EXHIBIT 4(m)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
UTILICORP UNITED INC.
And
THE CHASE MANHATTAN BANK,
As Purchase Contract Agent
PURCHASE CONTRACT AGREEMENT
Dated as of September ____, 1999
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
TABLE OF CONTENTS
RECITALS ...........................................................1
ARTICLE I. Definitions and Other Provisions of General Applications.......1
Section 1.1. Definitions....................................................1
Section 1.2. Compliance Certificates and Opinions..........................12
Section 1.3. Form of Documents Delivered to 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......................15
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.................................................16
Section 1.14. Inspection of Agreement......................................17
ARTICLE II. Certificate Forms.................................................17
Section 2.1. Forms of Certificates Generally...............................17
Section 2.2. Form of Purchase Contract Agent's Certificate of
Authentication.............................................................18
ARTICLE III. The Securities...................................................18
Section 3.1. Amount; Form and Denominations................................18
Section 3.2. Rights and Obligations Evidenced by the Certificates..........19
Section 3.3. Execution, Authentication, Delivery and Dating................20
Section 3.4. Temporary Certificates........................................20
Section 3.5. Registration; Registration of Transfer and Exchange...........21
Section 3.6. Book-Entry Interests..........................................22
Section 3.7. Notices to Holders............................................23
Section 3.8. Appointment of Successor Clearing Agency......................23
Section 3.9. Definitive Certificates.......................................23
Section 3.10. Mutilated, Destroyed, Lost and Stolen Certificates...........23
Section 3.11. Persons Deemed Owners........................................25
Section 3.12. Cancellation.................................................25
Section 3.13. Creation of Treasury PEPS Units by Substitution of Treasury
Securities.................................................................26
Section 3.14. Reestablishment of PEPS Units................................27
Section 3.15. Transfer of Collateral upon Occurrence of Termination Event..28
Section 3.16. No Consent to Assumption.....................................29
ARTICLE IV. The Preferred Securities..........................................29
i
Section 4.1. Interest Payments; Rights to Interest Payments Preserved......29
Section 4.2. Notice and Voting.............................................30
Section 4.3. Distribution of Debentures; Tax Event Redemption..............31
ARTICLE V. The Purchase Contracts.............................................32
Section 5.1. Purchase of Shares of Common Stock............................32
Section 5.2. Purchase Contract Payments....................................34
Section 5.3. Deferral of Purchase Contract Payments........................35
Section 5.4. Payment of Purchase Price.....................................35
Section 5.5. Issuance of Shares of Common Stock............................40
Section 5.6. Adjustment of Settlement Rate.................................40
Section 5.7. Notice of Adjustments and Certain Other Events................47
Section 5.8. Termination Event; Notice.....................................47
Section 5.9. Early Settlement..............................................48
Section 5.10. Intentionally Omitted........................................50
Section 5.11. No Fractional Shares.........................................50
Section 5.12. Charges and Taxes............................................50
ARTICLE VI. Remedies..........................................................50
Section 6.1. Unconditional Right of Holders to Receive Purchase Contract
Payments and to Purchase Shares of Common Stock............................50
Section 6.2. Restoration of Rights and Remedies............................51
Section 6.3. Rights and Remedies Cumulative................................51
Section 6.4. Delay or Omission Not Waiver..................................51
Section 6.5. Undertaking for Costs.........................................51
Section 6.6. Waiver of Stay or Extension Laws..............................52
ARTICLE VII The Purchase Contract Agent.......................................52
Section 7.1. Certain Duties and Responsibilities...........................52
Section 7.2. Notice of Default.............................................53
Section 7.3. Certain Rights of Purchase Contract Agent.....................53
Section 7.4. Not Responsible for Recitals or Issuance of Securities........55
Section 7.5. May Hold Securities...........................................55
Section 7.6. Money Held in Custody.........................................55
Section 7.7. Compensation and Reimbursement................................55
Section 7.8. Corporate Purchase Contract Agent Required; Eligibility.......56
Section 7.9. Resignation and Removal; Appointment of Successor.............56
Section 7.10. Acceptance of Appointment by Successor.......................57
Section 7.11. Merger, Conversion, Consolidation or Succession to Business..58
Section 7.12. Preservation of Information; Communications to Holders.......58
Section 7.13. No Obligations of Purchase Contract Agent....................58
Section 7.14. Tax Compliance...............................................59
ARTICLE VIII Supplemental Agreements..........................................59
Section 8.1. Supplemental Agreements Without Consent of Holders............59
Section 8.2. Supplemental Agreements With Consent of Holders...............60
Section 8.3. Execution of Supplemental Agreements..........................61
ii
Section 8.4. Effect of Supplemental Agreements.............................61
Section 8.5. Reference to Supplemental Agreements..........................61
ARTICLE IX. Merger, Consolidation, Share exchange, Sale or Conveyance........62
Section 9.1. Covenant Not to Merge, Consolidate, Enter into a Share Exchange,
Sell or Convey Property Except Under Certain Conditions....................62
Section 9.2. Rights and Duties of Successor Corporation....................62
Section 9.3. Officers' Certificate and Opinion of Counsel Given to Purchase
Contract Agent.............................................................63
ARTICLE X Covenants...........................................................63
Section 10.1. Performance Under Purchase Contracts.........................63
Section 10.2. Maintenance of Office or Agency..............................63
Section 10.3. Company to Reserve Common Stock..............................64
Section 10.4. Covenants as to Common Stock.................................64
Section 10.5. Statements of Officers of the Company as to Default..........64
Section 10.6. ERISA........................................................64
EXHIBIT A FORM OF PEPS UNITS CERTIFICATE...............................1
EXHIBIT B FORM OF TREASURY PEPS UNITS CERTIFICATE......................1
EXHIBIT C INSTRUCTION TO PURCHASE CONTRACT AGENT.......................1
EXHIBIT D NOTICE FROM PURCHASE CONTRACT AGENT TO HOLDERS...............1
EXHIBIT E NOTICE TO SETTLE BY CASH.....................................1
EXHIBIT F NOTICE FROM PURCHASE CONTRACT AGENT TO COLLATERAL
AGENT AND SENIOR TRUSTEE.....................................1
iii
PURCHASE CONTRACT AGREEMENT, dated as of September ____, 1999, between
UTILICORP UNITED INC., a Delaware corporation (the "Company"), and THE CHASE
MANHATTAN BANK, a New York banking association, acting as purchase contract
agent for the Holders of Securities from time to time (the "Purchase Contract
Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Certificates evidencing the Securities.
All things necessary to make the Purchase Contracts, when the Certificates
are executed by the Company and authenticated, executed on behalf of the Holders
and delivered by the Purchase Contract Agent, as provided in this Agreement, the
valid obligations of the Company, and to constitute these presents a valid
agreement of the Company, in accordance with its terms, have been done. For and
in consideration of the premises and the purchase of the Securities by the
Holders thereof, it is mutually agreed as follows:
ARTICLE I
Definitions and Other Provisions
of General Applications
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, and nouns and
pronouns of the masculine gender include the feminine and neuter genders;
(b) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles in
the United States;
(c) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, Exhibit or other subdivision;
(d) the following terms have the meanings given to them in the
Declaration: (i) Applicable Ownership Interest; (ii) Applicable Principal
Amount; (iii) Authorized Newspaper; (iv) Guarantee; (v) Primary Treasury Dealer;
(vi) Pro Rata, (vii) Quotation Agent; (viii) Redemption Amount; (ix) Redemption
Price; (x) Remarketing, (xi) Remarketing Settlement Date, (xii) Reset Rate,
(xiii) Scheduled Remarketing Settlement Date, (xiv) Tax Event Redemption, (xv)
Tax Event Redemption Date; (xvi) Two-Year Benchmark Treasury Rate; (xvii)
Treasury Consideration, (xviii) Treasury Portfolio; and (xix) Treasury Portfolio
Purchase Price; and
(e) the following terms have the meanings given to them in this Section
1.1(e):
"Act" has the meaning, with respect to any Holder, set forth in Section
1.4.
"Adjusted Contract Adjustment Payment Rate," with respect to any Reset
Transaction, means the rate per annum that is the arithmetic average of the
rates quoted by two Reference Dealers selected by the Company or its successor
as the rate at which Contract Adjustment Payments should accrue so that the fair
market value, expressed in dollars, of a PEPS Unit immediately after the later
of (i) public announcement of such Reset Transaction or (ii) public announcement
of a change in dividend policy in connection with such Reset Transaction will
equal the average Trading Price of a PEPS Unit for the 40 Trading Days
immediately preceding the date of public announcement of such Reset Transaction;
provided that the Adjusted Contract Adjustment Payment Rate shall not be less
than ____% per annum.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agreement" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Applicable Market Value" has the meaning set forth in Section 5.1.
"Applicants" has the meaning set forth in Section 7.12(b).
"Bankruptcy Code" means title 11 of the United States Code, or any other
law of the United States that from time to time provides a uniform system of
bankruptcy laws.
"Beneficial Owner" means, with respect to a Global Certificate, a Person
who is the beneficial owner of such Book-Entry Interest as reflected on the
books of the Clearing Agency or on the books of a Person maintaining an account
with such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the rules of such Clearing
Agency).
"Board of Directors" means the board of directors of the Company or a duly
authorized committee of that board.
"Board Resolution" means one or more resolutions of the Board of Directors,
a copy of which has been certified by the Secretary or an Assistant Secretary of
the Company, to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification and delivered to the
Purchase Contract Agent.
2
"Book-Entry Interest" means a beneficial interest in a Global Certificate,
ownership and transfers of which shall be maintained and made through book
entries by a Clearing Agency as described in Section 3.6.
"Business Day" means any day other than a Saturday or Sunday or a day on
which banking institutions in New York City are authorized or required by law or
executive order to remain closed or a day on which the Indenture Trustee or the
Property Trustee is closed for business; provided that for purposes of the
second paragraph of Section 1.12 only, the term "Business Day" shall also be
deemed to exclude any day on which trading on the New York Stock Exchange, Inc.
is closed or suspended.
"Cash Settlement" has the meaning set forth in Section 5.4(a)(i).
"Certificate" means a PEPS Units Certificate or a Treasury PEPS Units
Certificate.
"Clearing Agency" means an organization registered as a "Clearing Agency"
pursuant to Section 17A of the Exchange Act that is acting as a depositary for
the Securities and in whose name, or in the name of a nominee of that
organization, shall be registered a Global Certificate and which shall undertake
to effect book entry transfers and pledges of the Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Clearing Agency
effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Price" has the meaning set forth in Section 5.1.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" has the meaning set forth in Section 1 of the Pledge
Agreement.
"Collateral Account" has the meaning set forth in Section 1 of the Pledge
Agreement.
"Collateral Agent" means The Chase Manhattan Bank, as Collateral Agent
under the Pledge Agreement until a successor Collateral Agent shall have become
such pursuant to the applicable provisions of the Pledge Agreement, and
thereafter "Collateral Agent" shall mean the Person who is then the Collateral
Agent thereunder.
"Collateral Substitution" has the meaning set forth in Section 3.13.
"Common Stock" means the UtiliCorp United Inc. common stock, par value
$1.00 per share.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor shall have become such pursuant to the
applicable provision of this Agreement, and thereafter "Company" shall mean such
successor.
"Constituent Person" has the meaning set forth in Section 5.6(b).
3
"Convertible Securities" has the meaning set forth in Section __ of Article
__ of the Restated Articles of Incorporation of the Company.
"Corporate Trust Office" means the principal corporate trust office of the
Purchase Contract Agent at which, at any particular time, its corporate trust
business shall be administered, which office at the date hereof is located at
The Chase Manhattan Bank, ___________________, Attention: _______________.
"Coupon Rate" means the percentage rate per annum at which each Debenture
will bear interest initially.
"Contract Adjustment Payments" means, (a) if a Reset Transaction has not
occurred, the fee payable by the Company in respect of each Purchase
Contract, equal to ___% per annum of the Stated Amount, or (b) following the
occurrence of a Reset Transaction, the Adjusted Contract Adjustment Payment
Rate related to such Reset Transaction until any succeeding Reset Transaction
shall occur, computed (i) for any full quarterly period on the basis of a
360-day year of twelve 30-day months and (ii) for any period shorter than a
full quarterly period for which such payments are calculated, on the basis of
a 30-day month and, for periods of less than a month, the actual number of
days elapsed per 30-day month.
"Current Market Price" has the meaning set forth in Section 5.6(a)(8).
"Debentures" means the series of subordinated debentures issued by the
Company under the Indenture and held by the Property Trustee.
"Declaration" means the Amended and Restated Declaration of Trust of UCU
Capital Trust I, dated as of September ____, 1999, among the Company as sponsor,
the trustees named therein and the holders from time to time of individual
beneficial interests in the assets of the Trust.
"Depositary" means DTC until another Clearing Agency becomes its successor.
"Disposition" has the meaning set forth in Section 5.10(a)(i).
"Dividend Yield," on any security for any period, means the dividends paid
or proposed to be paid pursuant to an announced dividend policy on such security
for such period divided by, if with respect to dividends paid on such security,
the average Closing Price of such security during such period and, if with
respect to dividends so proposed to be paid on such security, the Closing Price
of such security on the effective date of the related Reset Transaction.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Early Settlement" has the meaning set forth in Section 5.9(a).
"Early Settlement Amount" has the meaning set forth in Section 5.9(a).
"Early Settlement Date" has the meaning set forth in Section 5.9(a).
4
"Early Settlement Rate" has the meaning set forth in Section 5.9(b).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time, and the rules and
regulations promulgated thereunder.
"Expiration Date" has the meaning set forth in Section 1.4(e).
"Extension Period" has the meaning set forth in Section 4.2.
"Expiration Time" has the meaning set forth in Section 5.6(a)(6).
"Failed Remarketing" has the meaning set forth in Section 5.4(b).
"Global Certificate" means a Certificate that evidences all or part of the
Securities and is registered in the name of a Clearing Agency or a nominee
thereof.
"Holder" means, with respect to a Security, the Person in whose name the
Security evidenced by a PEPS Units Certificate or a Treasury PEPS Units
Certificate is registered in the related PEPS Units Register or the Treasury
PEPS Units Register, as the case may be; provided, however, that in determining
whether the Holders of the requisite number of PEPS Units or Treasury PEPS Units
have voted on any matter, then for the purpose of such determination only (and
not for any other purpose hereunder), if the Security remains in the form of one
or more Global Certificates and if the Clearing Agency which is the holder of
such Global Certificate has sent an omnibus proxy assigning voting rights to the
Clearing Agency Participants to whose accounts the Securities are credited on
the record date, the term "Holder" shall mean such Clearing Agency Participant
acting at the direction of the Beneficial Owners.
"Indenture" means the Indenture, dated as of September ____, 1999, between
the Company and the Indenture Trustee (including any provisions of the TIA that
are deemed incorporated therein), pursuant to which the Debentures will be
issued.
"Indenture Trustee" means The Chase Manhattan Bank, a New York banking
corporation, as trustee under the Indenture, or any successor thereto.
"Issuer Order" or "Issuer Request" means a written order or request signed
in the name of the Company by its Chairman of the Board, its President or one of
its Vice Presidents, and by its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary, and delivered to the Purchase Contract Agent.
"Non-electing share" has the meaning set forth in Section 5.6(b).
"NYSE" has the meaning set forth in Section 5.1.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, its President or one of its Vice Presidents, and by the Treasurer, an
Assistant Treasurer, the
5
Secretary or an Assistant Secretary of the Company, and delivered to the
Purchase Contract Agent. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Agreement shall
include:
(i) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(ii) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(iii) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
to the Company (and who may be an employee of the Company), and who shall be
reasonably acceptable to the Purchase Contract Agent. An opinion of counsel may
rely on certificates as to matters of fact.
"Outstanding Securities" means, with respect to any PEPS Units or Treasury
PEPS Units and as of the date of determination, all PEPS Units or Treasury PEPS
Units evidenced by Certificates theretofore authenticated, executed and
delivered under this Agreement, except:
(i) If a Termination Event has occurred, (i) Treasury PEPS Units
and (ii) PEPS Units for which the underlying Senior Deferrable Notes have
been theretofore deposited with the Purchase Contract Agent in trust for
the Holders of such PEPS Units;
(ii) PEPS Units and Treasury PEPS Units evidenced by Certificates
theretofore cancelled by the Purchase Contract Agent or delivered to the
Purchase Contract Agent for cancellation or deemed cancelled pursuant to
the provisions of this Agreement; and
(iii) PEPS Units and Treasury PEPS Units evidenced by Certificates
in exchange for or in lieu of which other Certificates have been
authenticated, executed on behalf of the Holder and delivered pursuant to
this Agreement, other than any such Certificate in respect of which there
shall have been presented to the Purchase Contract Agent proof satisfactory
to it that such Certificate is held by a bona fide purchaser in whose hands
the PEPS Units or Treasury PEPS Units evidenced by such Certificate are
valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
number of the PEPS Units or Treasury PEPS Units have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, PEPS Units or
Treasury PEPS Units owned by the Company or any
6
Affiliate of the Company shall be disregarded and deemed not to be
Outstanding Securities, except that, in determining whether the Purchase
Contract Agent shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only PEPS Units or
Treasury PEPS Units which a Responsible Officer of the Purchase Contract
Agent knows to be so owned shall be so disregarded. PEPS Units or Treasury
PEPS Units so owned which have been pledged in good faith may be regarded as
Outstanding Securities if the pledgee establishes to the satisfaction of the
Purchase Contract Agent the pledgee's right so to act with respect to such
PEPS Units or Treasury PEPS Units and that the pledgee is not the Company or
any Affiliate of the Company.
"Payment Date" means each ___________, ____, ___________, ____,
__________ ___ and ____________ ___, commencing _____________ ____, 1999.
"Permitted Investments" has the meaning set forth in Section 1 of the
Pledge Agreement.
"PEPS Unit" means the collective rights and obligations of a Holder of a
PEPS Units Certificate in respect of a Preferred Security, the Debentures or an
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the case
may be, subject in each case to the Pledge thereof, and the related Purchase
Contract; provided, that the appropriate Applicable Ownership Interest (as
specified in clause (B) of the definition of such term) of the Treasury
Portfolio shall not be subject to the Pledge.
"PEPS Units Certificate" means a certificate evidencing the rights and
obligations of a Holder in respect of the number of PEPS Units specified on such
certificate.
"PEPS Units Register" and "PEPS Units Registrar" have the respective
meanings set forth in Section 3.5.
"Permitted Investments" has the meaning set forth in Section 1 of the
Pledge Agreement.
"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 ERISA, a plan or
individual retirement account that is subject to Section 4975 of the Code or any
entity whose assets are considered assets of any such plan.
"Pledge" means the pledge under the Pledge Agreement of the Preferred
Securities, the Debentures, the Treasury Securities or the appropriate
Applicable Ownership Interest (as specified in clause (A) of the definition of
such term) of the Treasury Portfolio, in each case constituting a part of the
Securities.
