Exhibit 4.02


 




 





 


STOCK PURCHASE
CONTRACT AGREEMENT


 


between


 


LEHMAN
BROTHERS HOLDINGS INC.


 


and


 


U.S. BANK
NATIONAL ASSOCIATION,


 


as Stock
Purchase Contract Agent


 


 


Dated as of
May 17, 2007


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
   

  
	
   

  	
   

  
	
  DEFINITIONS AND OTHER PROVISIONS OF GENERAL
  APPLICATION

  	
   

  
	
   

  	
   

  
	
  Section 1.1

  	
  Definitions

  	
  2

  
	
  Section 1.2

  	
  Compliance
  Certificates and Opinions

  	
  12

  
	
  Section 1.3

  	
  Form of
  Documents Delivered to Stock Purchase Contract Agent

  	
  12

  
	
  Section 1.4

  	
  Acts of
  Holders; Record Dates

  	
  13

  
	
  Section 1.5

  	
  Notices

  	
  14

  
	
  Section 1.6

  	
  Notice to
  Holders; Waiver

  	
  15

  
	
  Section 1.7

  	
  Effect of
  Headings and Table of Contents

  	
  16

  
	
  Section 1.8

  	
  Successors
  and Assigns

  	
  16

  
	
  Section 1.9

  	
  Separability
  Clause

  	
  16

  
	
  Section 1.10

  	
  Benefits of
  Agreement

  	
  16

  
	
  Section 1.11

  	
  Governing
  Law

  	
  16

  
	
  Section 1.12

  	
  Legal
  Holidays

  	
  16

  
	
  Section 1.13

  	
  Counterparts

  	
  17

  
	
  Section 1.14

  	
  Inspection
  of Agreement

  	
  17

  
	
  Section 1.15

  	
  Appointment
  of Financial Institution as Agent for the Company

  	
  17

  
	
  Section 1.16

  	
  No Waiver

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
   

  	
   

  	
   

  
	
  CERTIFICATE FORMS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  Forms of
  Certificates Generally

  	
  18

  
	
  Section 2.2

  	
  Form of
  Stock Purchase Contract Agent’s Certificate of Authentication

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
   

  	
   

  	
   

  
	
  THE MCAPS

  	
   

  
	
   

  	
   

  
	
  Section 3.1

  	
  Amount; Form
  and Denominations

  	
  20

  
	
  Section 3.2

  	
  Rights and
  Obligations Evidenced by the Certificates

  	
  20

  
	
  Section 3.3

  	
  Execution,
  Authentication, Delivery and Dating

  	
  21

  
	
  Section 3.4

  	
  Temporary
  Certificates

  	
  21

  
	
  Section 3.5

  	
  Registration;
  Registration of Transfer and Exchange

  	
  22

  
	
  Section 3.6

  	
  Book-Entry
  Interests

  	
  23

  
	
  Section 3.7

  	
  Notices to
  Holders

  	
  24

  
	
  Section 3.8

  	
  Appointment
  of Successor MCAPS Depositary

  	
  24

  
	
  Section 3.9

  	
  Definitive
  Certificates

  	
  24

  
	
  Section 3.10

  	
  Mutilated,
  Destroyed, Lost and Stolen Certificates

  	
  25

  
	
  Section 3.11

  	
  Persons
  Deemed Owners

  	
  26

  



 


i

















 


	
  Section 3.12

  	
  Cancellation

  	
  27

  
	
  Section 3.13

  	
  Creation of
  Treasury MCAPS by Substitution of Qualifying Treasury Securities

  	
  27

  
	
  Section 3.14

  	
  Recreation
  of Normal MCAPS

  	
  29

  
	
  Section 3.15

  	
  Transfer of
  Collateral upon Occurrence of Termination Event

  	
  30

  
	
  Section 3.16

  	
  No Consent
  to Assumption

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  
	
   

  	
   

  	
   

  
	
  THE TRUST PREFERRED SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Distributions;
  Rights to Distributions Preserved

  	
  32

  
	
  Section 4.2

  	
  Notice and
  Voting

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  
	
   

  	
   

  	
   

  
	
  QUALIFYING TREASURY SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.1

  	
  Qualifying
  Treasury Securities

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  
	
   

  	
   

  	
   

  
	
  THE STOCK PURCHASE CONTRACTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  Purchase of
  Depositary Share

  	
  35

  
	
  Section 6.2

  	
  Remarketing;
  Payment of Purchase Price

  	
  36

  
	
  Section 6.3

  	
  Issuance of
  Depositary Shares

  	
  38

  
	
  Section 6.4

  	
  Termination
  Event; Notice

  	
  39

  
	
  Section 6.5

  	
  Charges and
  Taxes

  	
  39

  
	
  Section 6.6

  	
  Contract
  Payments

  	
  40

  
	
  Section 6.7

  	
  Deferral of
  Contract Payments

  	
  44

  
	
  Section 6.8

  	
  Rights of
  Holders of Treasury MCAPs to Receive Excess Proceeds

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  
	
   

  	
   

  	
   

  
	
  REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Unconditional
  Right of Holders to Receive Contract Payments and to Purchase Depositary
  Shares

  	
  47

  
	
  Section 7.2

  	
  Restoration
  of Rights and Remedies

  	
  47

  
	
  Section 7.3

  	
  Rights and
  Remedies Cumulative

  	
  47

  
	
  Section 7.4

  	
  Delay or
  Omission Not Waiver

  	
  47

  
	
  Section 7.5

  	
  Undertaking
  for Costs

  	
  47

  
	
  Section 7.6

  	
  Waiver of
  Stay or Extension Laws

  	
  48

  



 


ii

















 


	
  ARTICLE VIII

  	
   

  
	
   

  	
   

  	
   

  
	
  THE PURCHASE CONTRACT AGENT

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
  Certain
  Duties and Responsibilities

  	
  49

  
	
  Section 8.2

  	
  Notice of
  Default

  	
  50

  
	
  Section 8.3

  	
  Certain
  Rights of Stock Purchase Contract Agent

  	
  50

  
	
  Section 8.4

  	
  Not
  Responsible for Recitals or Issuance of MCAPS

  	
  51

  
	
  Section 8.5

  	
  May Hold
  MCAPS

  	
  52

  
	
  Section 8.6

  	
  Money Held
  in Custody

  	
  52

  
	
  Section 8.7

  	
  Compensation
  and Reimbursement

  	
  52

  
	
  Section 8.8

  	
  Corporate
  Stock Purchase Contract Agent Required, Eligibility

  	
  53

  
	
  Section 8.9

  	
  Resignation
  and Removal; Appointment of Successor

  	
  53

  
	
  Section 8.10

  	
  Acceptance
  of Appointment by Successor

  	
  54

  
	
  Section 8.11

  	
  Merger,
  Conversion, Consolidation or Succession to Business

  	
  55

  
	
  Section 8.12

  	
  Preservation
  of Information; Communications to Holders

  	
  55

  
	
  Section 8.13

  	
  No
  Obligations of Stock Purchase Contract Agent

  	
  56

  
	
  Section 8.14

  	
  Tax
  Compliance

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
   

  
	
   

  	
   

  	
   

  
	
  SUPPLEMENTAL AGREEMENTS

  	
   

  
	
   

  	
   

  
	
  Section 9.1

  	
  Supplemental
  Agreements without Consent of Holders

  	
  57

  
	
  Section 9.2

  	
  Supplemental
  Agreements with Consent of Holders

  	
  57

  
	
  Section 9.3

  	
  Execution of
  Supplemental Agreements

  	
  58

  
	
  Section 9.4

  	
  Effect of
  Supplemental Agreements

  	
  59

  
	
  Section 9.5

  	
  Reference to
  Supplemental Agreements

  	
  59

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
   

  
	
   

  	
   

  	
   

  
	
  CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER
  OR LEASE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.1

  	
  Covenant Not
  to Consolidate, Merge, Convey, Transfer or Lease Property Except under
  Certain Conditions

  	
  60

  
	
  Section 10.2

  	
  Rights and
  Duties of Successor Corporation

  	
  60

  
	
  Section 10.3

  	
  Officers’
  Certificate and Opinion of Counsel Given to Stock Purchase Contract Agent

  	
  61

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
   

  
	
   

  	
   

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.1

  	
  Performance
  under Stock Purchase Contracts

  	
  62

  
	
  Section 11.2

  	
  Maintenance
  of Office or Agency

  	
  62

  
	
  Section 11.3

  	
  Company to
  Reserve Preferred Stock

  	
  62

  
	
  Section 11.4

  	
  Covenants as
  to Preferred Stock and Depositary Shares

  	
  63

  
	
  Section 11.5

  	
  Statements
  of Officers of the Company as to Default

  	
  63

  
	
  Section 11.6

  	
  ERISA

  	
  63

  
	
  Section 11.7

  	
  Tax
  Treatment

  	
  63

  



 


iii

















 


	
  EXHIBITS:

  	
   

  
	
   

  	
   

  
	
  Exhibit A

  	
  – Form of Normal MCAPS Certificate

  	
   

  
	
  Exhibit B

  	
  – Form of Treasury MCAPS Certificate

  	
   

  
	
  Exhibit C

  	
  – Instruction to Stock Purchase Contract Agent

  	
   

  
	
  Exhibit D

  	
  – Notice from Stock Purchase Contract Agent to Holders

  	
   

  
	
  Exhibit E

  	
  – Notice to Settle by Treasury Securities

  	
   

  
	
  Exhibit F

  	
  – Notice from Stock Purchase Contract Agent to Collateral Agent
  (Settlement of Purchase Contract through Remarketing)

  	
   

  



 


iv

















 


STOCK PURCHASE
CONTRACT AGREEMENT, dated as of May 17, 2007, between LEHMAN BROTHERS HOLDINGS
INC., a Delaware corporation (the “Company”), having its principal office at
745 Seventh Avenue, New York, New York 10019, and U.S. Bank National
Association, a national banking association, acting as stock purchase contract
agent for the Holders of MCAPS (as defined herein) from time to time (the “Stock Purchase Contract Agent”).


 


RECITALS
OF THE COMPANY


 


The Company
has duly authorized the execution and delivery of this Agreement and the
Certificates evidencing the MCAPS.


 


All things
necessary to make the Stock Purchase Contracts (as defined herein), when the
Certificates (as defined herein) are executed by the Company and authenticated,
executed on behalf of the Holders and delivered by the Stock 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.


 


For and in
consideration of the premises and the purchase of the MCAPS by the Holders
thereof, it is mutually agreed as follows:


 

















 


ARTICLE I



DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION


 


Section 1.1             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.


 


(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, and the term “generally accepted accounting principles” with respect to
any computation required or permitted hereunder shall mean such accounting
principles that are generally accepted in the United States at the date or time
of such computation; provided that when two or more principles are so generally
accepted, it shall mean that set of principles consistent with those in use by
the Company.


 


(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.


 


(d)           Unless
the context otherwise requires, any references to an “Article,” a “Section,” an
“Exhibit” or another subdivision refers to an Article, a Section, an Exhibit or
another subdivision, as the case may be, of this Stock Purchase Contract
Agreement.


 


“Additional
Subordinated Notes” means the subordinated notes of
the Company that may be issued to the Stock Purchase Contract Agent as provided
in Section 6.7(c).


 


“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.


 


“Bankruptcy
Code” means the Bankruptcy Reform Act of 1978, Title
11 of the United States Code, as amended from time to time, or any other law of
the United States that from time to time provides a uniform system of
bankruptcy laws.


 


“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 MCAPS Depositary or on the books of a Person maintaining an
account with such MCAPS Depositary (directly as a MCAPS Depositary Participant
or as an indirect participant, in each case in accordance with the rules of
such MCAPS Depositary).


 


“Board of Directors”
means the board of directors of the Company or any committee of that board duly
authorized to act hereunder.


 


2

















 


“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, or such committee of the Board of Directors or officers of the
Company to which authority to act on behalf of the Board of Directors has been
delegated, and to be in full force and effect on the date of such certification
and delivered to the Stock Purchase Contract Agent.


 


“Book-Entry Interest” means a beneficial interest in a Global
Certificate, registered in the name of a MCAPS 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 3.6.


 


“Business
Day” means any day other than a Saturday, Sunday or
any other day on which banking institutions in the Borough of Manhattan, City
of New York are generally authorized or obligated to be closed.


 


“Certificate” means a Normal MCAPS Certificate or a Treasury
MCAPS Certificate.


 


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


 


“Collateral”
has the meaning specified in the Collateral Agreement.


 


“Collateral
Agent” means The Bank of New York, as Collateral Agent
under the Collateral Agreement until a successor Collateral Agent shall have
become such pursuant to the applicable provisions of the Collateral Agreement,
and thereafter “Collateral Agent” shall mean the Person who is then the
Collateral Agent thereunder.


 


“Collateral
Agreement” means the Collateral Agreement, dated as of
the date hereof, among the Company, the Collateral Agent, the Securities
Intermediary, and the Stock Purchase Contract Agent, on its own behalf and as
attorney-in-fact for the Holders from time to time of the MCAPS, as amended
from time to time.


 


“Collateral Substitution” means (i) with respect to a Normal
MCAPS, the substitution for the Pledged Trust Preferred Security included in
such Normal MCAPS by Qualifying Treasury Securities or portions thereof in an
aggregate principal amount at maturity equal to the aggregate liquidation
amount of such Pledged Trust Preferred Security, or (ii) with respect to a
Treasury MCAPS, the substitution for the Pledged Treasury Securities included
in such Treasury MCAPS by Trust Preferred Securities in an aggregate
liquidation amount equal to the aggregate principal amount at stated maturity
of the Pledged Treasury Securities.


 


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


 


“Contract
Payments” means the payments payable by the Company on
the Payment Dates in respect of each Stock Purchase Contract, at the rate of
0.15% per annum of the Stated Amount per Stock Purchase Contract of each Stock
Purchase Contract.


 


3

















 


“Corporate Trust Office” means the office of the Stock
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 One Federal Street, 3rd Floor, Boston, MA 02110, Attn:
Earl Dennison (provided, however, for purposes of Section 11.2 only, the
Corporate Trust Office shall be located at 100 Wall Street, Suite 1600, Mai
Station EX-NY-WALL, New York, New York 10005).


 


“Debentures”
means the Remarketable Junior Subordinated Debentures due 2043 of the Company.


 


“Declaration
of Trust” means the Amended and Restated Declaration
of Trust, dated as of the date hereof, of Lehman Brothers Holdings Capital
Trust VIII, among the Company, as Sponsor, the Property Trustee, the Delaware
Trustee and the Regular Trustees (each as named therein) and the several
Holders (as defined therein).


 


“Deferred Contract Payments” has the meaning specified in
Section 6.7(a).


 


“Depositary” means a clearing agency registered under Section
17A of the Exchange Act.


 


“Depositary Receipt” means one of the depositary receipts,
whether in definition or temporary form, issued by the Preferred Stock Depositary
pursuant to a Deposit Agreement, each representing any number of whole
Depositary Shares.


 


“Depositary Shares” means the Depositary Shares of the
Company, each representing a 1/100th ownership interest in a share
of Preferred Stock, which shall be evidenced by Depositary Receipts.


 


“DTC” means The Depository Trust Company.


 


“Early Remarketing” has the meaning specified in Section 2.3
of the Declaration of Trust.


 


 “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.


 


“Expiration Date” has the meaning specified in Section
1.4(e).


 


“Failed Remarketing”
has the meaning specified in Section 1.1 of the Declaration of Trust.


 


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


 


4

















 


“Guarantee Agreement” means the Guarantee Agreement between
the Company, as Guarantor and U.S. Bank National Association, as Guarantee
Trustee named thereunder, dated as of the date hereof.


 


“Holder” means, with respect to a MCAPS, the Person in whose
name the MCAPS evidenced by a Certificate is registered in the Securities
Register; provided, however, that solely for the purpose of determining whether
the Holders of the requisite number of MCAPS have voted on any matter (and not
for any other purpose hereunder), if the MCAPS remains in the form of one or
more Global Certificates and if the MCAPS Depositary that is the registered
holder of such Global Certificate has sent an omnibus proxy assigning voting
rights to the MCAPS Depositary Participants to whose accounts the MCAPS are
credited on the record date, the term “Holder” shall
mean such MCAPS Depositary Participant acting at the direction of the
Beneficial Owners.


 


“Indemnitees” has the meaning specified in Section 8.7(c).


 


“Indenture” means the Base Indenture, dated as of February 1,
1996, between the Company and JPMorgan Chase Bank, N.A., as trustee, as
supplemented by the First Supplemental Indenture, dated as of February 1, 1996,
and the Twelfth Supplemental Indenture, as further amended or supplemented from
time to time with respect to the Debentures.


 


“Indenture Trustee” means U.S. Bank National Association,
national banking association duly organized and existing under the laws of the
United States of America, solely in its capacity as trustee pursuant to the
Indenture and not in its individual capacity, or its successor in interest in
such capacity, or any successor trustee appointed as provided in the Indenture.


 


“Initial Liquidation Amount” has the meaning specified in the
Declaration of Trust.


 


“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 Stock Purchase Contract Agent.


 


“LIBOR”, with respect to a payment period, means the rate
(expressed as a percentage per annum) for deposits in U.S. dollars for a
three-month period that appears on Reuters Page LIBOR01 as of 11:00 a.m.
(London time) on the second London Business Day immediately preceding the first
day of such interest period.


 


If LIBOR
cannot be determined as described above, the Company will select four major
banks in the London interbank market. The Company will request that the
principal London offices of those four selected banks provide their offered
quotations to prime banks in the London interbank market at approximately 11:00
a.m., London time, on the second London Business Day immediately preceding the
first day of such interest period. These quotations will be for deposits in
U.S. dollars for a three-month period. Offered quotations must be based on a
principal amount equal to an amount that is representative of a single
transaction in U.S. dollars in the market at the time.


 


5

















 


If two or more
quotations are provided, LIBOR for the interest period will be the arithmetic
mean of the quotations. If fewer than two quotations are provided, the Company
will select three major banks in New York City and will then determine LIBOR
for the interest period as the arithmetic mean of rates quoted by those three
major banks in New York City to leading European banks at approximately 3:00
p.m., New York City time, on the second London Business Day immediately
preceding the first day of such interest period. The rates quoted will be for
loans in U.S. dollars, for a three-month period. Rates quoted must be based on
a principal amount equal to an amount that is representative of a single
transaction in U.S. dollars in the market at the time. If fewer than three New
York City banks selected by the Company are quoting rates, LIBOR for the
applicable period will be the same as for the immediately preceding interest
period.


 


“London Business Day” means a day other than a Saturday or
Sunday on which dealings in deposits in U.S. dollars are transacted, or with
respect to any future date are expected to be transacted, in the London
interbank market.


 


 “MCAPS” means a
Normal MCAPS or a Treasury MCAPS, as the case may be.


 


“MCAPS Depositary” means a clearing agency registered under
Section 17A of the Exchange Act that is designated to act as Depositary for the
MCAPS as contemplated by Sections 3.6 and 3.8.


 


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


 


“Normal MCAPS” means the collective rights and obligations of
a Holder of a Normal MCAPS Certificate in respect of one Trust Preferred
Security subject to the Pledge thereof, and the related Stock Purchase
Contract.


 


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


 


“Officers’ Certificate” means a certificate signed by the
Chairman of the Board of Directors, a Vice Chairman of the Board of Directors,
the Chief Executive Officer, the Chief Financial Officer, the President or a
Vice President, the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company or the duly authorized designee of any of
the foregoing, and delivered to the Stock Purchase Contract Agent.


 


“Opinion of Counsel” means a written opinion of counsel, who
may be counsel for the Company (including an employee of the Company), and who
shall be reasonably acceptable to the Stock Purchase Contract Agent.


 


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


 


6

















 


(i)            if a Termination Event
has occurred, no MCAPS shall be deemed outstanding;


 


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


 


(iii)          MCAPS 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 Stock Purchase Contract Agent proof satisfactory to it
that such Certificate is held by a protected purchaser in whose hands the MCAPS
evidenced by such Certificate are valid obligations of the Company;


 


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


 


“Parity Guarantee” has the meaning specified in Section
6.7(d) hereof.


 


“Parity Debt Security” has the meaning specified in Section
6.7(d) hereof.


