with
entitlement orders, with respect to the Collateral Account or any financial
asset credited thereto solely from the Collateral Agent. If at any time the
Securities Intermediary shall receive an entitlement order issued by the
Collateral Agent and relating to the Collateral Account, the Securities
Intermediary shall comply with such entitlement order without further consent
by the Purchase Contract Agent or any Holder or any other Person. Except as
otherwise permitted under this 


 


91

















 


Agreement, until termination of the Pledge,
the Securities Intermediary will not comply with any entitlement orders issued
by the Purchase Contract Agent or any Holder.


 


Section 12.05.  Jurisdiction.  The Collateral Account, and the rights and obligations
of the Securities Intermediary, the Collateral Agent, the Purchase Contract
Agent and the Holders with respect thereto, shall be governed by the laws of
the State of New York. Regardless of any provision in any other agreement, the
Securities Intermediary’s jurisdiction is the State of New York.


 


Section 12.06.  No Other Claims.  Except for the claims and interest of the Collateral
Agent and of the Purchase Contract Agent and the Holders in the Collateral
Account, the Securities Intermediary (without having conducted any investigation)
does not know of any claim to, or interest in, the Collateral Account or in any
financial asset credited thereto. If any Person asserts any lien, encumbrance
or adverse claim (including any writ, garnishment, judgment, warrant of
attachment, execution or similar process) against the Collateral Account or in
any financial asset carried therein, the Securities Intermediary will promptly
notify the Collateral Agent and the Purchase Contract Agent.


 


Section 12.07.  Investment and Release.  All proceeds of financial assets
from time to time credited to the Collateral Account shall be invested and
reinvested as provided in this Agreement. At all times prior to termination of
the Pledge, no property shall be released from the Collateral Account except in
accordance with this Agreement or upon written instructions of the Collateral
Agent.


 


Section 12.08.  Statements and Confirmations.  The Securities Intermediary will
promptly send copies of all statements, confirmations and other correspondence
concerning the Collateral Account and any financial assets credited thereto
simultaneously to each of the Purchase Contract Agent and the Collateral Agent
at their addresses for notices under this Agreement.


 


Section 12.09.  Tax Allocations.  The Purchase Contract Agent shall report all items of
income, gain, expense and loss recognized in the Collateral Account, to the
extent such reporting is required by law, to the Internal Revenue Service
authorities in the manner required by law. 
Neither the Securities Intermediary nor the Collateral Agent shall have
any tax reporting duties hereunder.


 


Section 12.10.  No Other Agreements.  The Securities Intermediary has
not entered into, and prior to the termination of the Pledge will not enter
into, any agreement with any other Person relating to the Collateral Account or
any financial assets credited thereto, including, without limitation, any
agreement to comply with entitlement orders of any Person other than the
Collateral Agent.


 


Section 12.11.  Powers Coupled with an Interest.  The rights and powers granted in
this Purchase Contract and Pledge Agreement to the Collateral Agent have been
granted in order to perfect its security interests in the Collateral Account,
are powers coupled with an 


 


92

















 


interest and will be affected neither by the
bankruptcy of the Purchase Contract Agent or any Holder nor by the lapse of
time. The obligations of the Securities Intermediary under this Purchase
Contract and Pledge Agreement shall continue in effect until the termination of
the Pledge.


 


Section 12.12.  Waiver of Lien; Waiver of Set-off.  The Securities Intermediary
waives any security interest, lien or right to make deductions or set-offs that
it may now have or hereafter acquire in or with respect to the Collateral
Account, any financial asset credited thereto or any security entitlement in
respect thereof.  Neither the financial
assets credited to the Collateral Account nor the security entitlements in
respect thereof will be subject to deduction, set-off, banker’s lien, or any
other right in favor of any person other than the Company.


 


ARTICLE 13

RIGHTS AND REMEDIES OF THE
COLLATERAL AGENT


 


Section 13.01.  Rights and Remedies of the Collateral
Agent.  (a)  In
addition to the rights and remedies set forth herein or otherwise available at
law or in equity, after a collateral event of default (as specified in Section
13.01(b) below) hereunder, the Collateral Agent shall have all of the rights
and remedies with respect to the Collateral of a secured party under the UCC
(whether or not the UCC is in effect in the jurisdiction where the rights and
remedies are asserted) and the TRADES Regulations and such additional rights
and remedies to which a secured party is entitled under the laws in effect in
any jurisdiction where any rights and remedies hereunder may be asserted.
Without limiting the generality of the foregoing, such remedies may include, to
the extent permitted by applicable law, (1) retention of the Senior Notes
underlying Pledged Applicable Ownership Interests in Senior Notes, the Pledged
Treasury Securities or the Pledged Applicable Ownership Interests in the
Treasury Portfolio in full satisfaction of the Holders’ obligations under the
Purchase Contracts and the Purchase Contract Agreement or (2) sale of the
Senior Notes underlying Pledged Applicable Ownership Interests in Senior Notes,
the Pledged Treasury Securities or the Pledged Applicable Ownership Interests
in the Treasury Portfolio in one or more public or private sales.


 


(b)       Without limiting
any rights or powers otherwise granted by this Agreement to the Collateral
Agent, in the event the Collateral Agent is unable to make payments to the
Company on account of Proceeds of (i) the Senior Notes underlying Pledged
Applicable Ownership Interests in Senior Notes (other than any interest
payments thereon), (ii) Pledged Applicable Ownership Interests in the Treasury
Portfolio, or (iii) the Pledged Treasury Securities as provided in this
Agreement in satisfaction of the Obligations of the Holder of the Units of
which such applicable Pledged Applicable Ownership Interests in the Treasury
Portfolio or such Pledged Treasury Securities are a part under the related
Purchase Contracts, the inability to make such payments shall constitute a “collateral
event of
default” hereunder and the Collateral Agent shall have and may
exercise, with reference to such Senior Notes underlying Pledged Applicable
Ownership Interests in 


 


93

















 


Senior Notes, Pledged Treasury Securities or
Pledged Applicable Ownership Interests in the Treasury Portfolio, as
applicable, any and all of the rights and remedies available to a secured party
under the UCC and the TRADES Regulations after default by a debtor, and as otherwise
granted herein or under any other law.


 


(c)       Without limiting
any rights or powers otherwise granted by this Agreement to the Collateral
Agent, the Collateral Agent is hereby irrevocably authorized to receive,
collect and apply to the satisfaction of the Obligations all payments with
respect to (i) the Senior Notes underlying Pledged Applicable Ownership
Interests in Senior Notes (other than any interest payments thereon), (ii) the
Pledged Treasury Securities and (iii) the Pledged Applicable Ownership
Interests in the Treasury Portfolio, subject, in each case, to the provisions
of this Agreement, and as otherwise provided herein.


 


(d)       The Purchase
Contract Agent and each Holder agrees that, from time to time, upon the written
request of the Collateral Agent, the Purchase Contract Agent, on behalf of such
Holder, shall execute and deliver such further documents and do such other acts
and things as the Collateral Agent may reasonably request in order to maintain
the Pledge, and the perfection and priority thereof, and to confirm the rights
of the Collateral Agent hereunder. The Purchase Contract Agent shall have no
liability to any Holder for executing any documents or taking any such acts
requested by the Collateral Agent hereunder, except for liability for its own
negligent acts, its own negligent failure to act or its own willful misconduct.


 


ARTICLE 14

REPRESENTATIONS AND WARRANTIES TO

COLLATERAL AGENT; HOLDER COVENANTS


 


Section 14.01.  Representations and Warranties.  Each Holder from time to time,
acting through the Purchase Contract Agent as attorney-in-fact (it being
understood that the Purchase Contract Agent shall not be liable for any
representation or warranty made by or on behalf of a Holder), hereby represents
and warrants to the Collateral Agent and the Company (with respect to such
Holder’s interest in the Collateral), which representations and warranties
shall be deemed repeated on each day a Holder effects a Transfer of Collateral,
that:


 


(a)       such Holder has
the power to grant a security interest in and lien on the Collateral;


 


(b)       such Holder is
the sole beneficial owner of the Collateral and, in the case of Collateral
delivered in physical form, is the sole holder of such Collateral and is the
sole beneficial owner of, or has the right to Transfer, the Collateral it
Transfers to the Collateral Agent for credit to the Collateral Account, free
and clear of any security interest, lien, encumbrance, call, liability to pay
money or other restriction other than the security interest and lien granted
under Article 11;


 


94

















 


(c)       upon the
Transfer of the Collateral to the Securities Intermediary for credit to the
Collateral Account, the Collateral Agent, for the benefit of the Company, will
have a valid and perfected first priority security interest therein (assuming
that any central clearing operation or any securities intermediary or other
entity not within the control of the Holder involved in the Transfer of the
Collateral, including the Collateral Agent and the Securities Intermediary,
gives the notices and takes the action required of it hereunder and under
applicable law for perfection of that interest and assuming the establishment
and exercise of control pursuant to Article 12 hereof); and


 


(d)       the execution
and performance by the Holder of its obligations under this Agreement will not
result in the creation of any security interest, lien or other encumbrance on
the Collateral (other than the security interest and lien granted under Article
11 hereof) or violate any provision of any existing law or regulation
applicable to it or of any mortgage, charge, pledge, indenture, contract or
undertaking to which it is a party or which is binding on it or any of its
assets.


 


Section 14.02.  Covenants. 
The Purchase Contract Agent and the Holders from time to
time, acting through the Purchase Contract Agent as their attorney-in-fact (it
being understood that the Purchase Contract Agent shall not be liable for any
covenant made by or on behalf of a Holder), hereby covenant to the Collateral
Agent and the Company that for so long as the Collateral remains subject to the
Pledge:


 


(a)       neither the
Purchase Contract Agent nor such Holders will create or purport to create or
allow to subsist any mortgage, charge, lien, pledge or any other security
interest whatsoever over the Collateral or any part of it other than pursuant
to this Agreement; and


 


(b)       neither the
Purchase Contract Agent nor such Holders will sell or otherwise dispose (or
attempt to dispose) of the Collateral or any part of it except for the
beneficial interest therein, subject to the Pledge hereunder, transferred in
connection with a Transfer of the Units.


 


ARTICLE 15

THE COLLATERAL AGENT, THE CUSTODIAL
AGENT AND THE SECURITIES INTERMEDIARY


 


It is hereby
agreed as follows:


 


Section 15.01.  Appointment, Powers and Immunities.  The Collateral Agent, the
Custodial Agent and the Securities Intermediary shall act as agent for the
Company hereunder with such powers as are specifically vested in the Collateral
Agent, the Custodial Agent and the Securities Intermediary, as the case may be,
by the terms of this Agreement. The Collateral Agent, the Custodial Agent and
Securities Intermediary shall:


 


95

















 


(a)       have no duties
or responsibilities except those expressly set forth in this Agreement and no
implied covenants or obligations shall be inferred from this Agreement against
the Collateral Agent, the Custodial Agent or the Securities Intermediary, nor
shall the Collateral Agent, the Custodial Agent or the Securities Intermediary
be bound by the provisions of any agreement by any party hereto beyond the
specific terms hereof;


 


(b)       not be
responsible for any recitals contained in this Agreement, or in any certificate
or other document referred to or provided for in, or received by it under, this
Agreement or the Units, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement (other than as against the
Collateral Agent, the Custodial Agent or the Securities Intermediary, as the
case may be), the Units, any Collateral or any other document referred to or
provided for herein or therein or for any failure by the Company or any other
Person (except the Collateral Agent, the Custodial Agent or Securities
Intermediary, as the case may be) to perform any of its obligations hereunder
or thereunder or, except as expressly required hereby, for the perfection,
priority or maintenance of any security interest created hereunder;


 


(c)       not be required
to initiate or conduct any litigation or collection proceedings hereunder
(except pursuant to directions furnished under Section 15.02 hereof, subject to
Section 15.08 hereof);


 


(d)       not be
responsible for any action taken or omitted to be taken by it hereunder or
under any other document or instrument referred to or provided for herein or in
connection herewith or therewith, except for its own negligence or willful
misconduct; and


 


(e)       not be required
to advise any party as to selling or retaining, or taking or refraining from
taking any action with respect to, any securities or other property deposited
hereunder.


 


Subject to the
foregoing, during the term of this Agreement, the Collateral Agent, the
Custodial Agent and the Securities Intermediary shall take all reasonable
action in connection with the safekeeping and preservation of the Collateral
hereunder as determined by industry standards.


 


No provision
of this Agreement shall require the Collateral Agent, the Custodial Agent or
the Securities Intermediary to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder. In
no event shall the Collateral Agent, the Custodial Agent or the Securities
Intermediary be liable for any amount in excess of the Value of the Collateral.


 


Section 15.02.  Instructions of the Company.  The Company shall have the right,
by one or more written instruments executed and delivered to the Collateral
Agent, to direct the time, method and place of conducting any proceeding for
the realization of any right or remedy available to the Collateral Agent, or of
exercising any power conferred on the Collateral Agent, or to direct the taking
or refraining from taking of any action authorized 


 


96

















 


by this Agreement; provided, however,
that (i) such direction shall not conflict with the provisions of any law or of
this Agreement or involve the Collateral Agent in personal liability and (ii)
the Collateral Agent shall be indemnified to its satisfaction as provided
herein. Nothing contained in this Section 15.02 shall impair the right of the
Collateral Agent in its discretion to take any action or omit to take any
action which it deems proper and which is not inconsistent with such
direction.  None of the Collateral
Agent, the Custodial Agent or the Securities Intermediary has any obligation or
responsibility to file UCC financing statements.