"Pledge Agreement" means the Pledge Agreement, dated as of September ____,
1999, among the Company, the Collateral Agent, the Securities Intermediary and
the Purchase Contract Agent, on its own behalf and as attorney-in-fact for the
Holders from time to time of the Securities.
7
"Pledged Debentures" has the meaning set forth in the Pledge Agreement.
"Pledged Preferred Securities" has the meaning set forth in the Pledge
Agreement.
"Predecessor Certificate" means a Predecessor PEPS Units Certificate or a
Predecessor Treasury PEPS Units Certificate.
"Predecessor PEPS Units Certificate" of any particular PEPS Units
Certificate means every previous PEPS Units Certificate evidencing all or a
portion of the rights and obligations of the Company and the Holder under the
PEPS Units evidenced thereby; and, for the purposes of this definition, any PEPS
Units Certificate authenticated and delivered under Section 3.10 in exchange for
or in lieu of a mutilated, destroyed, lost or stolen PEPS Units Certificate
shall be deemed to evidence the same rights and obligations of the Company and
the Holder as the mutilated, destroyed, lost or stolen PEPS Units Certificate.
"Predecessor Treasury PEPS Units Certificate" of any particular Treasury
PEPS Units Certificate means every previous Treasury PEPS Units Certificate
evidencing all or a portion of the rights and obligations of the Company and the
Holder under the Treasury PEPS Units evidenced thereby; and, for the purposes of
this definition, any Treasury PEPS Units Certificate authenticated and delivered
under Section 3.10 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Treasury PEPS Units Certificate shall be deemed to evidence the same
rights and obligations of the Company and the Holder as the mutilated,
destroyed, lost or stolen Treasury PEPS Units Certificate.
"Preferred Securities" means the Preferred Securities of the Trust, each
having a stated liquidation amount of $25, representing preferred undivided
beneficial interests in the assets of the Trust.
"Proceeds" has the meaning set forth in Section 1 of the Pledge Agreement.
"Property Trustee" means The Chase Manhattan Bank, as property trustee
under the Declaration, or any successors thereto that is a financial institution
unaffiliated with the Company.
"Purchase Contract" means, with respect to any Security, the contract
forming a part of such Security and obligating the Company to (i) sell, and the
Holder of such Security to purchase, shares of Common Stock and (ii) pay the
Holder Purchase Contract Payments on the terms and subject to the conditions set
forth in Article Five hereof.
"Purchase Contract Agent" means the Person named as the "Purchase Contract
Agent" in the first paragraph of this Agreement until a successor Purchase
Contract Agent shall have become such pursuant to the applicable provisions of
this Agreement, and thereafter "Purchase Contract Agent" shall mean such Person.
"Purchase Contract Payments" means the payments payable by the Company on
the Payment Dates in respect of each Purchase Contract, equal to ____% per annum
of the Stated Amount.
8
"Purchase Contract Settlement Date" means ______________.
"Purchase Contract Settlement Fund" has the meaning set forth in Section
5.5.
"Purchase Price" has the meaning set forth in Section 5.1.
"Purchased Shares" has the meaning set forth in Section 5.6(a)(6).
"Record Date" for the Purchase Contract Payments payable on any Payment
Date means, as to any Global Certificate, the Business Day next preceding such
Payment Date, and as to any other Certificate, the fifteenth Business Day prior
to such Payment Date.
"Redemption" has the meaning set forth in Section 5.10(a)(i).
"Redemption Date" has the meaning set forth in Section 5.10(a)(i).
"Reference Dealer" means a dealer engaged in trading of convertible
securities.
"Reference Price" has the meaning set forth in Section 5.1.
"Register" means the PEPS Units Register and the Treasury PEPS Units
Register.
"Registrar" means the PEPS Units Registrar and the Treasury PEPS Units
Registrar.
"Remarketing Agent" has the meaning set forth in Section 5.4(b).
"Remarketing Agreement" means the Remarketing Agreement, dated as of
September ____, 1999, between the Company and the Remarketing Agent.
"Reorganization Event" has the meaning set forth in Section 5.6(b).
"Reset Transaction" means a merger, consolidation or statutory share
exchange to which the Person that is the issuer of the common stock for which
the Purchase Contracts are then to be settled is a party, a sale of all or
substantially all assets of such Person, a recapitalization of such common stock
or a distribution described in Section 5.6(a)(4) by such Person, after the
effective date of which the Purchase Contracts are then to be settled for shares
of a Person (i) the common stock of which had a Dividend Yield for the four
fiscal quarters immediately preceding the public announcement thereof which was,
or (ii) that announces a dividend policy prior to the effective date thereof
which policy, if implemented, would result in a Dividend Yield on such common
stock for the next four fiscal quarters which would be, more than 250 basis
points higher than the Dividend Yield on the common stock for which the Purchase
Contracts are to be settled prior to such effective date for the four fiscal
quarters immediately preceding such public announcement.
"Responsible Officer" means, with respect to the Purchase Contract Agent,
any officer of the Purchase Contract Agent assigned by the Purchase Contract
Agent to administer its corporate trust matters.
9
"Round Lot Payment" means the least amount of cash, if any, payable by the
Company, which when added to the proceeds from the Remarketing would cause such
amount to be an integral multiple of $1,000.
"Securities Intermediary" means The First National Bank of Chicago, as
Securities Intermediary under the Pledge Agreement until a successor Securities
Intermediary shall have become such pursuant to the applicable provisions of the
Pledge Agreement, and thereafter "Securities Intermediary" shall mean such
successor.
"Security" means a PEPS Unit or a Treasury PEPS Unit, as the case may be.
"Settlement Rate" has the meaning set forth in Section 5.1.
"Stated Amount" means $25.
"Termination Date" means the date, if any, on which a Termination Event
occurs.
"Termination Event" means the occurrence of any of the following events:
(i) at any time on or prior to the Purchase Contract Settlement
Date, a 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, unless such judgment, decree or order shall have been entered
within 60 days prior to the Purchase Contract Settlement Date, such decree
or order shall have continued undischarged and unstayed for a period of 60
days;
(ii) 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, unless such judgment, decree or
order shall have been entered within 60 days prior to the Purchase Contract
Settlement Date, such judgment, decree or order shall have continued
undischarged and unstayed for a period of 60 days; or
(iii) at any time on or prior to the Purchase Contract Settlement
Date, the Company shall 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.
"Threshold Appreciation Price" has the meaning set forth in Section 5.1.
10
"TIA" means the Trust Indenture Act of 1939, as amended from time to time,
or any successor legislation.
"Trading Day" has the meaning set forth in Section 5.1.
"Trading Price" of a security on any date of determination means (i) the
closing sale price (or, if no closing price is reported, the last reported sale
price) of a security (regular way) on the NYSE on such date, (ii) if such
security is not listed for trading on the NYSE on any such date, the closing
sale price as reported in the composite transactions for the principal United
States securities exchange on which such security is so listed, (iii) if such
security is not so listed on a United States national or regional securities
exchange, the closing sale price as reported by the NASDAQ Stock Market, Inc.
(iv) if such security is not so reported, the price quoted by Interactive Data
Corporation for such security or, if Interactive Data Corporation is not quoting
such price, a similar quotation service selected by the Company, (v) if such
security is not so quoted, the average of the mid-point of the last bid and ask
prices for such security from at least two dealers recognized as market-makers
for such security, or (vi) if such security is not so quoted, the average of the
last bid and ask prices for such security from a Reference Dealer.
"Treasury PEPS Unit" means, following the substitution of Treasury
Securities for Preferred Securities or Debentures as collateral to secure a
Holder's obligations under the Purchase Contract, the collective rights and
obligations of a Holder of a Treasury PEPS Units Certificate in respect of such
Treasury Securities, subject to the Pledge thereof, and the related Purchase
Contract.
"Treasury PEPS Units Certificate" means a certificate evidencing the rights
and obligations of a Holder in respect of the number of Treasury PEPS Units
specified on such certificate.
"Treasury PEPS Units Register" and "Treasury PEPS Units Registrar" have the
respective meanings set forth in Section 3.5.
"Treasury Securities" means zero-coupon U.S. Treasury Securities (Cusip No.
___________) which are the principal strip of the ____% U.S. Treasury Securities
which mature on _________________.
"Trust" means UCU Capital Trust I, a statutory business that formed under
the laws of the State of Delaware, or any successor thereto by merger or
consolidation.
"Underwriting Agreement" means the Underwriting Agreement, dated
_____________, 1999, between the Company and ___________________.
____________________, and ____________________.
"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."
11
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 Purchase Contract Agent to take any
action in accordance with any provision of this Agreement, the Company shall
furnish to the Purchase Contract Agent an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with and, if requested by the Purchase
Contract Agent, an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Agreement
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Agreement 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 Purchase Contract Agent.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents. Any
certificate or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which his 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 stating that the information with respect to
such factual matters is in the possession of the Company unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
12
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 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 7.1) conclusive in favor of the Purchase
Contract Agent and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Purchase Contract
Agent deems sufficient.
(c) The ownership of Securities shall be proved by the PEPS Units Register
or the Treasury PEPS Units Register, as the case may be.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Certificate shall bind every future Holder of
the same Certificate and the Holder of every Certificate issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Purchase
Contract Agent or the Company in reliance thereon, whether or not notation of
such action is made upon such Certificate.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities 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 Securities. If any record date is set pursuant to this paragraph,
the Holders of the Outstanding PEPS Units and the Outstanding Treasury PEPS
Units, as the case may be, on such record date, and no other Holders, shall be
entitled to take the relevant action with respect to the PEPS Units or the
Treasury PEPS Units, as the case may be, whether or not such Holders remain
Holders after such record date; provided that no such action shall be effective
hereunder unless taken prior to or on the applicable Expiration Date by Holders
of the requisite number of Outstanding Securities 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
Securities on the date such action is taken. Promptly after any record date is
set pursuant to this paragraph,
13
the Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to
the Purchase Contract Agent in writing and to each Holder of Securities in
the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, 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 Purchase Contract Agent in writing, and to each Holder of Securities in the
manner set forth 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 Purchase Contract Agent only upon receipt thereof:
If to the Purchase Contract Agent:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Department
If to the Company:
UtiliCorp United Inc.
00 Xxxx Xxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention:
If to the Collateral Agent:
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Global Corporate Trust Services
14
If to the Property Trustee:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention:
If to the Indenture Trustee:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention:
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 applicable Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Agreement provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Purchase Contract Agent, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Purchase Contract Agent
shall constitute a sufficient notification for every purpose hereunder.
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 shall bind
its successors and assigns, whether so expressed or not.
15
Section 1.9. Separability Clause.
In case any provision in this Agreement or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
Section 1.10. Benefits of Agreement.
Nothing contained in this Agreement or in the Securities, 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 Securities
evidenced by their Certificates by their acceptance of delivery of such
Certificates.
Section 1.11. Governing Law.
This Agreement and the Securities shall be governed by, and construed in
accordance with, the laws of the State of New York.
Section 1.12. Legal Holidays.
In any case where any Payment Date shall not be a Business Day,
notwithstanding any other provision of this Agreement or the PEPS Units
Certificates or the Treasury PEPS Units Certificates, Purchase Contract Payments
shall not be made on such date, but shall be made on the next succeeding
Business Day with the same force and effect as if made on such Payment Date,
provided that no interest shall accrue or be payable by the Company or any
Holder for the period from and after any such Payment Date, except that, if such
next succeeding Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day with the same
force and effect as if made on such Payment Date.
In any case where any Purchase Contract Settlement Date shall not be a
Business Day, notwithstanding any other provision of this Agreement, the PEPS
Units Certificates or the Treasury PEPS Units Certificates, the Purchase
Contracts shall not be performed on such date, but the Purchase Contracts shall
be performed on the immediately following Business Day with the same force and
effect as if performed on the Purchase Contract Settlement 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.
16
ARTICLE II
Certificate Forms
Section 2.1. Forms of Certificates Generally.
The PEPS Units Certificates (including the form of Purchase Contract
forming part of each PEPS Unit evidenced thereby) shall be in substantially
the form set forth in Exhibit A hereto, 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 PEPS Units are listed or any depositary
therefor, or as may, consistently herewith, be determined by the officers of
the Company executing such PEPS Units Certificates, as evidenced by their
execution of the PEPS Units Certificates.
The definitive PEPS Units Certificates shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner,
all as determined by the officers of the Company executing the PEPS Units
evidenced by such PEPS Units Certificates, consistent with the provisions of
this Agreement, as evidenced by their execution thereof.
The Treasury PEPS Units Certificates (including the form of Purchase
Contract forming part of each Treasury PEPS Unit evidenced thereby) shall be
in substantially the form set forth in Exhibit B hereto, 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 Treasury PEPS Units may be
listed or any depositary therefor, or as may, consistently herewith, be
determined by the officers of the Company executing such Treasury PEPS Units
Certificates, as evidenced by their execution of the Treasury PEPS Units
Certificates.
The definitive Treasury PEPS Units Certificates shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing the
Treasury PEPS Units evidenced by such Treasury PEPS Units 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
PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
(THE "DEPOSITARY"), OR A 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
17
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 REGISTERED 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."
Section 2.2. Form of Purchase Contract Agent's Certificate of Authentication.
The form of the Purchase Contract Agent's certificate of authentication
of the PEPS Units shall be in substantially the form set forth on the form of
the PEPS Units Certificates.
The form of the Purchase Contract Agent's certificate of authentication
of the Treasury PEPS Units shall be in substantially the form set forth on
the form of the Treasury PEPS Units Certificates.
ARTICLE III
The Securities
Section 3.1. Amount; Form and Denominations.
The aggregate number of Securities evidenced by Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to ______________ (including ______________ relating to the
Underwriters' over-allotment option), 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, 5.9 or 8.5.
The Certificates shall be issuable only in registered form and only in
denominations of a single PEPS Unit or Treasury PEPS Unit and any integral
multiple thereof.
Section 3.2. Rights and Obligations Evidenced by the Certificates.
Each PEPS Units Certificate shall evidence the number of PEPS Units
specified therein, with each such PEPS Unit representing (1) the ownership by
the Holder thereof of a beneficial interest in a Preferred Security, a
Debenture or the Applicable Ownership Interest of the Treasury
18
Portfolio, as the case may be, subject to the Pledge of such Preferred
Security, such Debenture or the Applicable Ownership Interest (as specified
in clause (A) of the definition of such term) of the Treasury Portfolio, as
the case may be, by such Holder pursuant to the Pledge Agreement, and (2) the
rights and obligations of the Holder thereof and the Company under one
Purchase Contract. The Purchase Contract Agent as attorney-in-fact for, and
on behalf of, the Holder of each PEPS Unit shall pledge, pursuant to the
Pledge Agreement, the Preferred Security, the Debenture or the Applicable
Ownership Interest (as specified in clause (A) of the definition of such
term) of the Treasury Portfolio, as the case may be, forming a part of such
PEPS Unit, to the Collateral Agent and grant to the Collateral Agent a
security interest in the right, title and interest of such Holder in such
Preferred Security, such Debenture or the Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio, as the case may be, for the benefit of the Company, to secure the
obligation of the Holder under each Purchase Contract to purchase shares of
Common Stock. Prior to the purchase of shares of Common Stock under each
Purchase Contract, such Purchase Contracts shall not entitle the Holder of a
PEPS Units Certificate to any of the rights of a holder of shares of Common
Stock, including, without limitation, the right to vote or receive any
dividends or other payments or to consent or to receive notice as a
shareholder in respect of the meetings of shareholders or for the election of
directors of the Company or for any other matter, or any other rights
whatsoever as a shareholder of the Company.
Upon the formation of a Treasury PEPS Unit pursuant to Section 3.13,
each Treasury PEPS Units Certificate shall evidence the number of Treasury
PEPS Units specified therein, with each such Treasury PEPS Unit representing
(1) the ownership by the Holder thereof of a 1/40 undivided beneficial
interest in a Treasury Security with a principal amount equal to $1,000,
subject to the Pledge of such Treasury Security by such Holder pursuant to
the Pledge Agreement, and (2) the rights and obligations of the Holder
thereof and the Company under one Purchase Contract. Prior to the purchase
of shares of Common Stock under each Purchase Contract, such Purchase
Contracts shall not entitle the Holder of a Treasury PEPS Units Certificate
to any of the rights of a holder of shares of Common Stock, including,
without limitation, the right to vote or receive any dividends or other
payments or to consent or to receive notice as a shareholder in respect of
the meetings of shareholders or for the election of directors of the Company
or for any other matter, or any other rights whatsoever as a shareholder of
the Company.
Section 3.3. Execution, Authentication, Delivery and Dating.
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 Purchase Contract Agent for authentication, execution on behalf of the
Holders and delivery, together with its Issuer Order for authentication of
such Certificates, and the Purchase Contract Agent in accordance with such
Issuer Order shall authenticate, execute on behalf of the Holders and deliver
such Certificates.
The Certificates shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents. The
signature of any of these officers on the Certificates may be manual or
facsimile.
19
Certificates bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates.
No Purchase Contract evidenced by a Certificate shall be valid until
such Certificate has been executed on behalf of the Holder by the manual
signature of an authorized signatory of the Purchase Contract Agent, as such
Holder's attorney-in-fact. Such signature by an authorized signatory of the
Purchase Contract Agent shall be conclusive evidence that the Holder of such
Certificate has entered into the Purchase Contracts evidenced by such
Certificate.
Each Certificate shall be dated the date of its authentication.
No Certificate shall be entitled to any benefit under this Agreement or
be valid or obligatory for any purpose unless there appears on such
Certificate a certificate of authentication substantially in the form
provided for herein executed by an authorized signatory of the 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.
Pending the preparation of definitive Certificates, the Company shall
execute and deliver to the Purchase Contract Agent, and the Purchase Contract
Agent shall authenticate, execute on behalf of the Holders, and deliver, in
lieu of such definitive Certificates, temporary Certificates which are in
substantially the form set forth in Exhibit A or Exhibit B hereto, as the
case may be, with such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or
engraved thereon as may be required by the rules of any securities exchange
on which the PEPS Units or Treasury PEPS Units, as the case may be, are
listed, or as may, consistently herewith, be determined by the officers of
the Company executing such Certificates, as evidenced by their execution of
the Certificates.
If temporary Certificates are issued, the Company will cause definitive
Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the Corporate Trust Office, at the expense of the Company and
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Certificates, the Company shall execute and deliver to the
Purchase Contract Agent, and the Purchase Contract Agent shall authenticate,
execute on behalf of the Holder, and deliver in exchange therefor, one or
more definitive Certificates of like tenor and denominations and evidencing a
like number of PEPS Units or Treasury PEPS Units, as the case may be, 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 PEPS Units or Treasury PEPS
Units, as the case may be, evidenced thereby as definitive Certificates.
20
Section 3.5. Registration; Registration of Transfer and Exchange.