 


 “Paying Agent”
has the meaning specified in the Declaration of Trust.


 


“Payment Date” means (i) each February 28, May 31, August 31
and November 30 of each year occurring on or prior to the Stock Purchase Date,
commencing on August 31, 2007, and (ii) if not otherwise a Payment Date, the
Stock Purchase Date.


 


“Person” means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof or any other entity
of whatever nature.


 


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


 


7

















 


“Pledge” means the pledge under the Collateral Agreement of
the Trust Preferred Securities or the Qualifying Treasury Securities, as the
case may be, in each case constituting a part of the MCAPS.


 


 “Pledged Securities”
means the Pledged Trust Preferred Securities and the Pledged Treasury
Securities.


 


“Pledged Treasury Securities” has the meaning specified in
Section 1.1 of the Collateral Agreement.


 


“Pledged Trust Preferred Securities” has the meaning
specified in Section 1.1(e) of the Collateral Agreement.


 


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


 


“Predecessor Treasury MCAPS Certificate” of any particular
Treasury MCAPS Certificate means every previous Treasury MCAPS Certificate
evidencing all or a portion of the rights and obligations of the Company and
the Holder under the Treasury MCAPS evidenced thereby; and, for the purposes of
this definition, any Treasury MCAPS Certificate authenticated and delivered
under Section 3.10 in exchange for or in lieu of a mutilated, destroyed, lost
or stolen Treasury MCAPS 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 MCAPS Certificate.


 


“Preferred Stock” means the Non-Cumulative Perpetual
Preferred Stock, Series I, $100,000 liquidation preference per share with no
par value, of the Company.


 


“Preferred Stock Deposit Agreement” means an agreement among
the Company, the Preferred Stock Depositary and the holder from time to time of
Depositary Receipts.


 


“Preferred Stock Depositary” means the Depositary under the
Preferred Stock Deposit Agreement.


 


“Proceeds” has the meaning specified in Section 1.1 of the
Collateral Agreement.


 


“Property Trustee” has the meaning specified in Section 1.1
of the Declaration of Trust.


 


“Purchase Price” has the meaning set forth in Section 6.1(a).


 


“Qualifying Treasury Security” has the meaning specified in
Section 5.1.


 


“Quarterly Date” has the meaning specified in Section 5.1.


 


8

















 


“Record Date” for any distribution and Contract Payment
payable on any Payment Date means, as to any Global Certificate or any other
Certificate, the 15th day of the calendar month in which the
relevant Payment Date falls (whether or not a Business Day).


 


“Regular
Trustee” has the meaning specified in the Declaration
of Trust.


 


“Remarketing” means a remarketing of Trust Preferred
Securities pursuant to Section 1.1 of the Declaration of Trust.


 


“Remarketing Agent” has the meaning specified in Section 1.1
of the Declaration of Trust.


 


“Remarketing Agreement” has the meaning specified in Section
1.1 of the Declaration of Trust.


 


“Remarketing Date” has the meaning specified in Section 1.1
of the Declaration of Trust.


 


“Remarketing Fee” has the meaning specified in Section 1.1 of
the Declaration of Trust.


 


“Remarketing Period” has the meaning specified in Section 1.1
of the Declaration of Trust.


 


“Remarketing Settlement Date” has the meaning specified in
Section 1.1 of the Declaration of Trust.


 


“Responsible Officer” shall mean, when used with respect to
the Stock Purchase Contact Agent, any officer within the corporate trust
department of the Stock Purchase Contract Agent, including any vice president,
assistant vice president, assistant secretary, assistant treasurer, trust
officer or any other officer of the Stock Purchase Contract Agent who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person’s knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Stock Purchase Contract Agreement.


 


“SEC” means the United States Securities and Exchange
Commission.


 


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


 


“Securities Intermediary” means The Bank of New York, as
Securities Intermediary under the Collateral Agreement until a successor
Securities Intermediary shall have become such pursuant to the applicable
provisions of the Collateral Agreement, and thereafter “Securities Intermediary”
shall mean such successor or any subsequent successor who is appointed pursuant
to the Collateral Agreement.


 


“Securities Register” and “Securities
Registrar” have the respective meanings specified in Section 3.5.


 


9

















 


“Senior Debt” has the meaning specified in Section 1401 of
the Indenture.


 


“Separate Trust Preferred Securities” means Trust Preferred
Securities that are no longer a component of Normal MCAPS.


 


“Settlement with Qualifying Treasury Securities” has the
meaning specified in Section 6.2(b).


 


“Similar Law” means  any federal,
state, local, non-U.S. or other law or regulation that is similar to the
fiduciary responsibility provisions of Title I of ERISA or the prohibited
transaction provisions of Section 406 of ERISA or Section 4975 of the Code.


 


“Stated Amount” means, with respect to any one Normal MCAPS,
Treasury MCAPS, or Trust Preferred Security, $1,000.


 


“Stock Purchase Contract” means, with respect to any MCAPS,
the contract forming a part of such MCAPS and obligating (i) the Company to
sell, and the Holder of such MCAPS to purchase Depositary Shares and (ii) the
Company to pay the Holder thereof Contract Payments, in each case on the terms
and subject to the conditions specified in Article VI.


 


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


 


“Stock Purchase Contract Settlement Fund” has the meaning
specified in Section 6.3(a).


 


“Stock Purchase Date” means May 31, 2012, provided that the Stock Purchase Date may be (i) moved
to an earlier date if an Early Remarketing occurs, in accordance with
Section 6.2(b)(v), or (ii) deferred for quarterly periods until May
31, 2013 in accordance with Section 6.2(b)(iv).


 


“Successful” has the meaning specified in Section 1.1 of the
Declaration of Trust.


 


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


 


“Termination Event” means the occurrence of any of the
following events at any time on or prior to the Stock Purchase Date:


 


(i)            a judgment, decree or court order shall
have been entered granting relief under the Bankruptcy Code, adjudicating the
Company to be insolvent, or approving as properly filed a petition seeking
reorganization or liquidation of the Company or any other similar applicable
federal or state law and if such judgment, decree or order shall have been
entered more than 90 days prior to the Stock Purchase Date, such decree or
order shall have continued undischarged and unstayed for a period of 90 days;


 


10

















 


(ii)           a judgment, decree or court order for the
appointment of a receiver or liquidator or trustee or assignee in bankruptcy or
insolvency of the Company or of its property, or for the termination or
liquidation of its affairs, shall have been entered and if such judgment,
decree or order shall have been entered more than 90 days prior to the Stock
Purchase Date, such judgment, decree or order shall have continued undischarged
and unstayed for a period of 90 days;


 


(iii)          the Company shall file a petition for relief
under the Bankruptcy Code, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent seeking
reorganization or liquidation 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
trustee or assignee 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; or


 


(iv)          the Company shall redeem the Debentures prior
to the Stock Purchase Date upon the occurrence of a “tax event”, a “capital
treatment event” or a “rating agency event,” in each case, as defined in the
Indenture.


 


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


 


“Transfer Agent” means the Property Trustee solely in its
capacity as transfer agent for the MCAPS.


 


“Treasury MCAPS” means, following the substitution of
Qualifying Treasury Securities for Pledged Trust Preferred Securities as
collateral to secure a Holder’s obligations under the Stock Purchase Contract,
the collective rights and obligations of a Holder of a Treasury MCAPS
Certificate in respect of such Qualifying Treasury Securities subject to the
Pledge thereof, and the related Stock Purchase Contract.


 


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


 


“Trust Enforcement Event” has the meaning specified in
Section 1.1 of the Declaration of Trust.


 


 “Trust Preferred Security”
has the meaning specified in Section 7.1(a)(i) of the Declaration of Trust.


 


“Twelfth Supplemental Indenture” means the Supplemental
Indenture, dated as of the date hereof, between the Company and the Indenture
Trustee, to the Base Indenture, dated as of February 1, 1996, between the
Company and JPMorgan Chase Bank, N.A., as trustee.


 


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


 


11

















 


“Underwriting Agreement” means the Underwriting Agreement,
dated May 8, 2007, among the Company and the Underwriters, relating to the
issuance of MCAPS by the Company.


 


“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 1.2             Compliance
Certificates and Opinions.


 


Except as
otherwise expressly provided by this Agreement, upon any application or request
by the Company to the Stock Purchase Contract Agent to take any action in
accordance with any provision of this Agreement, the Company shall furnish to
the Stock 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 reasonably requested by the
Stock 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. Notwithstanding any
portion of this Agreement to the contrary, the Company shall not be required to
furnish the Stock Purchase Contract Agent an Opinion of Counsel in connection
with the issuance of the MCAPS pursuant to the Underwriting Agreement.


 


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 11.5) shall include:


 


(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 1.3             Form of Documents
Delivered to Stock Purchase Contract Agent.


 


(a)           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 


 


12

















 


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.


 


(b)           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 1.4             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 Stock
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 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 8.1) conclusive in favor
of the Stock 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 Stock Purchase Contract Agent deems
sufficient.


 


(c)           The
ownership of MCAPS shall be proved by the Securities Register.


 


(d)           Any
request, demand, authorization, direction, notice, consent, waiver or other Act
of the Holder of any MCAPS shall bind every future Holder of the same MCAPS and
the Holder of every Certificate evidencing such MCAPS 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 Stock 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 MCAPS 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
of MCAPS. If any record date is set pursuant to this paragraph, the Holders of
the Outstanding Normal MCAPS and the Outstanding Treasury MCAPS, as the case
may be, on such record date, and no other Holders, shall be entitled to take 


 


13

















 


the relevant action with respect to the Normal MCAPS or the Treasury
MCAPS, 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 MCAPS 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 MCAPS 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 Stock Purchase Contract Agent in writing and to each Holder of
MCAPS in the manner specified in Section 1.6.


 


With respect
to any record date set pursuant to this Section 1.4(e), the Company may
designate any date as the “Expiration Date” and from time to time may change
the Expiration Date to any earlier or later day; provided that no such change
shall be effective unless notice of the proposed new Expiration Date is given
to the Stock Purchase Contract Agent in writing, and to each Holder of MCAPS in
the manner specified in Section 1.6, prior to or on the existing Expiration
Date. If an Expiration Date is not designated with respect to any record 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 1.5             Notices.


 


Any notice or
communication is duly given if in writing and delivered in Person or mailed by
first-class mail (registered or certified, return receipt requested),
telecopier (with receipt confirmed) or overnight air courier guaranteeing next
day delivery, to the others’ address; provided that notice shall be deemed
given to the Stock Purchase Contract Agent only upon receipt thereof:


 


If to the
Stock Purchase Contract Agent:


 


U.S. Bank National Association,

as Stock Purchase Contract Agent 

One Federal Street, 3rd Floor


Boston, MA 02110

Attention:  Corporate Trust Services

Facsimile:  617-603-6667


 


14

















 


If to the
Company:


 


Lehman Brothers Holdings Inc.

745 Seventh Avenue

New York, New York 10019

Attention: General Counsel

Facsimile:  212-526-0339


 


If to the Collateral Agent:


 


The Bank of New York,


as Collateral Agent


101 Barclay Street, Floor 4 West


New York, NY 10286


Attention:  MBS Group

Facsimile:  212-815-3910


 


If to the Property Trustee:


 


U.S. Bank National Association,

as Trustee

One Federal Street, 3rd Floor


Boston, MA 02110

Attention:  Corporate Trust Services

Facsimile:  617-603-6667


 


The Stock
Purchase Contract Agent shall send to the Indenture Trustee at the telecopier
number set forth above a copy of any notices in the form of Exhibits C, D, E or
F it sends or receives.


 


Section 1.6             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 Securities 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 Stock
Purchase Contract Agent, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.


 


15

















 


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 Stock Purchase Contract
Agent shall constitute a sufficient notification for every purpose hereunder.


 


Section 1.7             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 1.8             Successors and
Assigns.


 


All covenants
and agreements in this Agreement by the Company and the Stock Purchase Contract
Agent shall bind their respective successors and assigns, whether so expressed
or not.


 


Section 1.9             Separability
Clause.


 


In case any
provision in this Agreement or in the MCAPS shall be declared invalid, illegal
or unenforceable by a court of competent jurisdiction, 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 MCAPS, 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 MCAPS evidenced by their Certificates by
their acceptance of delivery of such Certificates.


 


Section 1.11           Governing Law.


 


This
Agreement and the MCAPS shall be governed by and construed in accordance with
the laws of the State of New York.


 


Section 1.12           Legal Holidays.


 


(a)           In
any case where any Payment Date shall not be a Business Day (notwithstanding
any other provision of this Agreement or the MCAPS), Contract Payments or other
distributions shall not be paid on such date, but Contract Payments or such
other distributions shall be paid on the next succeeding Business Day with the
same force and effect as if made on such Payment Date. No interest shall accrue
or be payable by the Company or to any Holder for the period from and after any
such Payment Date on such successive Business Day.


 


(b)           In
any case where the Stock Purchase Date shall not be a Business Day
(notwithstanding any other provision of this Agreement or the MCAPS), the Stock
Purchase Contracts shall not be performed and shall not be effected on such
date, but the Stock Purchase 


 


16

















 


Contracts shall be performed on the next succeeding Business Day with
the same force and effect as if made on such Stock Purchase Date.


 


Section 1.13           Counterparts.


 


This Agreement
may be executed in any number of counterparts by the parties hereto on separate
counterparts, 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 Stock Purchase Contract Agent and the
Holders, under this Agreement and the Stock Purchase Contracts, by giving
notice of such appointment in the manner provided in Section 1.5 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 Stock Purchase Contract Agent, the Collateral
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 Stock Purchase
Contract Agent, the Collateral 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.


 


17

















 


ARTICLE II



CERTIFICATE FORMS


 


Section 2.1             Forms of
Certificates Generally.


 


The
Certificates (including the form of Stock Purchase Contract forming part of
each MCAPS evidenced thereby) shall be in substantially the form set forth in
Exhibit A hereto (in the case of Certificates evidencing Normal MCAPS) or
Exhibit B hereto (in the case of Certificates evidencing Treasury MCAPS), 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 MCAPS 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 MCAPS 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 in substantially the following form:


 


THIS
CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE STOCK PURCHASE
CONTRACT 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 STOCK PURCHASE CONTRACT 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
REQUESTED 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.


 


18

















 


Section 2.2             Form of Stock
Purchase Contract Agent’s Certificate of Authentication.


 


The form of
the Stock Purchase Contract Agent’s certificate of authentication of the MCAPS
shall be in substantially the form set forth on the form of the applicable
Certificates.


 


19














 


ARTICLE III



THE MCAPS


 


Section 3.1             Amount; Form and
Denominations.


 


The aggregate
stated amount of MCAPS evidenced by Certificates authenticated, executed on
behalf of the Holders and delivered hereunder is limited to $500,000,000,
except for Certificates authenticated, executed and delivered upon registration
of transfer of, in exchange for, or in lieu of, other Certificates pursuant to
Section 3.4, 3.5, 3.10, 3.13, 3.14 or 9.5.


 


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


 


Section 3.2             Rights and
Obligations Evidenced by the Certificates.


 


Each Normal
MCAPS Certificate shall evidence the number of Normal MCAPS specified therein,
with each such Normal MCAPS representing (1) the ownership by the Holder
thereof of one Trust Preferred Security, subject to the Pledge of such Trust
Preferred Security by such Holder pursuant to the Collateral Agreement, and (2)
the rights and obligations of the Holder thereof and the Company under one
Stock Purchase Contract. The Stock Purchase Contract Agent is hereby
authorized, as attorney-in-fact for, and on behalf of, the Holder of each
Normal MCAPS, to pledge, pursuant to the Collateral Agreement, the Trust Preferred
Security forming a part of such Normal MCAPS, 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 Trust Preferred Security to secure the obligation of the Holder
under each Stock Purchase Contract to purchase Depositary Shares.


 


Upon the
formation of a Treasury MCAPS pursuant to Section 3.13, each Treasury MCAPS
Certificate shall evidence the number of Treasury MCAPS specified therein, with
each such Treasury MCAPS representing (1) the ownership by the Holder thereof
of one Qualifying Treasury Security with a principal amount at maturity equal
to $1,000, subject to the Pledge of such interest by such Holder pursuant to
the Collateral Agreement, and (2) the rights and obligations of the Holder
thereof and the Company under one Stock Purchase Contract. The Stock Purchase
Contract Agent is hereby authorized, as attorney-in-fact for, and on behalf of,
the Holder of each Treasury MCAPS, to pledge, pursuant to the Collateral
Agreement, such Holder’s interest in the Qualifying Treasury Security forming a
part of such Treasury MCAPS (and any Qualifying Treasury Security subsequently
purchased by the Collateral Agent on behalf of the Holder of such Treasury
MCAPS with the proceeds of any maturing Qualifying Treasury Security prior to
the Stock Purchase Date) 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
Qualifying Treasury Security (and any Qualifying Treasury Security subsequently
purchased by the Collateral Agent on behalf of the Holder of such Treasury MCAPS
with the proceeds of any maturing Qualifying Treasury Security prior to the
Stock Purchase Date) Treasury Security to secure the obligation of the Holder
under each Stock Purchase Contract to purchase Depositary Shares.


 


20

















 


Prior to the
purchase of Depositary Shares under each Stock Purchase Contract, such Stock
Purchase Contract shall not entitle the Holder of an MCAPS to any of the rights
of a holder of Depositary Shares, including, without limitation, the right to
vote or receive any dividends or other payments or to consent or to receive
notice as a stockholder in respect of the meetings of stockholders or for the
election of directors of the Company or for any other matter, or any other
rights whatsoever as a stockholder of the Company.


 


Section 3.3             Execution,
Authentication, Delivery and Dating.


 


(a)           Subject
to the provisions of Sections 3.13 and 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 Stock
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 Stock Purchase Contract Agent in accordance with such
Issuer Order shall authenticate, execute on behalf of the Holders and deliver
such Certificates.


 


(b)           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 Chief
Financial Officer, its Treasurer or one of its Vice Presidents. The signature
of any of these officers on the Certificates may be manual or facsimile.


 


(c)           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.


 


(d)           No
Stock 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 Stock Purchase Contract Agent, as such Holder’s
attorney-in-fact. Such signature by an authorized officer of the Stock Purchase
Contract Agent shall be conclusive evidence that the Holder of such Certificate
has entered into the Stock Purchase Contracts evidenced by such Certificate.


 


(e)           Each
Certificate shall be dated the date of its authentication.


 


(f)            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 Stock Purchase Contract Agent by
manual signature, and such certificate upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder.


 


Section 3.4             Temporary
Certificates.


 


(a)           Pending
the preparation of definitive Certificates, the Company shall execute and
deliver to the Stock Purchase Contract Agent, and the Stock Purchase Contract
Agent shall authenticate, execute on behalf of the Holders, and deliver, in
lieu of such definitive Certificates, 


 


21

















 


temporary Certificates that 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 Normal MCAPS or Treasury
MCAPS, 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.


 


(b)           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 Stock Purchase
Contract Agent, and the Stock 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 MCAPS 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 MCAPS evidenced thereby
as definitive Certificates.


 


Section 3.5             Registration;
Registration of Transfer and Exchange.


 


(a)           The
Stock Purchase Contract Agent shall keep at the Corporate Trust Office a
register (the “Securities Register”) in which,
subject to such reasonable regulations as it may prescribe, the Stock Purchase
Contract Agent shall provide for the registration of Certificates and of
transfers of Certificates (the Stock Purchase Contract Agent, in such capacity,
the “Securities Registrar”). The Securities
Registrar shall record separately the registration and transfer of the
Certificates evidencing Normal MCAPS and Treasury MCAPS.


 


(b)           Upon
surrender for registration of transfer of any Certificate at the Corporate
Trust Office, the Company shall execute and deliver to the Stock Purchase
Contract Agent, and the Stock 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 Normal MCAPS or Treasury MCAPS, as the case may be.


 


(c)           At
the option of the Holder, Certificates may be exchanged for other Certificates,
of any authorized denominations and evidencing a like number of Normal MCAPS or
Treasury MCAPS, 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 Stock
Purchase Contract Agent, and the Stock Purchase Contract Agent shall
authenticate, execute on behalf of the Holder, and deliver the Certificates
that the Holder making the exchange is entitled to receive.