 


Section 15.03.  Reliance by Collateral Agent, Custodial
Agent and Securities Intermediary.  Each
of the Securities Intermediary, the Custodial Agent and the Collateral Agent
shall be entitled to rely conclusively upon any certification, order, judgment,
opinion, notice or other written communication (including, without limitation,
any thereof by e-mail or similar electronic means, telecopy, telex or
facsimile) believed by it in good faith to be genuine and correct and to have
been signed or sent by or on behalf of the proper Person or Persons (without
being required to determine the correctness of any fact stated therein) and
consult with and conclusively rely upon advice, opinions and statements of
legal counsel and other experts selected by the Collateral Agent, the Custodial
Agent or the Securities Intermediary, as the case may be. As to any matters not
expressly provided for by this Agreement, the Collateral Agent, the Custodial
Agent and the Securities Intermediary shall in all cases be fully protected in
acting, or in refraining from acting, hereunder in accordance with instructions
given by the Company in accordance with this Agreement.


 


Section 15.04.  Certain Rights.  (a) Whenever in the administration of the provisions
of this Agreement the Collateral Agent, the Custodial Agent or the Securities
Intermediary shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering any action to be taken hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Collateral Agent, the Custodial Agent or the Securities Intermediary, be deemed
to be conclusively proved and established by a certificate signed by one of the
Company’s officers, and delivered to the Collateral Agent, the Custodial Agent or
the Securities Intermediary and such certificate, in the absence of negligence
or bad faith on the part of the Collateral Agent, the Custodial Agent or the
Securities Intermediary, shall be full warrant to the Collateral Agent, the
Custodial Agent or the Securities Intermediary for any action taken, suffered
or omitted by it under the provisions of this Agreement upon the faith thereof.


 


(b)       The Collateral
Agent, the Custodial Agent or the Securities Intermediary shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
entitlement order, approval or other paper or document.


 


Section 15.05.  Merger, Conversion, Consolidation or
Succession to Business.  Any
corporation into which the Collateral Agent, the Custodial Agent or the
Securities 


 


97

















 


Intermediary may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Collateral Agent, the
Custodial Agent or the Securities Intermediary shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Collateral Agent, the Custodial Agent or the Securities
Intermediary shall be the successor of the Collateral Agent, the Custodial
Agent or the Securities Intermediary hereunder without the execution or filing
of any paper with any party hereto or any further act on the part of any of the
parties hereto except where an instrument of transfer or assignment is required
by law to effect such succession, anything herein to the contrary
notwithstanding.


 


Section 15.06.  Rights in Other Capacities.  The Collateral Agent, the
Custodial Agent and the Securities Intermediary and their affiliates may
(without having to account therefor to the Company) accept deposits from, lend
money to, make their investments in and generally engage in any kind of
banking, trust or other business with the Purchase Contract Agent, any other
Person interested herein and any Holder (and any of their respective
subsidiaries or affiliates) as if it were not acting as the Collateral Agent,
the Custodial Agent or the Securities Intermediary, as the case may be, and the
Collateral Agent, the Custodial Agent, the Securities Intermediary and their
affiliates may accept fees and other consideration from the Purchase Contract
Agent and any Holder without having to account for the same to the Company; provided that each of the Collateral
Agent, the Custodial Agent and the Securities Intermediary covenants and agrees
with the Company that it shall not accept, receive or permit there to be
created in favor of itself and shall take no affirmative action to permit there
to be created in favor of any other Person, any security interest, lien or
other encumbrance of any kind in or upon the Collateral other than the lien
created by the Pledge.


 


Section 15.07.  Non-reliance on the Collateral Agent,
Custodial Agent and Securities Intermediary. 
None of the Collateral Agent, the Custodial Agent and the
Securities Intermediary shall be required to keep itself informed as to the
performance or observance by the Purchase Contract Agent or any Holder of this
Agreement, the Units or any other document referred to or provided for herein
or therein or to inspect the properties or books of the Purchase Contract Agent
or any Holder. None of the Collateral Agent, the Custodial Agent or the
Securities Intermediary shall have any duty or responsibility to provide the
Company with any credit or other information concerning the affairs, financial
condition or business of the Purchase Contract Agent or any Holder (or any of
their respective affiliates) that may come into the possession of the
Collateral Agent, the Custodial Agent or the Securities Intermediary or any of
their respective affiliates.


 


Section 15.08.  Compensation and Indemnity.  The Company agrees to:


 


(a)       pay the
Collateral Agent, the Custodial Agent and the Securities Intermediary from time
to time such compensation as shall be agreed in writing between the Company and
the Collateral Agent, the Custodial Agent or the Securities Intermediary, as
the case may be, for all services rendered by them hereunder;


 


98

















 


(b)       indemnify and
hold harmless the Collateral Agent, the Custodial Agent, the Securities
Intermediary and each of their respective directors, officers, agents and
employees (collectively, the “Pledge  Indemnitees”),
from and against any and all claims, liabilities, losses, damages, fines,
penalties and expenses (including reasonable fees and expenses of counsel)
(collectively, “Losses” and individually, a “Loss”)
that may be imposed on, incurred by, or asserted against, the Indemnitees or
any of them for following any instructions or other directions upon which any
of the Collateral Agent, the Custodial Agent or the Securities Intermediary is
entitled to rely pursuant to the terms of this Agreement, provided that the Collateral Agent, the
Custodial Agent or the Securities Intermediary has not acted with negligence or
engaged in willful misconduct or bad faith with respect to the specific Loss
against which indemnification is sought; and


 


(c)       in addition to
and not in limitation of paragraph (b) of this Section 15.08, indemnify and
hold the Indemnitees and each of them harmless from and against any and all
Losses that may be imposed on, incurred by or asserted against, the Indemnitees
or any of them in connection with or arising out of the Collateral Agent’s, the
Custodial Agent’s or the Securities Intermediary’s acceptance or performance of
its powers and duties under this Agreement, provided
the Collateral Agent, the Custodial Agent or the Securities Intermediary has
not acted with negligence or engaged in willful misconduct or bad faith with
respect to the specific Loss against which indemnification is sought.


 


The provisions
of this Section and Section 15.14shall survive the resignation or removal of
the Collateral Agent, the Custodial Agent or the Securities Intermediary and
the termination of this Agreement.


 


Section 15.09.  Failure to Act.  In the event that, in the good faith belief of the
Collateral Agent, the Custody Agent or the Securities Intermediary, an
ambiguity in the provisions of this Agreement arises or any actual dispute
between or conflicting claims by or among the parties hereto or any other
Person with respect to any funds or property deposited hereunder has been
asserted in writing, then at its sole option, each of the Collateral Agent, the
Custodial Agent and the Securities Intermediary shall be entitled, after prompt
notice to the Company and the Purchase Contract Agent, to refuse to comply with
any and all claims, demands or instructions with respect to such property or
funds so long as such dispute or conflict shall continue, and the Collateral
Agent, the Custodial Agent and the Securities Intermediary, as the case may be,
shall not be or become liable in any way to any of the parties hereto for its failure
or refusal to comply with such conflicting claims, demands or instructions. The
Collateral Agent, the Custodial Agent and the Securities Intermediary shall be
entitled to refuse to act until either:


 


(a)       such conflicting
or adverse claims or demands shall have been finally determined by a court of
competent jurisdiction or settled by agreement between the conflicting parties
as evidenced in a writing satisfactory to the Collateral Agent, the Custodial
Agent or the Securities Intermediary; or


 


99

















 


(b)       the Collateral
Agent, the Custodial Agent or the Securities Intermediary shall have received
security or an indemnity satisfactory to it sufficient to hold it harmless from
and against any and all loss, liability or reasonable out-of-pocket expense
which it may incur by reason of its acting.


 


The Collateral
Agent, the Custodial Agent and the Securities Intermediary may in addition
elect to commence an interpleader action or seek other judicial relief or orders
as the Collateral Agent, the Custodial Agent or the Securities Intermediary may
deem necessary. Notwithstanding anything contained herein to the contrary, none
of the Collateral Agent, the Custodial Agent or the Securities Intermediary
shall be required to take any action that is in its opinion contrary to law or
to the terms of this Agreement, or which would in its opinion subject it or any
of its officers, employees or directors to liability.


 


Section 15.10.  Resignation of Collateral Agent, the Custodial
Agent and the Securities Intermediary.  (a)
Subject to the appointment and acceptance of a successor Collateral Agent,
Custodial Agent or Securities Intermediary as provided below:


 


(i)    the
Collateral Agent, the Custodial Agent or the Securities Intermediary may resign
at any time by giving notice thereof to the Company and the Purchase Contract
Agent as attorney-in-fact for the Holders;


 


(ii)   the
Collateral Agent, the Custodial Agent or the Securities Intermediary may be
removed at any time by the Company; and


 


(iii) if
the Collateral Agent, the Custodial Agent or the Securities Intermediary fails
to perform any of its material obligations hereunder in any material respect
for a period of not less than 20 days after receiving written notice of such
failure by the Purchase Contract Agent and such failure shall be continuing,
the Collateral Agent, the Custodial Agent and the Securities Intermediary may
be removed by the Purchase Contract Agent, acting at the direction of the
Holders.


 


The Purchase
Contract Agent shall promptly notify the Company upon the transmission of
notice as contemplated by clause (iii) of Section 15.10(a) and any removal of
the Collateral Agent, the Custodial Agent or the Securities Intermediary
pursuant to clause (iii) of this Section 15.10(a). Upon any such resignation or
removal, the Company shall have the right to appoint a successor Collateral
Agent, Custodial Agent or Securities Intermediary, as the case may be, which
shall not be an Affiliate of the Purchase Contract Agent. If no successor
Collateral Agent, Custodial Agent or 


 


100

















 


Securities Intermediary shall have been so
appointed and shall have accepted such appointment within 45 days after the
retiring Collateral Agent’s, Custodial Agent’s or Securities Intermediary’s
giving of notice of resignation or the Company’s or the Purchase Contract
Agent’s giving notice of such removal, then the retiring or removed Collateral
Agent, Custodial Agent or Securities Intermediary may petition any court of
competent jurisdiction, at the expense of the Company, for the appointment of a
successor Collateral Agent, Custodial Agent or Securities Intermediary. The
Collateral Agent, the Custodial Agent and the Securities Intermediary shall
each be a bank or a national banking association which has an office (or an
agency office) in New York City with a combined capital and surplus of at least
$50,000,000.  Upon the acceptance of any
appointment as Collateral Agent, Custodial Agent or Securities Intermediary
hereunder by a successor Collateral Agent, Custodial Agent or Securities
Intermediary, as the case may be, such successor Collateral Agent, Custodial
Agent or Securities Intermediary, as the case may be, shall thereupon succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Collateral Agent, Custodial Agent or Securities Intermediary, as the
case may be, and the retiring Collateral Agent, Custodial Agent or Securities
Intermediary, as the case may be, shall take all appropriate action, subject to
payment of any amounts then due and payable to it hereunder, to transfer any
money and property held by it hereunder (including the Collateral) to such
successor.  The retiring Collateral
Agent, Custodial Agent or Securities Intermediary shall, upon such succession,
be discharged from its duties and obligations as Collateral Agent, Custodial
Agent or Securities Intermediary hereunder. After any retiring Collateral
Agent’s, Custodial Agent’s or Securities Intermediary’s resignation hereunder
as Collateral Agent, Custodial Agent or Securities Intermediary, the provisions
of this Article 15 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Collateral
Agent, the Custodial Agent or the Securities Intermediary.  Any resignation or removal of the Collateral
Agent, the Custodial Agent or the Securities Intermediary hereunder, at a time
when such Person is also acting as the Collateral Agent, the Custodial Agent or
the Securities Intermediary, as the case may be, shall be deemed for all
purposes of this Agreement as the simultaneous resignation or removal of the
Collateral Agent, the Securities Intermediary or the Custodial Agent, as the
case may be.


 


(b)       Because The Bank
of New York is serving as the Collateral Agent hereunder and also as the
Purchase Contract Agent hereunder, if an event of default or a collateral event
of default occurs hereunder The Bank of New York will resign as the Collateral
Agent, Custodial Agent and the Securities Intermediary, but continue to act as
the Purchase Contract Agent.  A
successor Collateral Agent, Custodial Agent and Securities Intermediary will be
appointed in accordance with the terms of this Article 15.


 


Section 15.11.  Right to Appoint Agent or Advisor.  The Collateral Agent shall have
the right to appoint agents or advisors in connection with any of its duties
hereunder, and the Collateral Agent shall not be liable for any action taken or
omitted by, or in reliance upon the advice of, such agents or advisors selected
in good faith. The appointment of agents pursuant to this Section 15.11 shall
be subject to prior written consent of the Company, which consent shall not be
unreasonably withheld.


 


Section 15.12.  Survival. 
The provisions of this Article 15 shall survive termination
of this Agreement and the resignation or removal of the Collateral Agent, the
Custodial Agent or the Securities Intermediary.


 


101

















 


Section 15.13.  Exculpation.  Anything contained in this Agreement to the contrary
notwithstanding, in no event shall the Collateral Agent, the Custodial Agent or
the Securities Intermediary or their officers, directors, employees or agents
be liable under this Agreement to any third party for indirect, special,
punitive, or consequential loss or damage of any kind whatsoever, including,
but not limited to, lost profits, whether or not the likelihood of such loss or
damage was known to the Collateral Agent, the Custodial Agent or the Securities
Intermediary, or any of them and regardless of the form of action.