The Purchase Contract Agent shall keep at the Corporate Trust Office a
register (the "PEPS Units Register") in which, subject to such reasonable
regulations as it may prescribe, the Purchase Contract Agent shall provide
for the registration of PEPS Units Certificates and of transfers of PEPS
Units Certificates (the Purchase Contract Agent, in such capacity, the "PEPS
Units Registrar") and a register (the "Treasury PEPS Units Register") in
which, subject to such reasonable regulations as it may prescribe, the
Purchase Contract Agent shall provide for the registration of the Treasury
PEPS Units Certificates and of transfers of Treasury PEPS Units Certificates
(the Purchase Contract Agent, in such capacity, the "Treasury PEPS Units
Registrar").
Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office, the Company shall execute and deliver to the Purchase
Contract Agent, and the Purchase Contract Agent shall authenticate, execute
on behalf of the designated transferee or transferees, and deliver, in the
name of the designated transferee or transferees, one or more new
Certificates of any authorized denominations, like tenor, and evidencing a
like number of PEPS Units or Treasury PEPS Units, as the case may be.
At the option of the Holder, Certificates may be exchanged for other
Certificates, of any authorized denominations and evidencing a like number of
PEPS Units or Treasury PEPS Units, as the case may be, upon surrender of the
Certificates to be exchanged at the Corporate Trust Office. Whenever any
Certificates are so surrendered for exchange, the Company shall execute and
deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall
authenticate, execute on behalf of the Holder, and deliver the Certificates
which the Holder making the exchange is entitled to receive.
All Certificates issued upon any registration of transfer or exchange of
a Certificate shall evidence the ownership of the same number of PEPS Units
or Treasury PEPS Units, as the case may be, and be entitled to the same
benefits and subject to the same obligations, under this Agreement as the
PEPS Units or Treasury PEPS Units, as the case may be, evidenced by the
Certificate surrendered upon such registration of transfer or exchange.
Every Certificate presented or surrendered for registration of transfer
or exchange shall (if so required by the Purchase Contract Agent) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Purchase Contract Agent duly executed, by
the Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of a Certificate, but the Company and the Purchase Contract Agent
may require payment from the Holder of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Certificates, other than any
exchanges pursuant to Sections 3.6 and 8.5 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Purchase Contract Agent, and the Purchase Contract
Agent shall not be obligated to authenticate, execute on behalf of the Holder
and deliver any Certificate in exchange for any
21
other Certificate presented or surrendered for registration of transfer or
for exchange on or after the Business Day immediately preceding the earlier
of the Purchase Contract Settlement Date or the Termination Date. In lieu of
delivery of a new Certificate, upon satisfaction of the applicable conditions
specified above in this Section and receipt of appropriate registration or
transfer instructions from such Holder, the Purchase Contract Agent shall:
(i) if the Purchase Contract Settlement Date has occurred, deliver
the shares of Common Stock issuable in respect of the Purchase Contracts
forming a part of the Securities evidenced by such other Certificate; or
(ii) if a Termination Event shall have occurred prior to the Purchase
Contract Settlement Date, transfer the Senior Deferrable Notes or the
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 Article Five hereof.
Section 3.6. Book-Entry Interests.
The Certificates, on original issuance, will be issued in the form of
one or more fully registered Global Certificates, to be delivered to the
Depositary by, or on behalf of, the Company. Such Global Certificate shall
initially be registered on the books and records of the Company in the name
of Cede & Co., the nominee of the Depositary, and no Beneficial Owner will
receive a definitive Certificate representing such Beneficial Owner's
interest in such Global Certificate, except as provided in Section 3.9. The
Purchase Contract Agent shall enter into an agreement with the 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:
(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 Clearing Agency
for all purposes of this Agreement (including making Purchase Contract
Payments and receiving approvals, votes or consents hereunder) as the
Holder of the Securities and the sole holder of the Global Certificates and
shall have no obligation to the Beneficial Owners;
(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 Clearing Agency and shall be limited to those established by
law and agreements between such Beneficial Owners and the Clearing Agency
or the Clearing Agency Participants.
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
22
communications to the Holders and, with respect to any Securities registered
in the name of a Clearing Agency or the nominee of a Clearing Agency, the
Company or the Company's agent shall, except as set forth herein, have no
obligations to the Beneficial Owners.
Section 3.8. Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as securities
depositary with respect to the Securities, the Company may, in its sole
discretion, appoint a successor Clearing Agency with respect to the
Securities.
Section 3.9. Definitive Certificates.
If:
(i) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Securities and a successor
Clearing Agency is not appointed within 90 days after such discontinuance
pursuant to Section 3.8; or
(ii) there shall have occurred and be continuing a default by the
Company in respect of its obligations under one or more Purchase Contracts,
then upon surrender of the Global Certificates representing the Securities by
the Clearing Agency, accompanied by registration instructions, the Company
shall cause definitive Certificates to be delivered to Beneficial Owners in
accordance with the instructions of the Clearing Agency. The Company shall
not be liable for any delay in delivery of such instructions and may
conclusively rely on and shall be protected in relying on, such instructions.
Section 3.10. Mutilated, Destroyed, Lost and Stolen Certificates.
If any mutilated Certificate is surrendered to the Purchase Contract
Agent, the Company shall execute and deliver to the Purchase Contract Agent,
and the Purchase Contract Agent shall authenticate, execute on behalf of the
Holder, and deliver in exchange therefor, a new Certificate, evidencing the
same number of PEPS Units or Treasury PEPS Units, as the case may be, and
bearing a Certificate number not contemporaneously outstanding.
If there shall be delivered to the Company and the Purchase Contract
Agent (i) evidence to their satisfaction of the destruction, loss or theft of
any Certificate, and (ii) such security or indemnity as may be required by
them to hold each of them and any agent of any of them harmless, then, in the
absence of notice to the Company or the Purchase Contract Agent that such
Certificate has been acquired by a bona fide purchaser, the Company shall
execute and deliver to the Purchase Contract Agent, and the Purchase Contract
Agent shall authenticate, execute on behalf of the Holder, and deliver to the
Holder, in lieu of any such destroyed, lost or stolen Certificate, a new
Certificate, evidencing the same number of PEPS Units or Treasury PEPS Units,
as the case may be, and bearing a Certificate number not contemporaneously
outstanding.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Purchase Contract Agent, and the Purchase Contract
Agent shall not be obligated to authenticate, execute on behalf of the
Holder, and deliver to the Holder, a Certificate on or after
23
the Business Day immediately preceding the earlier of the Purchase Contract
Settlement Date or the Termination Date. In lieu of delivery of a new
Certificate, upon satisfaction of the applicable conditions specified above
in this Section and receipt of appropriate registration or transfer
instructions from such Holder, the Purchase Contract Agent shall:
(i) if the Purchase Contract Settlement Date has occurred, deliver
the shares of Common Stock issuable in respect of the Purchase Contracts
forming a part of the Securities evidenced by such Certificate; or
(ii) if a Termination Event shall have occurred prior to the Purchase
Contract Settlement Date, transfer the Preferred Security, the Debenture or
the Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio or the 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 Article Five hereof.
Upon the issuance of any new Certificate under this Section, the Company
and the Purchase Contract Agent may require the payment by the Holder of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Purchase Contract Agent) connected therewith.
Every new Certificate issued pursuant to this Section in lieu of any
destroyed, lost or stolen Certificate shall constitute an original additional
contractual obligation of the Company and of the Holder in respect of the
Security evidenced thereby, whether or not the destroyed, lost or stolen
Certificate (and the Securities evidenced thereby) shall be at any time
enforceable by anyone, and shall be entitled to all the benefits and be
subject to all the obligations of this Agreement equally and proportionately
with any and all other Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude, to the
extent lawful, all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.11. Persons Deemed Owners.
Prior to due presentment of a Certificate for registration of transfer,
the Company and the Purchase Contract Agent, and any agent of the Company or
the Purchase Contract Agent, may treat the Person in whose name such
Certificate is registered as the owner of the PEPS Units or Treasury PEPS
Units evidenced thereby, for the purpose of receiving distributions on the
Preferred Securities, the Debentures, or on the maturing quarterly interest
strips of the Treasury Portfolio, as applicable, receiving Purchase Contract
Payments, performance of the Purchase Contracts and for all other purposes
whatsoever, whether or not any distributions on the Preferred Securities, the
Debentures, or Treasury Portfolio, as applicable, or Purchase Contract
Payments payable in respect of the Purchase Contracts constituting a part of
the PEPS Units or Treasury PEPS Units evidenced thereby shall be overdue and
notwithstanding any notice to the contrary, and neither the Company nor the
Purchase Contract Agent, nor any agent of the Company or the Purchase
Contract Agent, shall be affected by notice to the contrary.
24
Notwithstanding the foregoing, with respect to any Global Certificate,
nothing contained herein shall prevent the Company, the Purchase Contract
Agent or any agent of the Company or the Purchase Contract Agent, from giving
effect to any written certification, proxy or other authorization furnished
by any Clearing Agency (or its nominee), as a Holder, with respect to such
Global Certificate or impair, as between such Clearing Agency and owners of
beneficial interests in such Global Certificate, the operation of customary
practices governing the exercise of rights of such Clearing Agency (or its
nominee) as Holder of such Global Certificate.
Section 3.12. Cancellation.
All Certificates surrendered for delivery of shares of Common Stock on
or after the Purchase Contract Settlement Date, upon the transfer of
Preferred Securities, Debentures, the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definition of that term) of the
Treasury Portfolio or Treasury Securities, as the case may be, after the
occurrence of a Termination Event or pursuant to an Early Settlement, or upon
the registration of transfer or exchange of a Security, or a Collateral
Substitution or the reestablishment of PEPS Units shall, if surrendered to
any Person other than the Purchase Contract Agent, be delivered to the
Purchase Contract Agent and, if not already cancelled, shall be promptly
cancelled by it. The Company may at any time deliver to the Purchase Contract
Agent for cancellation any Certificates previously authenticated, executed
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Certificates so delivered shall, upon Issuer Order, be
promptly cancelled by the Purchase Contract Agent. No Certificates shall be
authenticated, executed on behalf of the Holder and delivered in lieu of or
in exchange for any Certificates cancelled as provided in this Section,
except as expressly permitted by this Agreement. All cancelled Certificates
held by the Purchase Contract Agent shall be destroyed by the Purchase
Contract Agent unless otherwise directed by Issuer Order.
If the Company or any Affiliate of the Company shall acquire any
Certificate, such acquisition shall not operate as a cancellation of such
Certificate unless and until such Certificate is delivered to the Purchase
Contract Agent cancelled or for cancellation.
Section 3.13. Creation of Treasury PEPS Units by Substitution of Treasury
Securities.
A Holder may separate the Preferred Securities or the Debentures, as
applicable, from the related Purchase Contracts in respect of such Holder's
PEPS Units by substituting for such Preferred Securities or Debentures, as
applicable, Treasury Securities in an aggregate principal amount equal to the
aggregate liquidation amount of such Preferred Securities or the aggregate
principal amount of such Debentures, as applicable (a "Collateral
Substitution"), at any time from and after the date of this Agreement and
prior to or on the seventh Business Day immediately preceding ________________:
(i) depositing with the Securities Intermediary Treasury Securities
having an aggregate principal amount equal to the aggregate liquidation
amount of the Preferred Securities or the aggregate principal amount of
the Debentures comprising part of such PEPS Units, as the case may be; and
25
(ii) transferring the related PEPS Units to the Purchase Contract
Agent accompanied by a notice to the Purchase Contract Agent, substantially
in the form of Exhibit C hereto, (i) stating that the Holder has
transferred the relevant amount of Treasury Securities to the Securities
Intermediary and (ii) requesting that the Purchase Contract Agent instruct
the Collateral Agent to release the Preferred Securities or the Debenture,
as the case may be, underlying such PEPS Units, whereupon the Purchase
Contract Agent shall promptly give such instruction to the Collateral
Agent, substantially in the form of Exhibit A to the Pledge Agreement.
Upon receipt of the Treasury Securities described in clause (1) above
and the instruction described in clause (2) above, in accordance with the
terms of the Pledge Agreement, the Collateral Agent will cause the Securities
Intermediary to effect the release of such Preferred Securities or the
Debentures, as the case may be, from the Pledge, free and clear of the
Company's security interest therein, and the transfer of such Preferred
Securities or the Debentures, as the case may be, to the Purchase Contract
Agent on behalf of the Holder. Upon receipt thereof, the Purchase Contract
Agent shall promptly:
(i) cancel the related PEPS Units;
(ii) transfer the Preferred Securities or the Debentures, as the case
may be, to the Holder; and
(iii)authenticate, execute on behalf of such Holder and deliver a
Treasury PEPS Units Certificate executed by the Company in accordance with
Section 3.3 evidencing the same number of Purchase Contracts as were
evidenced by the cancelled PEPS Units.
Holders who elect to separate the Preferred Securities or the
Debentures, as the case may be, from the related Purchase Contracts and to
substitute Treasury Securities for such Preferred Securities or the
Debentures, as the case may be, shall be responsible for any fees or expenses
payable to the Collateral Agent for its services as Collateral Agent in
respect of the substitution, and the Company shall not be responsible for any
such fees or expenses.
Holders may make Collateral Substitutions only in integral multiples of
40 PEPS Units.
In the event a Holder making a Collateral Substitution pursuant to this
Section 3.13 fails to effect a book-entry transfer of the PEPS Units or fails
to deliver PEPS Units Certificates to the Purchase Contract Agent after
depositing Treasury Securities with the Collateral Agent, constituting a part
of such PEPS Units, any distributions on such Preferred Securities or the
Debentures, as the case may be, shall be held in the name of the Purchase
Contract Agent or its nominee in trust for the benefit of such Holder, until
such PEPS Units are so transferred or the PEPS Units Certificate is so
delivered, as the case may be, or, with respect to a PEPS Units Certificate,
such Holder provides evidence satisfactory to the Company and the Purchase
Contract Agent that such PEPS Units Certificate has been destroyed, lost or
stolen, together with any indemnity that may be required by the Purchase
Contract Agent and the Company.
26
Except as described in this Section 3.13, for so long as the Purchase
Contract underlying a PEPS Unit remains in effect, such PEPS Unit shall not
be separable into its constituent parts, and the rights and obligations of
the Holder in respect of the Preferred Securities or the Debentures, as the
case may be, and the Purchase Contract comprising such PEPS Unit may be
acquired, and may be transferred and exchanged, only as a PEPS Unit.
Section 3.14. Reestablishment of PEPS Units.
A Holder of Treasury PEPS Units may recreate PEPS Units at any time (i)
prior to or on the seventh Business Day immediately preceding
____________________ by:
(i) depositing with the Securities Intermediary Preferred Securities
or the Debentures, as the case may be, having an aggregate liquidation
amount in the case of Preferred Securities or aggregate principal amount in
the case of Debentures, as the case may be, equal to the aggregate
principal amount at maturity of the Treasury Securities comprising part of
the Treasury PEPS Units; and
(ii) transferring the related Treasury PEPS Units to the Purchase
Contract Agent accompanied by a notice to the Purchase Contract Agent,
substantially in the form of Exhibit C hereto, (i) stating that the Holder
has transferred the relevant amount of Preferred Securities or the
Debentures, as the case may be, to the Securities Intermediary and (ii)
requesting that the Purchase Contract Agent instruct the Collateral Agent
to release the Treasury Securities underlying such Treasury PEPS Units,
whereupon the Purchase Contract Agent shall promptly give such instruction
to the Collateral Agent, substantially in the form of Exhibit C to the
Pledge Agreement.
Upon receipt of the Preferred Securities or the Debentures, as the case may
be, described in clause (1) above and the instruction described in clause (2)
above, in accordance with the terms of the Pledge Agreement, the Collateral
Agent will cause the Securities Intermediary to effect the release of the
Treasury Securities having a corresponding aggregate principal amount at
maturity from the Pledge, free and clear of the Company's security interest
therein, and the transfer to the Purchase Contract Agent on behalf of the
Holder. Upon receipt thereof, the Purchase Contract Agent shall promptly:
(i) cancel the related Treasury PEPS Units;
(ii) transfer the Treasury Securities to the Holder; and
(iii)authenticate, execute on behalf of such Holder and deliver a
PEPS Units Certificate executed by the Company in accordance with Section
3.3 evidencing the same number of Purchase Contracts as were evidenced by
the cancelled Treasury PEPS Units.
Holders who elect to recreate PEPS Units shall be responsible for any
fees or expenses payable to the Collateral Agent for its services as
Collateral Agent in respect of the substitution, and the Company shall not be
responsible for any such fees or expenses.
27
Holders of Treasury PEPS Units may reestablish PEPS Units in integral
multiples of 40 Treasury PEPS Units for 40 PEPS Units. If a Tax Event
Redemption has occurred, Holders may no longer convert their PEPS Units or
their Treasury PEPS Units, as the case may be
Except as provided in this Section 3.14, for so long as the Purchase
Contract underlying a Treasury PEPS Unit remains in effect, such Treasury
PEPS Unit shall not be separable into its constituent parts and the rights
and obligations of the Holder of such Treasury PEPS Unit in respect of the
1/40 of a Treasury Security and the Purchase Contract comprising such
Treasury PEPS Unit may be acquired, and may be transferred and exchanged,
only as a Treasury PEPS Unit.
Section 3.15. Transfer of Collateral upon Occurrence of Termination Event.
Upon the occurrence of a Termination Event and the transfer to the
Purchase Contract Agent of the Preferred Securities, Debentures, the
appropriate Applicable Ownership Interest of the Treasury Portfolio or the
Treasury Securities, as the case may be, underlying the PEPS Units and the
Treasury PEPS Units, as the case may be, pursuant to the terms of the Pledge
Agreement, the Purchase Contract Agent shall request transfer instructions
with respect to such Preferred Securities, Debentures, the appropriate
Applicable Ownership Interest of the Treasury Portfolio or 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 PEPS Units Register or the Treasury PEPS Units
Register, as the case may be.
Upon book-entry transfer of the PEPS Units or the Treasury PEPS Units or
delivery of a PEPS Units Certificate or Treasury PEPS Units Certificate to
the Purchase Contract Agent with such transfer instructions, the Purchase
Contract Agent shall transfer the Preferred Securities, Debentures, the
appropriate Applicable Ownership Interest of the Treasury Portfolio or
Treasury Securities, as the case may be, underlying such PEPS Units or
Treasury PEPS Units, 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 PEPS Units or Treasury PEPS Units
fails to effect such transfer or delivery, the Preferred Securities,
Debentures, the appropriate Applicable Ownership Interest of the Treasury
Portfolio or Treasury Securities, as the case may be, underlying such PEPS
Units or Treasury PEPS Units, as the case may be, and any distributions
thereon, shall be held in the name of the Purchase Contract Agent or its
nominee in trust for the benefit of such Holder, until the earlier of:
(i) such PEPS Units or Treasury PEPS Units are transferred or the
PEPS Units Certificate or Treasury PEPS Units Certificate is surrendered or
such Holder provides satisfactory evidence that such PEPS Units Certificate
or Treasury PEPS Units Certificate has been destroyed, lost or stolen,
together with any indemnity that may be required by the Purchase Contract
Agent and the Company; and
(ii) the expiration of the time period specified in the abandoned
property laws of the relevant State.