 


(d)           All
Certificates issued upon any registration of transfer or exchange of a
Certificate shall evidence the ownership of the same number of Normal MCAPS or
Treasury 


 


22

















 


MCAPS, as the case may be, and be entitled to the same benefits and
subject to the same obligations under this Agreement as the Normal MCAPS or
Treasury MCAPS, as the case may be, evidenced by the Certificate surrendered
upon such registration of transfer or exchange.


 


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


 


(f)            No
service charge shall be made for any registration of transfer or exchange of a
Certificate, but the Company and the Stock 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
Sections 3.4, 3.6 and 9.5 not involving any transfer.


 


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


 


(i)            if the Stock Purchase Date (including upon
any Settlement with Qualifying Treasury Securities) with respect to such other
Certificate has occurred, deliver the Depositary Shares issuable in respect of
the Stock Purchase Contracts forming a part of the MCAPS evidenced by such
other Certificate; or


 


(ii)           if a Termination Event shall have occurred prior to the Stock Purchase
Date, transfer the Trust Preferred Securities or the Qualifying Treasury
Securities, as the case may be, evidenced thereby, in each case subject to the
applicable conditions and in accordance with the applicable provisions of
Section 3.15 and Article VI hereof.


 


Section 3.6             Book-Entry
Interests.


 


(a)           The
Certificates, on original issuance, will be issued in the form of one or more
fully registered Global Certificates, to be delivered to the MCAPS Depositary
or its custodian by, or on behalf of, the Company. The Company hereby
designates DTC as the initial MCAPS Depositary. Such Global Certificates shall
initially be registered on the books and records of the Company in the name of
Cede & Co., the nominee of the MCAPS 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 3.9. The
Stock Purchase Contract Agent shall enter into an agreement with the MCAPS
Depositary if so requested by the Company. Unless and until definitive, fully
registered Certificates have been issued to Beneficial Owners pursuant to
Section 3.9:


 


23

















 


(i)            the provisions of this Section 3.6 shall be
in full force and effect;


 


(ii)           the Company shall be entitled to deal with the MCAPS Depositary for all
purposes of this Agreement (including, without limitation, making Contract
Payments and receiving approvals, votes or consents hereunder) as the Holder of
the MCAPS and the sole holder of the Global Certificates and shall have no
obligation to the Beneficial Owners; provided that any Beneficial Owner may
directly enforce against the Company, without the involvement of the MCAPS
Depositary or any other Person, its right to receive definitive Certificates
pursuant to Section 3.9;


 


(iii)          to the extent that the provisions of this Section 3.6 conflict with any
other provisions of this Agreement, the provisions of this Section 3.6 shall
control; and


 


(iv)          the rights of the Beneficial Owners shall be exercised only through the
MCAPS Depositary and shall be limited to those established by law and
agreements between such Beneficial Owners and the MCAPS Depositary or the MCAPS
Depositary Participants; provided that any Beneficial Owner may directly
enforce against the Company, without the involvement of the MCAPS Depositary or
any other Person, its right to receive definitive Certificates pursuant to
Section 3.9.


 


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


 


Section 3.7             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 MCAPS registered in the
name of the MCAPS Depositary or the nominee of the MCAPS Depositary, the
Company or the Company’s agent shall, except as specified herein, have no
obligations to the Beneficial Owners.


 


Section 3.8             Appointment of
Successor MCAPS Depositary.


 


If the MCAPS
Depositary elects to discontinue its services as securities depositary with
respect to the MCAPS, the Company may, in its sole discretion, appoint a
successor MCAPS Depositary with respect to the MCAPS.


 


Section 3.9             Definitive
Certificates.


 


If:


 


24

















 


(a)           the
MCAPS Depositary notifies the Company that it is unwilling or unable to
continue its services as securities depositary with respect to the MCAPS and no
successor Depositary has been appointed pursuant to Section 3.8 within 90 days
after such notice; or


 


(b)           the
MCAPS Depositary ceases to be a “clearing agency” registered under Section 17A
of the Exchange Act when the MCAPS Depositary is required to be so registered
to act as the MCAPS Depositary and so notifies the Company, and no successor
MCAPS Depositary has been appointed pursuant to Section 3.8 within 90 days
after such notice; or


 


(c)           any
event of default has occurred and is continuing under the Trust Preferred
Securities or this Agreement; or


 


(d)           the
Company determines in its sole discretion that the Global Certificates shall be
exchangeable for definitive Certificates,


 


then (x) definitive Certificates shall be prepared by the Company with
respect to such MCAPS and delivered to the Stock Purchase Contract Agent and
(y) upon surrender of the Global Certificates representing the MCAPS by the
MCAPS Depositary, accompanied by registration instructions, the Company shall
cause definitive Certificates to be delivered to Beneficial Owners in
accordance with the instructions of the MCAPS Depositary. The Company and the
Stock 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 MCAPS of the same kind and tenor as the Global
Certificate so surrendered in respect thereof.


 


Section 3.10           Mutilated,
Destroyed, Lost and Stolen Certificates.


 


(a)           If
any mutilated Certificate is surrendered to the Stock Purchase Contract Agent,
the Company shall execute and deliver to the Stock Purchase Contract Agent, and
the Stock Purchase Contract Agent shall authenticate, execute on behalf of the
Holder, and deliver in exchange therefor, a new Certificate, evidencing the same
number of Normal MCAPS or Treasury MCAPS, as the case may be, and bearing a
Certificate number not contemporaneously outstanding.


 


(b)           If
there shall be delivered to the Company and the Stock 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 Stock Purchase Contract Agent that such
Certificate has been acquired by a protected purchaser, the Company shall
execute and deliver to the Stock Purchase Contract Agent, and the Stock
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 Normal MCAPS or
Treasury MCAPS, as the case may be, and bearing a Certificate number not
contemporaneously outstanding.


 


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


 


25

















 


be 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 the Stock Purchase 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 Stock Purchase Contract Agent
shall:


 


(i)            if the Stock Purchase Date with respect to
such lost, stolen, destroyed or mutilated Certificate has occurred, deliver the
Depositary Shares issuable in respect of the Stock Purchase Contracts forming a
part of the MCAPS evidenced by such Certificate; or


 


(ii)           if a Settlement with Qualifying Treasury Securities with respect to
such lost or mutilated Certificate or if a Termination Event shall have
occurred prior to the Stock Purchase Date, transfer the Trust Preferred
Securities or the Qualifying Treasury Securities, as the case may be, evidenced
thereby, in each case subject to the applicable conditions and in accordance
with the applicable provisions of Section 3.15 and Article VI hereof.


 


(d)           Upon
the issuance of any new Certificate under this Section, the Company and the
Stock 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 Stock Purchase Contract Agent)
connected therewith.


 


(e)           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 MCAPS evidenced
thereby, whether or not the destroyed, lost or stolen Certificate (and the
MCAPS 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.


 


(f)            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.


 


(a)           Prior
to due presentment of a Certificate for registration of transfer, the Company
and the Stock Purchase Contract Agent, and any agent of the Company or the
Stock Purchase Contract Agent, may treat the Person in whose name such
Certificate is registered as the owner of the MCAPS evidenced thereby for
purposes of (subject to any applicable record date) any payment or distribution
on the Trust Preferred Securities, payment of Contract Payments and performance
of the Stock Purchase Contracts and for all other purposes whatsoever in
connection with such MCAPS, whether or not such payment, distribution, or
performance shall be overdue and notwithstanding any notice to the contrary,
and neither the Company nor the Stock Purchase Contract Agent, nor any agent of
the Company or the Stock Purchase Contract Agent, shall be affected by notice
to the contrary.


 


26

















 


(b)           Notwithstanding
the foregoing, with respect to any Global Certificate, nothing contained herein
shall prevent the Company, the Stock Purchase Contract Agent or any agent of
the Company or the Stock Purchase Contract Agent from giving effect to any
written certification, proxy or other authorization furnished by the MCAPS
Depositary (or its nominee), as a Holder, with respect to such Global
Certificate, or impair, as between such MCAPS Depositary and the related
Beneficial Owner, the operation of customary practices governing the exercise
of rights of the MCAPS Depositary (or its nominee) as Holder of such Global
Certificate. None of the Company, the Stock Purchase Contract Agent or any
agent of the Company or the Stock 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.


 


(a)           All
Certificates surrendered for delivery of the Depositary Shares on or after the
Stock Purchase Date or upon the transfer of Trust Preferred Securities or for
delivery of Trust Preferred Securities or Qualifying Treasury Securities, as
the case may be, after the occurrence of a Termination Event or pursuant to a
Settlement with Qualifying Treasury Securities, or upon the registration of
transfer or exchange of a MCAPS, or a Collateral Substitution or the recreation
of Normal MCAPS shall, if surrendered to any Person other than the Stock
Purchase Contract Agent, be delivered to the Stock 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 Stock 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 Stock 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, except as expressly
permitted by this Agreement. All cancelled Certificates held by the Stock
Purchase Contract Agent shall be disposed of in accordance with its customary
practices.


 


(b)           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 Stock Purchase Contract Agent
cancelled or for cancellation.


 


Section 3.13           Creation of Treasury
MCAPS by Substitution of Qualifying Treasury Securities.


 


(a)           Subject
to the conditions specified in this Agreement, a Holder may, at any time from
and after the date of this Agreement and prior to the Successful Remarketing of
the Trust Preferred Securities (except (1) on a day in February, May, August or
November that is on or after the 15th day of the month (or the next
Business Day if the last day is not a Business Day) or (2) during the period
from 3:00 p.m. (New York City time) on the second Business Day immediately
preceding the beginning of any Remarketing Period until the opening of business
on the Business Day immediately following such Remarketing Settlement Date),
effect a Collateral Substitution and separate the Pledged Trust Preferred
Securities from the related Stock Purchase 


 


27

















 


Contracts in respect of all or a portion of such Holder’s Normal MCAPS
by substituting for such Pledged Trust Preferred Securities or Qualifying
Treasury Securities maturing at least one business day prior to the next
Quarterly Date in an aggregate principal amount at maturity equal to the
aggregate liquidation amount of such Pledged Trust Preferred Securities. To
effect such substitution, the Holder must:


 


(i)            deposit with the Collateral Agent the applicable
Qualifying Treasury Securities that will mature at least one business day prior
to the next Quarterly Date and, in each case, in an aggregate principal amount
of $1,000, which must be purchased in the open market by the Holder (unless
otherwise owned by the Holder); and


 


(ii)           transfer the related Normal MCAPS to the Stock Purchase Contract Agent
accompanied by a notice to be substantially in the form of Exhibit C hereto,
(i) stating that the Holder has deposited the appropriate amount of Qualifying
Treasury Securities with the Collateral Agent for credit to the Collateral
Account in substitution for the Pledged Trust Preferred Securities, (ii)
stating that the Holder is transferring the Normal MCAPS to the Transfer Agent
and (iii) requesting that the Collateral Agent release the Pledged Trust
Preferred Securities underlying such Normal MCAPS.


 


(b)           Upon
receipt of the Qualifying Treasury Securities described in clause (i) above and
the instruction described in clause (ii) above, in accordance with the terms of
the Collateral Agreement, the Collateral Agent will cause the release of such
Pledged Trust Preferred Securities from the Pledge and the transfer of such
Trust Preferred Securities to the Stock Purchase Contract Agent on behalf of
the Holder free and clear of the Company’s security interest therein. Upon
receipt of such Trust Preferred Securities, the Stock Purchase Contract Agent
shall promptly:


 


(i)            cancel the related Normal MCAPS;


 


(ii)           transfer the Trust Preferred Securities to the Holder (such Trust
Preferred Securities shall be tradeable as a separate security, independent of
the resulting Treasury MCAPS); and


 


(iii)          authenticate, execute on behalf of such Holder and deliver Treasury
MCAPS in book-entry form, or if applicable, in the form of a Treasury MCAPS
Certificate executed by the Company in accordance with Section 3.3 evidencing
the same number of Stock Purchase Contracts as were evidenced by the cancelled
Normal MCAPS.


 


(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 Normal MCAPS or fails to
deliver Normal MCAPS Certificates to the Transfer Agent after depositing
Qualifying Treasury Securities with the Collateral Agent, any distributions on
the Trust Preferred Securities constituting a part of such Normal MCAPS shall
be held in the name of the Stock Purchase Contract Agent or its nominee in
trust for the benefit of such Holder, until such Normal MCAPS are so
transferred or the Normal MCAPS Certificate is so delivered, as the case may
be, or, such Holder provides 


 


28

















 


evidence satisfactory to the Company and the Stock Purchase Contract
Agent that such Normal MCAPS Certificate has been destroyed, lost or stolen,
together with any indemnity that may be required by the Stock Purchase Contract
Agent and the Company.


 


(d)           Except
as described in Section 6.2 or in this Section 3.13 or in connection with a
Settlement with Qualifying Treasury Securities or a Termination Event, for so
long as the Stock Purchase Contract underlying a Normal MCAPS remains in
effect, such Normal MCAPS shall not be separable into its constituent parts,
and the rights and obligations of the Holder in respect of the Trust Preferred
Securities and the Stock Purchase Contract comprising such Normal MCAPS may be
acquired, and may be transferred and exchanged, only as a Normal MCAPS.


 


(e)           Promptly following each quarterly
publication of the U.S. Department of the Treasury of the tentative auction
schedule, the Collateral Agent shall prepare and deliver to the Company a
schedule identifying for the upcoming 12-month period the issue and maturity
dates for each Qualifying Treasury Security.


 


Section 3.14           Recreation of Normal
MCAPS.


 


(a)           Subject to the
conditions specified in this Agreement, a Holder of Treasury MCAPS may recreate
Normal MCAPS at any time from and after the date of this Agreement and prior to
the Successful Remarketing of the Trust Preferred Securities (except (1) on a
day in February, May, August or November that is on or after the 15th
day of the month through the last day of the month (or the next Business Day if
the last day is not a Business Day) or (2) during the period from 3:00 p.m.
(New York City time) on the second Business Day immediately preceding the
beginning of such Remarketing Period until the opening of business on the
Business Day immediately following such Remarketing Settlement Date). To
recreate Normal MCAPS, the Holder must:


 


(i)            deposit with the Securities Intermediary
Trust Preferred Securities having an aggregate liquidation amount equal to the
stated amount of the Normal MCAPS to be recreated, which Trust Preferred
Securities must be purchased at Holder’s expense (unless otherwise owned by the
Holder); and


 


(ii)           transfer the related Treasury MCAPS to the Stock Purchase Contract
Agent accompanied by a notice to the Stock Purchase Contract Agent,
substantially in the form of Exhibit C hereto, (i) stating that the Holder has
transferred the relevant amount of Trust Preferred Securities to the Collateral
Agent for deposit in the Collateral Account in substitution for the Pledged
Qualifying Treasury Securities and (ii) instructing the Stock Purchase Contract
Agent to instruct the Collateral Agent to release the Pledged Treasury
Securities underlying such Treasury MCAPS, whereupon the Stock Purchase
Contract Agent shall promptly provide an instruction to such effect to the
Collateral Agent, substantially in the form of Exhibit C to the Collateral
Agreement.


 


(b)           Upon receipt of the
Trust Preferred Securities described in clause (i) above and the instruction
described in clause (ii) above, in accordance with the terms of the Collateral
Agreement, the Collateral Agent will effect the release of the Pledged Qualifying Treasury Securities
having a corresponding aggregate principal amount at maturity from the Pledge
and 


 


29

















 


the transfer thereof to the Stock Purchase Contract Agent on behalf of
the Holder free and clear of the Company’s security interest therein. Upon
receipt of such Qualifying Treasury Securities, the Stock Purchase Contract
Agent shall promptly:


 


(i)            cancel the related Treasury MCAPS;


 


(ii)           transfer the Qualifying Treasury Securities to the Holder; and


 


(iii)          authenticate, execute on behalf of such Holder and deliver Normal MCAPS
in book-entry form or, if applicable, in the form of a Normal MCAPS Certificate
executed by the Company in accordance with Section 3.3 evidencing the same
number of Stock Purchase Contracts as were evidenced by the cancelled Treasury
MCAPS.


 


(c)           Except
as provided in Section 6.2 or in this Section 3.14 or in connection with a
Termination Event, for so long as the Stock Purchase Contract underlying a
Treasury MCAPS remains in effect, such Treasury MCAPS shall not be separable
into its constituent parts and the rights and obligations of the Holder of such
Treasury MCAPS in respect of the Qualifying Treasury Security and the Stock
Purchase Contract comprising such Treasury MCAPS may be acquired, and may be
transferred and exchanged, only as a Treasury MCAPS.


 


Section 3.15           Transfer of
Collateral upon Occurrence of Termination Event.


 


(a)           Upon
the occurrence of a Termination Event and the transfer to the Stock Purchase
Contract Agent of the Trust Preferred Securities or the Qualifying Treasury
Securities, as the case may be, underlying the Normal MCAPS or the Treasury
MCAPS, respectively, pursuant to the terms of the Collateral Agreement, the
Stock Purchase Contract Agent shall request transfer instructions with respect
to such Trust Preferred Securities or Qualifying 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
Securities Register.


 


(b)           Upon
book-entry transfer of the Normal MCAPS or the Treasury MCAPS or delivery of a
Normal MCAPS Certificate or Treasury MCAPS Certificate to the Stock Purchase
Contract Agent with such transfer instructions, the Stock Purchase Contract
Agent shall transfer the Trust Preferred Securities or Qualifying Treasury
Securities, as the case may be, underlying such Normal MCAPS or Treasury MCAPS,
as the case may be, to such Holder by book-entry transfer, or other appropriate
procedures, in accordance with such instructions. In the event a Holder of
Normal MCAPS or Treasury MCAPS fails to effect such transfer or delivery, the
Trust Preferred Securities or Qualifying Treasury Securities, as the case may
be, underlying such Normal MCAPS or Treasury MCAPS, as the case may be, and any
distributions thereon, shall be held in the name of the Stock Purchase Contract
Agent or its nominee in trust for the benefit of such Holder, until the earlier
to occur of:


 


(i)            the transfer of such Normal MCAPS or Treasury
MCAPS or surrender of the Normal MCAPS Certificate or Treasury MCAPS
Certificate or the receipt by the Company and the Stock Purchase Contract Agent
from such Holder of satisfactory evidence that such Normal MCAPS Certificate or
Treasury MCAPS 


 


30

















 


Certificate has been
destroyed, lost or stolen, together with any indemnity that may be required by
the Stock Purchase Contract Agent and the Company; and


 


(ii)           the expiration of the time period specified in the abandoned property
laws of the relevant State in which the Stock Purchase Contract Agent holds
such property.


 


Section 3.16           No Consent to
Assumption.


 


Each Holder of
a MCAPS, 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 Stock 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 the debtor under the Bankruptcy Code or subject
to other similar state or Federal law providing for reorganization or
liquidation.


 


31

















 


ARTICLE IV



THE TRUST PREFERRED SECURITIES


 


Section 4.1             Distributions;
Rights to Distributions Preserved.


 


(a)           Any
payment on any Trust Preferred Security that is paid on any Payment Date shall,
subject to receipt thereof by the Stock Purchase Contract Agent from the
Company (in the case of a Trust Preferred Security that is held in the name of
the Stock Purchase Contract Agent) or from the Collateral Agent as provided by
the terms of the Collateral Agreement (in the case of a Trust Preferred
Security that is held in the name of the Collateral Agent), be paid by the
Stock Purchase Contract Agent to the Person in whose name the Normal MCAPS
Certificate (or one or more Predecessor Normal MCAPS Certificates) of which
such Trust Preferred Security forms a part is registered at the close of
business on the Record Date for such Payment Date.


 


(b)           Each
Normal MCAPS Certificate evidencing a Trust Preferred Security delivered under
this Agreement upon registration of transfer of or in exchange for or in lieu
of any other Normal MCAPS Certificate shall carry the right to accumulated and
unpaid distributions or distributions, and to accrue distributions, which were
carried by the Trust Preferred Security underlying such other Normal MCAPS
Certificate.