 


Section 15.14.  Expenses, Etc.  The Company agrees to reimburse the Collateral Agent,
the Custodial Agent and the Securities Intermediary for:


 


(a)       all reasonable
costs and expenses of the Collateral Agent, the Custodial Agent and the
Securities Intermediary (including, without limitation, the reasonable fees and
expenses of counsel to the Collateral Agent, the Custodial Agent and the
Securities Intermediary), in connection with (i) the negotiation, preparation,
execution and delivery or performance of this Agreement and (ii) any
modification, supplement or waiver of any of the terms of this Agreement;


 


(b)       all reasonable
costs and expenses of the Collateral Agent, the Custodial Agent and the
Securities Intermediary (including, without limitation, reasonable fees and
expenses of counsel) in connection with (i) any enforcement or proceedings
resulting or incurred in connection with causing any Holder to satisfy its
obligations under the Purchase Contracts forming a part of the Units and (ii)
the enforcement of this Section 15.14;


 


(c)       all transfer,
stamp, documentary or other similar taxes, assessments or charges levied by any
governmental or revenue authority in respect of this Agreement or any other
document referred to herein and all costs, expenses, taxes, assessments and
other charges incurred in connection with any filing, registration, recording
or perfection of any security interest contemplated hereby;


 


(d)       all reasonable
fees and expenses of any agent or advisor appointed by the Collateral Agent and
consented to by the Company under Section 15.11 of this Agreement; and


 


(e)       any other
out-of-pocket costs and expenses reasonably incurred by the Collateral Agent,
the Custodial Agent and the Securities Intermediary in connection with the
performance of their duties hereunder.


 


ARTICLE 16

MISCELLANEOUS


 


Section 16.01.  Security Interest Absolute.  All rights of the Collateral
Agent and security interests hereunder, and all obligations of the Holders from
time to time hereunder pursuant to the Pledge, shall be absolute and
unconditional irrespective of:


 


102

















 


(a)       any lack of
validity or enforceability of any provision of the Purchase Contracts or the
Units or any other agreement or instrument relating thereto;


 


(b)       any change in
the time, manner or place of payment of, or any other term of, or any increase
in the amount of, all or any of the obligations of Holders of the Units under
the related Purchase Contracts, or any other amendment or waiver of any term
of, or any consent to any departure from any requirement of, the Purchase
Contract Agreement or any Purchase Contract or any other agreement or
instrument relating thereto; or


 


(c)       any other
circumstance which might otherwise constitute a defense available to, or
discharge of, a borrower, a guarantor or a pledgor.


 


Section 16.02.  Notice of Special Event, Special Event
Redemption and Termination Event.  Upon
the occurrence of a Special Event, a Special Event Redemption or a Termination
Event, the Company shall deliver written notice to the Purchase Contract Agent,
the Collateral Agent and the Securities Intermediary.  Upon the written request of the Collateral Agent or the
Securities Intermediary, the Company shall inform such party whether or not a
Special Event, a Special Event Redemption or a Termination Event has occurred.


 


[SIGNATURES ON THE FOLLOWING PAGE]


 


103

















 


IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be duly executed as
of the day and year first above written.


 


	
  GENWORTH
  FINANCIAL, INC.

  	
  THE BANK OF
  NEW YORK, 

  
	
   

  	
   

  	
  as Purchase
  Contract Agent and as attorney-in-fact 

  of the Holders from time to time of the Units

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Joseph
  J. Pehota

  	
   

  	
  By:

  	
  /s/ Geovanni
  Barris

  	
   

  
	
   

  	
  Name: Joseph J. Pehota

  	
   

  	
  Name: Geovanni Barris

  
	
   

  	
  Title: Senior Vice President

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
  Address for
  Notices:

  	
  Address for
  Notices:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Genworth Financial,
  Inc.  

  	
   

  	
  The Bank of
  New York  

  
	
   

  	
  6620 West
  Broad Street  

  	
   

  	
  101 Barclay
  Street, 8W 

  
	
   

  	
  Richmond,
  Virginia 23230  

  	
   

  	
  New York, NY
  10286  

  
	
   

  	
  Telecopier
  No.: 804-662-2414 

  	
   

  	
  Telecopier
  No.: 212-815-5707  

  
	
   

  	
  Attention:
  General Counsel

  	
   

  	
  Attention:

  	
  Corporate
  Trust Division —

  
	
   

  	
   

  	
   

  	
   

  	
  Corporate
  Finance Unit

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  THE BANK OF
  NEW YORK

  	
   

  	
   

  
	
  as
  Collateral Agent, Custodial Agent and 

  Securities Intermediary

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  /s/ Geovanni
  Barris

  	
   

  	
   

  	
   

  
	
  By:

  	
  Name: Geovanni Barris

  	
   

  	
   

  	
   

  
	
   

  	
  Title: Vice President

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address for
  Notices:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  The Bank of
  New York

  	
   

  	
   

  
	
  101 Barclay
  Street, 8W

  	
   

  	
   

  
	
  New York, NY
  10286

  	
   

  	
   

  
	
  Telecopier
  No.: 212-815-5707

  	
   

  	
   

  
	
  Attention:

  	
  Corporate
  Trust Division —

  	
   

  	
   

  
	
   

  	
  Corporate
  Finance Unit

  	
   

  	
   

  
								



 

















 


EXHIBIT A


 


(FORM OF FACE OF CORPORATE UNIT CERTIFICATE)


 


[For inclusion
in Global Certificates only - THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN
THE MEANING OF THE PURCHASE CONTRACT AND PLEDGE AGREEMENT HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF CEDE & CO., AS NOMINEE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE “DEPOSITARY”), THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY. 
THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME
OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE PURCHASE CONTRACT AND PLEDGE AGREEMENT AND NO TRANSFER OF THIS
CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT
IN LIMITED CIRCUMSTANCES.


 


UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]


 


	
  No. 1

  	
   

  	
  CUSIP No.  37247D 30 4

  



Number of
Corporate Units:


 


GENWORTH FINANCIAL, INC.

Corporate Units


 


This Corporate
Units Certificate certifies that
                     
is the registered Holder of the number of Corporate Units set forth above [For inclusion
in Global Certificates only - or such other number of Corporate Units reflected
in the Schedule of Increases or Decreases in Global Certificate attached
hereto, which number shall not exceed 24,000,000]. Each Corporate Unit consists
of (i) either (a) an Applicable Ownership Interest in Senior Notes, subject to
the Pledge thereof by such Holder pursuant to the Purchase Contract and Pledge
Agreement, or (b) upon the occurrence of a Special Event Redemption prior to
the Purchase Contract Settlement Date, the Applicable Ownership Interest in the
Treasury Portfolio, subject to the pledge of the Applicable Ownership Interest
in the Treasury Portfolio (as specified in clause (i) of the definition of such
term) by such Holder pursuant to the Purchase Contract and Pledge Agreement,
and (ii) the rights and obligations of the Holder under one Purchase Contract
with the Company.


 


A-1

















 


All
capitalized terms used herein that are defined in the Purchase Contract and
Pledge Agreement (as defined on the reverse hereof) have the meaning set forth
therein.


 


Pursuant to
the Purchase Contract and Pledge Agreement, the Applicable Ownership Interest
in Senior Notes or the Applicable Ownership Interest in the Treasury Portfolio
(as specified in clause (i) of the definition of such term), as the case may
be, constituting part of each Corporate Unit evidenced hereby have been pledged
to the Collateral Agent, for the benefit of the Company, to secure the
obligations of the Holder under the Purchase Contract comprising part of such
Corporate Unit.


 


All payments of
the principal amount with respect to the Senior Notes underlying the Pledged
Applicable Ownership Interests in Senior Notes or all payments with respect to
the Applicable Ownership Interests in the Treasury Portfolio (as specified in
clause (i) of the definition of such term), as the case may be, or payments of
interest on the Pledged Applicable Ownership Interests in Senior Notes or
distributions with respect to the Applicable Ownership Interests in the
Treasury Portfolio (as specified in clause (ii) of the definition of such
term), as the case may be, constituting part of the Corporate Units shall be
paid on the dates and in the manner set forth in the Purchase Contract and
Pledge Agreement.  Interest on the Senior
Notes underlying the Applicable Ownership Interests in Senior Notes and
distributions on the Applicable Ownership Interests in the Treasury Portfolio
(as specified in clause (ii) of the definition of such term), as the case may
be, forming part of the Corporate Units evidenced hereby, which are payable on
each Payment Date, shall, subject to receipt thereof by the Purchase Contract
Agent, be paid to the Person in whose name this Corporate Units Certificate (or
a Predecessor Corporate Units Certificate) is registered at the close of
business on the Record Date for such Payment Date.


 


All Contract
Adjustment Payments shall be paid on the dates and in the manner set forth in
the Purchase Contract and Pledge Agreement. 
Such Contract Adjustment Payments shall be payable to the Person in
whose name this Corporate Units Certificate is registered at the close of
business on the Record Date for such Payment Date.


 


Each Purchase
Contract evidenced hereby obligates the Holder of this Corporate Units
Certificate to purchase, and the Company to sell, on the Purchase Contract
Settlement Date, at a Purchase Price equal to the Stated Amount, a number of
newly issued shares of Common Stock of the Company, equal to the Settlement
Rate, unless on or prior to the Purchase Contract Settlement Date there shall
have occurred a Termination Event, an Early Settlement or a Cash Merger Early
Settlement with respect to such Purchase Contract, all as provided in the
Purchase Contract and Pledge Agreement. 
The Purchase Price for the shares of Common Stock purchased pursuant to
each Purchase Contract evidenced hereby, if not paid earlier, shall be paid on
the Purchase Contract Settlement Date by application of payment received in the
Remarketing of the Senior Notes underlying the Pledged Applicable Ownership
Interests in Senior Notes equal to the principal amount thereof or the proceeds
of the Pledged Applicable Ownership Interests in the Treasury Portfolio (as
specified in clause (i) of the definition of such term), as the case may be,
pledged to secure the obligations under such Purchase Contract of the Holder of
the Corporate Units of which such Purchase Contract is a part.


 


A-2

















 


The Company
shall pay, on February 16, May 16, August 16 and November 16 of each year
(each, a “Payment
Date”), in respect of each Purchase Contract forming part of a
Corporate Unit evidenced hereby, an amount (the “Contract Adjustment Payments”)
equal to 2.16% per year of the Stated Amount. 
Contract Adjustment Payments will accrue from (and including) May 24,
2004 to (but excluding) the earliest of (1) the Purchase Contract Settlement
Date, (ii) the Payment Date immediately preceding any Early Settlement Date and
(iii) any Cash Merger Early Settlement Date. 
Contract Adjustment Payments payable on any Payment Date shall accrue
from and including the immediately preceding Payment Date on which Contract
Adjustment Payments were paid (or if none, the Special Payment Date) to but
excluding such Payment Date.  Such Contract
Adjustment Payments shall be payable to the Person in whose name this Corporate
Units Certificate is registered at the close of business on the Record Date for
such Payment Date.  In addition, the
Company shall pay on May 28, 2004 (the “Special Payment Date”), the
Contract Adjusted Payments accrued from and including May 24, 2004 to but
excluding the Special Payment Date to the Person in whose name a Certificate is
registered at the close of business on the Business Day immediately preceding
the Special Payment Date.  The Contract
Adjustment Payments payable on the Special Payment Date shall be paid by wire
transfer to the account designated by the Person entitled to receive such
payment by prior notice to the Company and the Purchase Contract Agent.


 


Distributions
on the Applicable Ownership Interests in Senior Notes and distributions on the
Applicable Ownership Interests in the Treasury Portfolio (as specified in
clause (ii) of the definition of such term) and the Contract Adjustment
Payments will be payable at the office of the Purchase Contract Agent in New
York City, except that all payments with respect to Global Certificates will be
made by wire transfer of immediately available funds to the Depositary. If the
book-entry system for the Corporate Units has been terminated, the Contract Adjustment
Payments will be payable, at the option of the Company, by check mailed to the
address of the Person entitled thereto at such Person’s address as it appears
on the Security Register, or by wire transfer to the account designated by such
Person by prior written notice to the Purchase Contract Agent.


 


Each Purchase
Contract evidenced hereby obligates the holder to agree, for United States
federal, state and local income and franchise tax purposes, to (i) treat its
acquisition of the Corporate Units as an acquisition of the Applicable
Ownership Interest in Senior Notes and Purchase Contract constituting each
Corporate Unit, (ii) treat the Applicable Ownership Interest in Senior Notes as
indebtedness of the Company and (iii) treat itself as the owner of the
applicable interests in the Collateral Account, including the Senior Notes
underlying the Applicable Ownership Interests in the Senior Notes or the
Applicable Ownership Interests in the Treasury Portfolio (as specified in
clause (i) of the definition of such term).


 


Reference is
hereby made to the further provisions set forth on the reverse hereof, which
further provisions shall for all purposes have the same effect as if set forth
at this place.


 


Unless the
certificate of authentication hereon has been executed by the Purchase Contract
Agent by manual signature, this Corporate Units Certificate shall not be
entitled to any 


 


A-3

















 


benefit under the Purchase Contract and Pledge Agreement or be valid or
obligatory for any purpose.