28
Section 3.16. No Consent to Assumption.
Each Holder of a Security, by acceptance thereof, shall be deemed
expressly to have withheld any consent to the assumption under Section 365 of
the Bankruptcy Code or otherwise, of the Purchase Contract by the Company or
its trustee, receiver, liquidator or a person or entity performing similar
functions in the event that the Company becomes the debtor under the
Bankruptcy Code or subject to other similar state or Federal law providing
for reorganization or liquidation.
ARTICLE IV
The Preferred Securities
Section 4.1. Interest Payments; Rights to Interest Payments Preserved.
Any distribution on any Preferred Security, any Debenture or on the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, which is paid on any Payment Date shall, subject to receipt
thereof by the Purchase Contract Agent from the Collateral Agent as provided
by the terms of the Pledge Agreement, be paid to the Person in whose name the
PEPS Units Certificate (or one or more Predecessor PEPS Units Certificates)
of which such Preferred Security, such Debenture or on the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may be,
is a part is registered at the close of business on the Record Date for such
Payment Date.
Each PEPS Units Certificate evidencing Preferred Securities, Debentures
or the appropriate Applicable Ownership Interest of the Treasury Portfolio
delivered under this Agreement upon registration of transfer of or in
exchange for or in lieu of any other PEPS Units Certificate shall carry the
right to distributions accrued and unpaid, and to accrue distributions
interest, which were carried by the Preferred Securities, Debentures or the
appropriate Applicable Ownership Interest of the Treasury Portfolio
underlying such other PEPS Units Certificate.
In the case of any PEPS Units with respect to which Cash Settlement of
the underlying Purchase Contract is properly effected pursuant to Section 5.4
hereof, or with respect to which Early Settlement of the underlying Purchase
Contract is properly effected pursuant to Section 5.9 hereof, or with respect
to which a Collateral Substitution is effected, 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 Preferred Securities, Debentures or on the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may be,
underlying such PEPS Unit otherwise payable on such Payment Date shall be
payable on such Payment Date notwithstanding such Cash Settlement or Early
Settlement or Collateral Substitution, and such distributions shall, subject
to receipt thereof by the Purchase Contract Agent, be payable to the Person
in whose name the PEPS Units Certificate (or one or more Predecessor PEPS
Units Certificates) was registered at the close of business on the Record
Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any PEPS Unit with respect to which Cash Settlement
or Early Settlement of the underlying Purchase Contract is properly effected,
or with respect to which a Collateral Substitution has been effected,
distributions on the related Preferred Securities, Debentures or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
29
case may be, that would otherwise be payable after the Purchase Contract
Settlement Date or Early Settlement Date shall not be payable hereunder to
the Holder of such PEPS Units; provided, however, that to the extent that
such Holder continues to hold separated Preferred Securities or Debentures
that formerly comprised a part of such Holder's PEPS Unit, such Holder shall
be entitled to receive distributions on such separated Preferred Securities
or Debentures.
The applicable Coupon Rate on the Debentures on and after the
Remarketing Settlement Date shall be equal to the Reset Rate (such Reset Rate
to be in effect on and after the Remarketing Settlement Date).
Not later than 15 calendar days nor more than 30 calendar days prior to
the _____ Business Day immediately preceding ______________________________,
the Company shall request DTC (or any successor Clearing Agency), to notify
the Beneficial Owners or Clearing Agency Participants holding PEPS Units of
the procedures to be followed by Holders of PEPS Units who intend to effect a
Cash Settlement.
Section 4.2. Notice and Voting.
Under the terms of the Pledge Agreement, the Purchase Contract Agent
will be entitled to exercise the voting and any other consensual rights
pertaining to the Pledged Preferred Securities or Pledged Debenture, 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 Preferred Securities or
Debentures are entitled to vote or upon any solicitation of consents, waivers
or proxies of holders of Preferred Securities or Debentures, the Purchase
Contract Agent shall, as soon as practicable thereafter, mail to the Holders
of PEPS Units a notice:
(i) containing such information as is contained in the notice or
solicitation;
(ii) stating that each Holder on the record date set by the Purchase
Contract Agent therefor (which, to the extent possible, shall be the same
date as the record date for determining the holders of Preferred Securities
or Debentures, as the case may be, entitled to vote) shall be entitled to
instruct the Purchase Contract Agent as to the exercise of the voting
rights pertaining to such Preferred Securities or Debentures underlying
their PEPS Units; and (3) stating the manner in which such instructions may
be given.
Upon the written request of the Holders of PEPS Units on such record date
received by the Purchase Contract Agent at least six days prior to such
meeting, the Purchase Contract Agent shall endeavor insofar as practicable to
vote or cause to be voted, in accordance with the instructions set forth in
such requests, the maximum number of Preferred Securities or Debentures, 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 PEPS Unit, the
Purchase Contract Agent shall abstain from voting the Preferred Securities or
Debentures underlying such PEPS Unit. The Company hereby agrees, if
applicable, to solicit Holders of PEPS Units to timely instruct the
30
Purchase Contract Agent in order to enable the Purchase Contract Agent to
vote such Preferred Securities or Debentures and the Trust shall covenant to
this effect in the Declaration.
Section 4.3. Distribution of Debentures; Tax Event Redemption.
Upon the liquidation of the Trust in accordance with the Declaration, a
principal amount at maturity of Debentures constituting the assets of the
Trust and underlying the Preferred Securities equal to the aggregate
liquidation amount of the Pledged Preferred Securities shall be delivered to
the Securities Intermediary in exchange for the Pledged Preferred Securities.
Thereafter, the Debentures will be substituted for the Pledged Preferred
Securities as the Collateral, and will be held by the Securities Intermediary
in the Collateral Account in accordance with the terms of the Pledge
Agreement to secure the obligations of each Holder of a PEPS Unit to purchase
the Common Stock of the Company under the Purchase Contracts constituting a
part of such PEPS Unit. Following the liquidation of the Trust, the Holders
and the Collateral Agent shall have such security interests, rights and
obligations with respect to the Debentures as the Holders and the Collateral
Agent had in respect of the Preferred Securities subject to the Pledge
thereof as provided in Articles II, III, IV, V and VI of the Pledge
Agreement. The Company may cause to be made in any PEPS Unit Certificates
thereafter to be issued such change in phraseology and form (but not in
substance) as may be appropriate to reflect the liquidation of the Trust and
the substitution of Debentures for Preferred Securities as Collateral.
Upon the occurrence of a Tax Event Redemption prior to the Purchase
Contract Settlement Date, the Redemption Price payable on the Tax Event
Redemption Date with respect to the Applicable Principal Amount shall be
deposited in the Collateral Account in exchange for the Pledged Preferred
Securities or the Pledged Debentures. Thereafter, pursuant to the terms of
the Pledge Agreement, the Collateral Agent shall cause the Securities
Intermediary to apply an amount equal to the Redemption Amount of such
Redemption Price to purchase on behalf of the Holders of PEPS Units the
Treasury Portfolio and promptly remit the remaining portion of such
Redemption Price to the Purchase Contract Agent for payment to the Holders of
such PEPS Units. The Applicable Ownership Interest (as specified in clause
(A) of the definition of such term) of the Treasury Portfolio will be
substituted as Collateral for the Pledged Preferred Securities or the Pledged
Debentures, and will be held by the Collateral Agent in accordance with the
terms of the Pledge Agreement to secure the obligation of each Holder of a
PEPS Unit to purchase the Common Stock of the Company under the Purchase
Contract constituting a part of such PEPS Unit. Following the occurrence of a
Tax Event Redemption prior to the Purchase Contract Settlement Date, the
Holders of PEPS Units and the Collateral Agent shall have such security
interest rights and obligations with respect to the Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) of the
Treasury Portfolio as the Holders of PEPS Units and the Collateral Agent had
in respect of the Preferred Securities or Debentures, as the case may be,
subject to the Pledge thereof as provided in Articles II, III, IV, V, and VI
of the Pledge Agreement, and any reference herein to the Preferred Securities
or the Debentures shall be deemed to be reference to such Treasury Portfolio.
The Company may cause to be made in any PEPS Unit Certificates thereafter to
be issued such change in phraseology and fom (but not in substance) as may be
appropriate to reflect the liquidation of the Trust and the substitution of
the Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio for Preferred Securities
or Debentures as Collateral.
31
ARTICLE V
The Purchase Contracts
Section 5.1. Purchase of Shares of Common Stock.
Each Purchase Contract shall, unless a Cash Settlement has occurred in
accordance with Section 5.4 hereof or an Early Settlement has occurred in
accordance with Section 5.9 hereof, obligate the Holder of the related Security
to purchase, and the Company to sell, on the Purchase Contract Settlement Date
at a price equal to the Stated Amount (the "Purchase Price"), a number of shares
of Common Stock equal to the Settlement Rate unless, prior to or on the Purchase
Contract Settlement Date, there shall have occurred a Termination Event with
respect to the Security of which such Purchase Contract is a part. The
"Settlement Rate" is equal to:
(i) if the Applicable Market Value (as defined below) is greater
than or equal to $___________ (the "Threshold Appreciation Price"), _____
shares of Common Stock per Purchase Contract;
(ii) if the Applicable Market Value is less than the Threshold
Appreciation Price but greater than $__________ (the "Reference Price"),
the number of shares of Common Stock per Purchase Contract having a value,
based on the Applicable Market Value, equal to __________; and
(iii) if the Applicable Market Value is less than or equal to the
Reference Price, ___________ shares of Common Stock per Purchase Contract,
in each case subject to adjustment as provided in Section 5.6 (and in each case
rounded upward or downward to the nearest 1/10,000th of a share).
As provided in Section 5.11, no fractional shares of Common Stock will be
issued upon settlement of Purchase Contracts.
The "Applicable Market Value" means the average of the Closing Price per
share of Common Stock on each of the 20 consecutive Trading Days ending on the
third Trading Day immediately preceding the Purchase Contract Settlement Date.
The "Closing Price" per share of Common Stock on any date of determination
means:
(i) the closing sale price (or, if no closing price is reported,
the last reported sale price) per share on the New York Stock Exchange,
Inc. (the "NYSE") on such date;
(ii) if the Common Stock is not listed for trading on the NYSE on
any such date, the closing sale price per share as reported in the
composite transactions for the principal United States securities exchange
on which the Common Stock is so listed;
32
(iii) if the Common Stock is not so listed on a United States
national or regional securities exchange, the closing sale price per share
as reported by The Nasdaq Stock Market, Inc.;
(iv) if the Common Stock is not so reported, the last quoted bid
price for the Common Stock in the over-the-counter market as reported by
the National Quotation Bureau or similar organization; or
(v) if such bid price is not available, the average of the
mid-point of the last bid and ask prices of the Common Stock on such date
from at least three nationally recognized independent investment banking
firms retained for this purpose by the Company.
A "Trading Day" means a day on which the Common Stock (1) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (2) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
Each Holder of a PEPS Unit or a Treasury PEPS Unit, by its acceptance
thereof:
(i) irrevocably authorizes the Purchase Contract Agent to enter
into and perform the related Purchase Contract on its behalf as its
attorney-in-fact (including 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
Purchase Contracts;
(iv) consents to the provisions hereof;
(v) irrevocably authorizes the Purchase Contract Agent to enter
into and perform this Agreement and the Pledge Agreement on its behalf as
its attorney-in-fact; and
(vi) consents to, and agrees to be bound by, the Pledge of the
Preferred Securities, Debentures, the Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio or the Treasury Securities pursuant to the Pledge Agreement,
provided that upon a Termination Event, the rights of the Holder of such
Security under the Purchase Contract may be enforced without regard to any other
rights or obligations. Each Holder of a PEPS Unit or a Treasury PEPS Unit, by
its acceptance thereof, further covenants and agrees, that to the extent and in
the manner provided in Section 5.4 and the Pledge Agreement, but subject to the
terms thereof, payments in respect of the Preferred Securities or the Debentures
or the proceeds from the Treasury Securities or the Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) of the
Treasury Portfolio at maturity on the Purchase
33
Contract Settlement Date, as the case may be, shall be paid by the Collateral
Agent to the Company in satisfaction of such Holder's obligations under such
Purchase Contract and such Holder shall acquire no right, title or interest
in such payments.
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 Purchase Contracts underlying such
Certificate, the Declaration and the Pledge Agreement and the transferor shall
be released from the obligations under this Agreement, the Purchase Contracts
underlying the Certificate so transferred and the Pledge 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.
Section 5.2. Purchase Contract Payments.
The Company shall pay, on each Payment Date, the Purchase Contract Payments
payable in respect of each Purchase Contract to the Person in whose name a
Certificate (or one or more Predecessor Certificates) is registered at the close
of business on the Record Date next preceding such Payment Date. The Purchase
Contract Payments will be payable at the office of the Purchase Contract Agent
in New York City maintained for that purpose or, at the option of the Company,
by check mailed to the address of the Person entitled thereto at such Person's
address as it appears on the PEPS Units Register or Treasury PEPS Units
Register. If any date on which Purchase Contract Payments are to be made is not
a Business Day, then payment of the Purchase Contract Payments payable on such
date will be made on the next day that is a Business Day (and without any
interest in respect of any such delay), except that, if such Business Day is in
the next calendar year, such payment will be made on the preceding Business Day.
Upon the occurrence of a Termination Event, the Company's obligation to pay
Purchase Contract Payments (including any accrued or deferred Purchase Contract
Payments) shall cease.
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 reestablishment of PEPS Units) any other
Certificate shall carry the right to accrued and unpaid or deferred Purchase
Contract Payments and the right to accrue Purchase Contract Payments, which
rights were carried by the Purchase Contracts underlying such other
Certificates.
Subject to Section 5.9, in the case of any Security with respect to which
Early Settlement of the underlying Purchase Contract is effected on an Early
Settlement Date that is after any Record Date and prior to or on the next
succeeding Payment Date, Purchase Contract Payments otherwise payable on such
Payment Date shall be payable on such Payment Date notwithstanding such Early
Settlement, and such Purchase Contract Payments shall be paid to the Person in
whose name the Certificate evidencing such Security (or one or more Predecessor
Certificates) is registered at the close of business on such Record Date. Except
as otherwise expressly provided in the immediately preceding sentence, in the
case of any Security with respect to which Early Settlement of the underlying
Purchase Contract is effected on an Early Settlement Date, Purchase Contract
Payments that would otherwise be payable after the Early Settlement Date with
respect to such Purchase Contract shall not be payable.
34
Section 5.3. Deferral of Purchase Contract Payments.
The Company has the right to defer payment of all or part of the Purchase
Contract Payments in respect of each Purchase Contract until no later than the
Purchase Contract Settlement Date. If the Company so elects to defer Purchase
Contract Payments, the Company shall pay additional Purchase Contract Payments
on such deferred installments of Purchase Contract Payments at a rate equal to
___% per annum, compounding quarterly, until such deferred installments are
paid. If a Holder effects an Early Settlement or if a Termination Event shall
occur, such Holder will have no right to receive any accrued deferred Purchase
Contract Payments.
Section 5.4. Payment of Purchase Price.
(a) (i) Unless a Tax Event Redemption has occurred or a Holder of a PEPS
Unit effects an Early Settlement of the underlying Purchase Contract in the
manner described in Section 5.9, each such Holder who intends to pay in cash to
satisfy such Holder's obligations under the Purchase Contract shall notify the
Purchase Contract Agent by use of a notice in substantially the form of Exhibit
E hereto of his intention to pay in cash ("Cash Settlement") the Purchase Price
for the shares of Common Stock to be purchased pursuant to the related Purchase
Contract. Such notice shall be given prior to 5:00 p.m. (New York City time) on
the seventh Business Day immediately preceding _____________. Prior to 11:00
a.m. (New York City time) on the next succeeding Business Day, the Purchase
Contract Agent shall notify the Collateral Agent and the Indenture Trustee of
the receipt of such notices from Holders intending to make a Cash Settlement.
Holders may make Cash Settlements only in integral multiples of 40 PEPS Units.
(ii) A Holder of a PEPS Unit who has so notified the Purchase
Contract Agent of his intention to effect a Cash Settlement in accordance
with paragraph (a)(i) above shall pay the Purchase Price to the Securities
Intermediary for deposit in the Collateral Account prior to 11:00 a.m. (New
York City time) on the fifth Business Day immediately preceding
____________________ in lawful money of the United States by certified or
cashiers' check or wire transfer, in each case in immediately available
funds payable to or upon the order of the Securities Intermediary. Any
cash received by the Collateral Agent shall be invested in the Treasury
Consideration the proceeds which will be used to pay the Company on the
Purchase Contract Settlement Date the amounts due to it under the Purchase
Contracts in accordance with the terms of this Agreement and the Pledge
Agreement and the quarterly payment amount due to the Holders of PEPS
Units that did not make a Cash Settlement.
(iii) If a Holder of a PEPS Unit fails to notify the Purchase
Contract Agent of his intention to make a Cash Settlement in accordance
with paragraph (a)(i) above, or does notify the Purchase Contract Agent as
provided in paragraph (a)(i) above of his intention to pay the Purchase
Price in cash, but fails to make such payment as required by paragraph
(a)(ii) above, such Holder shall be deemed to have consented to the
disposition of the Pledged Preferred Securities or the Pledged Debentures
pursuant to the Remarketing as described in paragraph (b) below.
35
(iv) Promptly after 11:00 a.m. (New York City time) on the fifth
Business Day preceding the Purchase Contract Settlement Date, the Purchase
Contract Agent, based on notices received by the Purchase Contract Agent
pursuant to Section 5.4(a) hereof and notice from the Securities
Intermediary regarding cash received by it prior to such time, shall notify
the Collateral Agent and the [Property] Trustee of the aggregate number of
Preferred Securities or Debentures to be tendered for purchase in the
Remarketing in a notice substantially in the form of Exhibit F hereto.
(b) In order to dispose of the Preferred Securities or Debentures, PEPS
Units Holders who have not notified the Purchase Contract Agent of their
intention to effect a Cash Settlement as provided in paragraph (a)(i) above, or
who have so notified the Purchase Contract Agent but failed to make such payment
as required by paragraph (a)(ii) above, the Company shall engage
_________________________________ (the "Remarketing Agent") pursuant to the
Remarketing Agreement to sell such Preferred Securities or Debentures. In order
to facilitate the Remarketing, the Purchase Contract Agent, based on the notices
specified in Section 5.4(a)(iv), shall notify the Remarketing Agent, promptly
after 11:00 a.m. (New York City time) on the fifth Business Day immediately
preceding _______________________________, of the aggregate number of Preferred
Securities or Debentures that are part of PEPS Units to be remarketed.