 


(c)           In
the case of any Normal MCAPS with respect to which (A) a Collateral
Substitution is properly effected pursuant to Section 3.13, or (B) a Successful
Remarketing occurs with respect to the Trust Preferred Security that is part of
such Normal MCAPS, in each case on a date that is after any Record Date and
prior to or on the next succeeding Payment Date, distributions on the Trust
Preferred Securities underlying such Normal MCAPS otherwise payable on such
Payment Date shall be payable on such Payment Date notwithstanding such
Collateral Substitution or Remarketing, and such payment or distributions
shall, subject to receipt thereof by the Stock Purchase Contract Agent, be
payable to the Person in whose name the Normal MCAPS Certificate (or one or
more Predecessor Normal MCAPS Certificates) was registered at the close of
business on the Record Date.


 


(d)           Except
as otherwise expressly provided in Section 4.1(c) in the case of any Normal
MCAPS with respect to which a Collateral Substitution has been effected,
payments on the related Trust Preferred Securities that would otherwise be
payable or made after the date of the Collateral Substitution shall not be
payable hereunder to the Holder of such Normal MCAPS; provided, however, that
to the extent that such Holder continues to hold Separate Trust Preferred
Securities that formerly comprised a part of such Holder’s Normal MCAPS, such
Holder shall be entitled to receive distributions on such Separate Trust
Preferred Securities.


 


Section 4.2             Notice and Voting.


 


(a)           The Stock Purchase
Contract Agent will be entitled to exercise the voting and any other consensual
rights pertaining to the Pledged Trust Preferred Securities, but only to the extent instructed in writing
by the Holders as described below. Upon receipt of notice of any meeting at
which holders of Trust Preferred Securities are entitled to vote or upon any
solicitation of consents, waivers or proxies of holders of Trust Preferred
Securities, the Stock 


 


32

















 


Purchase Contract Agent shall, as soon as practicable thereafter, mail,
first class, postage pre-paid, to the Holders of Normal MCAPS 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 Stock Purchase
Contract Agent therefor (which, to the extent possible, shall be the same date
as the record date for determining the holders of Trust Preferred Securities,
as the case may be, entitled to vote) shall be entitled to instruct the Stock
Purchase Contract Agent as to the exercise of the voting rights pertaining to
such Trust Preferred Securities underlying their Normal MCAPS; and


 


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


 


(b)           Upon
the written request of the Holders of Normal MCAPS on such record date received
by the Stock Purchase Contract Agent at least six days prior to such meeting,
the Stock Purchase Contract Agent shall endeavor insofar as practicable to vote
or cause to be voted, in accordance with the instructions specified in such
requests, the maximum number of Trust Preferred Securities, as the case may be,
as to which any particular voting instructions are received. In the absence of
specific instructions from the Holder of a Normal MCAPS, the Stock Purchase
Contract Agent shall abstain from voting the Trust Preferred Securities
underlying such Normal MCAPS. The Company hereby agrees, if applicable, to
solicit Holders of Normal MCAPS to timely instruct the Stock Purchase Contract
Agent in order to enable the Stock Purchase Contract Agent to vote such Trust
Preferred Securities.


 


(c)           The
Holders of Normal MCAPS and Treasury MCAPS shall have no voting or other rights
in respect of Depositary Shares or the Preferred Stock.


 


(d)           The Holders of Normal MCAPS have the right
to (i) exercise or enforce all the rights of a holder of Trust Preferred
Securities under Section 7.5 of the Declaration of Trust as if such Holders
held the Trust Preferred Securities that form a part of their Normal MCAPS
directly or (ii) direct the Stock Purchase Contract Agent to exercise or
enforce its rights under Section 7.5 of the Declaration of Trust as the holder
of such Trust Preferred Securities.


 


33

















 


ARTICLE V



QUALIFYING TREASURY SECURITIES


 


Section 5.1             Qualifying
Treasury Securities.


 


(a)           For
each February 28, May 31, August 31 and November 30, commencing on May 31, 2007
and ending on the Stock Purchase Date or the earlier termination of the Stock
Purchase Contracts, or if any such day is not a Business Day, the immediately
succeeding Business Day (each, a “Quarterly Date”), the Collateral Agent shall
identify:


 


(i)            the 13-week treasury bill that matures at
least one and not more than six Business Days prior to that Quarterly Date, or


 


(ii)           if no 13-week treasury bill that matures at least one and not more than
six Business Days prior to that Quarterly Date is or is scheduled to be
outstanding or is available in a sufficient principal amount on the immediately
preceding Quarterly Date, the 26-week treasury bill that matures at least one
and not more than six Business Days prior to that Quarterly Date, or


 


(iii)          if neither of such treasury bills is or is scheduled to be outstanding
or is available in a sufficient principal amount on the immediately preceding
Quarterly Date, any other treasury security (which may be a zero coupon
treasury security) that is outstanding on the immediately preceding Quarterly
Date, is highly liquid and matures at least one Business Day prior to such
Quarterly Date; provided that any treasury security identified pursuant to this
clause (iii) shall be selected in a manner intended to minimize the cash value
of the security selected.


 


(b)           The
Collateral Agent shall use commercially reasonable efforts to identify the
security meeting the foregoing criteria for each Quarterly Date promptly after
the Department of the Treasury makes the schedule for upcoming auctions of
treasury securities publicly available and shall, to the extent that a security
previously identified with respect to any Quarterly Date is no longer expected
to be outstanding on the immediately preceding Quarterly Date, identify another
security meeting the foregoing criteria for such Quarterly Date. The security
most recently identified by the Collateral Agent with respect to any Quarterly
Date shall be the “Qualifying Treasury Security” with respect to the period
from and including its date of issuance (or if later, the date of maturity of
the Qualifying Treasury Security with respect to the immediately preceding
Quarterly Date) to but excluding its date of maturity, and the Collateral Agent’s
identification of a security as a Qualifying Treasury Security for such period
shall be final and binding for all purposes absent manifest error. The
Collateral Agent shall give (or cause to be given) prompt written notice to the
Company and the Stock Purchase Contract Agent of each determination made
pursuant to this Section 5.1.


 


34

















 


ARTICLE VI



THE STOCK PURCHASE CONTRACTS


 


Section 6.1             Purchase of
Depositary Share.


 


(a)           Each Stock Purchase Contract shall obligate
the Holder of the related MCAPS to purchase, and the Company to sell, on the
Stock Purchase Date at a price equal to $1,000 (the “Purchase
Price”), one Depositary Share, unless a Termination Event with
respect to the MCAPS of which such Stock Purchase Contract is a part shall have
occurred.


 


(b)           Each
Holder of a Normal MCAPS or a Treasury MCAPS, by its acceptance of such MCAPS:


 


(i)            irrevocably authorizes the Stock Purchase
Contract Agent to enter into and perform the related Stock Purchase Contract on
its behalf as its attorney-in-fact (including, without limitation, the
execution of Certificates on behalf of such Holder);


 


(ii)           agrees to be bound by the terms and provisions thereof;


 


(iii)          covenants and agrees to perform its obligations under such Stock
Purchase Contract for so long as such Holder remains a Holder of a Normal MCAPS
or a Treasury MCAPS;


 


(iv)          consents to the provisions hereof;


 


(v)           irrevocably authorizes the Stock Purchase Contract Agent to enter into
and perform this Agreement and the Collateral 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 Account, including the Trust
Preferred Securities and the Qualifying Treasury Securities pursuant to the
Collateral Agreement; and


 


(vii)         for United States federal, state and local income and franchise tax
purposes, agrees to (A) treat an acquisition of the Normal MCAPS as an
acquisition of a unit consisting of the Trust Preferred Securities and Stock
Purchase Contracts constituting the Normal MCAPS and, with respect to Treasury
MCAPS, treat Treasury MCAPS as a unit consisting of a Qualifying Treasury
Security and a Stock Purchase Contracts, (B) treat itself as the owner of the
applicable interest in the Collateral Account, including the Trust Preferred
Securities and the Qualifying Treasury Securities, as the case may be and (C)
treat the Junior Subordinated Debentures as indebtedness of the Company;


 


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


 


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(c)           Each
Holder of a Normal MCAPS or a Treasury MCAPS, by its acceptance thereof,
further covenants and agrees that to the extent and in the manner provided in
Section 6.2 hereof and the provisions of the Collateral Agreement, but subject
to the terms thereof, Proceeds of the Trust Preferred Securities or the
Qualifying Treasury Securities, as applicable, on the Stock Purchase Date,
shall be paid by the Collateral Agent to the Company in satisfaction of such
Holder’s obligations under such Stock Purchase Contract and such Holder shall
acquire no right, title or interest in such Proceeds.


 


(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, the Stock Purchase Contracts underlying such
Certificate and the Collateral Agreement and the transferor shall be released
from the obligations under this Agreement, the Stock Purchase Contracts
underlying the Certificate so transferred and the Collateral Agreement. 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.


 


(e)           In any case where the Stock Purchase Date
shall not be a Business Day (notwithstanding any other provision of this
Agreement or the MCAPS), the Stock Purchase Contracts shall not be performed
and shall not be effected on such date, but the Stock Purchase Contracts shall
be performed on the next preceding Business Day with the same force and effect
as if made on such Stock Purchase Date.


 


Section 6.2             Remarketing;
Payment of Purchase Price.


 


(a)           The
Company shall conduct a Remarketing of the Trust Preferred Securities in
accordance with Article XIII of the Declaration of Trust and the Remarketing
Agreement.


 


(i)            With respect to any Trust Preferred Security
that constitutes part of Normal MCAPS that are subject to a final Remarketing
attempt, the Collateral Agent for the benefit of the Company reserves all of
its rights as a secured party with respect to the Trust Preferred Securities
and, subject to applicable law and Section 6.2(d), may, among other things, (i)
retain such Trust Preferred Securities in full satisfaction of the Holders’
obligations under the Stock Purchase Contracts or (ii) sell such Trust
Preferred Securities in one or more public or private sales as permitted by
applicable law, in order to satisfy the Stock Purchase Contract Agent’s
obligations under Section 2.2(a) to pay the purchase price in respect of the
Stock Purchase Contracts.


 


(ii)           The Stock Purchase Contract Agent shall give Holders of MCAPS, and the
Company shall request that the MCAPS Depositary or its nominee give MCAPS
Depositary Participants holding MCAPS and Separate Trust Preferred Securities,
notice of a Remarketing at least 21 Business Days prior to any Remarketing Date.
Such notice will specify the information required to be specified in the notice
pursuant to Section 13.2 of the Declaration of Trust.


 


(b)           Each
Holder of Normal MCAPS shall have the right to satisfy such Holder’s
obligations under the Stock Purchase Contract on the Stock Purchase Date with
separate Qualifying Treasury Securities by notifying the Stock Purchase
Contract Agent by presenting a 


 


36

















 


notice in substantially the form of Exhibit E hereto of its intention
to settle with Qualifying Treasury Securities and surrendering the Normal MCAPS
certificate on or prior to 5:00 p.m. (New York City time) on the second
Business Day immediately preceding the beginning of any Remarketing Period and
delivering Qualifying Treasury Securities having a principal amount equal to
the Purchase Price under the related Stock Purchase Contracts to the Collateral
Agent on or prior to 5:00 p.m. (New York City time) on the first Business Day
immediately preceding the beginning of any Remarketing Period. Promptly
following 5:00 p.m. (New York City time) on the second Business Day
immediately preceding the beginning of any Remarketing Period, the Stock
Purchase Contract Agent shall notify the Collateral Agent and the Trustee of
the receipt of such notices from Holders intending to make a Settlement with
Qualifying Treasury Securities by use of a notice in substantially the form of
Exhibit F hereto.


 


(i)            A Holder of a Normal MCAPS who has so
notified the Stock Purchase Contract Agent of its intention to effect a
Settlement with Qualifying Treasury Securities shall deliver the Qualifying
Treasury Securities specified in Section 6.2(b) above to the Collateral
Agent for deposit in the Collateral Account on or prior to 5:00 p.m. (New York
City time) on the first Business Day immediately preceding the beginning of any
Remarketing Period. Any securities or their proceeds received shall be paid or
delivered, as the case may be, to the Company on the Stock Purchase Date in
settlement of the Stock Purchase Contracts in accordance with the terms of this
Agreement and the Collateral Agreement.


 


(ii)           If a Holder of a Normal MCAPS does not notify the Stock Purchase
Contract Agent of its intention to make a Settlement with Qualifying Treasury
Securities in accordance with Section 6.2(b)(ii), or does notify the Stock
Purchase Contract Agent in accordance with Section 6.2(b)(i) but fails to make
such delivery as required by Section 6.2(b)(ii), such Holder shall be deemed to
have consented to the disposition of the Pledged Trust Preferred Securities
pursuant to the next applicable Remarketing.


 


(iii)          As soon as practicable after 5:00 p.m. (New York City time) on the first
Business Day immediately preceding the beginning of any Remarketing Period, the
Collateral Agent, based on Qualifying Treasury Securities received by the
Collateral Agent pursuant to Section 6.2(b)(ii), shall promptly notify the
Stock Purchase Contract Agent of the aggregate liquidation amount of Trust
Preferred Securities to be tendered for purchase in the Remarketing in a notice
pursuant to the terms of the Collateral Agreement.


 


(iv)          In the event of a Remarketing that is not Successful, (A) the Stock Purchase
Date shall be deferred for a quarterly period, except in the case of a Failed
Remarketing, in which case the Stock Purchase Date shall occur on May 31, 2013
(or the fifth scheduled Remarketing Settlement Date in the case of an Early
Remarketing), and (B) if the Holders of MCAPS have delivered Qualifying
Treasury Securities in order to effect Settlement with Qualifying Treasury
Securities in accordance with Section 6.2(b)(ii), the Collateral Agent will
promptly return the Qualifying Treasury Securities or their proceeds, as the
case may be, that it has received with respect to the Settlement with 


 


37

















 


Qualifying Treasury
Securities to the Stock Purchase Contract Agent for distribution to the
applicable Holders of Normal MCAPS.


 


(v)           In the event of a Successful Remarketing, if the Holders of MCAPS have
delivered Qualifying Treasury Securities in order to effect Settlement with
Qualifying Treasury Securities, the Collateral Agent will cause the Securities
Intermediary to effect the release of Pledged Trust Preferred Securities from
the Pledge and the transfer of such Trust Preferred Securities to the Stock
Purchase Contract Agent on behalf of the Holders free and clear of the Company’s
security interest therein. Upon receipt of such Trust Preferred Securities, the
Stock Purchase Contract Agent shall promptly transfer the Trust Preferred
Securities to the Holders.


 


(c)           The
obligations of the Holders to pay the Purchase Price are non-recourse
obligations and, except to the extent satisfied by Settlement with Qualifying
Treasury Securities, are payable solely out of the Proceeds of any Collateral
pledged to secure the obligations of the Holders, and in no event will the
Holders be liable for any deficiency between the Proceeds of the disposition of
Collateral and the Purchase Price.


 


(d)           The
Company shall not be obligated to issue any Depositary Shares in respect of a
Stock Purchase Contract or deliver any certificates therefor to the Holder of
the related MCAPS unless the Company shall have received payment for the
Depositary Shares to be purchased thereunder in the manner herein specified.


 


Section 6.3             Issuance of
Depositary Shares.


 


(a)           Unless
a Termination Event shall have occurred, on the Stock Purchase Date upon
receipt of the aggregate Purchase Price payable on all Outstanding MCAPS, the
Company shall issue and deposit with the Depositary for the Depositary Shares,
for the benefit of the Holders of the Outstanding MCAPS, one or more
certificates representing newly issued or treasury Depositary Shares (the “Depositary Receipts”) registered in the name of the Stock
Purchase Contract Agent (or its nominee) as custodian for the Holders (such
certificates for Depositary Shares, together with any dividends or distributions
for which a record date and payment date for such dividend or distribution has
occurred after the Stock Purchase Date, being hereinafter referred to as the “Stock Purchase Contract Settlement Fund”) to which the
Holders are entitled hereunder, it being understood that in order for the
Company to satisfy its obligations under this Section 6.3(a), the Company
shall issue and deposit with the Preferred Stock Depositary shares of Preferred
Stock and, pursuant to a Deposit Agreement, shall cause the Preferred Stock
Depositary to issue and deposit such Depositary Receipts in respect of the
Preferred Stock so deposited.


 


(b)           Subject
to the foregoing, upon surrender of a Certificate to the Stock Purchase
Contract Agent on or after the Stock Purchase Date 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 Depositary Shares that
such Holder is entitled to receive pursuant to the provisions of this Article
VI (after taking into account all MCAPS then held by such Holder), together
with any dividends or distributions with respect to such shares constituting
part of the Stock Purchase Contract Settlement Fund, but 


 


38

















 


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 Stock Purchase Contract Agent. If any Depositary
Shares issued in respect of a Stock Purchase Contract are to be registered to a
Person other than the Person in whose name the Certificate evidencing such
Stock Purchase Contract is registered (but excluding any MCAPS Depositary or
nominee thereof), no such registration shall be made unless the Person
requesting such registration has paid any transfer and other taxes required by
reason of such registration in a name other than that of the registered Holder
of the Certificate evidencing such Stock Purchase Contract or has established
to the satisfaction of the Company that such tax either has been paid or is not
payable.


 


(c)           The
Stock Purchase Contract Agent shall not be accountable with respect to the
validity or value (or the kind or amount) of any Preferred Stock or Depositary
Shares, or of any securities or property, that may at the time be issued or
delivered with respect to any Stock Purchase Contract, and the Stock Purchase
Contract Agent makes no representation with respect thereto. The Stock Purchase
Contract Agent shall not be responsible for any failure of the Company to cause
to issue, transfer or deliver any Depositary Shares pursuant to a Stock
Purchase Contract or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article VI.


 


Section 6.4             Termination Event;
Notice.


 


(a)           The
Stock 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 Payments
(including any accrued and unpaid Contract Payments), and the rights and
obligations of Holders to purchase Depositary Shares, shall immediately and
automatically terminate, without the necessity of any notice or action by any
Holder, the Stock Purchase Contract Agent or the Company, if a Termination
Event shall have occurred on or prior to the Stock Purchase Date.


 


(b)           Upon
and after the occurrence of a Termination Event, the MCAPS shall thereafter
represent the right to receive the Trust Preferred Securities or the Qualifying
Treasury Securities, as the case may be, forming part of such MCAPS, in
accordance with the provisions of Section 5.4 of the Collateral Agreement. Upon
the occurrence of a Termination Event, the Company shall promptly but in no
event later than five Business Days thereafter give written notice of such
event to the Stock Purchase Contract Agent, the Collateral Agent and the
Holders, at their addresses as they appear in the Securities Register.


 


Section 6.5             Charges and Taxes.


 


The Company
shall pay all stock transfer and similar taxes attributable to the initial
issuance and delivery of the Depositary Shares pursuant to the Stock Purchase
Contracts; provided, however, that the Company shall not be required to pay any
such tax or taxes that may be payable in respect of any exchange of or
substitution for a Certificate evidencing a MCAPS or any issuance of a
Depositary Share in a name other than that of the registered Holder of a
Certificate surrendered in respect of the MCAPS evidenced thereby, other than
in the name of the Stock Purchase Contract Agent, as custodian for such Holder,
and the Company shall not be 


 


39

















 


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 6.6             Contract Payments.


 


(a)           Subject
to Section 6.7, the Company shall pay, on each Payment Date, the Contract
Payments payable in respect of each Stock Purchase Contract to the Person in
whose name a Certificate is registered at the close of business on the Record
Date relating to such Payment Date. The Contract Payments will be payable at
the office of the Stock Purchase Contract Agent in the Borough of Manhattan,
New York City maintained for that purpose. If the book-entry system for the
MCAPS has been terminated, the Contract 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 Securities Register, or by wire
transfer to the account designated by such Person by a prior written notice to
the Stock Purchase Contract Agent. If any date on which Contract Payments are
to be made is not a Business Day, then payment of the Contract 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 such delay). The Contract Payments will
accrue from and including May 17, 2007 or from and including the most recent
Payment Date on which Contract Payments have been paid or duly provided for
(subject to deferral as specified in Section 6.7) to but excluding the next
succeeding Payment Date. Contract Payments will be calculated on the
basis of the actual number of days elapsed in the related payment period using
a 360-day year.


 


(b)           Upon
the occurrence of a Termination Event, the Company’s obligation to pay future
Contract Payments (including any accrued Contract 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 Normal MCAPS) any other Certificate shall
carry the right to accrued and unpaid Contract Payments that was carried by the
Stock Purchase Contracts underlying such other Certificates.