 


A-4

















 


IN WITNESS
WHEREOF, the Company and the Holder specified above have caused this instrument
to be duly executed.


 


	
   

  	
  GENWORTH
  FINANCIAL, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HOLDER
  SPECIFIED ABOVE (as to 

  obligations of such Holder under the 

  Purchase Contracts)

  
	
   

  	
   

  
	
   

  	
  By:

  	
  THE BANK OF NEW YORK, not individually but
  solely as 

  attorney-in-fact of such Holder

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
					



 


CERTIFICATE OF AUTHENTICATION

OF PURCHASE CONTRACT AGENT


 


This is one of
the Corporate Units Certificates referred to in the within mentioned Purchase
Contract and Pledge Agreement.


 


	
   

  	
  THE BANK OF NEW YORK,

  
	
   

  	
   

  	
  as Purchase
  Contract Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
					



 


A-5

















 


(REVERSE OF CORPORATE UNIT CERTIFICATE)


 


Each Purchase
Contract evidenced hereby is governed by a Purchase Contract and Pledge
Agreement, dated as of May 24, 2004 (as may be supplemented from time to
time, the “Purchase Contract and Pledge Agreement”), between the Company
and The Bank of New York, as Collateral Agent, as Custodial Agent, as
Securities Intermediary, as Purchase Contract Agent and as attorney-in-fact for
the holders of Corporate Units and Treasury Units from time to time, to which
Purchase Contract and Pledge Agreement and supplemental agreements thereto
reference is hereby made for a description of the respective rights,
limitations of rights, obligations, duties and immunities thereunder of the
Purchase Contract Agent, the Company, and the Holders and of the terms upon
which the Corporate Units Certificates are, and are to be, executed and
delivered.


 


Each Purchase
Contract evidenced hereby obligates the Holder of this Corporate Units
Certificate to purchase, and the Company to sell, on the Purchase Contract
Settlement Date at a price equal to the Stated Amount, a number of shares of
Common Stock equal to the Settlement Rate, unless an Early Settlement, a Cash
Merger Early Settlement or a Termination Event with respect to the Units of
which such Purchase Contract is a part shall have occurred.  The Settlement Rate is subject to adjustment
as described in the Purchase Contract and Pledge Agreement.


 


No fractional
shares of Common Stock will be issued upon settlement of Purchase Contracts, as
provided in Section 5.08 of the Purchase Contract and Pledge Agreement.


 


Each Purchase
Contract evidenced hereby that is settled through Early Settlement or Cash
Merger Early Settlement shall obligate the Holder of the related Corporate
Units to purchase at the Purchase Price, and the Company to sell, a number of
newly issued shares of Common Stock equal to the Minimum Settlement Rate (in
the case of an Early Settlement) or applicable Settlement Rate (in the case of
a Cash Merger Early Settlement).


 


In accordance
with the terms of the Purchase Contract and Pledge Agreement, unless a
Termination Event shall have occurred, the Holder of this Corporate Units
Certificate shall pay the Purchase Price for the shares of Common Stock
purchased pursuant to each Purchase Contract evidenced hereby by effecting a
Cash Settlement, an Early Settlement or, if applicable, a Cash Merger Early
Settlement or from the proceeds of the Applicable Ownership Interests in the
Treasury Portfolio (as specified in clause (i) of the definition of such term)
or a Remarketing of the Senior Notes underlying the Pledged Applicable
Ownership Interests in Senior Notes. Unless Applicable Ownership Interests in
the Treasury Portfolio have replaced Applicable Ownership Interests in Senior
Notes as a component of Corporate Units, a Holder of Corporate Units who (1)
does not, on or prior to 5:00 p.m. (New York City time) on the sixth Business
Day immediately preceding the Purchase Contract Settlement Date make an
effective Cash Settlement in the manner provided in the Purchase Contract and
Pledge Agreement or (2) on or prior to 5:00 p.m. (New York City time) on the
seventh Business Day immediately preceding the Purchase Contract Settlement
Date (in the case of Corporate Units, unless a Special Event 


 


A-6

















 


Redemption has occurred) or the second Business Day immediately
preceding the Purchase Contract Settlement Date (in the case of Corporate Units
after the occurrence of a Special Event Redemption), does not make an effective
Early Settlement, shall pay the Purchase Price for the shares of Common Stock
to be delivered under the related Purchase Contract from the proceeds of the
sale of the Senior Notes underlying the Pledged Applicable Ownership Interests
in Senior Notes held by the Collateral Agent in the Remarketing unless the
Holder has previously made a Cash Merger Early Settlement.  If the Treasury Portfolio has replaced the
Senior Notes as a component of Corporate Units, a Holder of Corporate Units
shall pay the Purchase Price for the shares of Common Stock to be delivered
under the related Purchase Contract from the proceeds at maturity of the
Applicable Ownership Interests in the Treasury Portfolio (as specified in
clause (i) of the definition of such term.


 


As provided in
the Purchase Contract and Pledge Agreement, upon the occurrence of a Failed
Final Remarketing, as of the Purchase Contract Settlement Date, each Holder of
any Pledged Applicable Interests in Senior Notes, unless such Holder has
elected Cash Settlement and delivered cash in accordance with Section 5.02(a)
of the Purchase Contract and Pledge Agreement, shall be deemed to have
exercised such Holder’s Put Right with respect to the Senior Notes underlying
such Applicable Ownership Interests in Senior Notes and to have elected to have
a portion of the Proceeds of the Put Right set-off against such Holder’s
obligation to pay the aggregate Purchase Price for the shares of Common Stock
to be issued under the related Purchase Contracts in full satisfaction of such
Holders’ obligations under such Purchase Contracts, and any accrued and unpaid
interest on the Senior Notes attributable to such Pledged Applicable Ownership
Interests in Senior Notes will become payable by the Company to the Holder of
this Corporate Units Certificate in the manner provided for in the Purchase
Contract and Pledge Agreement.


 


The Company
shall not be obligated to issue any shares of Common Stock in respect of a
Purchase Contract or deliver any certificates therefor to the Holder unless it
shall have received payment of the aggregate Purchase Price for the shares of
Common Stock to be purchased thereunder in the manner set forth in the Purchase
Contract and Pledge Agreement.


 


Each Purchase
Contract evidenced hereby and all obligations and rights of the Company and the
Holder thereunder shall terminate if a Termination Event shall occur.  Upon the occurrence of a Termination Event,
the Company shall give written notice to the Purchase Contract Agent and to the
Holders, at their addresses as they appear in the Security Register.  Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Senior Notes
underlying the Pledged Applicable Ownership Interests in Senior Notes or the
Applicable Ownership Interests in the Treasury Portfolio (as specified in
clause (i) of the definition of such term) forming a part of each Corporate
Unit from the Pledge.  A Corporate Unit
shall thereafter represent the right to receive the Senior Note underlying the
Applicable Ownership Interest in the Senior Notes or the Applicable Ownership
Interests in the Treasury Portfolio forming a part of such Corporate Units in
accordance with the terms of the Purchase Contract and Pledge Agreement.


 


A-7

















 


Under the
terms of the Purchase Contract and Pledge Agreement, the Purchase Contract
Agent will be entitled to exercise the voting and any other consensual rights
pertaining to the Senior Notes underlying the Pledged Applicable Ownership
Interests in Senior Notes, but only to the extent instructed in writing by the
Holders.  Upon receipt of notice of any
meeting at which holders of Senior Notes are entitled to vote or upon any
solicitation of consents, waivers or proxies of holders of Senior Notes, the
Purchase Contract Agent shall, as soon as practicable thereafter, mail, first
class, postage pre-paid, to the Corporate Units Holders the notice required by
the Purchase Contract and Pledge Agreement.


 


Upon the
occurrence of a Special Event Redemption, the Collateral Agent shall surrender
the Senior Notes underlying the Pledged Applicable Ownership Interests in
Senior Notes against delivery of an amount equal to the aggregate Redemption
Price of such Senior Notes and shall deposit the funds in the Collateral
Account in exchange for such Senior Notes. 
Thereafter, the Collateral Agent shall cause the Securities Intermediary
to apply an amount equal to the aggregate Redemption Amount of such funds to
purchase, on behalf of the Holders of Corporate Units, the Treasury Portfolio.


 


Following the
occurrence of a Special Event Redemption prior to the Purchase Contract
Settlement Date, the Collateral Agent shall have such security interest rights
with respect to the Applicable Ownership Interests in the Treasury Portfolio
(as specified in clause (i) of the definition of such term) as the Collateral
Agent had in respect of Applicable Ownership Interests in Senior Notes and the
underlying Senior Notes, as provided in the Purchase Contract and Pledge
Agreement and any reference herein to the Senior Notes or Applicable Ownership
Interests in Senior Notes shall be deemed to be a reference to the Treasury
Portfolio or the Applicable Ownership Interests in the Treasury Portfolio, as
the case may be.


 


The Corporate
Units Certificates are issuable only in registered form and only in
denominations of a single Corporate Unit and any integral multiple
thereof.  The transfer of any Corporate
Units Certificate will be registered and Corporate Units Certificates may be
exchanged as provided in the Purchase Contract and Pledge Agreement.  A Holder who elects to substitute a Treasury
Security for the Senior Note underlying the Applicable Ownership Interests in
Senior Notes or Applicable Ownership Interests in the Treasury Portfolio, as
the case may be, thereby creating Treasury Units, shall be responsible for any
fees or expenses payable in connection therewith. Except as provided in the
Purchase Contract and Pledge Agreement, such Corporate Unit shall not be
separable into its constituent parts, and the rights and obligations of the
Holder of such Corporate Unit in respect of the Applicable Ownership Interest
in Senior Notes, or Applicable Ownership Interest in the Treasury Portfolio, as
the case may be, and Purchase Contract constituting such Corporate Units may be
transferred and exchanged only as a Corporate Unit.


 


Subject to,
and in compliance with, the conditions and terms set forth in the Purchase Contract
and Pledge Agreement, the Holder of Corporate Units may effect a Collateral
Substitution.  From and after such
Collateral Substitution, each Unit for which Pledged Treasury Securities secure
the Holder’s obligation under the Purchase Contract shall be referred to as a
“Treasury Unit”.  A Holder may make such
Collateral Substitution only in integral multiples of 


 


A-8

















 


40 Corporate Units for 40 Treasury Units.  If Applicable Ownership Interests in the Treasury Portfolio have
replaced the Applicable Ownership Interests in Senior Notes as a component of
the Corporate Units, a Holder may substitute Treasury Securities for the
Applicable Ownership Interests in the Treasury Portfolio only in integral
multiples of 25,000 Corporate Units.


 


Subject to and
upon compliance with the provisions of the Purchase Contract and Pledge
Agreement, at the option of the Holder thereof, Purchase Contracts underlying
Units may be settled early by effecting an Early Settlement as provided in the
Purchase Contract and Pledge Agreement in integral multiples of 40 Corporate
Units, or if Applicable Ownership Interests in the Treasury Portfolio have
replaced the Applicable Ownership Interests in Senior Notes as a component of
the Corporate Units, in integral multiples of 25,000 Corporate Units.


 


Upon Early
Settlement of Purchase Contracts by a Holder of the related Units, the Senior
Notes underlying the Pledged Applicable Ownership Interests in Senior Notes or
the Applicable Ownership Interests in the Treasury Portfolio (as specified in
clause (i) of the definition of such term) underlying such Units shall be
released from the Pledge as provided in the Purchase Contract and Pledge
Agreement and the Holder shall be entitled to receive a number of shares of
Common Stock on account of each Purchase Contract forming part of a Corporate
Unit as to which Early Settlement is effected equal to the Minimum Settlement
Rate.


 


Upon the
occurrence of a Cash Merger, a Holder of Corporate Units may effect Cash Merger
Early Settlement of the Purchase Contracts underlying such Corporate Units
pursuant to the terms of the Purchase Contract and Pledge Agreement in integral
multiples of 40 Corporate Units, or if the Applicable Ownership Interests in
the Treasury Portfolio have replaced the Applicable Ownership Interests in
Senior Notes as a component of the Corporate Units, in integral multiples of [•] Corporate Units.  Upon Cash Merger Early Settlement of
Purchase Contracts by a Holder of the related Corporate Units, the Senior Notes
underlying the Pledged Applicable Ownership Interests in Senior Notes or the
Applicable Ownership Interests in the Treasury Portfolio (as specified in
clause (i) of the definition of such term) underlying such Corporate Units shall
be released from the Pledge as provided in the Purchase Contract and Pledge
Agreement and the Holder shall be entitled to receive a number of shares of
Common Stock on account of each Purchase Contract forming part of a Corporate
Unit as to which Cash Merger Early Settlement is effected equal to the
applicable Settlement Rate.


 


Upon
registration of transfer of this Corporate Units Certificate, the transferee
shall be bound (without the necessity of any other action on the part of such
transferee, except as may be required by the Purchase Contract Agent pursuant
to the Purchase Contract and Pledge Agreement), under the terms of the Purchase
Contract and Pledge Agreement and the Purchase Contracts evidenced hereby and
the transferor shall be released from the obligations under the Purchase
Contracts evidenced by this Corporate Units Certificate.  The Company covenants and agrees, and the
Holder, by its acceptance hereof, likewise covenants and agrees, to be bound by
the provisions of this paragraph.