Concurrently, the Collateral Agent, pursuant to the terms of the Pledge
Agreement, shall cause such Preferred Securities or Debentures to be presented
to the Remarketing Agent for Remarketing.
Upon receipt of such notice from the Purchase Contract Agent and such
Preferred Securities or Debentures, the Remarketing Agent shall, on the third
Business Day immediately preceding _______________________________, use
reasonable efforts to remarket such Preferred Securities or Debentures on such
date at a price of 100% of the aggregate stated liquidation of such Preferred
Securities or principal amount of such Debentures, as provided in the
Remarketing Agreement. [The Remarketing Agents shall notify the Company of the
total proceeds from the Remarketing and the amount of the Round Lot Payment
required to be made by the Company to the Remarketing Agents.] The proceeds
from the Remarketing along with the Round Lot Payment shall be used by the
Collateral Agent to purchase the Treasury Consideration and the proceeds of the
Treasury Consideration shall be used to satisfy in full such PEPS Units Holders'
obligations to pay the Purchase Price for the shares of Common Stock under the
related Purchase Contracts on the Purchase Contract Settlement Date. Any
proceeds remaining after satisfaction of the Purchase Contract and repayment to
the Company of the amount of the Round Lot Payment shall be payable Pro Rata to
the Holder of such PEPS Unit.
If, in spite of using their reasonable efforts, the Remarketing Agent
cannot remarket the related Preferred Securities or Debentures of such Holders
of PEPS Units at a price of 100% of the aggregate stated liquidation amount of
such Preferred Securities or principal amount at maturity of such Debentures, on
the Remarketing Date then the Remarketing Agent shall attempt to Remarket such
securities approximately every two weeks until three Business Days prior to the
Purchase Contract Settlement Date. If the Remarketing Agent cannot Remarket the
Preferred Securities or the Debentures, as the case may be, by three Business
Days prior to the Purchase Contract Settlement Date, the Remarketing shall be
deemed to have failed (a "Failed Remarketing") and in accordance with the terms
of the Pledge Agreement, the Collateral Agent,
36
for the benefit of the Company, shall exercise its rights as a secured party
with respect to such Preferred Securities or Debentures, including those
actions specified in paragraph (c) below; provided, that if upon a Failed
Remarketing the Collateral Agent exercises such rights for the benefit of the
Company with respect to such Preferred Securities or Debentures, any accrued
and unpaid distributions on such Preferred Securities or Debentures shall
become payable by the Company to the Purchase Contract Agent for payment to
the Beneficial Owner of the PEPS Units to which such Preferred Securities or
Debentures relate. The Company shall cause a notice of such Failed
Remarketing to be published on the Business Day immediately preceding the
Purchase Contract Settlement Date in a daily newspaper in the English
language of general circulation in New York City, which is expected to be The
Wall Street Journal.
(c) With respect to any Preferred Securities or Debentures which are
subject to a Failed Remarketing, the Collateral Agent for the benefit of the
Company reserves all of its rights as a secured party with respect thereto and,
subject to applicable law and paragraph (g) below, may, among other things, (i)
retain the Preferred Securities or Debentures in full satisfaction of the
Holders' obligations under the Purchase Contracts or (ii) sell the Preferred
Securities or Debentures in one or more public or private sales.
(d) (i) Unless a Holder of a Treasury PEPS Units or PEPS Units (if a Tax
Event Redemption has occurred) effects an Early Settlement of the underlying
Purchase Contract through the early delivery of cash to the Purchase Contract
Agent in the manner described in Section 5.9, each Holder of a Treasury PEPS
Unit or PEPS Unit (if a Tax Event Redemption has occurred) who intends to pay in
cash shall notify the Purchase Contract Agent by use of a notice in
substantially the form of Exhibit E hereto of his intention to pay in cash the
Purchase Price for the shares of Common Stock to be purchased pursuant to the
related Purchase Contract. Such notice shall be given prior to 5:00 p.m. (New
York City time) on the second Business Day immediately preceding ____________
_________________. Prior to 11:00 a.m. (New York City time) on the next
succeeding Business Day, the Purchase Contract Agent shall notify the Collateral
Agent of the receipt of such notices from such Holders intending to make a Cash
Settlement.
(ii) A Holder of a Treasury PEPS Unit or PEPS Units (if a Tax Event
Redemption has occurred) who has so notified the Purchase Contract Agent of
his intention to make a Cash Settlement in accordance with paragraph (d)(i)
above shall pay the Purchase Price to the Securities Intermediary for
deposit in the Collateral Account prior to 11:00 a.m. (New York City time)
on the Business Day immediately preceding the Purchase Contract Settlement
Date in lawful money of the United States by certified or cashiers' check
or wire transfer, in each case in immediately available funds payable to or
upon the order of the Securities Intermediary. Any cash received by the
Collateral Agent shall be invested promptly by the Securities Intermediary
in Permitted Investments and paid to the Company on the Purchase Contract
Settlement Date in settlement of the Purchase Contract in accordance with
the terms of this Agreement and the Pledge Agreement. Any funds received
by the Securities Intermediary in respect of the investment earnings from
the investment in such Permitted Investments in excess of the Purchase
Price for the shares of common stock to be purchased by such Holder shall
be distributed to the Purchase Contract Agent when received for payment to
the Holder.
37
(iii) If a Holder of a Treasury PEPS Unit or Holder of a PEPS Unit
(if a Tax Event Redemption has occurred) fails to notify the Purchase
Contract Agent of his intention to make a Cash Settlement in accordance
with paragraph (d)(i) above, or does notify the Purchase Contract Agent as
provided in paragraph (d)(i) above of his intention to pay the Purchase
Price in cash, but fails to make such payment as required by paragraph
(d)(ii) above, then upon the maturity of the Pledged Treasury Securities or
the appropriate Applicable Ownership Interest (as specified in clause (A)
of the definition of such term) of the Treasury Portfolio held by the
Securities Intermediary on the Business Day immediately preceding the
Purchase Contract Settlement Date, the principal amount of the Treasury
Securities or the appropriate Applicable Ownership Interest (as specified
in clause (A) of the definition of such term) of the Treasury Portfolio
received by the Securities Intermediary shall be invested promptly in
Permitted Investments. On the Purchase Contract Settlement Date, an amount
equal to the Purchase Price shall be remitted to the Company as payment
thereof without receiving any instructions from the Holder. In the event
the sum of the proceeds from the related Pledged Treasury Securities or the
appropriate Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) of the Treasury Portfolio and the investment
earnings earned from such investments is in excess of the aggregate
Purchase Price of the Purchase Contracts being settled thereby, the
Collateral Agent shall cause the Securities Intermediary to distribute such
excess to the Purchase Contract Agent for the benefit of the Holder of the
related Treasury PEPS Unit or PEPS Unit when received.
(iv) A Holder of a Treasury PEPS Unit may elect to have the Preferred
Securities or the Debentures, as the case may be, no longer a part of a
PEPS Unit, remarketed. A Holder making such an election must notify the
Property Trustee prior to 11:00 a.m. (New York City time) on the fifth
Business Day immediately preceding ______________________________, of the
aggregate number of Preferred Securities or Debentures, as the case may be,
that are not part of PEPS Units to be remarketed. Any such notice will be
irrevocable and may not be conditioned upon the level at which the Reset
Rate is established in the Remarketing. Concurrently, the Property Trustee
shall cause such Preferred Securities or Debentures, as the case may be, to
be presented to the Remarketing Agent for Remarketing.
(e) Any distribution to Holders of excess funds described above shall
be payable at the office of the Purchase Contract Agent in New York City
maintained for that purpose or, at the option of the Holder, by check mailed
to the address of the Person entitled thereto at such address as it appears
on the Register.
(f) Upon Cash Settlement of any Purchase Contract:
(i) the Collateral Agent will in accordance with the
terms of the Pledge Agreement cause the Pledged Preferred
Securities, Pledged Debentures, the appropriate Applicable
Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio or the
Pledged Treasury Securities, as the case may be, underlying the
relevant Security to be released from the Pledge, free and
clear of any security interest of the Company, and
38
transferred to the Purchase Contract Agent for delivery to the
Holder thereof or its designee as soon as practicable; and
(ii) subject to the receipt thereof, the Purchase Contract
Agent shall, by book-entry transfer or other appropriate
procedures, in accordance with written instructions provided by
the Holder thereof, transfer such Preferred Securities or
Debentures, or the appropriate Applicable Ownership Interest
(as specified in clause (A) of the definition of such term) of
the Treasury Portfolio or such Treasury Securities, as the case
may be (or, if no such instructions are given to the Purchase
Contract Agent by the Holder, the Purchase Contract Agent shall
hold such Preferred Securities, Debentures, or the appropriate
Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) of the Treasury Portfolio or such
Treasury Securities, as the case may be, and any interest
payment thereon, in the name of the Purchase Contract Agent or
its nominee in trust for the benefit of such Holder until the
expiration of the time period specified in the abandoned
property laws of the relevant state).
(g) The obligations of the Holders to pay the Purchase Price are
non-recourse obligations and, except to the extent satisfied by Early
Settlement or Cash Settlement, are payable solely out of the proceeds of any
Collateral pledged to secure the obligations of the Holders and in no event
will Holders be liable for any deficiency between the proceeds of the
disposition of Collateral and the Purchase Price.
(h) The Company shall not be obligated to issue any shares of Common
Stock in respect of a Purchase Contract or deliver any certificates thereof
to the Holder of the related PEPS Unit or Treasury PEPS Unit unless the
Company shall have received payment in full for the aggregate purchase price
for the Common Stock to be purchased thereunder in the manner herein set
forth.
Section 5.5. Issuance of Shares of Common Stock.
Unless a Termination Event or an Early Settlement shall have occurred,
subject to Section 5.6(b), on the Purchase Contract Settlement Date upon
receipt of the aggregate Purchase Price payable on all Outstanding
Securities, Contract the Company shall issue and deposit with the Purchase
Contract Agent, for the benefit of the Holders of the Outstanding Securities,
one or more certificates representing the shares of Common Stock registered
in the name of the Purchase Contract Agent (or its nominee) as custodian for
the Holders (such certificates for shares of Common Stock, together with any
dividends or distributions for which a record date and payment date for such
dividend or distribution has occurred after the Purchase Contract Settlement
Date, being hereinafter referred to as the "Purchase Contract Settlement
Fund") to which the Holders are entitled hereunder.
Subject to the foregoing, upon surrender of a Certificate to the
Purchase Contract Agent on or after the Purchase Contract Settlement Date,
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 whole shares of
Common Stock which such Holder is entitled to receive pursuant to the
provisions of this Article Five (after taking into account all Securities
then held by such Holder), together with cash in lieu of
39
fractional shares as provided in Section 5.11 and any dividends or
distributions with respect to such shares constituting part of the Purchase
Contract Settlement Fund, but without any interest thereon, and the
Certificate so surrendered shall forthwith be cancelled. Such shares shall
be registered in the name of the Holder or the Holder's designee as specified
in the settlement instructions provided by the Holder to the Purchase
Contract Agent. If any shares of Common Stock issued in respect of a
Purchase Contract are to be registered to a Person other than the Person in
whose name the Certificate evidencing such Purchase Contract is registered,
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 Purchase Contract or has established to the
satisfaction of the Company that such tax either has been paid or is not
payable.
Section 5.6. Adjustment of Settlement Rate.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(1) In case the Company shall pay or make a dividend or other
distribution on Common Stock in Common Stock, the Settlement Rate in effect
at the opening of business on the day following the date fixed for the
determination of shareholders entitled to receive such dividend or other
distribution shall be increased by dividing such Settlement Rate by a
fraction of which:
(i) the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination; and
(ii) the denominator shall be the sum of such number of shares
and the total number of shares constituting such dividend or other
distribution,
such increase to become effective immediately after the opening of business
on the day following the date fixed for such determination. For the
purposes of this paragraph (1), the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the
Company but shall include any shares issuable in respect of any scrip
certificates issued in lieu of fractions of shares of Common Stock. The
Company will not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, warrants or options to
all holders of its Common Stock (not being available on an equivalent basis
to Holders of the Securities upon settlement of the Purchase Contracts
underlying such Securities) (except pursuant to the Company's Dividend
Reinvestment and Common Stock Purchase Plan) entitling them, for a period
expiring within 45 days after the record date for the determination of
shareholders entitled to receive such rights, warrants or options, to
subscribe for or purchase shares of Common Stock at a price per share less
than the Current Market Price per share of Common Stock on the date fixed
for the determination of shareholders entitled to receive such rights,
warrants or options (other than pursuant to a dividend reinvestment plan),
the Settlement Rate in effect at the opening of business on
40
the day following the date fixed for such determination shall be increased
by dividing such Settlement Rate by a fraction of which:
(i) the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of
Common Stock so offered for subscription or purchase would purchase
at such Current Market Price; and
(ii) the denominator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase,
such increase to become effective immediately after the opening of business
on the day following the date fixed for such determination. For the
purposes of this paragraph (2), the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the
Company but shall include any shares issuable in respect of any scrip
certificates issued in lieu of fractions of shares of Common Stock. The
Company shall not issue any such rights, warrants or options in respect of
shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided or
split into a greater number of shares of Common Stock, the Settlement Rate
in effect at the opening of business on the day following the day upon
which such subdivision or split becomes effective shall be proportionately
increased, and, conversely, in case outstanding shares of Common Stock
shall each be combined into a smaller number of shares of Common Stock, the
Settlement Rate in effect at the opening of business on the day following
the day upon which such combination becomes effective shall be
proportionately reduced, such increase or reduction, as the case may be, to
become effective immediately after the opening of business on the day
following the day upon which such subdivision, split or combination becomes
effective.
(4) In case the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock evidences of its indebtedness or assets
(including securities, but excluding any rights, warrants or options
referred to in paragraph (2) of this Section 5.6(a), any dividend or
distribution paid exclusively in cash and any dividend or distribution
referred to in paragraph (1) of this Section 5.6(a)), the Settlement Rate
shall be adjusted so that the same shall equal the rate determined by
dividing the Settlement Rate in effect immediately prior to the close of
business on the date fixed for the determination of shareholders entitled
to receive such distribution by a fraction of which:
(i) the numerator shall be the Current Market Price per share of
Common Stock on the date fixed for such determination less the then
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board
Resolution) of the portion of the assets or evidences of indebtedness
so distributed applicable to one share of Common Stock; and
41
(ii) the denominator shall be such Current Market Price per share
of Common Stock,
such adjustment to become effective immediately prior to the opening of
business on the day following the date fixed for the determination of
shareholders entitled to receive such distribution. In any case in which
this paragraph (4) is applicable, paragraph (2) of this Section 5.6(a)
shall not be applicable.
(5) In case the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock cash (excluding:
(x) any quarterly cash dividend on Common Stock to the extent
that the aggregate cash dividend per share of Common Stock in any
fiscal quarter does not exceed the greater of (A) the amount per share
of Common Stock of the next preceding quarterly cash dividend on
Common Stock to the extent that such preceding quarterly dividend did
not require an adjustment of the Settlement Rate pursuant to this
Section 5.6(a)(5) (as adjusted to reflect subdivisions or combinations
of Common Stock), and (B) ___% of the arithmetic average of the
Closing Prices of Common Stock during the ten consecutive Trading Days
immediately prior to the date of declaration of such dividend, and
(y) any dividend or distribution in connection with the
liquidation, dissolution or termination of the Company, whether
voluntary or involuntary),
then, in such case, the Settlement Rate shall be increased so that the same
shall equal the rate determined by multiplying the Settlement Rate in effect
immediately prior to the close of business on such record date by a fraction
of which:
(i) the numerator shall be the Current Market Price of
Common Stock; and
(ii) the denominator shall be the Current Market Price of
Common Stock on the record date less the amount of cash so
distributed (and not excluded as provided above) applicable to
one share of Common Stock,
such increase to be effective immediately prior to the opening of business
on the day following the record date; provided, however, that in the event
the portion of cash so distributed applicable to one share of Common Stock
is equal to or greater than the Current Market Price per share of Common
Stock on the record date, in lieu of the foregoing adjustment, adequate
provision shall be made so that each holder of a Security shall have the
right to receive upon settlement of the Securities the amount of cash such
Holder would have received had such Holder settled each Security on the
record date. In the event that such dividend or distribution is not so
paid or made, the Settlement Rate shall again be adjusted to be the
Settlement Rate which would then be in effect if such dividend or
distribution had not been declared. If any adjustment is required to be
made as set forth in this Section 5.6(a)(5) as a result of a distribution
that is a quarterly dividend, such adjustment shall be based upon the
amount by which such distribution
42
exceeds the amount of the largest quarterly cash dividend permitted to be
excluded pursuant to this Section 5.6(a)(5), notwithstanding the provisions
of Section 5.6(a)(10). If an adjustment is required to be made as set
forth in this Section 5.6(a)(5) above as a result of a distribution that is
not a quarterly dividend, such adjustment shall be based upon the full
amount of the distribution.
(6) In case a tender or exchange offer made by the Company or any
subsidiary of the Company for all or any portion of Common Stock shall
expire and such tender or exchange offer (as amended upon the expiration
thereof) shall require the payment to shareholders (based on the acceptance
(up to any maximum specified in the terms of the tender or exchange offer)
of Purchased Shares) of (I) an aggregate consideration having a fair market
value (as determined by the Board of Directors, whose determination shall
be conclusive and described in a Board Resolution) that combined together
with the aggregate of the cash plus the fair market value (as determined by
the Board of Directors, whose determination shall be conclusive and
described in a Board Resolution), as of the expiration of such tender or
exchange offer, of consideration payable in respect of any other tender or
exchange offer, by the Company or any subsidiary of the Company for all or
any portion of Common Stock expiring within the 12 months preceding the
expiration of such tender or exchange offer and in respect of which no
adjustment pursuant to this paragraph (6) has been made, and (II) the
aggregate amount of any distributions to all holders of Common Stock made
exclusively in cash within the 12 months preceding the expiration of such
tender or exchange offer and in respect of which no adjustment pursuant to
paragraph (6) has been made, exceeds __% of the product of the Current
Market Price per share of Common Stock as of the last time (the "Expiration
Time") tenders could have been made pursuant to such tender or exchange
offer (as it may be amended) times the number of shares of Common Stock
outstanding (including any tendered shares) on the Expiration Time, then,
and in each such case, immediately prior to the opening of business on the
day after the date of the Expiration Time, the Settlement Rate shall be
adjusted so that the same shall equal the rate determined by dividing the
Settlement Rate immediately prior to the close of business on the date of
the Expiration Time by a fraction:
(i) the numerator of which shall be equal to (A) the product of
(I) the Current Market Price per share of Common Stock on the date
of the Expiration Time and (II) the number of shares of Common Stock
outstanding (including any tendered shares) on the Expiration Time
less (B) the amount of cash plus the fair market value (determined as
aforesaid) of the aggregate consideration payable to shareholders
based on the transactions described in clauses (I) and (II) above
(assuming in the case of clause (I) the acceptance, up to any maximum
specified in the terms of the tender or exchange offer, of Purchased
Shares); and
(ii) the denominator of which shall be equal to the product of
(A) the Current Market Price per share of Common Stock as of the
Expiration Time and (B) the number of shares of Common Stock
outstanding (including any tendered shares) as of the Expiration Time
less the number of all shares validly tendered and not withdrawn as of
the Expiration Time (the shares deemed so accepted, up to any such
maximum, being referred to as the "Purchased Shares").