 


(d)           The
Company’s obligations with respect to Contract Payments, if any, will be
subordinated and junior in right of payment to the Company’s obligations under
any Senior Debt.


 


(e)           In
the event of (A) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to the Company, its creditors or its property, (B) any proceeding for the
liquidation, dissolution or other winding up of the Company, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings, (C)
any assignment by the Company for the benefit of creditors, or (D) any other
marshalling of the assets of the Company:


 


(i)            all Senior Debt (including any interest
thereon accruing after the commencement of any such proceedings) shall first be
paid in full before any payment or distribution, whether in cash, securities or
other property, shall be made to any Holder of MCAPS in respect of Contract
Payments;


 


40

















 


(ii)           any payment or distribution, whether in cash, securities or other
property that would otherwise (but for these subordination provisions) be
payable or deliverable in respect of Contract Payments shall be paid or
delivered directly to the holders of Senior Debt in accordance with the
priorities then existing among such holders until all Senior Debt (including
any interest thereon accruing after the commencement of any such proceedings)
shall have been paid in full;


 


(iii)          after payment in full of all sums owing with respect to Senior Debt,
the Holders of MCAPS, together with the holders of any obligations of the
Company ranking on a parity with the Contract Payments, shall be entitled to be
paid from the remaining assets of the Company the amounts at the time due and
owing on account of unpaid Contract Payments and interest thereon and such
other obligations before any payment or other distribution, whether in cash,
securities or other property, shall be made on account of any capital stock of
the Company or any obligations of the Company ranking junior to the Company’s
obligations to make Contract Payments under the Stock Purchase Contracts and
such other obligations; and


 


(iv)          in the event that, notwithstanding the foregoing, any payment or
distribution of any character or any security, whether in cash, securities or
other property, shall be received by the Stock Purchase Contract Agent or any
Holder of MCAPS in contravention of any of the terms hereof such payment or
distribution or security shall be received in trust for the benefit of, and
shall be paid over or delivered and transferred back to the transferor for
distribution, or to the holders of the Senior Debt at the time outstanding in
accordance with the priorities then existing among such holders for application
to the payment of all Senior Debt remaining unpaid, to the extent necessary to
pay all such Senior Debt in full. In the event of the failure of the Stock
Purchase Contract Agent or any Holder of MCAPS to endorse or assign any such
payment, distribution or security, each holder of Senior Debt is hereby
irrevocably authorized to endorse or assign the same.


 


(f)            For
purposes of Sections 6.6(d) through (p), the words “cash, securities or other
property” 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 Sections 6.6(d) through (p)
with respect to such Contract Payments on the MCAPS to the payment of all
Senior Debt that may at the time be outstanding; provided that (i) the
indebtedness or guarantee of indebtedness, as the case may be, that constitutes
Senior Debt is assumed by the Person, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the holders of the
Senior Debt are not, without the consent of each such holder adversely affected
thereby, altered by such reorganization or readjustment.


 


(g)           Any
failure by the Company to make any payment on or perform any other obligation
under Senior Debt, 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 Sections 6.6(d)
through (p) shall have been waived by the Company in the instrument or
instruments by which the Company incurred, assumed, guaranteed or otherwise 


 


41

















 


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 that
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, or (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.


 


(h)           Subject
to the irrevocable payment in full of all Senior Debt, the Holders of the MCAPS
shall be subrogated (equally and ratably with the holders of all obligations of
the Company that by their express terms are subordinated to Senior Debt of the
Company to the same extent as payment of the Contract Payments in respect of
the Stock Purchase Contracts underlying the MCAPS is subordinated and that are
entitled to like rights of subrogation) to the rights of the holders of Senior
Debt to receive payments or distributions of cash, securities or other property
of the Company applicable to the Senior Debt until all such Contract Payments
owing on the MCAPS shall be paid in full, and as between the Company, its
creditors other than holders of such Senior Debt and the Holders, no such
payment or distribution made to the holders of Senior Debt by virtue of
Sections 6.6(d) through (p) that otherwise would have been made to the Holders
shall be deemed to be a payment by the Company on account of such Senior Debt,
it being understood that the provisions of Sections 6.6(d) through (p) are
intended solely for the purpose of defining the relative rights of the Holders,
on the one hand, and the holders of Senior Debt, on the other hand.


 


(i)            Nothing
contained in Sections 6.6(d) through (p) or elsewhere in this Agreement or in
the MCAPS is intended to or shall impair, as among the Company, its creditors
other than the holders of Senior Debt and the Holders, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders such
Contract Payments on the MCAPS 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 Debt, nor shall anything herein or therein prevent the Stock
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 Sections 6.6(d) through (p), of the holders of Senior
Debt in respect of cash, securities or other property of the Company received
upon the exercise of any such remedy.


 


(j)            Upon
payment or distribution of assets of the Company referred to in Sections 6.6(d)
through (p), the Stock 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, conservator, assignee for
the benefit of creditors, liquidating trustee or Stock Purchase Contract Agent
or other Person making any payment or distribution, delivered to the Stock
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
the Senior Debt 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 Sections 6.6(d) through (p).


 


42

















 


(k)           The
Stock 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
Debt (or a trustee or representative on behalf of such holder) to establish
that such notice has been given by a holder of Senior Debt or a trustee or
representative on behalf of any such holder or holders. In the event that the
Stock 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 Debt to
participate in any payment or distribution pursuant to Section 6.6(d) through
(p), the Stock Purchase Contract Agent may request such Person to furnish
evidence to the reasonable satisfaction of the Stock Purchase Contract Agent as
to the amount of Senior Debt 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 Sections 6.6(d) through (p),
and, if such evidence is not furnished, the Stock Purchase Contract Agent may
defer payment to such Person pending judicial determination as to the right of
such Person to receive such payment.


 


(l)            Nothing
contained in Sections 6.6(d) through (p) shall affect the obligations of the
Company to make, or prevent the Company from making, payment of the Contract
Payments, except as otherwise provided in Sections 6.6(d) through (p).


 


(m)          Each
Holder of MCAPS, by its acceptance thereof, authorizes and directs the Stock
Purchase Contract Agent on its behalf to take such action as may be necessary
or appropriate to effectuate the subordination provided in Section 6.6(d)
through (p) and appoints the Stock Purchase Contract Agent its
attorney-in-fact, as the case may be, for any and all such purposes.


 


(n)           The
Company shall give prompt written notice to the Stock Purchase Contract Agent
of any fact known to the Company that would prohibit the making of any payment
of moneys to or by the Stock Purchase Contract Agent in respect of the MCAPS
pursuant to the provisions of this Section. Notwithstanding the provisions of
Section 6.6(d) through (p) or any other provisions of this Agreement, the Stock
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
Stock Purchase Contract Agent, or the taking of any other action by the Stock
Purchase Contract Agent, unless and until the Stock Purchase Contract Agent
shall have received written notice thereof mailed or delivered to the Stock
Purchase Contract Agent at its Corporate Trust Services department from the
Company, any Holder, or the holder or representative of any Senior Debt;
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 Stock 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 Stock 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.


 


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


 


43

















 


(p)           No
right of any present or future holder of any Senior Debt 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 that any such holder may have or be otherwise
charged with.


 


(q)           Nothing
in this Section 6.6 shall apply to claims of, or payments to, the Stock
Purchase Contract Agent under or pursuant to Section 8.7.


 


(r)            With
respect to the holders of Senior Debt, (i) the duties and obligations of the
Stock Purchase Contract Agent shall be determined solely by the express
provisions of this Agreement; (ii) the Stock 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,
securities or other property to which any holders of Senior Debt shall be
entitled by virtue of this Section 6.6 or otherwise; (iii) no implied covenants
or obligations shall be read into this Agreement against the Stock Purchase
Contract Agent; and (iv) the Stock Purchase Contract Agent shall not be deemed
to be a fiduciary as to such holders.


 


Section 6.7             Deferral of
Contract Payments.


 


(a)           The
Company shall have the right (which will be exercised if so directed by the
SEC), at any time prior to the Stock Purchase Date, to defer the payment of any
or all of the Contract Payments otherwise payable on any Payment Date, but only
if the Company shall give the Holders and the Stock Purchase Contract Agent
written notice of its election to defer each such deferred Contract Payment
(specifying the amount to be deferred) at least ten Business Days prior to the
earlier of (i) the next succeeding Payment Date or (ii) the date the company is
required to give notice of any Record Date or Payment Date with respect to the
payment of such Contract Payments to the New York Stock Exchange, or any other
national securities exchange, automated interdealer quotation system or other
applicable self regulatory organization or to Holders of MCAPS, but in any
event not less than one Business Day prior to such Record Date. Any Contract
Payments so deferred shall, to the extent permitted by law, accrue interest
thereon at the rate originally applicable to the Debentures (calculated on the
same basis as originally applicable to the Debentures), compounding on each
succeeding Payment Date, until paid in full (such deferred installments of
Contract Payments, if any, together with the additional Contract Payments, if
any, accrued thereon, being referred to herein as the “Deferred
Contract Payments”). Deferred Contract Payments, if any, shall be
due on the next succeeding Payment Date except to the extent that payment is
deferred pursuant to this Section 6.7. No Contract Payments may be deferred to a
date that is after the Stock Purchase Date and no such deferral period may end
other than on a Payment Date. If the Stock Purchase Contracts are terminated
upon the occurrence of a Termination Event, the Holder’s right to receive any
Contract Payments and any Deferred Contract Payments will terminate.


 


(b)           In
the event that the Company elects to defer the payment of Contract Payments
until a Payment Date prior to the Stock Purchase Date, then all Deferred
Contract Payments, if any, shall be payable to the registered Holders as of the
close of business on the Record Date immediately preceding such Payment Date.


 


44

















 


(c)           In
the event that the Company elects to defer the payment of Contract Payments on
the Stock Purchase Contracts and such deferral is continuing on the Stock
Purchase Date, each Holder will receive on the Stock Purchase Date in lieu of a
cash payment, in addition to the Depositary Shares to be issued pursuant to
Section 6.3, subordinated notes of the Company (“Additional
Subordinated Notes”) that will (i) have a principal amount equal to
the aggregate amount of Deferred Contract Payments at the Stock Purchase Date,
(ii) mature on the later of June 2, 2014 and five years after the first Payment
Date on which any of such Deferred Contract Payments were payable, (iii) bear
interest at the rate per annum equal to the originally applicable rate of
interest on the Debentures (subject to deferral on the same basis as the
Contract Payments; provided that the reference in clause (i)(2) of Section
6.7(d) to the beginning of the deferral period shall be deemed to refer to the
beginning of the deferral period with respect to the Contract Payments), (iv)
be subordinate and rank junior in right of payment to all of the Company’s
Senior Debt on the same basis as the Debentures and (v) be redeemable at the
option of the Company at any time or from time to time prior to their stated
maturity at a redemption price equal to the principal amount thereof plus any
accrued and unpaid interest to the date of redemption.


 


In the event the Company exercises its option
to defer the payment of Contract Payments then, until the earlier of (x) the
Termination Date or (y) the date on which the Company shall have either paid
all Deferred Contract Payments in the manner set forth in Section 6.7(c) to the
Stock Purchase Contract Agent in cash or repaid all amounts outstanding on the
Additional Subordinated Notes, the Company shall not (A) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any shares of its capital stock, including
Preferred Stock; (B) make any payment of principal of or interest or premium,
if any, on or repay, repurchase or redeem any debt security of the Company that
ranks pari passu in all respects with or
junior in interest to the Debentures; and (C) make any guarantee payments with
respect to any guarantee by the Company of the debt securities of any
subsidiary of the Company that by its terms ranks pari passu
in all respects with or junior in interest to the Guarantee (as such term is
defined in the Declaration of Trust), other than, in each case: (a) dividends
or distributions in the form of common stock of the Company; (b) payments under
the Trust Guarantee (as such term is defined in the Declaration of Trust); (c)
any declaration of a dividend in connection with the implementation of a
shareholders’ rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto;
(d) purchases of common stock related to the issuance of common stock or rights
under any of the Company’s benefit plans; (e) payments of interest on any of
the Company’s debt securities that rank on a parity with (“Parity Debt
Securities”) or junior in interest to the Debentures or payments
under any guarantee of the Company of the debt securities of any subsidiary of
the Company if such guarantee ranks on a parity with (“Parity
Guarantees”) or junior in interest to the Debentures in respect of
interest payments on debt securities of any subsidiary of the Company, in each
case ratably and in proportion to the respective amount of (x) accrued and
unpaid interest on such Parity Debt Securities or guaranteed by such Parity
Guarantees, on the one hand, and (y) accrued and unpaid interest on the
Debentures (including compounded amounts and all amounts of principal and
interest on any Additional Subordinated Notes), on the other hand; and (f)
payment of interest on the Debentures in Additional Subordinated Notes in
connection with a Failed Remarketing.


 


45

















 


Section 6.8             Rights of Holders
of Treasury MCAPS to Receive Excess Proceeds.


 


The Stock Purchase Contract Agent shall pay,
solely out of the funds received from the Collateral Agent for such purpose
pursuant to Section 5.5 of the Collateral Agreement, on each Quarterly Date, an
amount in cash equal to the excess of the net proceeds received by the
Collateral Agent upon the maturity of the related Pledged Treasury Securities
over the net purchase price of the Qualifying Treasury Securities purchased
therewith pursuant to Section 5.5 of the Collateral Agreement to the Person in
whose name a Treasury MCAPS Certificate is registered at the close of business
on the Record Date relating to such Quarterly Date. Such amounts will be
payable at the office of the Stock Purchase Contract Agent in the Borough of
Manhattan, New York City maintained for that purpose. If the book entry system
for the MCAPS has been terminated, such 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 a prior written notice to
the Stock Purchase Contract Agent.


 


46














 


ARTICLE VII



REMEDIES


 


Section 7.1             Unconditional
Right of Holders to Receive Contract Payments and to Purchase Depositary Shares.


 


Each Holder of
MCAPS shall have the right, which is absolute and unconditional, except upon
and following a Termination Event, (i) subject to Article VI, to receive each
Contract Payment with respect to each Stock Purchase Contract comprising part
of such MCAPS on the respective Payment Date for such MCAPS and (ii) to
purchase Depositary Shares pursuant to such Stock Purchase Contract and, in
each such case, to institute suit for the enforcement of any such right to
receive Contract Payments and the right to purchase Depositary Shares, and such
rights shall not be impaired without the consent of such Holder.


 


Section 7.2             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 7.3             Rights and
Remedies Cumulative.


 


Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Certificates in Section 3.10(f), 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 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 7.4             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 VII 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 7.5             Undertaking for
Costs.


 


All parties to
this Agreement agree, and each Holder of a MCAPS, by its acceptance of such
MCAPS shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Agreement, or in any suit against the Stock Purchase Contract Agent for any
action taken, suffered or omitted by it as Stock Purchase Contract Agent, the
filing by any party litigant in such suit of an undertaking to pay the costs of



 


47

















 


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 Stock Purchase Contract Agent, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% of the Outstanding MCAPS, or to any suit instituted by any Holder for
the enforcement of interest on any Trust Preferred Securities or Contract
Payments on or after the respective Payment Date therefor in respect of any
MCAPS held by such Holder, or for enforcement of the right to purchase
Depositary Shares under the Stock Purchase Contracts constituting part of any
MCAPS held by such Holder.


 


Section 7.6             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, which 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 Stock 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.


 


48

















 


ARTICLE VIII



THE PURCHASE CONTRACT AGENT


 


Section 8.1             Certain Duties and
Responsibilities.


 


(a)           The
Stock Purchase Contract Agent:


 


(i)            undertakes to perform, with respect to the
MCAPS, such duties and only such duties as are or will be specifically
specified in this Agreement, the Collateral Agreement and the Remarketing
Agreement and no implied covenants or obligations shall be read into this
Agreement, the Collateral Agreement or the Remarketing Agreement against the
Stock Purchase Contract Agent; and


 


(ii)           in the absence of bad faith or gross negligence on its part, may, with
respect to the MCAPS, conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Stock Purchase Contract Agent and conforming to the
requirements of this Agreement or the Collateral 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 Stock
Purchase Contract Agent, the Stock 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, the Collateral 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, the Collateral Agreement or the Remarketing
Agreement shall be construed to relieve the Stock Purchase Contract Agent from
liability for its own grossly negligent action, its own grossly negligent
failure to act, or its own willful misconduct, except that:


 


(i)            this Section 8.1(b) shall not be construed to
limit the effect of Section 8.1(a);


 


(ii)           the Stock 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 Stock
Purchase Contract Agent was grossly negligent in ascertaining the pertinent
facts; and


 


(iii)          no provision of this Agreement or the Collateral Agreement or the
Remarketing Agreement shall require the Stock 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, the
Collateral Agreement and the Remarketing Agreement relating to the conduct or
affecting the 


 


49

















 


liability of or affording protection to the Stock Purchase Contract
Agent shall be subject to the provisions of this Section.


 


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


 


Section 8.2             Notice of Default.


 


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


 


Section 8.3             Certain Rights of
Stock Purchase Contract Agent.


 


Subject to the
provisions of Section 8.1:


 


(a)           the
Stock 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, Trust Preferred Securities, 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, the Collateral Agreement or the
Remarketing Agreement the Stock 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, the Stock 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
Stock Purchase Contract Agent may consult with counsel of its selection
appointed with due care by it hereunder 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
Stock 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 Stock 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 Stock Purchase Contracts as it may
see fit, and, if the Stock Purchase Contract Agent shall determine to make such
further inquiry or 


 


50

















 


investigation, it shall be entitled to examine the relevant books,
records and premises of the Company, personally or by agent or attorney;


 


(f)            the
Stock 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 and the Stock 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
Stock 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 Stock Purchase Contract Agent security or indemnity
reasonably satisfactory to the Stock Purchase Contract Agent against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;


 


(h)           the
Stock 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 gross
negligence by it;


 


(i)            the
Stock Purchase Contract Agent shall not be deemed to have notice of any default
hereunder unless a Responsible Officer of the Stock Purchase Contract Agent has
actual knowledge thereof or unless written notice of any event that is in fact
such a default is received by the Stock Purchase Contract Agent at the
Corporate Trust Office of the Stock Purchase Contract Agent, and such notice
references the MCAPS and this Agreement;


 


(j)            the
Stock 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 Stock
Purchase Contract Agent, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Stock Purchase
Contract Agent in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder; and


 


(l)            the
Stock 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
specified herein.


 


Section 8.4             Not Responsible
for Recitals or Issuance of MCAPS.


 


The recitals
contained herein, in the Collateral Agreement, the Remarketing Agreement and in
the Certificates shall be taken as the statements of the Company, and the Stock
Purchase Contract Agent assumes no responsibility for their accuracy or
validity. The Stock Purchase Contract Agent makes no representations as to the
validity or sufficiency of either this Agreement or of the MCAPS, or of the
Collateral Agreement or the Pledge or the Collateral and shall have no
responsibility for perfecting or maintaining the perfection of any security
interest in 


 


51

















 


the Collateral.
The Stock Purchase Contract Agent shall not be accountable for the use or
application by the Company of the proceeds in respect of the Stock Purchase
Contracts.


 


Section 8.5             May Hold MCAPS.


 


Any Securities
Registrar or any other agent of the Company, or the Stock Purchase Contract
Agent and its Affiliates, in their individual or any other capacity, may become
the owner or pledgee of MCAPS 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 Securities Registrar or such other agent, or the Stock Purchase
Contract Agent. The Company may become the owner or pledgee of MCAPS.


 


Section 8.6             Money Held in
Custody.


 


Money held by
the Stock Purchase Contract Agent in custody hereunder need not be segregated
from the Stock Purchase Contract Agent’s other funds except to the extent
required by law or provided herein. The Stock 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 8.7             Compensation and
Reimbursement.


 


The Company
agrees:


 


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


 


(b)           except
as otherwise expressly provided for herein, to reimburse the Stock Purchase
Contract Agent upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Stock Purchase Contract Agent in accordance
with any provision of this Agreement, the Collateral 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, the Collateral 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 gross
negligence, willful misconduct or bad faith; and


 


(c)           to
indemnify the Stock Purchase Contract Agent and any predecessor Stock Purchase
Contract Agent (and each of its directors, officers, agents and employees
(collectively, the “Indemnitees”) for, and to hold it harmless against, any
loss, claim, damage, fine, penalty, liability or expense (including reasonable
fees and expenses of counsel) incurred without gross 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 under the Collateral
Agreement 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) 


 


52

















 


or liability in connection with the exercise or performance of any of the
Stock Purchase Contract Agent’s powers or duties hereunder or thereunder.