 


The Holder of
this Corporate Units Certificate, by its acceptance hereof, authorizes the
Purchase Contract Agent to enter into and perform the related Purchase
Contracts forming part of 


 


A-9

















 


the Corporate Units evidenced hereby on its behalf as its
attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Purchase Contracts by the Company or its trustee in the
event that the Company becomes the subject of a case under the Bankruptcy Code,
agrees to be bound by the terms and provisions thereof, covenants and agrees to
perform its obligations under such Purchase Contracts, consents to the
provisions of the Purchase Contract and Pledge Agreement, authorizes the
Purchase Contract Agent to enter into and perform the Purchase Contract and
Pledge Agreement on its behalf as its attorney-in-fact, and consents to the
Pledge of the Applicable Ownership Interests in Senior Notes and the underlying
Senior Notes or the Applicable Ownership Interests in the Treasury Portfolio
(as specified in clause (i) of the definition of such term), as the case may
be, underlying this Corporate Units Certificate pursuant to the Purchase
Contract and Pledge Agreement.  The
Holder further covenants and agrees that, to the extent and in the manner
provided in the Purchase Contract and Pledge Agreement, but subject to the
terms thereof, any payments with respect the Senior Notes underlying the
Pledged Applicable Ownership Interests in Senior Notes (other than interest
payments thereon) or the Proceeds of the Applicable Ownership Interests in the
Treasury Portfolio (as specified in clause (i) of the definition of such term),
as the case may be, on the Purchase Contract Settlement Date equal to the
aggregate Purchase Price for the related Purchase Contracts shall be paid by
the Collateral Agent to the Company in satisfaction of such Holder’s
obligations under the related Purchase Contracts and such Holder shall acquire
no right, title or interest in such payments.


 


Subject to
certain exceptions, the provisions of the Purchase Contract and Pledge
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.


 


The Purchase
Contracts shall be governed by, and construed in accordance with, the laws of
the State of New York, without giving effect to the conflicts of law provisions
thereof to the extent a different law would govern as a result.


 


The Purchase
Contracts shall not, prior to the settlement thereof, entitle the Holder to any
of the rights of a holder of shares of Common Stock.


 


Prior to due
presentment of this Certificate for registration of transfer, the Company, the
Purchase Contract Agent and its Affiliates and any agent of the Company or the
Purchase Contract Agent may treat the Person in whose name this Corporate Units
Certificate is registered as the owner of the Corporate Units evidenced hereby
for the purpose of receiving payments of interest payable on the Senior Notes
underlying the Applicable Ownership Interests in Senior Notes and payments of
Contract Adjustment Payments (subject to any applicable record date),
performance of the Purchase Contracts and for all other purposes whatsoever,
whether or not any payments in respect thereof be overdue and notwithstanding
any notice to the contrary, and neither the Company, the Purchase Contract
Agent nor any such agent shall be affected by notice to the contrary.


 


A copy of the
Purchase Contract and Pledge Agreement is available for inspection at the
offices of the Purchase Contract Agent.


 


A-10

















 


ABBREVIATIONS


 


The following
abbreviations, when used in the inscription on the face of this instrument,
shall be construed as though they were written out in full according to
applicable laws or regulations:


 


	
  TEN COM:

  	
   

  	
  as tenants
  in common

  
	
   

  	
   

  	
   

  
	
  UNIF GIFT
  MIN ACT:

  	
   

  	
   

  	
  Custodian

  	
   

  	
   

  
	
   

  	
   

  	
  (cust)

  	
   

  	
  (minor)

  	
   

  
	
   

  	
   

  	
  Under
  Uniform Gifts to Minors Act of

  
	
   

  	
   

  	
   

  
	
  TENANT:

  	
   

  	
  as tenants
  by the entireties

  
	
   

  	
   

  	
   

  
	
  JT TEN:

  	
   

  	
  as joint
  tenants with right of survivorship and not as tenants in common

  



 


Additional
abbreviations may also be used though not in the above list.


 


FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto


(Please insert Social
Security or Taxpayer I.D. or other Identifying Number of Assignee)


 


 


(Please Print or Type Name and Address Including Postal Zip Code of
Assignee)


 


the within Corporate Units Certificates and all rights thereunder,
hereby irrevocably constituting and appointing attorney
                                        ,
to transfer said Corporate Units Certificates on the books of Genworth
Financial, Inc., with full power of substitution in the premises.


 


	
  Dated:

  	
   

  	
   

  	
  Signature

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  NOTICE: The
  signature to this assignment must correspond with the name as it appears upon
  the face of the within Corporate Units Certificates in every particular,
  without alteration or enlargement or any change whatsoever.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Signature
  Guarantee:

  	
   

  	
   

  
							



 


A-11

















 


SETTLEMENT INSTRUCTIONS


 


The undersigned
Holder directs that a certificate for shares of Common Stock deliverable upon
settlement on or after the Purchase Contract Settlement Date of the Purchase
Contracts underlying the number of Corporate Units evidenced by this Corporate
Units Certificate be registered in the name of, and delivered, together with a
check in payment for any fractional share, to the undersigned at the address
indicated below unless a different name and address have been indicated below.  If shares are to be registered in the name
of a Person other than the undersigned, the undersigned will pay any transfer
tax payable incident thereto.


 


	



  
  Dated:

  	
   

  	
   

  	
   

  	
  (if assigned
  to another person)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  REGISTERED HOLDER

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  If shares
  are to be registered in the name of and delivered to a Person other than the
  Holder, please (i) print such Person’s name and address and (ii) provide a
  guarantee of your signature:

  	
   

  	
  Please print
  name and address of

  Registered Holder:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
  Name

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address

  	
   

  	
  Address

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Social Security or other Taxpayer 

  Identification Number, if any

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  	
   

  	
   

  
								



 


A-12

















 


ELECTION TO SETTLE EARLY/CASH MERGER EARLY
SETTLEMENT


 


The
undersigned Holder of this Corporate Units Certificate hereby irrevocably
exercises the option to effect [Early Settlement] [Cash Merger Early
Settlement] in accordance with the terms of the Purchase Contract and Pledge
Agreement with respect to the Purchase Contracts underlying the number of
Corporate Units evidenced by this Corporate Units Certificate specified
below.  The option to effect [Early
Settlement] [Cash Merger Early Settlement] may be exercised only with respect
to Purchase Contracts underlying Corporate Units in multiples of 40 Corporate
Units or an integral multiple thereof; provided that if Applicable Ownership
Interests in the Treasury Portfolio have replaced Applicable Ownership
Interests in the Senior Notes as a component of the Corporate Units, Corporate
Units Holders may only effect [Early Settlement] [Cash Merger Early Settlement]
in multiples of 25,000 Corporate Units. 
The undersigned Holder directs that a certificate for shares of Common
Stock or other securities deliverable upon such [Early Settlement] [Cash Merger
Early Settlement] be registered in the name of, and delivered, together with a
check in payment for any fractional share and any Corporate Units Certificate
representing any Corporate Units evidenced hereby as to which [Early
Settlement] [Cash Merger Early Settlement] of the related Purchase Contracts is
not effected, to the undersigned at the address indicated below unless a
different name and address have been indicated below.  Senior Notes underlying Pledged Applicable Ownership Interests in
Senior Notes or the Applicable Ownership Interests in the Treasury Portfolio,
as the case may be, deliverable upon such [Early Settlement] [Cash Merger Early
Settlement] will be transferred in accordance with the transfer instructions
set forth below.  If shares are to be
registered in the name of a Person other than the undersigned, the undersigned
will pay any transfer tax payable incident thereto.


 


	
  Dated:

  	
   

  	
   

  	
  Signature

  	
   

  	
   

  
	
   

  	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  
							



 


A-13

















 


Number of
Units evidenced hereby as to which [Early Settlement] [Cash Merger Early
Settlement] of the related Purchase Contracts is being elected:


 


	
  If shares of Common Stock or Corporate
  Units Certificates are to be registered in the name of and delivered to, and
  Senior Notes underlying Pledged Applicable Ownership Interests in Senior
  Notes or the Applicable Ownership Interests in the Treasury Portfolio, as the
  case may be, are to be transferred, to a Person other than the Holder, please
  print such Person’s name and address:

  	
   

  	
  REGISTERED HOLDER

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Please print
  name and address of

  Registered Holder:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
  Name

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address

  	
   

  	
  Address

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Social Security or other Taxpayer 

  Identification Number, if any

  	
   

  	
   

  	
   

  



 


A-14

















 


Transfer Instructions for Senior Notes underlying Pledged Applicable
Ownership Interests in Senior Notes or the Applicable Ownership Interests in
the Treasury Portfolio, as the case may be, transferable upon [Early
Settlement] [Cash Merger Early Settlement]:


 


 


 


 


A-15

















 


[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF INCREASES OR DECREASES IN GLOBAL
CERTIFICATE


 


The initial number of Corporate Units evidenced by this Global
Certificate is
[          ].  The following increases or decreases in this
Global Certificate have been made:


 


 


	
  Date

  	
   

  	
  Amount of
  increase

  in number of 

  Corporate Units 

  evidenced by the 

  Global Certificate

  	
   

  	
  Amount of
  decrease 

  in number of 

  Corporate Units 

  evidenced by the 

  Global Certificate

  	
   

  	
  Number of
  Corporate 

  Units evidenced by 

  this Global 

  Certificate following 

  such decrease or 

  increase

  	
   

  	
  Signature
  of 

  authorized signatory 

  of Purchase Contract 

  Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-16

















 


EXHIBIT B


 


(FORM OF FACE OF TREASURY UNIT CERTIFICATE)


 


[For inclusion
in Global Certificate only - THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN
THE MEANING OF THE PURCHASE CONTRACT AND PLEDGE AGREEMENT HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF CEDE & CO., AS NOMINEE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE “DEPOSITARY”), THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY. 
THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME
OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AND PLEDGE AGREEMENT AND NO
TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.


 


UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]


 


	
  No. 1

  	
   

  	
  CUSIP No. 
  37247D 50 2

  



Number of Treasury Units:


 


GENWORTH FINANCIAL, INC.


Treasury Units


 


This Treasury
Units Certificate certifies that
                     
is the registered Holder of the number of Treasury Units set forth above [For
inclusion in Global Certificates only - or such other number of Treasury Units
reflected in the Schedule of Increases or Decreases in Global Certificate
attached hereto, which number shall not exceed 24,000,000].  Each Treasury Unit consists of (i) a 1/40
undivided beneficial ownership interest in a Treasury Security having a
principal amount at maturity equal to $1,000, subject to the Pledge of such
Treasury Security by such Holder pursuant to the Purchase Contract and Pledge
Agreement, and (ii) the rights and obligations of the Holder under one Purchase
Contract with the Company.


 


All
capitalized terms used herein that are defined in the Purchase Contract and
Pledge Agreement (as defined on the reverse hereof) have the meaning set forth
therein.


 


B-1

















 


Pursuant to
the Purchase Contract and Pledge Agreement, the Treasury Securities underlying
each Treasury Unit evidenced hereby have been pledged to the Collateral Agent,
for the benefit of the Company, to secure the obligations of the Holder under
the Purchase Contract comprising part of such Treasury Unit.


 


All Contract
Adjustment Payments shall be paid on the dates and in the manner set forth in
the Purchase Contract and Pledge Agreement. 
Such Contract Adjustment Payments shall be payable to the Person in
whose name this Treasury Units Certificate is registered at the close of
business on the Record Date for such Payment Date.


 


Each Purchase
Contract evidenced hereby obligates the Holder of this Treasury Units
Certificate to purchase, and the Company to sell, on the Purchase Contract
Settlement Date, at a Purchase Price equal to the Stated Amount, a number of
newly issued shares of Common Stock of the Company, equal to the Settlement
Rate, unless prior to or on the Purchase Contract Settlement Date there shall
have occurred a Termination Event, an Early Settlement or a Cash Merger Early
Settlement with respect to such Purchase Contract, all as provided in the
Purchase Contract and Pledge Agreement. 
The Purchase Price for the shares of Common Stock purchased pursuant to
each Purchase Contract evidenced hereby, if not paid earlier, shall be paid on
the Purchase Contract Settlement Date by application of the proceeds from the
Treasury Securities at maturity pledged to secure the obligations under such
Purchase Contract of the Holder of the Treasury Units of which such Purchase
Contract is a part.


 


The Company
shall pay, on each Payment Date, in respect of each Purchase Contract forming
part of a Treasury Unit evidenced hereby, an amount (the “Contract Adjustment Payments”)
equal to 2.16% per year of the Stated Amount. 
Contract Adjustment Payments will accrue from (and including) May 24,
2004 to (but excluding) the earliest of (i) the Purchase Contract Settlement
Date, (ii) the Payment Date immediately preceding any Early Settlement Date and
(iii) any Cash Merger Early Settlement Date. 
Contract Adjustment Payments payable on any Payment Date shall accrue
from and including the immediately preceding Payment Date on which Contract Adjustment
Payments were paid (or if none, the Special Payment Date) to but excluding such
Payment Date.  Such Contract Adjustment
Payments shall be payable to the Person in whose name this Treasury Units
Certificate is registered at the close of business on the Record Date for such
Payment Date.  In addition, the Company
shall pay on May 28, 2004 (the “Special Payment Date”), the Contract
Adjusted Payments accrued from and including May 24, 2004 to but excluding
the Special Payment Date to the Person in whose name a Certificate is
registered at the close of business on the Business Day immediately preceding
the Special Payment Date.  The Contract
Adjustment Payments payable on the Special Payment Date shall be paid by wire
transfer to the account designated by the Person entitled to receive such payment
by prior notice to the Company and the Purchase Contract Agent.