43
(7) The reclassification of Common Stock into securities including
securities other than Common Stock (other than any reclassification upon a
Reorganization Event to which Section 5.6(b) applies) shall be deemed to
involve:
(i) a distribution of such securities other than Common Stock
to all holders of Common Stock (and the effective date of such
reclassification shall be deemed to be "the date fixed for the
determination of shareholders entitled to receive such distribution"
and the "date fixed for such determination" within the meaning of
paragraph (4) of this Section); and
(ii) a subdivision, split or combination, as the case may be, of
the number of shares of Common Stock outstanding immediately prior to
such reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such
subdivision or split becomes effective" or "the day upon which such
combination becomes effective", as the case may be, and "the day upon
which such subdivision, split or combination becomes effective" within
the meaning of paragraph (3) of this Section).
(8) The "Current Market Price" per share of Common Stock on any day
means the average of the daily Closing Prices for the five consecutive
Trading Days selected by the Company commencing not more than 30 Trading
Days before, and ending not later than, the earlier of the day in question
and the day before the "ex date" with respect to the issuance or
distribution requiring such computation. For purposes of this paragraph,
the term "ex date", when used with respect to any issuance or distribution,
shall mean the first date on which Common Stock trades regular way on such
exchange or in such market without the right to receive such issuance or
distribution.
(9) All adjustments to the Settlement Rate shall be calculated to the
nearest 1/10,000th of a share of Common Stock (or if there is not a nearest
1/10,000th of a share, to the next lower 1/10,000th of a share). No
adjustment in the Settlement Rate shall be required unless such adjustment
would require an increase or decrease of at least one percent thereof;
provided, however, that any adjustments which by reason of this
subparagraph are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. If an adjustment is made to the
Settlement Rate pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or
(10) of this Section 5.6(a), an adjustment shall also be made to the
Applicable Market Value solely to determine which of clauses (a), (b) or
(c) of the definition of Settlement Rate in Section 5.1 will apply on the
Purchase Contract Settlement Date. Such adjustment shall be made by
multiplying the Applicable Market Value by a fraction of which the
numerator shall be the Settlement Rate immediately after such adjustment
pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of this
Section 5.6(a) and the denominator shall be the Settlement Rate immediately
prior to such adjustment; provided, however, that if such adjustment to the
Settlement Rate is required to be made pursuant to the occurrence of any of
the events contemplated by paragraph (1), (2), (3), (4), (5), (7) or (10)
of this Section 5.6(a) during the period taken into consideration for
determining the Applicable Market Value, appropriate and customary
adjustments shall be made to the Settlement Rate.
44
(10) The Company may make such increases in the Settlement Rate, in
addition to those required by this Section, as it considers to be advisable
in order to avoid or diminish any income tax to any holders of shares of
Common Stock resulting from any dividend or distribution of stock or
issuance of rights or warrants to purchase or subscribe for stock or from
any event treated as such for income tax purposes or for any other reason.
(b) Adjustment for Consolidation, Merger or Other Reorganization Event.
In the event of:
(i) any consolidation or merger of the Company with or into another
Person (other than a merger or consolidation in which the Company is the
continuing corporation and in which the shares of Common Stock outstanding
immediately prior to the merger or consolidation are not exchanged for
cash, securities or other property of the Company or another corporation);
(ii) any sale, transfer, lease or conveyance to another Person of the
property of the Company as an entirety or substantially as an entirety;
(iii) any statutory share exchange of the Company with another
Person (other than in connection with a merger or acquisition);
(iv) any liquidation, dissolution or termination of the Company other
than as a result of or after the occurrence of a Termination Event, (any
such event, a "Reorganization Event").
the Settlement Rate will be adjusted to provide that each Holder of Securities
will receive on the Purchase Contract Settlement Date with respect to each
Purchase Contract forming a part thereof, the kind and amount of securities,
cash and other property receivable upon such Reorganization Event (without any
interest thereon, and without any right to dividends or distribution thereon
which have a record date that is prior to the Purchase Contract Settlement Date)
by a Holder of the number of shares of Common Stock issuable on account of each
Purchase Contract if the Purchase Contract Settlement Date had occurred
immediately prior to such Reorganization Event, assuming such Holder of Common
Stock is not a Person with which the Company consolidated or into which the
Company merged or which merged into the Company or to which such sale or
transfer was made, as the case may be (any such Person, a "Constituent Person"),
or an Affiliate of a Constituent Person to the extent such Reorganization Event
provides for different treatment of Common Stock held by Affiliates of the
Company and non-affiliates and such Holder failed to exercise his rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such Reorganization Event (provided that if the kind or
amount of securities, cash and other property receivable upon such
Reorganization Event is not the same for each share of Common Stock held
immediately prior to such Reorganization Event by other than a Constituent
Person or an Affiliate thereof and in respect of which such rights of election
shall not have been exercised ("non-electing share"), then for the purpose of
this Section the kind and amount of securities, cash and other property
receivable upon such Reorganization
45
Event by each non- electing share shall be deemed to be the kind and amount
so receivable per share by a plurality of the non-electing shares).
In the event of such a Reorganization Event, the Person formed by such
consolidation, merger or exchange or the Person which acquires the assets of the
Company or, in the event of a liquidation, dissolution or termination of the
Company, the Company or a liquidating trust created in connection therewith,
shall execute and deliver to the Purchase Contract Agent an agreement
supplemental hereto providing that the Holders of each Outstanding Security
shall have the rights provided by this Section 5.6(b). Such supplemental
agreement shall provide for adjustments which, for events subsequent to the
effective date of such supplemental agreement, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Section. The above
provisions of this Section shall similarly apply to successive Reorganization
Events.
(c) All calculations and determinations pursuant to this Section 5.6 shall
be made by the Company or its agent and the Purchase Contract Agent shall have
no responsibility with respect thereto.
Section 5.7. Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate is adjusted as herein provided, the
Company shall:
(i) forthwith compute the adjusted Settlement Rate in accordance with
Section 5.6 and prepare and transmit to the Purchase Contract Agent an
Officers' Certificate setting forth the Settlement Rate, the method of
calculation thereof in reasonable detail, and the facts requiring such
adjustment and upon which such adjustment is based; and
(ii) within 10 Business Days following the occurrence of an event that
requires an adjustment to the Settlement Rate pursuant to Section 5.6 (or
if the Company is not aware of such occurrence, as soon as practicable
after becoming so aware), provide a written notice to the Holders of the
Securities of the occurrence of such event and a statement in reasonable
detail setting forth the method by which the adjustment to the Settlement
Rate was determined and setting forth the adjusted Settlement Rate.
(b) The Purchase Contract Agent shall not at any time be under any duty or
responsibility to any Holder of Securities to determine whether any facts exist
which may require any adjustment of the Settlement Rate, or with respect to the
nature or extent or calculation of any such adjustment when made, or with
respect to the method employed in making the same. The Purchase Contract Agent
shall not be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock, or of any securities or property, which
may at the time be issued or delivered with respect to any Purchase Contract;
and the Purchase Contract Agent makes no representation with respect thereto.
The Purchase Contract Agent shall not be responsible for any failure of the
Company to issue, transfer or deliver any shares of Common Stock pursuant to a
Purchase Contract or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article.
46
Section 5.8. Termination Event; Notice.
The Purchase Contracts and all obligations and rights of the Company and
the Holders thereunder, including, without limitation, the rights of the Holders
to receive and the obligation of the Company to pay any Purchase Contract
Payments (including any deferred or accrued and unpaid Purchase Contract
Payments), if the Company shall have such obligation, and the rights and
obligations of Holders to purchase Common Stock, shall immediately and
automatically terminate, without the necessity of any notice or action by any
Holder, the Purchase Contract Agent or the Company, if, prior to or on the
Purchase Contract Settlement Date, a Termination Event shall have occurred.
Upon and after the occurrence of a Termination Event, the Securities shall
thereafter represent the right to receive the Preferred Securities, the
Debentures, the Treasury Securities or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be, forming part of such
Securities, in accordance with the provisions of Section 5.4 of the Pledge
Agreement. Upon the occurrence of a Termination Event, the Company shall
promptly but in no event later than two Business Days thereafter give written
notice to the Purchase Contract Agent, the Collateral Agent and the Holders, at
their addresses as they appear in the Register.
Section 5.9. Early Settlement.
(a) Subject to and upon compliance with the provisions of this Section
5.9, at the option of the Holder thereof, Purchase Contracts underlying
Securities may be settled early ("Early Settlement") prior to or on the seventh
Business Day immediately preceding the Purchase Contract Settlement Date. In
order to exercise the right to effect Early Settlement with respect to any
Purchase Contracts, the Holder of the Certificate evidencing Securities shall
deliver such Certificates to the Purchase Contract Agent at the Corporate Trust
Office duly endorsed for transfer to the Company or in blank with the form of
Election to Settle Early on the reverse thereof duly completed and accompanied
by payment (payable to the Company in immediately available funds) in an amount
(the "Early Settlement Amount") equal to:
(i) the product of (A) the Stated Amount times (B) the number of
Purchase Contracts with respect to which the Holder has elected to effect
Early Settlement, plus
(ii) if such delivery is made with respect to any Purchase Contracts
during the period from the close of business on any Record Date next
preceding any Payment Date to the opening of business on such Payment Date,
an amount equal to the sum of (x) the Purchase Contract Payments payable on
such Payment Date with respect to such Purchase Contracts plus (y) in the
case of a PEPS Units Certificate, the distributions on the related
Preferred Securities or Debentures payable on such Payment Date.
Except as provided in the immediately preceding sentence and subject to the
second to last paragraph of Section 5.2, no payment shall be made upon Early
Settlement of any Purchase Contract on account of any Purchase Contract Payments
accrued on such Purchase Contract or on account of any dividends on the Common
Stock issued upon such Early Settlement. If the
47
foregoing requirements are first satisfied with respect to Purchase Contracts
underlying any Securities prior to or at 5:00 p.m. (New York City time) on a
Business Day, such day shall be the "Early Settlement Date" with respect to
such Securities and if such requirements are first satisfied after 5:00 p.m.
(New York City time) on a Business Day or on a day that is not a Business
Day, the "Early Settlement Date" with respect to such Securities shall be the
next succeeding Business Day.
(b) Upon Early Settlement of Purchase Contracts by a Holder of the related
Securities, the Company shall issue, and the Holder shall be entitled to receive
_______ shares of Common Stock on account of each Purchase Contract as to which
Early Settlement is effected (the "Early Settlement Rate"). The Early Settlement
Rate shall be adjusted in the same manner and at the same time as the Settlement
Rate is adjusted.
(c) No later than the third Business Day after the applicable Early
Settlement Date, the Company shall cause:
(i) the shares of Common Stock issuable upon Early Settlement of
Purchase Contracts to be issued and delivered, together with payment in
lieu of any fraction of a share, as provided in Section 5.11; and
(ii) the related Preferred Securities, Debentures or the appropriate
Applicable Ownership Interest (as specified in clause (A) of the definition
of such term) of the Treasury Portfolio, in the case of PEPS Units, or the
related Treasury Securities or the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) of the
Treasury Portfolio, in the case of Treasury PEPS Units, to be released from
the Pledge by the Collateral Agent and transferred, in each case, to the
Purchase Contract Agent for delivery to the Holder thereof or its designee.
(d) Upon Early Settlement of any Purchase Contracts, and subject to
receipt of shares of Common Stock from the Company and the Preferred Securities,
Debentures, the appropriate Applicable Ownership Interest as specified in clause
(A) of the definition of such term) of the Treasury Portfolio, or Treasury
Securities, as the case may be, from the Securities Intermediary, as applicable,
the Purchase Contract Agent shall, in accordance with the instructions provided
by the Holder thereof on the applicable form of Election to Settle Early on the
reverse of the Certificate evidencing the related Securities:
(i) transfer to the Holder the Preferred Securities, Dentures, the
appropriate Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) of the Treasury Portfolio or Treasury
Securities, as the case may be, forming a part of such Securities; and
(ii) deliver to the Holder a certificate or certificates for the full
number of shares of Common Stock issuable upon such Early Settlement,
together with payment in lieu of any fraction of a share, as provided in
Section 5.11.
(e) In the event that Early Settlement is effected with respect to
Purchase Contracts underlying less than all the Securities evidenced by a
Certificate, upon such Early Settlement the
48
Company shall execute and the Purchase Contract Agent shall authenticate,
countersign and deliver to the Holder thereof, at the expense of the Company,
a Certificate evidencing the Securities as to which Early Settlement was not
effected.
(f) A Holder of a Security who effects Early Settlement may elect to have
the Preferred Securities or Debentures, as the case may be, no longer a part of
a PEPS Unit, or Treasury PEPS Unit, as the case my be, remarketed. A Holder
making such an election must notify the Property Trustee prior to 11:00 a.m.
(New York City time) on the fifth Business Day immediately preceding
_____________________, of the aggregate number of Preferred Securities or
Debentures that are not part of PEPS Units or Treasury PEPS Units, as the case
may be, to be remarketed. Any such notice will be irrevocable and may not be
conditioned upon the level at which the Reset Rate is established in the
Remarketing. Concurrently, the Property Trustee shall cause such Preferred
Securities or Debentures, as the case may be, to be presented to the Remarketing
Agent for Remarketing.
Section 5.10. Intentionally Omitted.
Section 5.11. No Fractional Shares.
No fractional shares or scrip representing fractional shares of Common
Stock shall be issued or delivered upon settlement on the Purchase Contract
Settlement Date or upon Early Settlement of any Purchase Contracts. If
Certificates evidencing more than one Purchase Contract shall be surrendered for
settlement at one time by the same Holder, the number of full shares of Common
Stock which shall be delivered upon settlement shall be computed on the basis of
the aggregate number of Purchase Contracts evidenced by the Certificates so
surrendered. Instead of any fractional share of Common Stock which would
otherwise be deliverable upon settlement of any Purchase Contracts on the
Purchase Contract Settlement Date or upon Early Settlement, the Company, through
the Purchase Contract Agent, shall make a cash payment in respect of such
fractional interest in an amount equal to the value of such fractional shares
times the Applicable Market Value. The Company shall provide the Purchase
Contract Agent from time to time with sufficient funds to permit the Purchase
Contract Agent to make all cash payments required by this Section 5.11 in a
timely manner.
49
Section 5.12. Charges and Taxes.
The Company will pay all stock transfer and similar taxes attributable to
the initial issuance and delivery of the shares of Common Stock pursuant to the
Purchase Contracts; provided, however, that the Company shall not be required to
pay any such tax or taxes which may be payable in respect of any exchange of or
substitution for a Certificate evidencing a Security or any issuance of a share
of Common Stock in a name other than that of the registered Holder of a
Certificate surrendered in respect of the Securities evidenced thereby, other
than in the name of the Purchase Contract Agent, as custodian for such Holder,
and the Company shall not be required to issue or deliver such share
certificates or Certificates unless or until the Person or Persons requesting
the transfer or issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that such
tax has been paid.
ARTICLE VI
Remedies
Section 6.1. Unconditional Right of Holders to Receive Purchase Contract
Payments and to Purchase Shares of Common Stock.
Each Holder of a PEPS Unit or Treasury PEPS Unit shall have the right,
which is absolute and unconditional, (1) subject to the payment by such Holder
of Purchase Contract Payments pursuant to Section 5.9(a), to receive each
Purchase Contract Payment with respect to the Purchase Contract constituting a
part of such Security on the respective Payment Date for such Security,
provided, however, that a Holder will have no right to receive any accrued
deferred Purchase Contract Payments if he effects an Early Settlement or if a
Termination Event shall occur and (2) to purchase shares of Common Stock
pursuant to such Purchase Contract and, in each such case, to institute suit for
the enforcement of any such Purchase Contract Payment and right to purchase
shares of Common Stock, and such rights shall not be impaired without the
consent of such Holder.
Section 6.2. 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 6.3. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Certificates in the last paragraph of
Section 3.10, no right or remedy herein conferred upon or reserved to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in
50
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 6.4. Delay or Omission Not Waiver
No delay or omission of any Holder to exercise any right 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 or by law to the Holders
may be exercised from time to time, and as often as may be deemed expedient, by
such Holders.
Section 6.5. Undertaking for Costs.
All parties to this Agreement agree, and each Holder of a PEPS Unit or a
Treasury PEPS Unit, by its acceptance of such PEPS Unit or Treasury PEPS Unit
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 Purchase Contract Agent for any action taken, suffered or
omitted by it as Purchase Contract Agent, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, 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 Company, to any suit instituted by the Purchase Contract Agent, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% of the Outstanding Securities, or to any suit instituted by any Holder
for the enforcement of distributions on any Preferred Securities or Purchase
Contract Payments on any Purchase Contract on or after the respective Payment
Date therefor in respect of any Security held by such Holder, or for enforcement
of the right to purchase shares of Common Stock under the Purchase Contracts
constituting part of any Security held by such Holder.
Section 6.6. 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 Purchase Contract Agent or the Holders, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE VII
The Purchase Contract Agent
Section 7.1. Certain Duties and Responsibilities.
51
(a) The Purchase Contract Agent:
(1) undertakes to perform, with respect to the Securities, such
duties and only such duties as are specifically set forth in this Agreement
and the Pledge Agreement, and no implied covenants or obligations shall be
read into this Agreement or the Pledge Agreement against the Purchase
Contract Agent; and
(2) in the absence of bad faith or negligence on its part, may, with
respect to the Securities, conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Purchase Contract Agent and
conforming to the requirements of this Agreement or the Pledge Agreement,
as applicable, but in the case of any certificates or opinions which by any
provision hereof are specifically required to be furnished to the Purchase
Contract Agent, the Purchase Contract Agent shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Agreement or the Pledge Agreement, as applicable.
(b) No provision of this Agreement or the Pledge Agreement shall be
construed to relieve the Purchase Contract Agent from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Purchase Contract Agent shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall be
proved that the Purchase Contract Agent was negligent in ascertaining the
pertinent facts; and
(3) no provision of this Agreement or the Pledge Agreement shall
require the Purchase Contract Agent to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if
adequate indemnity is not provided to it.
(c) Whether or not therein expressly so provided, every provision of this
Agreement and the Pledge Agreement relating to the conduct or affecting the
liability of or affording protection to the Purchase Contract Agent shall be
subject to the provisions of this Section.