 


The provisions
of this Section shall survive the resignation and removal of the Stock Purchase
Contract Agent and the termination of this Agreement.


 


Section 8.8             Corporate Stock
Purchase Contract Agent Required, Eligibility.


 


There shall at
all times be a Stock 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 VIII and willing to act on reasonable terms. If
such Person publishes reports of condition at least annually, pursuant to law
or to the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as specified in its most
recent report of condition so published. If at any time the Stock 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 VIII.


 


Section 8.9             Resignation and
Removal; Appointment of Successor.


 


(a)           No
resignation or removal of the Stock Purchase Contract Agent and no appointment
of a successor Stock Purchase Contract Agent pursuant to this Article VIII
shall become effective until the acceptance of appointment by the successor
Stock Purchase Contract Agent in accordance with the applicable requirements of
Section 8.10.


 


(b)           The
Stock 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 Stock Purchase Contract Agent
required by Section 8.10 shall not have been delivered to the Stock Purchase
Contract Agent within 30 days after the giving of such notice of resignation,
the resigning Stock Purchase Contract Agent may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor
Stock Purchase Contract Agent.


 


(c)           The
Stock Purchase Contract Agent may be removed at any time by Act of the Holders
of at least a majority in number of the Outstanding MCAPS delivered to the
Stock Purchase Contract Agent and the Company. If the instrument of acceptance
by a successor Stock Purchase Contract Agent required by Section 8.10 shall not
have been delivered to the Stock Purchase Contract Agent within 30 days after
such Act, the Stock Purchase Contract Agent being removed may petition any
court of competent jurisdiction for the appointment at the expense of the
Company of a successor Stock Purchase Contract Agent.


 


(d)           If
at any time:


 


53

















 


(i)            the Stock Purchase Contract Agent fails to
comply with Section 310(b) of the TIA, as if the Stock 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 MCAPS for at least six months;


 


(ii)           the Stock Purchase Contract Agent shall cease to be eligible under
Section 8.8 and shall fail to resign after written request therefor by the
Company or by any such Holder; or


 


(iii)          the Stock Purchase Contract Agent shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Stock Purchase
Contract Agent or of its property shall be appointed or any public officer
shall take charge or control of the Stock 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 Stock Purchase Contract Agent, or (ii) any Holder who has been a
bona fide Holder of a MCAPS 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 Stock Purchase Contract Agent and the appointment of a
successor Stock Purchase Contract Agent.


 


(e)           If
the Stock Purchase Contract Agent shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Stock Purchase Contract
Agent for any cause, the Company, by a Board Resolution, shall promptly appoint
a successor Stock Purchase Contract Agent and shall comply with the applicable
requirements of Section 8.10. If no successor Stock Purchase Contract Agent
shall have been so appointed by the Company and accepted appointment in the
manner required by Section 8.10, any Holder who has been a bona fide Holder of
a MCAPS for at least six months, on behalf of itself and all others similarly
situated, or the Stock Purchase Contract Agent may petition at the expense of
the Company any court of competent jurisdiction for the appointment of a
successor Stock Purchase Contract Agent.


 


(f)            The
Company shall give, or shall cause such successor Stock Purchase Contract Agent
to give, notice of each resignation and each removal of the Stock Purchase
Contract Agent and each appointment of a successor Stock Purchase Contract
Agent by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders as their names and addresses appear in the applicable
Securities Register. Each notice shall include the name of the successor Stock
Purchase Contract Agent and the address of its Corporate Trust Office.


 


Section 8.10           Acceptance of
Appointment by Successor.


 


(a)           In
case of the appointment hereunder of a successor Stock Purchase Contract Agent,
every such successor Stock Purchase Contract Agent so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Stock Purchase
Contract Agent an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Stock Purchase Contract Agent shall
become effective and such successor Stock Purchase Contract Agent, without any
further act, deed or conveyance, shall become vested with all the 


 


54

















 


rights, powers, agencies and duties of the retiring Stock Purchase
Contract Agent; but, on the request of the Company or the successor Stock
Purchase Contract Agent, such retiring Stock Purchase Contract Agent shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Stock Purchase Contract Agent all the rights, powers and trusts
of the retiring Stock Purchase Contract Agent and duly assign, transfer and
deliver to such successor Stock Purchase Contract Agent all property and money
held by such retiring Stock Purchase Contract Agent hereunder.


 


(b)           Upon
request of any such successor Stock Purchase Contract Agent, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Stock Purchase Contract Agent all such rights,
powers and agencies referred to in Section 8.10(a).


 


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


 


Section 8.11           Merger, Conversion,
Consolidation or Succession to Business.


 


Any Person
into which the Stock 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 Stock Purchase Contract Agent shall be
a party, or any Person succeeding to all or substantially all the corporate
trust business of the Stock Purchase Contract Agent, shall be the successor of
the Stock Purchase Contract Agent hereunder, provided that such Person shall be
otherwise qualified and eligible under this Article VIII, 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 Stock Purchase Contract Agent
then in office, any successor by merger, conversion or consolidation to such
Stock 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 Stock Purchase Contract Agent had itself authenticated and
executed such MCAPS.


 


Section 8.12           Preservation of
Information; Communications to Holders.


 


(a)           The
Stock Purchase Contract Agent shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders received by the
Stock Purchase Contract Agent in its capacity as Securities Registrar.


 


(b)           If
three or more Holders (herein referred to as “Applicants”) apply in writing to
the Stock Purchase Contract Agent, and furnish to the Stock Purchase Contract
Agent reasonable proof that each such applicant has owned a MCAPS 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 MCAPS and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Stock Purchase Contract Agent shall
mail to all the Holders copies of the form of proxy or other communication
which is specified in such request, 


 


55

















 


with reasonable promptness after a tender to the Stock 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 8.13           No Obligations of
Stock Purchase Contract Agent.


 


Except to the
extent otherwise expressly provided in this Agreement, the Stock Purchase
Contract Agent assumes no obligations and shall not be subject to any liability
under this Agreement, the Collateral Agreement, the Remarketing Agreement or
any Stock Purchase Contract in respect of the obligations of the Holder of any
MCAPS thereunder. The Company agrees, and each Holder of a Certificate, by its
acceptance thereof, shall be deemed to have agreed, that the Stock 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 Stock
Purchase Contract Agent shall have no obligation to perform such Stock Purchase
Contracts on behalf of the Holders, except to the extent expressly provided in
Article VI hereof. Anything contained in this Agreement to the contrary
notwithstanding, in no event shall the Stock Purchase Contract Agent or its
officers, directors, employees or agents be liable under this Agreement, the
Collateral Agreement or the Remarketing Agreement to any third party for
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 Stock Purchase Contract Agent and regardless of the
form of action.


 


Section 8.14           Tax Compliance.


 


(a)           The
Stock 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 MCAPS or (ii) the issuance, delivery,
holding, transfer, redemption or exercise of rights under the MCAPS. 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.


 


(b)           The
Stock Purchase Contract Agent shall comply in accordance with the terms hereof
with any 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 8.1(a) hereof.


 


(c)           The
Stock 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.


 


56

















 


ARTICLE IX



SUPPLEMENTAL AGREEMENTS


 


Section 9.1             Supplemental
Agreements without Consent of Holders.


 


Without the
consent of any Holders, the Company, when authorized by a Board Resolution, and
the Stock Purchase Contract Agent, 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 Stock 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)           add
to the covenants of the Company for the benefit of the Holders, or surrender
any right or power herein conferred upon the Company;


 


(c)           evidence
and provide for the acceptance of appointment hereunder by a successor Stock
Purchase Contract Agent;


 


(d)           cure
any ambiguity (or formal defect) or correct or supplement any provisions herein
which may be inconsistent with any other provisions herein;


 


(e)           conform
the terms of this Agreement to the terms as set forth in the Prospectus dated
May 8, 2007 of the Trust and the Company relating to the MCAPS (the “Prospectus”);
provided, however, that in connection with such amendment, the
Company shall deliver to the Stock Purchase Contract Agent an Officers’
Certificate and an opinion of counsel (who may be counsel to the Compay or the
Trust), in each case confirming that such amendment has the effect of conforming
the terms of this Declaration of Trust to the terms of the Trust Securities as
set forth in the Prospectus.; or


 


(f)            make
any other provisions with respect to such matters or questions arising under
this Agreement, provided that such action shall not adversely affect the
interests of the Holders in any material respect.


 


Section 9.2             Supplemental
Agreements with Consent of Holders.


 


With the
consent of the Holders of not less than a majority of the Outstanding MCAPS
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 and the Stock Purchase Contract Agent,
the Company, when duly authorized, and the Stock Purchase Contract Agent may
enter into an agreement or agreements supplemental hereto for the purpose of
modifying in any manner the terms of the Stock Purchase Contracts, or the
provisions of this Agreement or the rights of the Holders in respect of the
MCAPS; provided, however, that, except as contemplated herein, no such
supplemental agreement shall, without the unanimous consent of the Holders of
each outstanding Stock Purchase Contract affected thereby,


 


(a)           change
any Payment Date;


 


57

















 


(b)           change
the amount or the type of Collateral required to be Pledged to secure a Holder’s
obligations under the Stock Purchase Contract, impair the right of the Holder
of any Stock Purchase Contract to receive distributions on the related
Collateral or otherwise adversely affect the Holder’s rights in or to such
Collateral or adversely alter the rights in or to such Collateral;


 


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


 


(d)           impair
the right to institute suit for the enforcement of any Stock Purchase Contract
or any Contract Payments;


 


(e)           reduce
the number of Depositary Shares or the amount of any other property to be
purchased pursuant to any Stock Purchase Contract, increase the price to
purchase Depositary Shares or any other property upon settlement of any Stock
Purchase Contract or change the Stock Purchase Date or otherwise adversely
affect the Holder’s rights under the Stock Purchase Contract; or


 


(f)            reduce
the percentage of the outstanding Stock Purchase Contracts the consent of whose
Holders is required for any modification or amendment to the provisions of this
Agreement, the Stock Purchase Contracts or the Collateral Agreement;


 


provided that
if any amendment or proposal referred to above would adversely affect only the
Normal MCAPS or the Treasury MCAPS, then only the affected class of Holders as
of the 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 Stock Purchase Contract of such class affected thereby shall
be required to approve any amendment or proposal specified in clauses (a)
through (f) above.


 


It shall not
be necessary for any Act of Holders under this Section 9.2 to approve the
particular form of any proposed supplemental agreement, but it shall be
sufficient if such Act shall approve the substance thereof.


 


Section 9.3             Execution of
Supplemental Agreements.


 


In executing,
or accepting the additional agencies created by, any supplemental agreement permitted
by this Article IX or the modifications thereby of the agencies created by this
Agreement, the Stock Purchase Contract Agent shall be provided, and (subject to
Section 8.1) 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 Stock Purchase Contract Agent
may, but shall not be obligated to, enter into any such supplemental agreement
which affects the Stock Purchase Contract Agent’s own rights, duties or
immunities under this Agreement or otherwise.


 


58

















 


Section 9.4             Effect of
Supplemental Agreements.


 


Upon the
execution of any supplemental agreement under this Article IX, 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 9.5             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 IX may, and
shall if required by the Stock Purchase Contract Agent, bear a notation in form
approved by the Stock 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 Stock 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 Stock Purchase Contract Agent in exchange for
outstanding Certificates.


 


59

















 


ARTICLE X



CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE


 


Section 10.1           Covenant Not to
Consolidate, Merge, Convey, Transfer or Lease Property Except under Certain
Conditions.


 


The Company
covenants that it will not consolidate with, convert into, or merge with and
into, any other entity or sell, assign, transfer, lease or convey all or
substantially all of its properties and assets to any Person or entity, unless:


 


(a)           either
the Company shall be the continuing corporation, or the successor (if other
than the Company) shall be a corporation organized and existing under the laws
of the United States of America or a State thereof or the District of Columbia
and such corporation shall expressly assume all the obligations of the Company
under the Stock Purchase Contracts, this Agreement, the Collateral Agreement,
the Declaration of Trust, the Indenture (including any supplement thereto), the
Guarantee Agreement, the Deposit Agreement and the Remarketing Agreement by one
or more supplemental agreements in form reasonably satisfactory to the Stock
Purchase Contract Agent and the Collateral Agent, executed and delivered to the
Stock Purchase Contract Agent and the Collateral Agent by such corporation;


 


(b)           the
Company or such successor corporation, as the case may be, shall not,
immediately after such consolidation, conversion, merger, sale, assignment,
transfer, lease or conveyance, be in default of payment obligations under the
Stock Purchase Contracts, this Agreement, the Collateral Agreement, the Declaration
of Trust, the Indenture (including any supplement thereto), the Guarantee
Agreement, the Deposit Agreement or the Remarketing Agreement or in material
default in the performance of any other covenants under any of the foregoing
agreements; and


 


(c)           the
successor entity, if not the Company, shall have reserved sufficient authorized
and unissued shares of preferred stock having substantially the same terms and
conditions as the Preferred Stock for deposit pursuant to the Deposit
Agreement, such that each holder of MCAPS will receive, on the Stock Purchase
Date, Depositary Shares having substantially the same rights as the Depositary
Shares that such holder would have received had such merger, consolidation or
other transaction not occurred.


 


Section 10.2           Rights and Duties of
Successor Corporation.


 


In case of any
such merger, consolidation, share exchange, sale, assignment, transfer, lease
or conveyance and upon any such assumption by a successor corporation in
accordance with Section 10.1, such successor entity shall succeed to and be
substituted for the Company with the same effect as if it had been named herein
as the Company. Such successor corporation thereupon may cause to be signed,
and may issue either in its own name or in the name of the Company, any or all
of the Certificates evidencing MCAPS issuable hereunder which theretofore shall
not have been signed by the Company and delivered to the Stock Purchase
Contract Agent; and, upon the order of such successor corporation, instead of
the Company, and subject to all the terms, conditions and limitations in this
Agreement prescribed, the Stock Purchase Contract


 


60

















 


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 Stock Purchase Contract Agent for authentication and execution,
and any Certificate evidencing MCAPS which such successor corporation
thereafter shall cause to be signed and delivered to the Stock Purchase
Contract Agent or 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.


 


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


 


Section 10.3           Officers’
Certificate and Opinion of Counsel Given to Stock Purchase Contract Agent.


 


The Stock
Purchase Contract Agent, subject to Section 8.1 and Section 8.3, shall receive
an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that
any such merger, consolidation, share exchange, sale, assignment, transfer,
lease or conveyance, and any such assumption, complies with the provisions of
this Article X and that all conditions precedent to the consummation of any
such merger, consolidation, share exchange, sale, assignment, transfer, lease
or conveyance have been met.


 


61

















 


ARTICLE XI



COVENANTS


 


Section 11.1           Performance under
Stock Purchase Contracts.


 


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


 


Section 11.2           Maintenance of
Office or Agency.


 


The Company
will maintain in the Borough of Manhattan, New York City an office or agency
where Certificates may be presented or surrendered for acquisition of
Depositary Shares upon settlement of the Stock Purchase Contracts on the Stock
Purchase Date and for transfer of Collateral upon occurrence of a Termination
Event, where Certificates may be surrendered for registration of transfer or
exchange, for a Collateral Substitution or recreation of Normal MCAPS and where
notices and demands to or upon the Company in respect of the MCAPS and this
Agreement may be served. The Company will give prompt written notice to the
Stock 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 Stock 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 Stock 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 Stock 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, New
York City for such purposes. The Company will give prompt written notice to the
Stock 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 MCAPS the Corporate Trust Office and
appoints the Stock Purchase Contract Agent at its Corporate Trust Office as
paying agent in such city.


 


Section 11.3           Company to Reserve
Preferred Stock.


 


The Company
shall at all times prior to the Stock Purchase Date reserve and keep available,
free from preemptive rights, out of its authorized but unissued Preferred Stock
the full number of shares of Preferred Stock issuable against tender of payment
for the Depositary Shares in respect of all Stock Purchase Contracts
constituting a part of the MCAPS evidenced by Outstanding Certificates.


 


62

















 


Section 11.4           Covenants as to the
Remarketing


 


The Company
will (1) cooperate with the Remarketing Agent to the full extent, (2) comply
with all necessary governmental and regulatory requirements and (3) receive all
necessary governmental and third party consents and approvals in connection
with the Remarketing.


 


The Company
shall use its commercially reasonable efforts to effect the Remarketing of the
Trust Preferred securities as contemplated by the Remarketing Agreement.


 


Section 11.5           Covenants as to
Preferred Stock and Depositary Shares.


 


The Company
covenants that all shares of Preferred Stock and Depositary Shares that may be
issued against tender of payment for the Depositary Shares in respect of any
Stock Purchase Contract constituting a part of the Outstanding MCAPS will, upon
issuance, be duly authorized, validly issued, fully paid and nonassessable.


 


Section 11.6           Statements of
Officers of the Company as to Default.


 


The Company
will deliver to the Stock Purchase Contract Agent, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, an
Officers’ Certificate, stating whether or not to the knowledge of the signers
thereof the Company is in default in the performance and observance of any of
the terms, provisions and conditions hereof, 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 11.7           ERISA.


 


Each Holder
from time to time of the MCAPS hereby represents and warrants for the entire
time it holds any interest in an MCAPS or a Trust Preferred Security, as the
case may be, that either (i) no portion of the assets used by such Holder to
acquire or hold the MCAPS or any Trust Preferred Security constitutes assets of
any Plan or (ii) the purchase, holding and disposition of the MCAPS or Trust
Preferred Security by such Holder 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 Similar Laws.


 


Section 11.8           Tax Treatment.


 


(a)           The
Company covenants and agrees, each Holder of MCAPS agrees, by acceptance of
MCAPS, and each Beneficial Owner agrees, by acceptance of a beneficial interest
in MCAPS, for United States federal, state and local income and franchise tax
purposes, (i) to treat a Holder’s acquisition of the Normal MCAPS as the
acquisition of the Trust Preferred Securities and Stock Purchase Contract
constituting the Normal MCAPS and Treasury MCAPS as a unit consisting of
Qualifying Treasury Securities and a Stock Purchase Contract and to treat each
Holder as the owner of the applicable interest in the Collateral Account,
including the Trust Preferred Securities or the Qualifying Treasury Securities,
(ii) the Debentures as indebtedness of the Company, and (iii) the fair market
value of each $1,000 Initial Liquidation Amount of Trust 


 


63

















 


Preferred Securities included in Normal MCAPS as $1,000 and the fair
market value of each Stock Purchase Contract as $0.


 


* * * *


 


This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.


 


64

















 


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


 


 


	
   

  	
  LEHMAN
  BROTHERS HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Barrett
  S. DiPaolo

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S. BANK
  NATIONAL ASSOCIATION,

  
	
   

  	
  as Stock Purchase Contract Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Earl
  Dennison

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
					



 


65














 


EXHIBIT A


 


(FORM OF FACE
OF NORMAL MCAPS CERTIFICATE)


 


{For inclusion
in Global Certificates only – THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN
THE MEANING OF THE STOCK PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF CEDE & CO., AS THE 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
STOCK PURCHASE CONTRACT 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.                     

  	
  CUSIP No.

  



 


Number of
Normal MCAPS:           


 


LEHMAN
BROTHERS HOLDINGS INC.

Normal MCAPS


 


This Normal
MCAPS Certificate certifies that {Cede & Co.} is the registered Holder of
the number of Normal MCAPS set forth above {for inclusion in Global
Certificates only - or such other number of Normal MCAPS reflected in the
Schedule of Increases or Decreases in the Global Certificate attached hereto}. Each
Normal MCAPS consists of (i) one trust preferred security (the “Trust Preferred Security”) of Lehman Brothers Holdings
Capital Trust VIII, a Delaware statutory trust (the “Trust”),
subject to the Pledge of such Trust Preferred Security by such Holder pursuant
to the Collateral Agreement, and (ii) the rights and obligations of the Holder
under one Stock Purchase Contract with Lehman Brothers Holdings Inc. (the “Company”). All capitalized terms used herein which are
defined in the Stock Purchase Contract Agreement (as defined on the reverse
hereof) have the meaning set forth therein.