 


Contract
Adjustment Payments will be payable at the office of the Purchase Contract
Agent in New York City, except that Contract Adjustment Payments with respect
to Global Certificates will be made by wire transfer of immediately available
funds to the Depositary.  If the
book-entry system for the Corporate Units has been terminated, the Contract
Adjustment Payments will be payable, at the option of the Company, by check
mailed to the address of the 


 


B-2

















 


Person entitled thereto at such Person’s address as it appears on the
Security Register, or by wire transfer to the account designated by such Person
by prior written notice to the Purchase Contract Agent.


 


Each Purchase
Contract evidenced hereby obligates the holder to agree, for United States
federal, state and local income and franchise tax purposes, to (i) treat its
acquisition of the Treasury Units as an acquisition of the Treasury Security
and Purchase Contracts constituting the Treasury Units and (ii) treat itself as
the owner of the applicable interest in the Treasury Securities.


 


Reference is
hereby made to the further provisions set forth on the reverse hereof, which
further provisions shall for all purposes have the same effect as if set forth
at this place.


 


Unless the
certificate of authentication hereon has been executed by the Purchase Contract
Agent by manual signature, this Treasury Units Certificate shall not be
entitled to any benefit under Purchase Contract and Pledge Agreement or be
valid or obligatory for any purpose.


 


B-3

















 


IN WITNESS
WHEREOF, the Company and the Holder specified above have caused this instrument
to be duly executed.


 


	
   

  	
  GENWORTH
  FINANCIAL, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HOLDER
  SPECIFIED ABOVE (as to obligations of such Holder under the Purchase
  Contracts)

  
	
   

  	
   

  
	
   

  	
  By:

  	
  THE BANK OF NEW YORK, not individually but
  solely as attorney-in-fact or such Holder

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
					



 


CERTIFICATE OF AUTHENTICATION OF

PURCHASE CONTRACT AGENT


 


This is one of
the Treasury Units referred to in the within-mentioned Purchase Contract and
Pledge Agreement.


 


	
   

  	
  THE BANK OF NEW YORK,

  
	
   

  	
   

  	
  as Purchase
  Contract Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
					



 


B-4

















 


(REVERSE OF TREASURY UNIT CERTIFICATE)


 


Each Purchase
Contract evidenced hereby is governed by a Purchase Contract and Pledge Agreement,
dated as of May 24, 2004 (as may be supplemented from time to time, the “Purchase
Contract and Pledge Agreement”) between the Company and The Bank of
New York, as Collateral Agent, as Custodial Agent, as Securities Intermediary,
as Purchase Contract Agent and as attorney-in-fact for the holders of Corporate
Units and Treasury Units from time to time, to which Purchase Contract and
Pledge Agreement and supplemental agreements thereto reference is hereby made
for a description of the respective rights, limitations of rights, obligations,
duties and immunities thereunder of the Purchase Contract Agent, the Company
and the Holders and of the terms upon which the Treasury Units Certificates
are, and are to be, executed and delivered.


 


Each Purchase
Contract evidenced hereby obligates the Holder of this Treasury Units
Certificate to purchase, and the Company to sell, on the Purchase Contract
Settlement Date at a price equal to the Stated Amount, a number of newly issued
shares of Common Stock equal to the Settlement Rate, unless an Early
Settlement, a Cash Merger Early Settlement or a Termination Event with respect
to the Unit of which such Purchase Contract is a part shall have occurred. The
Settlement Rate is subject to adjustment as described in the Purchase Contract
and Pledge Agreement.


 


No fractional
shares of Common Stock will be issued upon settlement of Purchase Contracts, as
provided in Section 5.08 of the Purchase Contract and Pledge Agreement.


 


Each Purchase
Contract evidenced hereby that is settled through Early Settlement or Cash
Merger Early Settlement shall obligate the Holder of the related Treasury Units
to purchase at the Purchase Price and the Company to sell, a number of newly
issued shares of Common Stock equal to the Minimum Settlement Rate (in the case
of an Early Settlement) or applicable Settlement Rate (in the case of a Cash
Merger Early Settlement).


 


In accordance
with the terms of the Purchase Contract and Pledge Agreement, the Holder of
this Treasury Unit shall pay the Purchase Price for the shares of the Common
Stock to be purchased pursuant to each Purchase Contract evidenced hereby
either by effecting an Early Settlement or, if applicable, a Cash Merger Early
Settlement of each such Purchase Contract or by applying the proceeds of the
Pledged Treasury Securities underlying such Holder’s Treasury Unit equal to the
Purchase Price for such Purchase Contract to the purchase of the Common Stock.


 


The Company
shall not be obligated to issue any shares of Common Stock in respect of a Purchase
Contract or deliver any certificates therefor to the Holder unless it shall
have received payment of the aggregate Purchase Price for the shares of Common
Stock to be purchased thereunder in the manner set forth in the Purchase
Contract and Pledge Agreement.


 


Each Purchase
Contract evidenced hereby and all obligations and rights of the Company and the
Holder thereunder, shall terminate if a Termination Event shall occur.  Upon the 


 


B-5

















 


occurrence of a Termination Event, the Company shall give written
notice to the Purchase Contract Agent and the Holders, at their addresses as
they appear in the Security Register. 
Upon and after the occurrence of a Termination Event, the Collateral
Agent shall release the Treasury Securities underlying each Treasury Unit from
the Pledge.  A Treasury Unit shall
thereafter represent the right to receive the Treasury Security underlying such
Treasury Unit, in accordance with the terms of the Purchase Contract and Pledge
Agreement.


 


The Treasury
Units Certificates are issuable only in registered form and only in
denominations of a single Treasury Unit and any integral multiple thereof.  The transfer of any Treasury Units
Certificate will be registered and Treasury Units Certificates may be exchanged
as provided in the Purchase Contract and Pledge Agreement.  A Holder who elects to substitute Senior
Notes or Applicable Ownership Interests in the Treasury Portfolio, as the case
may be, for Treasury Securities, thereby recreating Corporate Units, shall be
responsible for any fees or expenses payable in connection therewith. Except as
provided in the Purchase Contract and Pledge Agreement, such Treasury Unit
shall not be separable into its constituent parts, and the rights and obligations
of the Holder of such Treasury Unit in respect of the Treasury Security and the
Purchase Contract constituting such Treasury Unit may be transferred and
exchanged only as a Treasury Unit.


 


Subject to,
and in compliance with, the conditions and terms set forth in the Purchase
Contract and Pledge Agreement, the Holder of Treasury Units may effect a
Collateral Substitution. From and after such substitution, each Unit for which
Pledged Applicable Ownership Interests in Senior Notes, or Pledged Applicable
Ownership Interests in the Treasury Portfolio, as the case may be, secure the
Holder’s obligation under the Purchase Contract shall be referred to as a
“Corporate Unit”.  A Holder may make
such Collateral substitution only in multiples of 40 Treasury Units for 40
Corporate Units.  If Applicable
Ownership Interests in the Treasury Portfolio have replaced the Applicable
Ownership Interests in Senior Notes as a component of the Corporate Units, a
Holder may substitute Applicable Ownership Interests in the Treasury Portfolio
for Treasury Securities only in integral multiples of 25,000 Treasury Units.


 


Subject to and
upon compliance with the provisions of the Purchase Contract and Pledge
Agreement, at the option of the Holder thereof, Purchase Contracts underlying
Units may be settled early by effecting an Early Settlement as provided in the
Purchase Contract and Pledge Agreement in integral multiples of 40 Treasury
Units.


 


Upon Early
Settlement of Purchase Contracts by a Holder of the related Units, the Pledged
Treasury Securities underlying such Units shall be released from the Pledge as
provided in the Purchase Contract and Pledge Agreement and the Holder shall be
entitled to receive a number of shares of Common Stock on account of each
Purchase Contract forming part of a Treasury Unit as to which Early Settlement
is effected equal to the Minimum Settlement Rate.


 


Upon the
occurrence of a Cash Merger, a Holder of Treasury Units may effect Cash Merger
Early Settlement of the Purchase Contracts underlying such Treasury Units
pursuant to the terms of the Purchase Contract and Pledge Agreement in integral
multiples of 40 Treasury Units.  Upon
Cash Merger Early Settlement of Purchase Contracts by a Holder of the related 


 


B-6

















 


Treasury Units, the Pledged Treasury Securities underlying such
Treasury Units shall be released from the Pledge as provided in the Purchase
Contract and Pledge Agreement and the Holder shall be entitled to receive a
number of shares of Common Stock on account of each Purchase Contract forming
part of a Corporate Unit as to which Cash Merger Early Settlement is effected
equal to the applicable Settlement Rate..


 


Upon
registration of transfer of this Treasury Units Certificate, the transferee
shall be bound (without the necessity of any other action on the part of such
transferee, except as may be required by the Purchase Contract Agent pursuant
to the Purchase Contract and Pledge Agreement), under the terms of the Purchase
Contract and Pledge Agreement and the Purchase Contracts evidenced hereby and
the transferor shall be released from the obligations under the Purchase
Contracts evidenced by this Treasury Units Certificate.  The Company covenants and agrees, and the
Holder, by its acceptance hereof, likewise covenants and agrees, to be bound by
the provisions of this paragraph.


 


The Holder of
this Treasury Units Certificate, by its acceptance hereof, authorizes the
Purchase Contract Agent to enter into and perform the related Purchase
Contracts forming part of the Treasury Units evidenced hereby on its behalf as
its attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Purchase Contracts by the Company or its trustee in the
event that the Company becomes the subject of a case under the Bankruptcy Code,
agrees to be bound by the terms and provisions thereof, covenants and agrees to
perform its obligations under such Purchase Contracts, consents to the
provisions of the Purchase Contract and Pledge Agreement, authorizes the
Purchase Contract Agent to enter into and perform the Purchase Contract and
Pledge Agreement on its behalf as its attorney-in-fact, and consents to the
Pledge of the Treasury Securities underlying this Treasury Units Certificate
pursuant to the Purchase Contract and Pledge Agreement.  The Holder further covenants and agrees,
that, to the extent and in the manner provided in the Purchase Contract and
Pledge Agreement, but subject to the terms thereof, payments in respect to the
aggregate principal amount at maturity of the Pledged Treasury Securities on
the Purchase Contract Settlement Date equal to the aggregate Purchase Price for
the related Purchase Contracts shall be paid by the Collateral Agent to the
Company in satisfaction of such Holder’s obligations under such Purchase
Contracts and such Holder shall acquire no right, title or interest in such
payments.


 


Subject to
certain exceptions, the provisions of the Purchase Contract and Pledge
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.


 


The Purchase
Contracts shall be governed by, and construed in accordance with, the laws of
the State of New York, without giving effect to the conflicts of law provisions
thereof to the extent a different law would govern as a result.


 


The Purchase
Contracts shall not, prior to the settlement thereof, entitle the Holder to any
of the rights of a holder of shares of Common Stock.


 


B-7

















 


Prior to due
presentment of this Certificate for registration of transfer, the Company, the
Purchase Contract Agent and its Affiliates and any agent of the Company or the
Purchase Contract Agent may treat the Person in whose name this Treasury Units
Certificate is registered as the owner of the Treasury Units evidenced hereby
for the purpose of receiving payments of Contract Adjustment Payments (subject
to any applicable record date), performance of the Purchase Contracts and for
all other purposes whatsoever, whether or not any payments in respect thereof
be overdue and notwithstanding any notice to the contrary, and neither the
Company, the Purchase Contract Agent nor any such agent shall be affected by
notice to the contrary.


 


A copy of the
Purchase Contract and Pledge Agreement is available for inspection at the
offices of the Purchase Contract Agent.


 


B-8

















 


ABBREVIATIONS


 


The following
abbreviations, when used in the inscription on the face of this instrument,
shall be construed as though they were written out in full according to
applicable laws or regulations:


 


	
  TEN COM:

  	
   

  	
  as tenants
  in common

  
	
   

  	
   

  	
   

  
	
  UNIF GIFT
  MIN ACT:

  	
   

  	
   

  	
  Custodian

  	
   

  	
   

  
	
   

  	
   

  	
  (cust)

  	
   

  	
  (minor)

  	
   

  
	
   

  	
   

  	
  Under
  Uniform Gifts to Minors Act of

  
	
   

  	
   

  	
   

  
	
  TENANT:

  	
   

  	
  as tenants
  by the entireties

  
	
   

  	
   

  	
   

  
	
  JT TEN:

  	
   

  	
  as joint
  tenants with right of survivorship and not as tenants in common

  



 


Additional
abbreviations may also be used though not in the above list.


 


FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto


 


(Please insert Social
Security or Taxpayer I.D. or other Identifying Number of Assignee)


 


 


 


(Please Print or Type Name and Address Including Postal Zip Code of
Assignee)


 


the within Treasury Units Certificates and all rights thereunder,
hereby irrevocably constituting and appointing attorney
                                         ,
to transfer said Treasury Units Certificates on the books of Genworth
Financial, Inc., with full power of substitution in the premises.


 


	
  Dated:

  	
   

  	
   

  	
  Signature

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  NOTICE: The
  signature to this assignment must correspond with the name as it appears upon
  the face of the within Treasury Units Certificates in every particular,
  without alteration or enlargement or any change whatsoever.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Signature
  Guarantee:

  	
   

  	
   

  
							



 


B-9

















 


SETTLEMENT INSTRUCTIONS


 


The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of Treasury Units
evidenced by this Treasury Units Certificate be registered in the name of, and
delivered, together with a check in payment for any fractional share, to the
undersigned at the address indicated below unless a different name and address
have been indicated below.  If shares
are to be registered in the name of a Person other than the undersigned, the
undersigned will pay any transfer tax payable incident thereto.