(d) The Purchase Contract Agent is authorized to execute and deliver the
Pledge Agreement in its capacity as Purchase Contract Agent.
52
Section 7.2. Notice of Default.
Within 30 days after the occurrence of any default by the Company hereunder
of which a Responsible Officer of the Purchase Contract Agent has actual
knowledge, the Purchase Contract Agent shall transmit by mail to the Company and
the Holders of Securities, as their names and addresses appear in the Register,
notice of such default hereunder, unless such default shall have been cured or
waived.
Section 7.3. Certain Rights of Purchase Contract Agent.
Subject to the provisions of Section 7.1:
(1) the Purchase Contract Agent may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by 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;
(3) whenever in the administration of this Agreement or the Pledge
Agreement the Purchase Contract Agent shall deem it desirable that a matter
be proved or established prior to taking, suffering or omitting any action
hereunder, the Purchase Contract Agent (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely
upon an Officers' Certificate of the Company;
(4) the Purchase Contract Agent may consult with counsel and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Purchase Contract Agent shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Purchase Contract Agent,
in its discretion, may make reasonable further inquiry or investigation
into such facts or matters related to the execution, delivery and
performance of the Purchase Contracts as it may see fit, and, if the
Purchase Contract Agent shall determine to make such further inquiry or
investigation, it shall be given a reasonable opportunity to examine the
books, records and premises of the Company, personally or by agent or
attorney; and
(6) the Purchase Contract Agent may execute any of the powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or an Affiliate and the Purchase Contract Agent shall
not be responsible for any misconduct or
53
negligence on the part of any agent or attorney or an Affiliate appointed
with due care by it hereunder.
Section 7.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Certificates shall be taken as the
statements of the Company, and the Purchase Contract Agent assumes no
responsibility for their accuracy. The Purchase Contract Agent makes no
representations as to the validity or sufficiency of either this Agreement or of
the Securities, or of the Pledge Agreement or the Pledge. The Purchase Contract
Agent shall not be accountable for the use or application by the Company of the
proceeds in respect of the Purchase Contracts.
Section 7.5. May Hold Securities.
Any Registrar or any other agent of the Company, or the Purchase Contract
Agent and its Affiliates, in their individual or any other capacity, may become
the owner or pledgee of Securities 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 Registrar or such other agent, or the Purchase Contract Agent.
Section 7.6. Money Held in Custody.
Money held by the Purchase Contract Agent in custody hereunder need not be
segregated from the other funds except to the extent required by law or provided
herein. The Purchase Contract Agent shall be under no obligation to invest or
pay interest on any money received by it hereunder except as otherwise agreed in
writing with the Company.
Section 7.7. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Purchase Contract Agent compensation for all
services rendered by it hereunder and under the Pledge Agreement as the
Company and the Purchase Contract Agent shall from time to time agree in
writing;
(2) except as otherwise expressly provided for herein, to reimburse
the Purchase Contract Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Purchase Contract Agent
in accordance with any provision of this Agreement and the Pledge Agreement
(including the reasonable compensation and the expenses and disbursements
of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Purchase Contract Agent and any predecessor
Purchase Contract Agent for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of
its duties hereunder, including the costs and expenses of
54
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
Section 7.8. Corporate Purchase Contract Agent Required; Eligibility.
There shall at all times be an Purchase Contract Agent hereunder which
shall be a corporation 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 corporation in the Borough of Manhattan, New York City,
qualified and eligible under this Article and willing to act on reasonable
terms. If such corporation 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 corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Purchase Contract Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 7.9. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Purchase Contract Agent and no
appointment of a successor Purchase Contract Agent pursuant to this Article
shall become effective until the acceptance of appointment by the successor
Purchase Contract Agent in accordance with the applicable requirements of
Section 7.10.
(b) The Purchase Contract Agent may resign at any time by giving written
notice thereof to the Company 60 days prior to the effective date of such
resignation. If the instrument of acceptance by a successor Purchase Contract
Agent required by Section 7.10 shall not have been delivered to the Purchase
Contract Agent within 30 days after the giving of such notice of resignation,
the resigning Purchase Contract Agent may petition any court of competent
jurisdiction for the appointment of a successor Purchase Contract Agent.
(c) The Purchase Contract Agent may be removed at any time by Act of the
Holders of a majority in number of the Outstanding Securities delivered to the
Purchase Contract Agent and the Company.
(d) If at any time:
(1) the Purchase Contract Agent fails to comply with Section 310(b)
of the TIA, as if the Purchase Contract Agent were an indenture trustee
under an indenture qualified under the TIA, after written request therefor
by the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months;
(2) the Purchase Contract Agent shall cease to be eligible under
Section 7.8 and shall fail to resign after written request therefor by the
Company or by any such Holder; or
55
(3) the Purchase Contract Agent shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Purchase
Contract Agent or of its property shall be appointed or any public officer
shall take charge or control of the Purchase Contract Agent or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Purchase Contract Agent, or (ii) any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Purchase Contract Agent and the appointment of a successor Purchase
Contract Agent.
(e) If the Purchase Contract Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Purchase
Contract Agent for any cause, the Company, by a Board Resolution, shall promptly
appoint a successor Purchase Contract Agent and shall comply with the applicable
requirements of Section 7.10. If no successor Purchase Contract Agent shall
have been so appointed by the Company and accepted appointment in the manner
required by Section 7.10, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Purchase Contract Agent.
(f) The Company shall give, or shall cause such successor Purchase
Contract Agent to give, notice of each resignation and each removal of the
Purchase Contract Agent and each appointment of a successor Purchase Contract
Agent by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders as their names and addresses appear in the applicable
Register. Each notice shall include the name of the successor Purchase Contract
Agent and the address of its Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Purchase Contract
Agent, every such successor Purchase Contract Agent so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Purchase Contract
Agent an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Purchase Contract Agent shall become effective and such
successor Purchase Contract Agent, without any further act, deed or conveyance,
shall become vested with all the rights, powers, agencies and duties of the
retiring Purchase Contract Agent; but, on the request of the Company or the
successor Purchase Contract Agent, such retiring Purchase Contract Agent shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Purchase Contract Agent all the rights, powers and trusts of the
retiring Purchase Contract Agent and shall duly assign, transfer and deliver to
such successor Purchase Contract Agent all property and money held by such
retiring Purchase Contract Agent hereunder.
(b) Upon request of any such successor Purchase Contract Agent, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Purchase Contract Agent all such
rights, powers and agencies referred to in paragraph (a) of this Section.
56
(c) No successor Purchase Contract Agent shall accept its appointment
unless at the time of such acceptance such successor Purchase Contract Agent
shall be qualified and eligible under this Article.
Section 7.11. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Purchase Contract Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Purchase Contract
Agent shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Purchase Contract Agent, shall be the
successor of the Purchase Contract Agent hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, with the execution
or filing of any paper or any further act on the part of any of the parties
hereto. In case any Certificates shall have been authenticated and executed on
behalf of the Holders, but not delivered, by the Purchase Contract Agent then in
office, any successor by merger, conversion or consolidation to such Purchase
Contract Agent may adopt such authentication and execution and deliver the
Certificates so authenticated and executed with the same effect as if such
successor Purchase Contract Agent had itself authenticated and executed such
Securities.
Section 7.12. Preservation of Information; Communications to Holders.
(a) The Purchase Contract Agent shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders received by the
Purchase Contract Agent in its capacity as Registrar.
(b) If three or more Holders (herein referred to as "applicants") apply in
writing to the Purchase Contract Agent, and furnish to the Purchase Contract
Agent reasonable proof that each such applicant has owned a Security for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Purchase Contract Agent shall mail to
all the Holders copies of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Purchase Contract Agent of the materials to be mailed and of payment, or
provision for the payment, of the reasonable expenses of such mailing.
Section 7.13. No Obligations of Purchase Contract Agent.
Except to the extent otherwise expressly provided in this Agreement, the
Purchase Contract Agent assumes no obligations and shall not be subject to any
liability under this Agreement, the Pledge Agreement or any Purchase Contract in
respect of the obligations of the Holder of any Security thereunder. The
Company agrees, and each Holder of a Certificate, by his acceptance thereof,
shall be deemed to have agreed, that the Purchase Contract Agent's execution of
the Certificates on behalf of the Holders shall be solely as agent and attorney-
in-fact for the Holders, and that the Purchase Contract Agent shall have no
obligation to perform such Purchase Contracts on behalf of the Holders, except
to the extent expressly provided in Article Five hereof. Anything contained in
this Agreement to the contrary notwithstanding, in no
57
event shall the Purchase Contract Agent or its officers, employees or agents
be liable under this Agreement to any third party for indirect, special,
punitive, or consequential loss or damage of any kind whatsoever, including
lost profits, whether or not the likelihood of such loss or damage was known
to the Purchase Contract Agent, incurred without any act or deed that is
found to be attributable to gross negligence or willful misconduct on the
part of the Purchase Contract Agent.
Section 7.14. Tax Compliance.
(a) 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 Securities or (ii) the issuance,
delivery, holding, transfer, redemption or exercise of rights under the
Securities. 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 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 rely on any such direction
in accordance with the provisions of Section 7.1(a)(2) hereof.
(c) The Purchase Contract Agent shall maintain all appropriate records
documenting compliance with such requirements, and shall make such records
available, on written request, to the Company or its authorized representative
within a reasonable period of time after receipt of such request.
ARTICLE VIII
Supplemental Agreements
Section 8.1. Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the Company and the 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 Purchase
Contract Agent, to:
(1) 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;
(2) evidence and provide for the acceptance of appointment hereunder
by a successor Purchase Contract Agent;
(3) add to the covenants of the Company for the benefit of the
Holders, or surrender any right or power herein conferred upon the Company;
58
(4) make provision with respect to the rights of Holders pursuant to
the requirements of Section 5.6(b); or
(5) except as provided for in Section 5.6, cure any ambiguity,
correct or supplement any provisions herein which may be inconsistent with
any other provisions herein, or make any other provisions with respect to
such matters or questions arising under this Agreement, provided such
action shall not adversely affect the interests of the Holders.
Section 8.2. Supplemental Agreements With Consent of Holders.
With the consent of the Holders of not less than a majority of the
outstanding Purchase Contracts voting together as one class, by Act of said
Holders delivered to the Company and the Purchase Contract Agent, the Company,
when authorized by a Board Resolution, and the Purchase Contract Agent may enter
into an agreement or agreements supplemental hereto for the purpose of modifying
in any manner the terms of the Purchase Contracts, or the provisions of this
Agreement or the rights of the Holders in respect of the Securities; provided,
however, that, except as contemplated herein, no such supplemental agreement
shall, without the unanimous consent of the Holders of each outstanding Purchase
Contract affected thereby,
(1) change any Payment Date;
(2) change the amount or the type of Collateral required to be
Pledged to secure a Holder's obligations under the Purchase Contract,
impair the right of the Holder of any Purchase Contract to receive
distributions on the related Collateral (except for the rights of Holders
of PEPS Units to substitute Treasury Securities for the Pledged Preferred
Securities or Pledged Debentures or the Applicable Ownership Interest of
the Treasury Portfolio or the rights of Holders or Treasury PEPS Units to
substitute Preferred Securities, Debentures or the Applicable Ownership
Interest of the Treasury Portfolio for the Pledged Treasury Securities) or
otherwise adversely affect the Holder's rights in or to such Collateral or
adversely alter the rights in or to such Collateral;
(3) reduce any Purchase Contract Payments or change any place where,
or the coin or currency in which, any Purchase Contract Payment is payable;
(4) impair the right to institute suit for the enforcement of any
Purchase Contract;
(5) reduce the number of shares of Common Stock to be purchased
pursuant to any Purchase Contract, increase the price to purchase shares of
Common Stock upon settlement of any Purchase Contract, change the Purchase
Contract Settlement Date or otherwise adversely affect the Holder's rights
under any Purchase Contract; or
(6) reduce the percentage of the outstanding Purchase Contracts the
consent of whose Holders is required for any such supplemental agreement;
provided that if any amendment or proposal referred to above would adversely
affect only the PEPS Units or the Treasury PEPS Units, then only the affected
class of Holders as of the record
59
date for the Holders entitled to vote thereon will be entitled to vote on
such amendment or proposal, and such amendment or proposal shall not be
effective except with the consent of Holders of not less than a majority of
such class; and provided, further, that the unanimous consent of the Holders
of each outstanding Purchase Contract of such class affected thereby shall be
required to approve any amendment or proposal specified in clauses (1)
through (6) above.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it shall
be sufficient if such Act shall approve the substance thereof.
60
Section 8.3. Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by, any
supplemental agreement permitted by this Article or the modifications thereby of
the agencies created by this Agreement, the Purchase Contract Agent shall be
provided, and (subject to Section 7.1) shall be fully 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. The
Purchase Contract Agent may, but shall not be obligated to, enter into any such
supplemental agreement which affects the Purchase Contract Agent's own rights,
duties or immunities under this Agreement or otherwise.
Section 8.4. Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this Article, this
Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Agreement for all purposes; and every Holder
of Certificates theretofore or thereafter authenticated, executed on behalf of
the Holders and delivered hereunder, shall be bound thereby.
Section 8.5. 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 may,
and shall if required by the Purchase Contract Agent, bear a notation in form
approved by the Purchase Contract Agent as to any matter provided for in such
supplemental agreement. If the Company shall so determine, new Certificates so
modified as to conform, in the opinion of the Purchase Contract Agent and the
Company, to any such supplemental agreement may be prepared and executed by the
Company and authenticated, executed on behalf of the Holders and delivered by
the Purchase Contract Agent in exchange for Outstanding Certificates.
ARTICLE IX
Merger, Consolidation, Share Exchange, Sale or Conveyance
Section 9.1. Covenant Not to Merge, Consolidate, Enter into a Share Exchange,
Sell or Convey Property Except Under Certain Conditions.
The Company covenants that it will not merge, consolidate or enter into a
share exchange with any other Person or sell, assign, transfer, lease or convey
all or substantially all of its properties and assets to any Person or group of
affiliated Persons in one transaction or a series of related transactions,
unless:
(i) 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 Purchase Contracts, this Agreement
and the
61
Pledge Agreement by one or more supplemental agreements in form
reasonably satisfactory to the Purchase Contract Agent and the Collateral
Agent, executed and delivered to the Purchase Contract Agent and the
Collateral Agent by such corporation; and
(ii) the Company or such successor corporation, as the case may be,
shall not, immediately after such merger, consolidation or share exchange,
or such sale, assignment, transfer, lease or conveyance, be in default in
the performance of any covenant or condition hereunder, under any of the
Securities or under the Pledge Agreement.
Section 9.2. 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 9.1, such successor corporation
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
UtiliCorp United Inc., any or all of the Certificates evidencing Securities
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Purchase Contract Agent; and, upon the order of such
successor corporation, instead of the Company, and subject to all the terms,
conditions and limitations in this Agreement prescribed, the Purchase Contract
Agent shall authenticate and execute on behalf of the Holders and deliver any
Certificates which previously shall have been signed and delivered by the
officers of the Company to the Purchase Contract Agent for authentication and
execution, and any Certificate evidencing Securities which such successor
corporation thereafter shall cause to be signed and delivered to the Purchase
Contract Agent for that purpose. All the Certificates issued shall in all
respects have the same legal rank and benefit under this Agreement as the
Certificates theretofore or thereafter issued in accordance with the terms of
this Agreement as though all of such Certificates had been issued at the date of
the execution hereof.
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 Securities
thereafter to be issued as may be appropriate.
62
Section 9.3. Officers' Certificate and Opinion of Counsel Given to Purchase
Contract Agent.
The Purchase Contract Agent, subject to Sections 7.1 and 7.3, 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 and that all conditions precedent to the consummation of any such
merger, consolidation, share exchange, sale, assignment, transfer, lease or
conveyance have been met.
ARTICLE X
Covenants
Section 10.1. Performance Under Purchase Contracts.
The Company covenants and agrees for the benefit of the Holders from time
to time of the Securities that it will duly and punctually perform its
obligations under the Purchase Contracts in accordance with the terms of the
Purchase Contracts and this Agreement.
Section 10.2. 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 shares of Common Stock upon settlement of the Purchase Contracts
on the Purchase Contract Settlement Date or Early Settlement 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 reestablishment of PEPS Units and where notices and demands to
or upon the Company in respect of the Securities and this Agreement may be
served. The Company will give prompt written notice to the Purchase Contract
Agent of the location, and any change in the location, of such office or agency.
If at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Purchase Contract Agent with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office, and the Company hereby appoints the
Purchase Contract Agent as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where Certificates may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, New York City for such purposes. The Company will give prompt
written notice to the Purchase Contract Agent of any such designation or
rescission and of any change in the location of any such other office or agency.
The Company hereby designates as the place of payment for the Securities the
Corporate Trust Office and appoints the Purchase Contract Agent at its Corporate
Trust Office as paying agent in such city.
63
Section 10.3. Company to Reserve Common Stock.
The Company shall at all times prior to the Purchase Contract Settlement
Date reserve and keep available, free from preemptive rights, out of its
authorized but unissued Common Stock the full number of shares of Common Stock
issuable against tender of payment in respect of all Purchase Contracts
constituting a part of the Securities evidenced by Outstanding Certificates.
Section 10.4. Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which may be issued
against tender of payment in respect of any Purchase Contract constituting a
part of the Outstanding Securities will, upon issuance, be duly authorized,
validly issued, fully paid and nonassessable.
Section 10.5. Statements of Officers of the Company as to Default.
The Company will deliver to the Purchase Contract Agent, within 140 days
after the end of each fiscal year of the Company (which as of the date hereof is
December 31) ending after the date hereof, an Officers' Certificate (one of the
signers of which shall be the principal executive officer, principal financial
officer or principal accounting officer of the Company), 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 10.6. ERISA.
Each Holder from time to time of the PEPS Units which is a Plan hereby
represents that its acquisition of the PEPS Units and the holding of the same
satisfies the applicable fiduciary requirements of ERISA and that it is entitled
to exemption relief from the prohibited transaction provisions of ERISA and the
Code in accordance with one or more prohibited transaction exemptions or
otherwise will not result in a nonexempt prohibited transaction.
64
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
UTILICORP UNITED INC.
By:__________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
As Purchase Contract Agent
By:__________________________
Name:
Title:
65
EXHIBIT A
FACE OF PEPS UNITS CERTIFICATE
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE
"DEPOSITARY"), OR A 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 PEPS Units ________
UTILICORP UNITED INC.