 

















 


Pursuant to
the Collateral Agreement, the Trust Preferred Security, constituting part of
each Normal MCAPS evidenced hereby has been pledged to the Collateral Agent,
for the benefit of the Company, to secure the obligations of the Holder under
the Stock Purchase Contract comprising part of such Normal MCAPS.


 


The Collateral
Agreement provides that all distributions on any Pledged Trust Preferred
Securities constituting part of the Normal MCAPS received by the Securities
Intermediary shall be paid by wire transfer in same day funds (i) in the case
of (A) distributions on Pledged Trust Preferred Securities to the Stock
Purchase Contract Agent to the account designated by the Stock Purchase
Contract Agent, no later than 2:00 p.m., New York City time, on the Business
Day such payment is received by the Securities Intermediary (provided that in
the event such payment is received by the Securities Intermediary on a day that
is not a Business Day or after 12:30 p.m., New York City time, on a Business
Day, then such payment shall be made no later than 10:30 a.m., New York City
time, on the next succeeding Business Day) and (ii) in the case of payments
with respect to the liquidation amount of the Pledged Trust Preferred
Securities (in connection with a Remarketing or otherwise), to the Company in
accordance with the terms of the Collateral Agreement, in full satisfaction of
the respective obligations of the Holders of the Normal MCAPS of which such
Pledged Trust Preferred Securities are a part under the Stock Purchase
Contracts forming a part of such Normal MCAPS. Distributions on the Trust
Preferred Securities forming part of a Normal MCAPS evidenced hereby, which are
payable quarterly on February 28, May 31, August 31 and November 30 each year,
commencing August 31, 2007 (each, a “Payment Date”),
shall, subject to receipt thereof by the Stock Purchase Contract Agent from the
Securities Intermediary, be paid to the Person in whose name this Normal MCAPS
Certificate (or a Predecessor Normal MCAPS Certificate) is registered at the
close of business on the Record Date for such Payment Date.


 


Each Stock
Purchase Contract evidenced hereby obligates the Holder of this Normal MCAPS
Certificate to purchase, and the Company to sell, on the Stock Purchase Date,
at a price equal to $1,000 (the “Purchase Price”),
one depositary share (“Depositary Share”),
representing 1/100th of a share of the Non-Cumulative Perpetual
Preferred Stock, Series I, $100,000 liquidation preference per share (the “Preferred Stock”), of the Company, unless on or prior to the
Stock Purchase Date there shall have occurred a Termination Event with respect
to such Stock Purchase Contract, all as provided in the Stock Purchase Contract
Agreement and more fully described on the reverse hereof. The purchase price
(the “Purchase Price”) for the Depositary
Share purchased pursuant to each Stock Purchase Contract evidenced hereby, if
not paid earlier, shall be paid on the Stock Purchase Date by application of
payment received in respect of the liquidation amount with respect to the
Pledged Trust Preferred Security pursuant to the Remarketing pledged to secure
the obligations under such Stock Purchase Contract of the Holder of the Normal
MCAPS of which such Stock Purchase Contract is a part.


 


Each Holder of
MCAPS agrees, by acceptance of MCAPS, and each Beneficial Owner agrees, by
acceptance of a beneficial interest in MCAPS, for United States federal, state
and local income and franchise tax purposes, (i) to treat a Holder’s
acquisition of the Normal MCAPS as the acquisition of the Trust Preferred
Securities and Stock Purchase Contract constituting the Normal MCAPS and
Treasury MCAPS as a unit consisting of Qualifying Treasury Securities and a
Stock Purchase Contract and to treat each Holder as the owner of the applicable
interest in the Collateral Account, including the Trust Preferred Securities or
the 


 


2

















 


Qualifying
Treasury Securities, (ii) the Debentures as indebtedness of the Company, and
(iii) the fair market value of each $1,000 Initial Liquidation Amount of Trust
Preferred Securities included in Normal MCAPS as $1,000 and the fair market
value of each Stock Purchase Contract as $0.


 


The Company
shall pay, on each Payment Date, in respect of each Stock Purchase Contract
forming part of a Normal MCAPS evidenced hereby, an amount (the “Contract Payments”) equal to 0.15% per year of the Stated
Amount, subject to its rights provided for in the Stock Purchase Contract
Agreement to defer Contract Payments. Such Contract Payments shall be payable
to the Person in whose name this Normal MCAPS Certificate is registered at the
close of business on the Record Date for such Payment Date.


 


Distributions
on the Trust Preferred Securities and the Contract Payments will be payable at
the office of the Stock Purchase Contract Agent in New York City. If the
book-entry system for the Normal MCAPS has been terminated, the Contract
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 a prior written notice to the Stock Purchase Contract Agent.


 


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 Stock Purchase
Contract Agent by manual signature, this Normal MCAPS Certificate shall not be
entitled to any benefit under the Collateral Agreement or the Stock Purchase
Contract Agreement or be valid or obligatory for any purpose.


 


3

















 


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


 


	
   

  	
  LEHMAN BROTHERS HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HOLDER SPECIFIED ABOVE (as to obligations

  of such Holder under the Stock Purchase Contracts)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION, not

  individually but solely as attorney-in-fact of such

  Holder as Stock Purchase Contract Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
  Date:

  	
   

  



 

















 


CERTIFICATE OF
AUTHENTICATION


OF STOCK
PURCHASE CONTRACT AGENT


 


This is one of
the Normal MCAPS Certificates referred to in the within mentioned Stock
Purchase Contract Agreement.


 


	
   

  	
  By: U.S. BANK NATIONAL ASSOCIATION,

  
	
   

  	
             as
  Stock Purchase Contract Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
  Date:

  	
   

  



 

















 


(FORM OF
REVERSE OF NORMAL MCAPS CERTIFICATE)


 


Each Stock Purchase
Contract evidenced hereby is governed by a Stock Purchase Contract Agreement,
dated as of May 17, 2007 (as may be supplemented from time to time, the “Stock Purchase Contract Agreement”), between the Company and
U.S. Bank National Association, as Stock Purchase Contract Agent (including its
successors hereunder, the “Stock Purchase Contract
Agent”), to which Stock Purchase Contract 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 Stock Purchase Contract Agent, the Company, and the Holders
and of the terms upon which the Normal MCAPS Certificates are, and are to be,
executed and delivered.


 


Each Stock
Purchase Contract evidenced hereby obligates the Holder of this Normal MCAPS
Certificate to purchase, and the Company to sell, on the Stock Purchase Date at
a price equal to $1,000 (the “Purchase Price”),
one depositary share (“Depositary Share”)
of the Company, representing 1/100th of a share of the
Non-Cumulative Perpetual Preferred Stock, Series I, $100,000 liquidation
preference per share (the “Preferred Stock”),
of the Company, unless on or prior to the Stock Purchase Date there shall have
occurred a Termination Event with respect to the MCAPS of which such Stock
Purchase Contract is a part shall have occurred.


 


In accordance
with the terms of the Stock Purchase Contract Agreement, the Holder of this
Normal MCAPS Certificate may pay the Purchase Price for the Depositary Share
purchased pursuant to each Stock Purchase Contract evidenced hereby by
effecting a Settlement with Qualifying Treasury Securities or from the proceeds
of or from a Remarketing of the related Pledged Trust Preferred Securities. A
Holder of Normal MCAPS who does not, on or prior to 5:00 p.m. (New York City
time) on the second Business Day immediately preceding the beginning of any
Remarketing Period, notify the Stock Purchase Contract Agent of its intention
to effect a Settlement with Qualifying Treasury Securities, or who does so
notify the Stock Purchase Contract Agent but fails to make an effective
Settlement with Qualifying Treasury Securities on or prior to 5:00 p.m. (New
York City time) on the first Business Day immediately preceding the beginning
of any Remarketing Period shall pay the Purchase Price for the Depositary Share
to be delivered under the related Stock Purchase Contract from the proceeds of
the sale of the related Pledged Trust Preferred Securities held by the
Collateral Agent in the Remarketing. Such sale will be made by the Remarketing
Agent pursuant to the terms of the Remarketing Agreement on the applicable
Remarketing Date.


 


Upon the
occurrence of a final Failed Remarketing, the Collateral Agent, for the benefit
of the Company, will exercise its rights as a secured party with respect to the
Pledged Trust Preferred Securities underlying the Normal MCAPS, and may, among
other things, (A) retain such Trust Preferred Securities in full satisfaction
of the Holders’ obligations under the Stock Purchase Contracts or (B) sell such
Trust Preferred Securities in one or more public or private sales or otherwise.
In the event of a Failed Remarketing, the Company will issue a note, payable on
the later of June 2, 2014 and five years after the first Payment Date on which
any Deferred Contract Payments were payable and bearing interest at the rate of
three-month LIBOR plus 0.68% per annum, in the amount of any accrued and unpaid
interest on the Debentures underlying such Pledged Trust Preferred Securities
as of the Stock Purchase Date, to the Stock Purchase Contract Agent for
delivery to the Holders of such Trust Preferred Securities.


 

















 


The Stock
Purchase Contract Agent will be entitled to exercise the voting and any other
consensual rights pertaining to the Pledged Trust Preferred Securities, but
only to the extent instructed in writing by the Holders. Upon receipt of notice
of any meeting at which holders of Trust Preferred Securities are entitled to
vote or upon any solicitation of consents, waivers or proxies of holders of
Trust Preferred Securities, the Stock Purchase Contract Agent shall, as soon as
practicable thereafter, mail, first class, postage pre-paid, to the Normal
MCAPS Holders a notice:


 


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


 


(2)           stating that each Holder on the
Record Date set by the Stock Purchase Contract Agent therefor (which, to the
extent possible, shall be the same date as the record date for determining the
holders of Trust Preferred Securities, as the case may be, entitled to vote)
shall be entitled to instruct the Stock Purchase Contract Agent as to the
exercise of the voting rights pertaining to the Trust Preferred Securities
underlying such Holder’s Normal MCAPS; and


 


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


 


Upon the
written request of the Normal MCAPS Holders on such Record Date received by the
Stock Purchase Contract Agent at least six days prior to such meeting, the
Stock 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 liquidation amount of Trust Preferred
Securities, as the case may be, as to which any particular voting instructions
are received. In the absence of specific instructions from the Holder of a
Normal MCAPS, the Stock Purchase Contract Agent shall abstain from voting the
Trust Preferred Securities evidenced by such Normal MCAPS. The Company hereby
agrees, if applicable, to solicit Holders of Normal MCAPS to timely instruct
the Stock Purchase Contract Agent in order to enable the Stock Purchase
Contract Agent to vote the Trust Preferred Securities. The Holders of Normal
MCAPS shall have no voting or other rights in respect of the Depositary Shares
or the Preferred Stock.


 


Upon the
occurrence of a Successful Remarketing, the Collateral Agent shall, in
accordance with the Collateral Agreement, cause the Securities Intermediary to
transfer the Pledged Trust Preferred Securities upon confirmation of deposit by
the Remarketing Agent of the proceeds of such Successful Remarketing in the
Collateral Account. The Remarketing Agent will deduct a remarketing fee in
accordance with the terms of the Remarketing Agreement. With respect to Pledged
Trust Preferred Securities upon a Successful Remarketing, any proceeds of the
Remarketing in excess of the aggregate Purchase Price applicable to the related
Normal MCAPS plus the portion of the Remarketing Fee attributable to such
Pledged Trust Preferred Securities will be remitted to the Stock Purchase
Contract Agent for payment to the Holders of the related Normal MCAPS.


 


The Normal
MCAPS Certificates are issuable only in registered form and only in
denominations of a single Normal MCAPS and any integral multiple thereof. The
transfer of any Normal MCAPS Certificate will be registered and Normal MCAPS
Certificates may be exchanged as provided in the Stock Purchase Contract
Agreement. The Security Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer 


 

















 


documents
permitted by the Stock Purchase Contract Agreement. No service charge shall be
required for any such registration of transfer or exchange, but the Company and
the Stock Purchase Contract Agent may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Except as provided in the Stock Purchase Contract Agreement, for so long as the
Stock Purchase Contract underlying a Normal MCAPS remains in effect, such
Normal MCAPS shall not be separable into its constituent parts, and the rights
and obligations of the Holder of such Normal MCAPS in respect of the Trust
Preferred Security and Stock Purchase Contract constituting such Normal MCAPS
may be transferred and exchanged only as a Normal MCAPS.


 


Subject to the
conditions set forth in the Stock Purchase Contract Agreement, a Holder may, at
any time on or prior to 5:00 p.m. (New York City time) on the second Business
Day immediately preceding the beginning of any Remarketing Period, effect a
Collateral Substitution and separate the Pledged Trust Preferred Securities
from the related Stock Purchase Contracts in respect of all or a portion of
such Holder’s Normal MCAPS by substituting for such Pledged Trust Preferred
Securities, Qualifying Treasury Securities or portions thereof in an aggregate
liquidation amount at maturity equal to the aggregate liquidation amount of
such Pledged Trust Preferred Securities.


 


The Company
shall pay, on each Payment Date, the Contract Payments payable in respect of
each Stock Purchase Contract to the Person in whose name the Normal MCAPS
Certificate evidencing such Stock Purchase Contract is registered at the close
of business on the Record Date for such Payment Date. Contract Payments will be
payable at the office of the Stock Purchase Contract Agent in New York City. If
the book-entry system for the Normal MCAPS has been terminated, the Contract
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 a prior written notice to the Stock Purchase Contract Agent.


 


The Company shall
have the right, at any time prior to the Stock Purchase Date, to defer the
payment of any or all of the Contract Payments otherwise payable on any Payment
Date, but only if the Company shall give the Holders and the Stock Purchase
Contract Agent written notice of its election to defer each such deferred
Contract Payment pursuant to Section 6.7 of the Stock Purchase Contract
Agreement. Any Contract Payments so deferred shall, to the extent permitted by
law, accrue interest thereon at the rate of three-month LIBOR plus 0.68% per
year (computed on the basis of the actual number of days elapsed in the related
payment period using a 360-day year), compounding on each succeeding Payment
Date, until paid in full (such deferred installments of Contract Payments, if
any, together with the additional Contract Payments, if any, accrued thereon,
being referred to herein as the “Deferred Contract Payments”).
Deferred Contract Payments, if any, shall be due on the next succeeding Payment
Date except to the extent that payment is deferred pursuant to the Section 6.7
of the Stock Purchase Contract Agreement. No Contract Payments may be deferred
to a date that is after the Stock Purchase Date and no such deferral period may
end other than on a Payment Date. If the Stock Purchase Contracts are
terminated upon the occurrence of a Termination Event, the Holder’s right to
receive Contract Payments, if any, and any Deferred Contract Payments, will
terminate.


 

















 


The Stock
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 Payments, shall
immediately and automatically terminate, without the necessity of any notice or
action by any Holder, the Stock Purchase Contract Agent or the Company, if, on
or prior to the Stock Purchase Date, a Termination Event shall have occurred.
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
Stock Purchase Contract Agent, the Collateral Agent and the Holders, at their
addresses as they appear in the Securities Register. Upon and after the
occurrence of a Termination Event, the Collateral Agent shall release the
Pledged Trust Preferred Securities from the Pledge in accordance with the
provisions of the Collateral Agreement. A Normal MCAPS shall thereafter
represent the right to receive the Trust Preferred Security forming a part of
such Normal MCAPS in accordance with the terms of, and except as set forth in,
the Stock Purchase Contract Agreement and the Collateral Agreement.


 


Upon
registration of transfer of this Normal MCAPS 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 Stock Purchase Contract Agent
pursuant to the Stock Purchase Contract Agreement), under the terms of the
Stock Purchase Contract Agreement and the Stock Purchase Contracts evidenced
hereby and the transferor shall be released from the obligations under the
Stock Purchase Contracts evidenced by this Normal MCAPS 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 Normal MCAPS Certificate, by its acceptance hereof, irrevocably authorizes
the Stock Purchase Contract Agent to enter into and perform the related Stock
Purchase Contracts forming part of the Normal MCAPS evidenced hereby on its
behalf as its attorney-in-fact, expressly withholds any consent to the
assumption (i.e., affirmance) of the Stock 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 Stock Purchase
Contracts, consents to the provisions of the Stock Purchase Contract Agreement,
irrevocably authorizes the Stock Purchase Contract Agent to enter into and
perform the Stock Purchase Contract Agreement and the Collateral Agreement on
its behalf as its attorney-in-fact, and consents to, and agrees to be bound by,
the Pledge of such Holder’s right, title and interest in and to the Collateral
Account, including the Trust Preferred Security underlying this Normal MCAPS
Certificate pursuant to the Collateral Agreement. The Holder further covenants
and agrees that, to the extent and in the manner provided in the Stock Purchase
Contract Agreement and the Collateral Agreement, but subject to the terms
thereof, payments with respect to the aggregate liquidation amount of the
Pledged Trust Preferred Securities on the Stock Purchase Date shall be paid by
the Collateral Agent to the Company in satisfaction of such Holder’s
obligations under such Stock Purchase Contract and such Holder shall acquire no
right, title or interest in such payments.


 


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


 

















 


The Stock
Purchase Contracts shall be governed by, and construed in accordance with, the
laws of the State of New York.


 


Prior to due
presentment of this Certificate for registration of transfer, the Company, the
Stock Purchase Contract Agent and its Affiliates and any agent of the Company
or the Stock Purchase Contract Agent may treat the Person in whose name this
Normal MCAPS Certificate is registered as the owner of the Normal MCAPS
evidenced hereby for the purpose of receiving distributions payable on the
Trust Preferred Security, receiving payments of Contract Payments (subject to
any applicable record date), performance of the Stock 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 Stock Purchase Contract Agent nor any such agent shall be affected
by notice to the contrary.


 


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


 


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


 

















 


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
Normal MCAPS Certificates and all rights thereunder, hereby irrevocably
constituting and appointing attorney          ,
to transfer said Normal MCAPS Certificates on the books of Lehman Brothers
Holdings 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 Normal MCAPS Certificates in every

  particular, without alteration or enlargement or any

  change whatsoever.

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  
						



 

















 


SETTLEMENT
INSTRUCTIONS


 


The
undersigned Holder directs that a certificate for a depositary share
deliverable upon settlement on or after the Stock Purchase Date of the Stock
Purchase Contracts underlying the number of Normal MCAPS evidenced by this
Normal MCAPS Certificate be registered in the name of, and delivered, 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:

  	
   

  	
   

  
	
   

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature
  Guarantee:

  	
   

  
	
   

  	
   

  	
  (if assigned
  to another person)

  
	
   

  	
   

  	
   

  
	
  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:

  	
   

  	
  REGISTERED
  HOLDER 

  

  

  

  Please print name and address of Registered Holder:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
  Name

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address

  	
   

  	
  Address

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Social
  Security or other Taxpayer

  Identification Number, if any

  	
   

  	
   

  



 

















 


{TO BE
ATTACHED TO GLOBAL CERTIFICATES}


 


SCHEDULE OF
INCREASES OR DECREASES IN GLOBAL CERTIFICATE


 


The following
increases or decreases in this Global Certificate have been made:


 


	
  Date

  	
   

  	
  Amount of

  increase in

  Number of

  Normal MCAPS

  evidenced by the

  Global Certificate

  	
   

  	
  Amount of

  decrease in

  Number of

  Normal MCAPS

  evidenced by the

  Global Certificate

  	
   

  	
  Number of

  Normal MCAPS

  evidenced by this

  Global Certificate

  following such

  decrease or

  increase

  	
   

  	
  Signature of

  authorized

  signatory of Stock

  Purchase Contract

  Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


EXHIBIT B


 


(FORM OF FACE
OF TREASURY MCAPS CERTIFICATE)


 


{For inclusion
in Global Certificate only - THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN
THE MEANING OF THE STOCK PURCHASE CONTRACT 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 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.          

  	
  CUSIP No.

  



 


Number of
Treasury MCAPS:             


 


LEHMAN
BROTHERS HOLDINGS INC.