 


	
  Dated:

  	
   

  	
   

  	
  (if assigned
  to another person)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  REGISTERED
  HOLDER

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  If shares
  are to be registered in the name of and delivered to a Person other than the
  Holder, please (i) print such Person’s name and address and (ii) provide a
  guarantee of your signature:

  	
   

  	
  Please print
  name and address of

  Registered Holder:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
  Name

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address

  	
   

  	
  Address

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Social Security or other Taxpayer 

  Identification Number, if any

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature

  	
   

  	
   

  	
   

  	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  	
   

  	
   

  
							



 


B-10

















 


ELECTION TO SETTLE EARLY/CASH MERGER EARLY
SETTLEMENT


 


The
undersigned Holder of this Treasury Units Certificate hereby irrevocably
exercises the option to effect [Early Settlement] [Cash Merger Early
Settlement] in accordance with the terms of the Purchase Contract and Pledge
Agreement with respect to the Purchase Contracts underlying the number of
Treasury Units evidenced by this Treasury Units Certificate specified
below.  The option to effect [Early
Settlement] [Cash Merger Early Settlement] may be exercised only with respect
to Purchase Contracts underlying Treasury Units in multiples of 40 Treasury
Units or an integral multiple thereof. 
The undersigned Holder directs that a certificate for shares of Common
Stock or other securities deliverable upon such [Early Settlement] [Cash Merger
Early Settlement] be registered in the name of, and delivered, together with a
check in payment for any fractional share and any Treasury Units Certificate
representing any Treasury Units evidenced hereby as to which [Early Settlement]
[Cash Merger Early Settlement] of the related Purchase Contracts is not
effected, to the undersigned at the address indicated below unless a different
name and address have been indicated below. 
Pledged Treasury Securities deliverable upon such [Early Settlement]
[Cash Merger Early Settlement] will be transferred in accordance with the
transfer instructions set forth below. 
If shares are to be registered in the name of a Person other than the
undersigned, the undersigned will pay any transfer tax payable incident
thereto.


 


	
  Dated:

  	
   

  	
   

  	
  Signature

  	
   

  	
   

  
	
   

  	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  
								



 


B-11

















 


Number of Units evidenced hereby as to which [Early Settlement] [Cash
Merger Early Settlement] of the related Purchase Contracts is being elected:


 


	
  If shares of Common Stock or Treasury Units Certificates are to be
  registered in the name of and delivered to, and Pledged Treasury Securities,
  as the case may be, are to be transferred to, a Person other than the Holder,
  please print such Person’s name and address:

  	
   

  	
  REGISTERED HOLDER

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Please print
  name and address of

  Registered Holder:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
  Name

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address

  	
   

  	
  Address

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Social Security or other Taxpayer 

  Identification Number, if any

  	
   

  	
   

  	
   

  



 


B-12

















 


Transfer
Instructions for Pledged Treasury Securities transferable upon [Early
Settlement] [Cash Merger Early Settlement]:


 


 


 


 


B-13

















 


[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF INCREASES OR DECREASES IN GLOBAL
CERTIFICATE


 


The initial number of Treasury Units evidenced by this Global
Certificate is [        ].  The following increases or decreases in this
Global Certificate have been made:


 


	
  Date

  	
   

  	
  Amount of
  increase 
 in number of 

  Treasury Units 

  evidenced by the  

  Global Certificate

  	
   

  	
  Amount of
  decrease 

  in number of  

  Treasury Units 

  evidenced by the 

  Global Certificate

  	
   

  	
  Number of
  Treasury

  Units
  evidenced by

  this Global 

  Certificate following  

  such decrease or 

  increase

  	
   

  	
  Signature
  of 

  authorized signatory  

  of Purchase Contract  

  Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


B-14

















 


EXHIBIT C


 


INSTRUCTION
TO PURCHASE CONTRACT AGENT FROM HOLDER


(To Create Treasury Units or Corporate Units)


 


The Bank of
New York,


as Purchase Contract Agent

101 Barclay Street, 8W

New York, NY 10286


Telecopier No.: 212-815-5707


Attention: Corporate Trust
Division –


Corporate Finance Unit


 


Re:                             [               
Corporate Units]
[             
Treasury Units] of Genworth Financial, Inc., a Delaware corporation  (the “Company”).


 


The
undersigned Holder hereby notifies you that it has delivered to [                      ],
as Securities Intermediary, for credit to the Collateral Account,
$              
Value of [Senior Notes] [Applicable Ownership Interests in the Treasury
Portfolio] [Treasury Securities] in exchange for an equal Value of [Pledged Treasury
Securities] [Senior Notes underlying Pledged Applicable Ownership Interests in
Senior Notes] [Pledged Applicable Ownership Interests in the Treasury
Portfolio] held in the Collateral Account, in accordance with the Purchase
Contract and Pledge Agreement, dated as of May 24, 2004 (the “Agreement”;
unless otherwise defined herein, terms defined in the Agreement are used herein
as defined therein), between the Company and The Bank of New York, as
Collateral Agent, as Custodial Agent, as Securities Intermediary, as Purchase
Contract Agent and as attorney-in-fact for the holders of Corporate Units and
Treasury Units from time to time.  The
undersigned Holder has paid all applicable fees and expenses relating to such exchange.  The undersigned Holder hereby instructs you
to instruct the Collateral Agent to release to you on behalf of the undersigned
Holder the [Senior Notes underlying Pledged Applicable Ownership Interests in
Senior Notes] [Pledged Applicable Ownership Interests in the Treasury
Portfolio] [Pledged Treasury Securities] related to such [Corporate Units]
[Treasury Units].


 


	
  Date:

  	
   

  	
   

  	
  Signature

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature Guarantee:

  	
   

  	
   

  
									



 


C-1

















 


Please print name and address of Registered Holder:


 


 


	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  	
  Social
  Security or other Taxpayer 

  Identification Number, if any

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


C-2

















 


EXHIBIT D


 


NOTICE
FROM PURCHASE CONTRACT AGENT

TO HOLDERS UPON TERMINATION EVENT


 


(Transfer of Collateral upon Occurrence of a
Termination Event)


 


[HOLDER]


 


 


 


 


 


Attention:


Telecopy:


 


Re:                               [                    
Corporate Units] [          
Treasury Units] of Genworth Financial, Inc., an Delaware corporation (the “Company”)


 


Please refer
to the Purchase Contract and Pledge Agreement, dated as of May 24, 2004
(the “Purchase
Contract and Pledge Agreement”; unless otherwise defined herein,
terms defined in the Purchase Contract and Pledge Agreement are used herein as
defined therein), between the Company and The Bank of New York, as Collateral
Agent, as Custodial Agent, as Securities Intermediary, as Purchase Contract
Agent and as attorney-in-fact for the holders of Corporate Units and Treasury
Units from time to time.


 


We hereby
notify you that a Termination Event has occurred and that [the Senior Notes
underlying the Pledged Applicable Ownership Interests in Senior Notes] [the
Pledged Applicable Ownership Interests in the Treasury Portfolio] [the Treasury
Securities] compromising a portion of your ownership interest in
         [Corporate Units] [Treasury
Units] have been released and are being held by us for your account pending
receipt of transfer instructions with respect to such [Senior Notes] [Pledged Applicable
Ownership Interests in the Treasury Portfolio] [Pledged Treasury Securities]
(the “Released
Securities”).


 


Pursuant to
Section 3.15 of the Purchase Contract and Pledge Agreement, we hereby request
written transfer instructions with respect to the Released Securities. Upon
receipt of your instructions and upon transfer to us of your [Corporate Units]
[Treasury Units] effected through book-entry or by delivery to us of your
[Corporate Units Certificate] [Treasury Units Certificate], we shall transfer
the Released Securities by book-entry transfer or other appropriate procedures,
in accordance with your instructions. 
In the event you fail to effect such transfer or delivery, the Released
Securities and any distributions thereon, shall be held in our name, or a
nominee in trust for your benefit, until such time as such [Corporate Units]
[Treasury Units] are transferred or your [Corporate Units Certificate]
[Treasury Units Certificate] is surrendered or satisfactory evidence is
provided that such [Corporate Units Certificate] [Treasury Units Certificate]
has been destroyed, lost or stolen, together with any indemnification that we
or the Company may require.


 


D-1

















 


	
  Date:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK,

  
	
   

  	
   

  	
  as Purchase
  Contract Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


D-2

















 


EXHIBIT E


 


NOTICE TO SETTLE BY SEPARATE CASH


 


The Bank of New York,

as Purchase Contract Agent

101 Barclay Street, 8W

New York, NY 10286


Telecopier No.: 212-815-5707


Attention: Corporate Trust
Division –


Corporate Finance Unit


 


Re:                                             
Corporate Units of Genworth Financial, Inc., a Delaware corporation (the “Company”)


 


The
undersigned Holder hereby irrevocably notifies you in accordance with Section
5.02 of the Purchase Contract and Pledge Agreement, dated as of May 24,
2004 (the “Purchase Contract and Pledge Agreement”; unless otherwise
defined herein, terms defined in the Purchase Contract and Pledge Agreement are
used herein as defined therein), between the Company and The Bank of New York,
as Collateral Agent, as Custodial Agent, as Securities Intermediary, as
Purchase Contract Agent and as attorney-in-fact for the Holders of the
Corporate Units and Treasury Units from time to time, that such Holder has
elected to pay to the Securities Intermediary for deposit in the Collateral
Account, prior to 5:00 p.m. (New York City time) on the sixth Business Day
immediately preceding the Purchase Contract Settlement Date (in lawful money of
the United States by certified or cashiers’ check or wire transfer, in
immediately available funds payable to or upon the order of the Securities
Intermediary),
$             as
the Purchase Price for the shares of Common Stock issuable to such Holder by
the Company with respect to
            
Purchase Contracts on the Purchase Contract Settlement Date.  The undersigned Holder hereby instructs you
to notify promptly the Collateral Agent of the undersigned Holders’ election to
make such Cash Settlement with respect to the Purchase Contracts related to
such Holder’s Corporate Units.


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature Guarantee:

  	
   

  



 


Please print name and address of Registered Holder:


 


 


 


E-1

















 


EXHIBIT F


 


RESERVED


 


 


F-1

















 


EXHIBIT
G


 


INSTRUCTION

FROM PURCHASE CONTRACT AGENT

TO COLLATERAL AGENT

(Creation of Treasury Units)


 


The Bank of New York,

as Collateral Agent

101 Barclay Street, 8W

New York, NY 10286


Telecopier No.: 212-815-5707


Attention: Corporate Trust
Division –


Corporate
Finance Unit


 


Re:                                            
Corporate Units of Genworth Financial, Inc. (the “Company”)


 


Please refer
to the Purchase Contract and Pledge Agreement, dated as of May 24, 2004
(the “Agreement”), among the
Company and The Bank of New York, as Collateral Agent, as Custodial Agent, as
Securities Intermediary, as Purchase Contract Agent and as attorney-in-fact for
the holders of Corporate Units and Treasury Units from time to time.
Capitalized terms used herein but not defined shall have the meaning set forth
in the Agreement.


 


We hereby
notify you in accordance with Section 3.13 of the Agreement that the holder of
securities named below (the “Holder”)
has elected to substitute
$                  
Value of Treasury Securities or security entitlements with respect thereto in
exchange for an equal Value of [Senior Notes underlying Pledged Applicable
Ownership Interests in Senior Notes] [Pledged Applicable Ownership Interests in
the Treasury Portfolio] relating to
                 
Corporate Units and has delivered to the undersigned a notice stating that the
Holder has Transferred such Treasury Securities or security entitlements with
respect thereto to the Securities Intermediary, for credit to the Collateral Account.


 


G-1

















 


We hereby
request that you instruct the Securities Intermediary, upon confirmation that
such Treasury Securities or security entitlements thereto have been credited to
the Collateral Account, to release to the undersigned an equal Value of [Senior
Notes underlying Pledged Applicable Ownership Interests in Senior Notes]
[Pledged Applicable Ownership Interests in the Treasury Portfolio] or security
entitlements with respect thereto related to             
Corporate Units of such Holder in accordance with Section 3.13 of the
Agreement.


 


	
  Date:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK,

  
	
   

  	
   

  	
  as Purchase
  Contract Agent and as 

  attorney-in-fact of the Holders from 

  time to time of the Units

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


G-2

















 


Please print name and address
of Holder electing to substitute Treasury Securities or security entitlements
with respect thereto for the [Senior Notes underlying Pledged Applicable
Ownership Interests in Senior Notes] [Pledged Applicable Ownership Interests in
the Treasury Portfolio]:


 


	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Social
  Security or other Taxpayer 

  Identification Number, if any

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


G-3

















 


EXHIBIT H


 


INSTRUCTION

FROM COLLATERAL AGENT

TO SECURITIES INTERMEDIARY
(Creation of Treasury
Units)


 


The Bank of New York,

as Securities Intermediary

101 Barclay Street, 8W

New York, NY 10286


Telecopier No.: 212-815-5707


Attention: Corporate Trust
Division –


Corporate
Finance Unit


 


Re:                                               
Corporate Units of Genworth Financial, Inc. (the “Company”)


 


The securities
account of The Bank of New York, as Collateral Agent, maintained by the
Securities Intermediary and designated “The Bank of New York, as Collateral
Agent of Genworth Financial, Inc., as pledgee of The Bank of New York, as the
Purchase Contract Agent on behalf of and as attorney-in-fact for the Holders”
(the “Collateral Account”)


 


Please refer
to the Purchase Contract and Pledge Agreement, dated as of May 24, 2004
(the “Agreement”), between the
Company and The Bank of New York, as Collateral Agent, as Custodial Agent, as
Securities Intermediary, as Purchase Contract Agent and as attorney-in-fact for
the holders of Corporate Units and Treasury Units from time to time.
Capitalized terms used herein but not defined shall have the meaning set forth
in the Agreement.


 


When you have
confirmed that
$                  
Value of Treasury Securities or security entitlements with respect thereto has
been credited to the Collateral Account by or for the benefit of
                ,
as Holder of Corporate Units (the “Holder”),
you are hereby instructed to release from the Collateral Account an equal Value
of [Senior Notes underlying Pledged Applicable Ownership Interests in Senior
Notes] [Pledged Applicable Ownership Interests in the Treasury Portfolio] or
security entitlements with respect thereto relating to
            
Corporate Units of the Holder by Transfer to the Purchase Contract Agent.


 


H-1

















 


	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK,

  
	
   

  	
   

  	
  as
  Collateral Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


H-2

















 


EXHIBIT I


 


INSTRUCTION

FROM PURCHASE CONTRACT AGENT

TO COLLATERAL AGENT

(Recreation of Corporate Units )


 


The Bank of New York,

as Collateral Agent

101 Barclay Street, 8W

New York, NY 10286


Telecopier No.: 212-815-5707


Attention: Corporate Trust
Division –


Corporate
Finance Unit


 


Re:                                                              
Treasury Units of Genworth Financial, Inc. (the “Company”)


 


Please refer
to the Purchase Contract and Pledge Agreement dated as of May 24, 2004
(the “Agreement”), between the
Company and The Bank of New York, as Collateral Agent, as Custodial Agent, as
Securities Intermediary, as Purchase Contract Agent and as attorney-in-fact for
the holders of Corporate Units and Treasury Units from time to time.  Capitalized terms used herein but not
defined shall have the meaning set forth in the Agreement.


 


We hereby
notify you in accordance with Section 3.14 of the Agreement that the holder of
securities named below (the “Holder”)
has elected to substitute
$                     
Value of [Senior Notes] [Applicable Ownership Interests in the Treasury
Portfolio] or security entitlements with respect thereto in exchange for
$              
Value of Pledged Treasury Securities relating to              
Treasury Units and has delivered to the undersigned a notice stating that the
holder has Transferred such [Senior Notes] [Applicable Ownership Interests in
the Treasury Portfolio] or security entitlements with respect thereto to the
Securities Intermediary, for credit to the Collateral Account.


 


I-1

















 


We hereby
request that you instruct the Securities Intermediary, upon confirmation that
such [Senior Notes] [Applicable Ownership Interests in the Treasury Portfolio]
or security entitlements with respect thereto have been credited to the
Collateral Account, to release to the undersigned
$              
Value of Treasury Securities or security entitlements with respect thereto
related to              
Treasury Units of such Holder in accordance with Section 3.14 of the Agreement.



 


	
   

  	
  THE BANK OF NEW YORK,

  
	
   

  	
   

  	
  as Purchase
  Contract Agent

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  Authorized
  Signatory

  
					



 


I-2

















 


Please print name and address
of Holder electing to substitute [Senior Notes] [Applicable Ownership Interests
in the Treasury Portfolio] or security entitlements with respect thereto for
Pledged Treasury Securities:


 


 


	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name

  	
   

  	
   

  	
  Social
  Security or other Taxpayer 

  Identification Number, if any

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


I-3

















 


EXHIBIT J


 


INSTRUCTION

FROM COLLATERAL AGENT

TO SECURITIES INTERMEDIARY
(Recreation of
Corporate Units)


 


The Bank of New York,

as Securities Intermediary

101 Barclay Street, 8W

New York, NY 10286


Telecopier No.: 212-815-5707


Attention: Corporate Trust
Division –


Corporate
Finance Unit


 


Re:                                                          
Treasury Units of Genworth Financial, Inc. (the “Company”)


 


The securities
account of The Bank of New York,  as
Collateral Agent, maintained by the Securities Intermediary and designated “The
Bank of New York, as Collateral Agent of Genworth Financial, Inc., as pledgee
of The Bank of New York, as the Purchase Contract Agent on behalf of and as
attorney-in-fact for the Holders” (the “Collateral
Account”)


 


Please refer
to the Purchase Contract and Pledge Agreement dated as of May 24, 2004
(the “Agreement”), among the
Company and The Bank of New York, as Collateral Agent, as Custodial Agent, as
Securities Intermediary, as Purchase Contract Agent and as attorney-in-fact for
the holders of Corporate Units and Treasury Units from time to time.  Capitalized terms used herein but not
defined shall have the meaning set forth in the Agreement.


 


When you have
confirmed that $
                      
Value of [Senior Notes] [Applicable Ownership Interests in the Treasury
Portfolio] or security entitlements with respect thereto has been credited to
the Collateral Account by or for the benefit of
                         ,
as Holder of Treasury Units (the “Holder”),
you are hereby instructed to release from the Collateral Account
$                       
Value of Treasury Securities or security entitlements thereto by Transfer to
the Purchase Contract Agent.


 


J-1

















 


	
   

  	
  THE BANK OF NEW YORK,

  
	
   

  	
   

  	
  as
  Collateral Agent

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  Authorized
  Signatory

  
					



 


J-2

















 


EXHIBIT K


 


NOTICE OF CASH SETTLEMENT FROM COLLATERAL

AGENT TO PURCHASE CONTRACT AGENT
(Cash Settlement
Amounts)


 


The Bank of New York,

as Purchase Contract Agent

101 Barclay Street, 8W

New York, NY 10286


Telecopier No.: 212-815-5707


Attention: Corporate Trust
Division –


Corporate
Finance Unit


 


Re:                                                           
Corporate Units of Genworth Financial, Inc. (the “Company”)


 


Please refer
to the Purchase Contract and Pledge Agreement dated as of May 24, 2004
(the “Agreement”), between the
Company and The Bank of New York, as Collateral Agent, as Custodial Agent, as Securities
Intermediary, as Purchase Contract Agent and as attorney-in-fact for the
holders of Corporate Units and Treasury Units from time to time.  Unless otherwise defined herein, terms
defined in the Agreement are used herein as defined therein.


 


In accordance
with Section 5.02(a)(iv) of the Agreement, we hereby notify you that as of 5:00
p.m. (New York City time) on the sixth Business Day immediately preceding
May 16, 2007 (the “Purchase Contract
Settlement Date”), we have received (i) $
               
in immediately available funds paid in an aggregate amount equal to the
Purchase Price due to the Company on the Purchase Contract Settlement Date with
respect to
                     
Corporate Units and (ii) based on the funds received set forth in clause (i)
above, an aggregate principal amount of
$                       
of Senior Notes underlying Pledged Applicable Ownership Interests in Senior
Notes are to be offered for purchase in each Remarketing.


 


K-1

















 


	
   

  	
  THE BANK OF NEW YORK,

  
	
   

  	
   

  	
  as
  Collateral Agent

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  Authorized
  Signatory

  
					



 


K-2

















 


EXHIBIT L


 


INSTRUCTION TO CUSTODIAL AGENT REGARDING REMARKETING


 


The Bank of New York,

as Custodial Agent


101 Barclay Street, 8W

New York, NY 10286


Telecopier No.: 212-815-5707


Attention: Corporate Trust
Division –


Corporate
Finance Unit


 


Re:                               Senior
Notes Due 2009 of Genworth Financial, Inc. (the “Company”)


 


The
undersigned hereby notifies you in accordance with Section 5.02(b)(ii) of the
Purchase Contract and Pledge Agreement, dated as of May 24, 2004 (the “Agreement”), between the Company and The
Bank of New York, as Collateral Agent, as Custodial Agent, as Securities
Intermediary, as Purchase Contract Agent and as attorney-in-fact for the
holders of Corporate Units and Treasury Units from time to time, that the
undersigned elects to deliver
$                                
aggregate principal amount of Separate Senior Notes for delivery to the
Remarketing Agent prior to 5:00 p.m. (New York City time) on the seventh
Business Day immediately preceding the Purchase Contract Settlement Date for
remarketing pursuant to Section 5.02(b)(ii) of the Agreement.  The undersigned will, upon request of the
Remarketing Agent, execute and deliver any additional documents deemed by the
Remarketing Agent or by the Company to be necessary or desirable to complete
the sale, assignment and transfer of the Separate Senior Notes tendered hereby.  Capitalized terms used herein but not
defined shall have the meaning set forth in the Agreement.


 


The
undersigned hereby instructs you, upon receipt of the Proceeds of a Successful
Remarketing from the Remarketing Agent, to deliver such Proceeds to the
undersigned in accordance with the instructions indicated herein under “A.  Payment Instructions.”  The undersigned hereby instructs you, in the
event of a Failed Final Remarketing, upon receipt of the Separate Senior Notes
tendered herewith from the Remarketing Agent, to deliver such Separate Senior
Notes to the person(s) and the address(es) indicated herein under “B.  Delivery Instructions.”


 


With this
notice, the undersigned hereby (i) represents and warrants that the undersigned
has full power and authority to tender, sell, assign and transfer the Separate
Senior Notes tendered hereby and that the undersigned is the record owner of
any Separate Senior Notes tendered herewith in physical form or a participant
in The Depositary Trust Company (“DTC”) and the beneficial owner of any
Separate Senior Notes tendered herewith by book-entry transfer to your account
at DTC, (ii) agrees to be bound by the terms and conditions of Section 5.02(b)
of the Agreement and (iii) acknowledges and agrees that after 5:00 p.m. (New
York City time) on the seventh Business Day immediately preceding the Purchase
Contract Settlement Date, such election shall become an irrevocable election to
have such Separate Senior Notes remarketed in 


 


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each Remarketing, and that the Separate Senior Notes tendered herewith
will only be returned in the event of a Failed Final Remarketing.  


 


	
  Date:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Signature
  Guarantee:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Social Security or other Taxpayer

  Identification Number, if any

  
									



 


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A.            PAYMENT INSTRUCTIONS


 


Proceeds of a Successful
Remarketing should be paid by check in the name of the person(s) set forth
below and mailed to the address set forth below.


 


	
  Name(s)

  	
   

  	
   

  
	
   

  	
  (Please
  Print)

  	
   

  
	
   

  	
   

  	
   

  
	
  Address

  	
   

  	
   

  
	
   

  	
  (Please
  Print)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Zip Code)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  (Tax Identification or Social Security Number)

  	
   

  
				



 


B.            DELIVERY INSTRUCTIONS


 


In the event of a Failed Final
Remarketing, Senior Notes which are in physical form should be delivered to the
person(s) set forth below and mailed to the address set forth below.


 


	
  Name(s)

  	
   

  	
   

  
	
   

  	
  (Please
  Print)

  	
   

  
	
   

  	
   

  	
   

  
	
  Address

  	
   

  	
   

  
	
   

  	
  (Please
  Print)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Zip Code)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  (Tax Identification or Social Security Number)

  	
   

  
				



 


In the event of a Failed Final
Remarketing, Senior Notes which are in book-entry form should be credited to
the account at The Depository Trust Company set forth below.


 


 


	
   

  	
   

  	
   

  
	
  DTC Account
  Number

  	
   

  
	
   

  	
   

  
	
  Name of Account
  Party:

  	
   

  	
   

  
					



 


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EXHIBIT M


 


INSTRUCTION TO CUSTODIAL AGENT REGARDING

WITHDRAWAL FROM REMARKETING


 


The Bank of New York,

as Custodial Agent


101 Barclay Street, 8W

New York, NY 10286


Telecopier No.: 212-815-5707


Attention: Corporate Trust
Division –


Corporate
Finance Unit


 


Re:          Senior Notes Due 2009
of Genworth Financial, Inc. (the “Company”)


 


The
undersigned hereby notifies you in accordance with Section 5.02(b)(ii) of the
Purchase Contract and Pledge Agreement, dated as of May 24, 2004 (the “Agreement”),
among the Company and you, as Collateral Agent, Custodial Agent and Securities
Intermediary, and The Bank of New York, as Purchase Contract Agent and as
attorney-in-fact for the holders of Corporate Units and Treasury Units from
time to time, that the undersigned elects to withdraw the
$                     
aggregate principal amount of Separate Senior Notes delivered to you for
Remarketing pursuant to Section 5.02 of the Agreement.  The undersigned hereby instructs you to
return such Separate Senior Notes to the undersigned in accordance with the
undersigned’s instructions.  With this
notice, the Undersigned hereby agrees to be bound by the terms and conditions
of Section 5.02(b) of the Agreement. 
Capitalized terms used herein but not defined shall have the meaning set
forth in the Agreement.


 


	
  Date:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Signature
  Guarantee:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Social
  Security or other Taxpayer 

  
	
  Address

  	
   

  	
   

  	
  Identification
  Number, if any

  
	
   

  	
   

  	
   

  	
   

  
	
  +

  	
   

  	
   

  	
   

  



 


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