Treasury MCAPS


 


This Treasury
MCAPS Certificate certifies that {Cede & Co.} is the registered Holder of
the number of Treasury MCAPS set forth above {for inclusion in Global
Certificates only – or such other number of Treasury MCAPS reflected in the
Schedule of Increases or Decreases in the Global Certificate attached hereto}.
Each Treasury MCAPS consists of (i) a Qualifying Treasury Security having a
principal amount at maturity equal to $1,000, subject to the Pledge of such
Qualifying Treasury Security by such Holder pursuant to the Collateral
Agreement, and (ii) the rights and obligations of the Holder under one Stock
Purchase Contract with Lehman Brothers Holdings Inc., a Delaware corporation
(the “Company”). All capitalized terms used
herein which are defined in the Stock Purchase Contract Agreement (as defined
on the reverse hereof) have the meaning set forth therein.


 

















 


Pursuant to
the Collateral Agreement, the Qualifying Treasury Security constituting part of
each Treasury MCAPS evidenced hereby have been pledged to the Collateral Agent,
for the benefit of the Company, to secure the obligations of the Holder under
the Stock Purchase Contract comprising part of such Treasury MCAPS.


 


Each Stock
Purchase Contract evidenced hereby obligates the Holder of this Treasury MCAPS
Certificate to purchase, and the Company to sell, on the Stock Purchase Date,
at a price equal to $1,000 (the “Purchase Price”),
one depositary share (“Depositary Share”),
representing 1/100th of a share of the Non-Cumulative Perpetual
Preferred Stock, Series I, $100,000 liquidation preference per share (the “Preferred Stock”), of the Company, unless on or prior to the
Stock Purchase Date there shall have occurred a Termination Event with respect
to such Stock Purchase Contract, all as provided in the Stock Purchase Contract
Agreement and more fully described on the reverse hereof. The Purchase Price
for a Depositary Share purchased pursuant to each Stock Purchase Contract
evidenced hereby, if not paid earlier, shall be paid on the Stock Purchase Date
by application of the proceeds from the Qualifying Treasury Securities at
maturity pledged to secure the obligations of the Holder under such Stock
Purchase Contract of the Treasury MCAPS of which such Stock Purchase Contract
is a part.


 


Each Holder of
MCAPS agrees, by acceptance of MCAPS, and each Beneficial Owner agrees, by
acceptance of a beneficial interest in MCAPS, for United States federal, state
and local income and franchise tax purposes, (i) to treat a Holder’s
acquisition of the Normal MCAPS as the acquisition of the Trust Preferred
Securities and Stock Purchase Contract constituting the Normal MCAPS and
Treasury MCAPS as a unit consisting of Qualifying Treasury Securities and a
Stock Purchase Contract and to treat each Holder as the owner of the applicable
interest in the Collateral Account, including the Trust Preferred Securities or
the Qualifying Treasury Securities, (ii) the Debentures as indebtedness of the
Company, and (iii) the fair market value of each $1,000 Initial Liquidation
Amount of Trust Preferred Securities included in Normal MCAPS as $1,000 and the
fair market value of each Stock Purchase Contract as $0.


 


The Company
shall pay, on each Payment Date, in respect of each Stock Purchase Contract
forming part of a Treasury MCAPS evidenced hereby, an amount (the “Contract Payments”) equal to 0.15% per year of the Stated
Amount, subject to its rights provided for in the Stock Purchase Contract
Agreement to defer Contract Payments. Such Contract Payments shall be payable
to the Person in whose name this Treasury MCAPS Certificate is registered at
the close of business on the Record Date for such Payment Date.


 


Contract
Payments will be payable at the office of the Stock Purchase Contract Agent in
New York City. If the book-entry system for the Treasury MCAPS has been
terminated, the Contract 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 a prior written notice to the Stock
Purchase Contract Agent.


 


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.


 


2

















 


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


 


3

















 


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


 


	
   

  	
  LEHMAN BROTHERS HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HOLDER SPECIFIED ABOVE (as to obligations

  of such Holder under the Stock Purchase Contracts)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  U.S. BANK NATIONAL ASSOCIATION,

  not individually but solely as attorney-in-fact

  of such Holder as Stock Purchase Contract

  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
  Date:

  	
   

  



 


4

















 


CERTIFICATE OF
AUTHENTICATION OF

STOCK PURCHASE CONTRACT AGENT


 


This is one of
the Treasury MCAPS referred to in the within-mentioned Stock Purchase Contract
Agreement.


 


	
   

  	
  U.S. BANK NATIONAL ASSOCIATION, as

  Stock Purchase Contract Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
  Date:

  	
   

  



 


5

















 


(FORM OF
REVERSE OF TREASURY MCAPS CERTIFICATE)


 


Each Stock
Purchase Contract evidenced hereby is governed by a Stock Purchase Contract
Agreement, dated as of May 17, 2007 (as may be supplemented from time to time,
the “Stock Purchase Contract Agreement”)
between the Company and U.S. Bank National Association, as Stock Purchase
Contract Agent (including its successors thereunder, herein called the “Stock Purchase Contract Agent”), to which the Stock Purchase
Contract 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 Stock Purchase Contract
Agent, the Company and the Holders and of the terms upon which the Treasury
MCAPS Certificates are, and are to be, executed and delivered.


 


Each Stock
Purchase Contract evidenced hereby obligates the Holder of this Treasury MCAPS
Certificate to purchase, and the Company to sell, on the Stock Purchase Date,
at a price equal to $1,000 (the “Purchase Price”),
one depositary share (“Depositary Share”),
representing 1/100th of a share of the Non-Cumulative Perpetual
Preferred Stock, Series I, $100,000 liquidation preference per share (the “Preferred Stock”), of the Company, unless on or prior to the
Stock Purchase Date there shall have occurred a Termination Event with respect
to the MCAPS of which such Stock Purchase Contract is a part shall have occurred.


 


In accordance
with the terms of the Stock Purchase Contract Agreement, the Holder of this
Treasury MCAPS shall pay the Purchase Price for a Depositary Share purchased
pursuant to each Stock Purchase Contract evidenced hereby either by effecting a
Settlement with Treasury Securities of each such Stock Purchase Contract on or
prior to 5:00 p.m. (New York City time) on the second Business Day prior to the
Stock Purchase Date, or by applying a principal amount of the Pledged Treasury
Security underlying such Holder’s Treasury MCAPS equal to the Stated Amount of
such Stock Purchase Contract to the purchase of the Depositary Share.


 


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


 


The Treasury
MCAPS Certificates are issuable only in registered form and only in
denominations of a single Treasury MCAPS and any integral multiple thereof. The
transfer of any Treasury MCAPS Certificate will be registered and Treasury
MCAPS Certificates may be exchanged as provided in the Stock Purchase Contract
Agreement. The Security Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents permitted by the Stock
Purchase Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Stock Purchase
Contract Agent may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith. Except as provided
in the Stock Purchase Contract Agreement, for so long as the Stock Purchase
Contract underlying a Treasury MCAPS remains in effect, such Treasury MCAPS
shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such Treasury MCAPS in respect of the Qualifying
Treasury Security and the Stock Purchase Contract constituting such Treasury
MCAPS may be transferred and exchanged only as a Treasury MCAPS.


 


6

















 


Subject to the
conditions set forth in the Stock Purchase Contract Agreement, a Holder of
Treasury MCAPS may recreate, at any time on or prior to 5:00 p.m. (New York
City time) on the second Business Day immediately preceding the beginning of
any Remarketing Period, Normal MCAPS by delivering to the Securities
Intermediary Trust Preferred Securities with an aggregate liquidation amount
equal to the aggregate principal amount at maturity of the Pledged Treasury
Securities in exchange for the release of such Pledged Treasury Securities in
accordance with the terms of the Stock Purchase Contract Agreement and the
Collateral Agreement.


 


The Company
shall pay, on each Payment Date, the Contract Payments payable in respect of
each Stock Purchase Contract to the Person in whose name the Treasury MCAPS
Certificate evidencing such Stock Purchase Contract is registered at the close
of business on the Record Date for such Payment Date. Contract Payments will be
payable at the office of the Stock Purchase Contract Agent in New York City. If
the book-entry system for the Normal MCAPS has been terminated, the Contract
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 a prior written notice to the Stock Purchase Contract Agent.


 


The Company
shall have the right, at any time prior to the Stock Purchase Date, to defer
the payment of any or all of the Contract Payments otherwise payable on any
Payment Date, but only if the Company shall give the Holders and the Stock
Purchase Contract Agent written notice of its election to defer each such
deferred Contract Payment pursuant to Section 6.7 of the Stock Purchase
Contract Agreement. Any Contract Payments so deferred shall, to the extent
permitted by law, accrue interest thereon at the rate of three-month LIBOR plus
0.68% per year (computed on the basis of the actual number of days elapsed in
the related payment period using a 360-day year), compounding on each
succeeding Payment Date, until paid in full (such deferred installments of
Contract Payments, if any, together with the additional Contract Payments, if
any, accrued thereon, being referred to herein as the “Deferred
Contract Payments”). Deferred Contract Payments, if any, shall be
due on the next succeeding Payment Date except to the extent that payment is
deferred pursuant to the Section 6.7 of the Stock Purchase Contract Agreement.
No Contract Payments may be deferred to a date that is after the Stock Purchase
Date and no such deferral period may end other than on a Payment Date. If the
Stock Purchase Contracts are terminated upon the occurrence of a Termination
Event, the Holder’s right to receive Contract Payments, if any, and any
Deferred Contract Payments, will terminate.


 


The Stock
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 Payments, shall
immediately and automatically terminate, without the necessity of any notice or
action by any Holder, the Stock Purchase Contract Agent or the Company, if, on
or prior to the Stock Purchase Date, a Termination Event shall have occurred.
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
Stock Purchase Contract Agent, the Collateral 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
Pledged Treasury Securities (as defined in the Collateral Agreement) in
accordance with the provisions of the Collateral Agreement. A Treasury MCAPS
shall thereafter represent the right to receive the interest in the Qualifying
Treasury Security forming a part of 


 


7

















 


such Treasury
MCAPS, in accordance with the terms of and except as set forth in, the Stock
Purchase Contract Agreement and the Collateral Agreement.


 


Upon
registration of transfer of this Treasury MCAPS 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 Stock Purchase Contract Agent
pursuant to the Stock Purchase Contract Agreement), under the terms of the
Stock Purchase Contract Agreement and the Stock Purchase Contracts evidenced
hereby and the transferor shall be released from the obligations under the
Stock Purchase Contracts evidenced by this Treasury MCAPS 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 MCAPS Certificate, by its acceptance hereof, authorizes the Stock
Purchase Contract Agent to enter into and perform the related Stock Purchase
Contracts forming part of the Treasury MCAPS evidenced hereby on its behalf as
its attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Stock 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 Stock Purchase Contracts, consents
to the provisions of the Stock Purchase Contract Agreement, authorizes the
Stock Purchase Contract Agent to enter into and perform the Stock Purchase
Contract Agreement and the Collateral Agreement on its behalf as its
attorney-in-fact, and consents to the Pledge of the Qualifying Treasury
Securities underlying this Treasury MCAPS Certificate pursuant to the Collateral
Agreement. The Holder further covenants and agrees, that, to the extent and in
the manner provided in the Stock Purchase Contract Agreement and the Collateral
Agreement, but subject to the terms thereof, payments in respect to the
aggregate principal amount of the Pledged Treasury Securities on the Stock
Purchase Date shall be paid by the Collateral Agent to the Company in
satisfaction of such Holder’s obligations under such Stock Purchase Contract
and such Holder shall acquire no right, title or interest in such payments.


 


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


 


The Stock
Purchase Contracts shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.


 


Prior to due
presentment of this Certificate for registration or transfer, the Company, the
Stock Purchase Contract Agent and its Affiliates and any agent of the Company
or the Stock Purchase Contract Agent may treat the Person in whose name this
Treasury MCAPS Certificate is registered as the owner of the Treasury MCAPS
evidenced hereby for the purpose of receiving payments of interest on the
Qualifying Treasury Securities, receiving payments of Contract Payments
(subject to any applicable record date), performance of the Stock 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 Stock Purchase Contract Agent nor any such agent shall
be affected by notice to the contrary.


 


8

















 


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


 


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


 


9

















 


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

  
	
   

  	
   

  
	
   

  	
  Custodian

  	
   

  
	
   

  	
   

  
	
  UNIF GIFT
  MIN ACT:

  	
  (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)

  



 


the within
Treasury MCAPS Certificates and all rights thereunder, hereby irrevocably
constituting and appointing attorney          ,
to transfer said Treasury MCAPS Certificates on the books of Lehman Brothers
Holdings 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 MCAPS Certificates in every

  particular, without alteration or enlargement or any

  change whatsoever.

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature Guarantee:

  	
   

  
					



 


10

















 


SETTLEMENT
INSTRUCTIONS


 


The
undersigned Holder directs that a certificate for depositary shares deliverable
upon settlement on or after the Stock Purchase Date of the Stock Purchase
Contracts underlying the number of Treasury MCAPS evidenced by this Treasury
MCAPS Certificate be registered in the name of, and delivered, 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 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:

  
	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name

  	
   

  
	
   

  	
   

  
	
  Address

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Social
  Security or other Taxpayer

  Identification Number, if any

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature

  	
   

  
	
   

  	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  
	
  (if assigned to another person)

  	
   

  
						



 


11

















 


{TO BE
ATTACHED TO GLOBAL CERTIFICATES}


 


SCHEDULE OF
INCREASES OR DECREASES IN GLOBAL CERTIFICATE


 


The following
increases or decreases in this Global Certificate have been made: 


 


	
  Date

  	
   

  	
  Amount of

  increase in

  Number of

  Treasury

  MCAPS

  evidenced by the

  Global

  Certificate

  	
   

  	
  Amount of

  decrease in

  Number of

  Treasury

  MCAPS

  evidenced by the

  Global

  Certificate

  	
   

  	
  Number of

  Treasury

  MCAPS

  evidenced by this

  Global

  Certificate

  following such

  decrease or

  increase

  	
   

  	
  Signature of

  authorized

  signatory of

  Stock Purchase

  Contract Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


EXHIBIT C


 


INSTRUCTION TO
STOCK PURCHASE CONTRACT AGENT


 


The Bank of New York

Attn.: MBS Group


101 Barclay Street, Floor 4 West


New York, NY 10286


 


Facsimile: 212-815-3910




	
   

  	
  Re:

  	
  {Creation of Treasury MCAPS} {Recreation of Normal MCAPS} of Lehman
  Brothers Holdings Inc., a Delaware corporation (the “Company”).
  

  



 


The undersigned Holder hereby notifies you that it has delivered to The
Bank of New York as Collateral Agent, for credit to the Collateral Account, $         aggregate
[principal] [liquidation] amount of {Treasury Securities}{Trust Preferred
Securities} in exchange for the {Pledged Trust Preferred Securities} {Pledged
Treasury Securities} held in the Collateral Account, in accordance with the
Collateral Agreement, dated as of May 17, 2007 (the “Collateral
Agreement”; unless otherwise defined herein, terms defined in the
Pledge Agreement are used herein as defined therein), between you, the Company,
the Collateral Agent, the Custodial Agent and the Securities Intermediary. 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
{Pledged Trust Preferred Securities} {Pledged Treasury Securities} related to
such {Normal MCAPS} {Treasury MCAPS}.


 


 


	
  Date:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature Guarantee:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Please print name and address of

  	
   

  	
   

  
	
  Registered Holder:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
  Social Security or other Taxpayer

  Identification Number, if any

  
	
   

  	
   

  	
   

  
	
  Address

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
							



 

















 


EXHIBIT D


 


NOTICE FROM
STOCK PURCHASE CONTRACT AGENT

TO HOLDERS


 


(Transfer of
Collateral upon Occurrence of a Termination Event)


 


{HOLDER}


 


Attention: 


Telecopy:                      


 


Re:                               {Normal
MCAPS} {Treasury MCAPS} of Lehman Brothers Holdings Inc., a Delaware
corporation (the “COMPANY”)


 


Please refer
to the Stock Purchase Contract Agreement, dated as of May 17, 2007 (the “Stock Purchase Contract Agreement”; unless otherwise defined
herein, terms defined in the Stock Purchase Contract Agreement are used herein
as defined therein), between the Company and the undersigned, as Stock Purchase
Contract Agent and as attorney-in-fact for the holders of Normal MCAPS and
Treasury MCAPS from time to time.


 


We hereby
notify you that a Termination Event has occurred and that {the Trust Preferred
Securities} {the Qualifying Treasury Securities} comprising a portion of your
ownership interest in {Normal MCAPS} {Treasury MCAPS} have been released and
are being held by us for your account pending receipt of transfer instructions
with respect to such {Trust Preferred Securities} {Qualifying Treasury
Securities} (the “Released Securities”).


 


Pursuant to
Section 3.15 of the Stock Purchase Contract 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 {Normal
MCAPS]{Treasury MCAPS} effected through book-entry or by delivery to us of your
{Normal MCAPS Certificate]{Treasury MCAPS 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 {Normal MCAPS}{Treasury MCAPS} are
transferred or your {Normal MCAPS Certificate} {Treasury MCAPS Certificate} is
surrendered or satisfactory evidence is provided that such {Normal MCAPS
Certificate}{Treasury MCAPS Certificate} has been destroyed, lost or stolen,
together with any indemnification that we or the Company may require.


 

















 


	
  Dated:

  	
   

  	
   

  	
  By: U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title: Authorized Signatory

  



 

















 


EXHIBIT E


 


NOTICE TO
SETTLE BY TREASURY SECURITIES


 


U.S. BANK
NATIONAL ASSOCIATION

The Stock Purchase Contract Agent


One Federal Street, 3rd Floor


Boston, MA 02110

Attention:  Corporate Trust Services

Facsimile:  617-603-6667


 


Re:                   Normal MCAPS of
Lehman Brothers Holdings Inc.,

a Delaware corporation (the “Company”)


 


The undersigned
Holder hereby irrevocably notifies you in accordance with Section 6.2(b) of the
Stock Purchase Contract Agreement, dated as of May 17, 2007 (the “Stock Purchase Contract Agreement”; unless otherwise defined
herein, terms defined in the Stock Purchase Contract Agreement are used herein
as defined therein), between the Company and you, as Stock Purchase Contract
Agent and as attorney-in-fact for the Holders of the Stock Purchase Contracts,
that such Holder has elected to pay to the Securities Intermediary for deposit
in the Collateral Account, on or prior to 5:00 p.m. (New York City time) on the
first Business Day immediately preceding the beginning of the Remarketing
Period (in lawful money of the United States by certified or cashiers’ check or
wire transfer, in immediately available funds), $[    ] as the Purchase Price for the depositary
shares issuable to such Holder by the Company with respect to Stock Purchase
Contracts on the Stock Purchase Date. The undersigned Holder hereby instructs
you to notify promptly the Collateral Agent of the undersigned Holders’
election to make such Settlement with Treasury Securities with respect to the
Stock Purchase Contracts related to such Holder’s Normal MCAPS.


 

















 


EXHIBIT F


 


NOTICE FROM
STOCK PURCHASE CONTRACT AGENT 

TO COLLATERAL AGENT 

(Settlement of Stock Purchase Contract through Remarketing)


 


The Bank of New York

Attn.: MBS Group


101 Barclay Street, Floor 4 West


New York, NY 10286


Facsimile:
212-815-3910


 


Re:                   Normal MCAPS of
Lehman Brothers Holdings Inc., 

a Delaware corporation (the “Company”)


 


Please refer
to the Stock Purchase Contract Agreement, dated as of May 17, 2007 (the “Stock Purchase Contract Agreement”; unless otherwise defined
herein, terms defined in the Stock Purchase Contract Agreement are used herein
as defined therein), between the Company and the undersigned, as Stock Purchase
Contract Agent and as attorney-in-fact for the Holders of Normal MCAPS from
time to time.


 


In accordance
with Section 6.2(b) of the Stock Purchase Contract Agreement and, based on
notices of Settlement with Treasury Securities received from Holders of Normal
MCAPS as of 5:00 p.m. (New York City time), on the second Business Day
immediately preceding the beginning of the Remarketing Period, we hereby notify
you that an aggregate liquidation amount of $     Trust Preferred Securities are to be
tendered for purchase in the Remarketing.


 


	
  Dated:

  	
   

  	
   

  	
  By:

  	
  U.S. BANK NATIONAL ASSOCIATION,

  
	
   

  	
   

  	
  as the Stock Purchase Contract Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title: Authorized Signatory