UCU CAPITAL TRUST I
PEPS UNITS
This PEPS Units Certificate certifies that Cede & Co. is the registered
Holder of the number of PEPS Units set forth above. Each PEPS Unit consists of
(i) either (a) the beneficial ownership by the Holder of one Preferred Security
(the "Preferred Security") of UCU Capital Trust I, a Delaware statutory business
trust (the "Trust"), having a stated liquidation amount of $25, subject to the
Pledge of such Preferred Security by such Holder pursuant to the Pledge
Agreement, or (b) upon the occurrence of a Tax Event Redemption prior to the
Purchase Contract Settlement Date, the appropriate Applicable Ownership Interest
(as specified in clause (A) of the definition of such term) of the Treasury
Portfolio by such Holder pursuant to the Pledge Agreement, and (ii) the rights
and obligations of the Holder under one Purchase Contract with UtiliCorp United
Inc., a Delaware corporation (the "Company"). All capitalized terms used
herein which are defined in the Purchase Contract Agreement (as defined on
the reverse hereof) have the meaning set forth therein.
Pursuant to the Pledge Agreement, the Preferred Securities or the
appropriate Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio, as the case may be,
constituting part of each PEPS Unit evidenced hereby has been pledged to the
Collateral Agent, for the benefit of the Company, to secure the obligations of
the Holder under the Purchase Contract comprising part of such PEPS Unit.
The Pledge Agreement provides that all payments of the liquidation amount
with respect to any of the Pledged Preferred Securities or the appropriate
Applicable Ownership Interest (as specified in clause (A) of the definition of
such term) of the Treasury Portfolio, as the case may be, or cash distributions
on any Pledged Preferred Securities (as defined in the Pledge Agreement) or the
appropriate Applicable Ownership Interest (as specified in clause (B) of the
definition of such term) of the Treasury Portfolio, as the case may be,
constituting part of the PEPS Units received by the Securities Intermediary
shall be paid by wire transfer in same day funds (i) in the case of (A) cash
distributions with respect to Pledged Preferred Securities or the appropriate
Applicable Ownership Interest (as specified in clause (B) of the definition of
such term) of the Treasury Portfolio, as the case may be, and (B) any payments
of the liquidation amount with respect to any Preferred Securities or the
appropriate Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio, as the case may be, that
have been released from the Pledge pursuant to the Pledge Agreement, to the
Agent to the account designated by the 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 of the liquidation amount with respect to any of
the Pledged Preferred Securities or the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) of the
Treasury Portfolio, to the Company on the Purchase Contract Settlement Date (as
described herein) in accordance with the terms of the Pledge Agreement, in full
satisfaction of the respective obligations of the Holders of the PEPS Units of
which such Pledged Preferred Securities or the Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio, as the case may be, are a part under the Purchase Contracts forming a
part of such PEPS Units. Distributions on any Preferred Security or the
appropriate Applicable Ownership Interest (as specified in clause (B) of the
definition of such term) of the Treasury Portfolio, as the case may be, forming
part of a PEPS Unit evidenced hereby, which are payable quarterly in arrears on
February 16, May 16, August 16, and November 16 of each year, commencing
November 16, 1999 (a "Payment Date"), shall, subject to receipt thereof by the
Agent from the Securities Intermediary, be paid to the Person in whose name this
PEPS Unit Certificate (or a Predecessor PEPS Unit Certificate) is registered at
the close of business on the Record Date for such Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder of this PEPS
Units Certificate to purchase, and the Company to sell, on August, 16, 2002 (the
"Purchase Contract Settlement Date"), at a price equal to $25 (the "Stated
Amount"), a number of shares of Common Stock, $1.00 par value ("Common Stock"),
of the Company, equal to the Settlement Rate, unless
A-2
on or prior to the Purchase Contract Settlement Date there shall have such
occurred a Termination Event or an Early Settlement with respect to the PEPS
Unit of which such Purchase Contract is a part, all as provided in the
Purchase Contract Agreement and more fully described on the reverse hereof.
The purchase price (the "Purchase Price") for the shares of Common Stock
purchased pursuant to each Purchase Contract evidenced hereby, if not paid
earlier, shall be paid on the Purchase Contract Settlement Date by separate
cash or by application of payment received in respect of the liquidation
amount with respect to any Pledged Preferred Securities pursuant to the
Remarketing or the appropriate Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio, as the
case may be, pledged to secure the obligations under such Purchase Contract
of the Holder of the PEPS Unit of which such Purchase Contract is a part.
The Company shall pay, on each Payment Date, in respect of each Purchase
Contract forming part of a PEPS Unit evidenced hereby, an amount (the "Purchase
Contract Payments") equal to __% per annum of the Stated Amount. Such Purchase
Contract Payments shall be payable to the Person in whose name this PEPS Units
Certificate (or a Predecessor PEPS Units Certificate) is registered at the close
of business on the Record Date for such Payment Date. The Company may, at its
option, defer Purchase Contract Payments.
Distributions on the Preferred Securities and Purchase Contract Payments
will be payable at the office of the Purchase Contract Agent in New York City
or, at the option of the Company, by check mailed to the address of the Person
entitled thereto as such address appears on the PEPS Units Register. Reference
is hereby made to the further provisions set forth on the reverse hereof, which
further provisions shall for all purposes have the same effect as if set forth
at this place.
Unless the certificate of authentication hereon has been executed by the
Purchase Contract Agent by manual signature, this PEPS Units Certificate shall
not be entitled to any benefit under the Pledge Agreement or the Purchase
Contract Agreement or be valid or obligatory for any purpose.
A-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
UTILICORP UNITED INC.
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations
of such Holder under the Purchase
Contracts evidenced hereby)
By: THE CHASE MANHATTAN BANK, not
individually but solely as
Attorney-in-Fact of such Holder
By: ________________________________
Name:
Title:
A-4
CERTIFICATE OF AUTHENTICATION
OF PURCHASE CONTRACT AGENT
This is one of the PEPS Units Certificates referred to in the within
mentioned Purchase Contract Agreement.
By: THE CHASE MANHATTAN BANK, as
Purchase Contract Agent
By: ____________________________________
Authorized Officer
Dated:
A-5
(FORM OF REVERSE OF PEPS UNITS CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase Contract
Agreement, dated as of September __, 1999 (as may be supplemented from time to
time, the "Purchase Contract Agreement"), between the Company and The Chase
Manhattan Bank, as Purchase Contract Agent (including its successors hereunder,
the "Purchase Contract Agent"), to which 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 Purchase Contract Agent, the Company, and the Holders and of
the terms upon which the PEPS Units Certificates are, and are to be, executed
and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this PEPS
Units Certificate to purchase, and the Company to sell, on the Purchase Contract
Settlement Date at a price equal to the Stated Amount (the "Purchase Price"), a
number of shares of Common Stock equal to the Settlement Rate, unless, prior to
or on the Purchase Contract Settlement Date, there shall have occurred a
Termination Event with respect to the Security of which such Purchase Contract
is a part or an Early Settlement shall have occurred. The "Settlement Rate" is
equal to:
(1) if the Applicable Market Value (as defined below) is equals or
exceeds $_________ (the "Threshold Appreciation Price"), _______ shares of
Common Stock per Purchase Contract;
(2) if the Applicable Market Value is less than the Threshold
Appreciation Price but greater than $_______ (the "Reference Price"), the
number of shares of Common Stock per Purchase Contract having a value,
based on the Applicable Market Value, equal to the Stated Amount; and
(3) if the Applicable Market Amount is less than or equal to the
Reference Price, ________ shares of Common Stock per Purchase Contract,
in each case subject to adjustment as provided in the Purchase Contract
Agreement.
No fractional shares of Common Stock will be issued upon settlement of
Purchase Contracts, as provided in Section 5.11 of the Purchase Contract
Agreement.
Each Purchase Contract evidenced hereby, which is settled either through
Early Settlement or Cash Settlement, shall obligate the Holder of the related
PEPS Unit to purchase at the Purchase Price, and the Company to sell, a number
of shares of Common Stock equal to the Early Settlement Rate or the Settlement
Rate, as applicable.
The "Applicable Market Value" means the average of the Closing Price per
share of Common Stock on each of the 20 consecutive Trading Days ending on the
third Trading Day immediately preceding the Purchase Contract Settlement Date.
The "Closing Price" per share of Common Stock on any date of determination
means:
(1) the closing sale price (or, if no closing price is reported, the
last reported sale price) per share on the New York Stock Exchange, Inc.
(the "NYSE") on such date;
A-6
(2) if Common Stock is not listed for trading on the NYSE on any
such date, the closing sale price per share as reported in the composite
transactions for the principal United States securities exchange on which
Common Stock is so listed;
(3) if Common Stock is not so listed on a United States national or
regional securities exchange, the closing sale price per share as reported
by The Nasdaq Stock Market, Inc.;
(4) if Common Stock is not so reported, the last quoted bid price for
Common Stock in the over-the-counter market as reported by the National
Quotation Bureau or similar organization; or
(5) if such bid price is not available, the average of the mid-point
of the last bid and ask prices of Common Stock on such date from at least
three nationally recognized independent investment banking firms retained
for this purpose by the Company.
A "Trading Day" means a day on which Common Stock (1) is not suspended from
trading on any national or regional securities exchange or association or
over-the-counter market at the close of business and (2) has traded at least
once on the national or regional securities exchange or association or
over-the-counter market that is the primary market for the trading of Common
Stock.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this PEPS Units Certificate may pay the Purchase Price for the
shares of Common Stock purchased pursuant to each Purchase Contract evidenced
hereby by effecting a Cash Settlement or an Early Settlement or from the
proceeds of the Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) of the Treasury Portfolio or a Remarketing of
the related Pledged Preferred Securities. A Holder of PEPS Units who does
not effect, on or prior to 11:00 a.m. (New York City time) on the fifth
Business Day immediately preceding August 16, 2002 (or in the event a Tax
Event Redemption has occurred, the Business Day prior to the Purchase
Contract Settlement Date), an effective Cash Settlement or an Early
Settlement, shall pay the Purchase Price for the shares of Common Stock to be
delivered under the related Purchase Contract from the proceeds of the sale
of the related Pledged Preferred Securities held by the Collateral Agent.
Such sale will be made by the Remarketing Agent pursuant to the terms of the
Remarketing Agreement on the third Business Day prior to Remarketing
Settlement Date. If, as provided in the Purchase Contract Agreement, upon
the occurrence of a Failed Remarketing, the Collateral Agent, for the benefit
of the Company, exercises its rights as a secured creditor with respect to
the Pledged Preferred Securities related to this PEPS Units certificate, any
accrued and unpaid distributions on such Pledged Preferred Securities will
become payable by the Company to the holder of this PEPS Units Certificate in
the manner provided for in the Purchase Contract Agreement.
The Company shall not be obligated to issue any shares of Common Stock in
respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment of the aggregate purchase price for
the shares of Common Stock to be purchased thereunder in the manner herein set
forth.
A-7
Each Purchase Contract evidenced hereby and all obligations and rights of
the Company and the Holder thereunder shall terminate if a Termination Event
shall occur. Upon the occurrence of a Termination Event, the Company shall give
written notice to the Agent and to the Holders, at their addresses as they
appear in the PEPS Unit Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Pledged Preferred
Security or the appropriate Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio forming a
part of each PEPS Unit from the Pledge. A PEPS Unit shall thereafter represents
the right to receive the Preferred Security or the appropriate Applicable
Ownership Interest of the Treasury Portfolio forming a part of such PEPS Unit in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
Under the terms of the Pledge Agreement, the Purchase Contract Agent will
be entitled to exercise the voting and any other consensual rights pertaining to
the Pledged Preferred Securities. Upon receipt of notice of any meeting at
which holders of Preferred Securities are entitled to vote or upon the
solicitation of consents, waivers or proxies of holders of Preferred Securities,
the Purchase Contract Agent shall, as soon as practicable thereafter, mail to
the PEPS Units Holders a notice:
(1) containing such information as is contained in the notice or
solicitation;
(2) stating that each PEPS Unit Holder on the record date set by the
Purchase Contract Agent therefor (which, to the extent possible, shall be
the same date as the record date for determining the holders of Preferred
Securities entitled to vote) shall be entitled to instruct the Purchase
Contract Agent as to the exercise of the voting rights pertaining to the
Preferred Securities constituting a part of such Holder's PEPS Unit; and
(3) stating the manner in which such instructions may be given.
Upon the written request of the PEPS Unit Holders on such record date, the
Purchase Contract Agent shall endeavor insofar as practicable to vote or cause
to be voted, in accordance with the instructions set forth in such requests, the
maximum number of Preferred Securities as to which any particular voting
instructions are received. In the absence of specific instructions from the
Holder of a PEPS Unit, the Purchase Contract Agent shall abstain from voting the
Preferred Security evidenced by such PEPS Unit.
Upon the liquidation of the Trust, a principal amount of the Subordinated
Debentures constituting the assets of the Trust and underlying the Preferred
Securities equal to the aggregate liquidation amount of the Pledged Preferred
Securities shall be delivered to the Securities Intermediary in exchange for the
Pledged Preferred Securities. Thereafter, the Subordinated Debentures shall be
held by the Securities Intermediary to secure the obligations of each Holder of
PEPS Units to purchase shares of Common Stock under the Purchase Contracts
constituting a part of such PEPS Units. Following the liquidation of the Trust,
the Holders and the Collateral Agent shall have such security interests, rights
and obligations with respect to the Subordinated Debentures as the Holders and
the Collateral Agent had in respect of the Pledged Preferred Securities, any
reference herein to the Preferred Securities shall be deemed to be a reference
to the Subordinated Debentures and any reference herein to the liquidation
amount of the Preferred
A-8
Securities shall be deemed to be a reference to the principal amount of the
Subordinated Debentures.
Upon the occurrence of a Tax Event Redemption prior to the Purchase
Contract Settlement Date, the Redemption Price payable on the Tax Event
Redemption Date with respect to the Applicable Principal Amount of Subordinated
Debentures shall be delivered to the Securities Intermediary in exchange for the
Pledged Preferred Securities. Thereafter, pursuant to the terms of the Pledge
Agreement, the Securities Intermediary will apply an amount equal to the
Redemption Amount of such Redemption Price to purchase, the Treasury Portfolio
and promptly (a) transfer the Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio to the
Collateral Account to secure the obligations of each Holder of PEPS Units to
purchase shares of Common Stock under the Purchase Contracts constituting a part
of such PEPS Units, (b) transfer the Applicable Ownership Interest (as specified
in clause (B) of the definition of such term) of the Treasury Portfolio to the
Agent for the benefit of the Holders of such PEPS Units and (iii) remit the
remaining portion of such Redemption Price to the Agent for payment to the
Holders of such PEPS Units.
Following the occurrence of a Tax Event Redemption prior to the Purchase
Contract Settlement Date, the Holders of PEPS Units and the Collateral Agent
shall have such security interest rights and obligations with respect to the
Applicable Ownership Interest (as specified in clause (A) of the definition of
such term) of the Treasury Portfolio as the Holder of PEPS Units and the
Collateral Agent had in respect of the Preferred Securities or Subordinated
Debentures, as the case may be, subject to the Pledge thereof as provided in
Articles II, III, IV, V and VI, of the Pledge Agreement and any reference herein
to the Preferred Securities shall be deemed to be a reference to such Treasury
Portfolio.
The PEPS Certificates are issuable only in registered form and only in
denominations of a single PEPS Unit and any integral multiple thereof. The
transfer of any PEPS Units Certificate will be registered and PEPS Units
Certificates may be exchanged as provided in the Purchase Contract Agreement.
The PEPS Units Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents permitted by the Purchase
Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Purchase Contract
Agent may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. A holder who elects to
substitute a Treasury Security for Preferred Securities, thereby creating
Treasury PEPS Units, shall be responsible for any fees or expenses payable in
connection therewith. Except as provided in the Purchase Contract Agreement, for
so long as the Purchase Contract underlying a PEPS Unit remains in effect, such
PEPS Unit shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such PEPS Unit in respect of the Preferred
Securities and Purchase Contract constituting such PEPS Unit may be transferred
and exchanged only as a PEPS Unit.
The Holder of PEPS Units may substitute for the Pledged Preferred
Securities securing such Holder's obligations under the related Purchase
Contracts Treasury Securities in an aggregate principal amount equal to the
aggregate liquidation amount of the Pledged Preferred Securities or the
appropriate Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio in accordance with the terms
of the Purchase
A-9
Contract Agreement and the Pledge Agreement. From and after such Collateral
Substitution, each Security for which such Pledged Treasury Securities
secures the Holder's obligation under the Purchase Contract shall be referred
to as a "Treasury PEPS Unit". A Holder may make such Collateral Substitution
only in integral multiples of 40 PEPS Units for 40 Treasury PEPS Units. Such
Collateral Substitution may cause the equivalent aggregate principal amount
of this Certificate to be increased or decreased; provided, however, this
PEPS Units Certificate shall not represent more than _________ PEPS Units.
All such adjustments to the equivalent aggregate principal amount of this
PEPS Units Certificate shall be duly recorded by placing an appropriate
notation on the Schedule attached hereto.
A Holder of Treasury PEPS Units may recreate PEPS Units by delivering to
the Securities Intermediary Preferred Securities or the appropriate Applicable
Ownership Interest (as specified in clause (A) of the definition of such term)
of the Treasury Portfolio, with an aggregate liquidation amount, in the case of
such Preferred Securities, or with the appropriate Applicable Ownership Interest
(as specified in clause (A) of the definition of such term) of the Treasury
Portfolio, in the case of such appropriate Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio, equal to the aggregate principal amount of the Pledged Treasury
Securities in exchange for the release of such Pledged Treasury Securities in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
The Company shall pay, on each Payment Date, the Purchase Contract Payments
payable in respect of each Purchase Contract to the Person in whose name the
PEPS Units Certificate evidencing such Purchase Contract is registered at the
close of business on the Record Date for such Payment Date. Purchase Contract
Payments will be payable at the office of the Purchase Contract Agent in New
York City or, at the option of the Company, by check mailed to the address of
the Person entitled thereto at such address as it appears on the PEPS Units
Register.
The Company has the right to defer payment of all or part of the Purchase
Contract Payments in respect of each Purchase Contract until no later than the
Purchase Contract Settlement Date. If the Company so elects to defer Purchase
Contract Payments, the Company shall pay additional Purchase Contract Payments
on such deferred installments of Purchase Contract Payments at a rate equal to
____% per annum, compounding quarterly, until such deferred installments are
paid. If a Holder effects an Early Settlement or if a Termination Event shall
occur, such Holder will have no right to receive any accrued and unpaid or
deferred Purchase Contract Payments. The Purchase Contracts and all obligations
and rights of the Company and the Holders thereunder, including, without
limitation, the rights of the Holders to receive and the obligation of the
Company to pay any Purchase Contract Payments, shall immediately and
automatically terminate, without the necessity of any notice or action by any
Holder, the Purchase Contract Agent or the Company, if, on or prior to the
Purchase Contract Settlement 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
Purchase Contract Agent, the Collateral Agent and the Holders, at their
addresses as they appear in the PEPS Units Register. Upon and after the
A-10
occurrence of a Termination Event, the Collateral Agent shall release the
Preferred Securities or the appropriate Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio, as the case may be, from the Pledge in accordance with the provisions
of the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase
Contract Agreement, at the option of the Holder thereof, Purchase Contracts
underlying Securities may be settled early ("Early Settlement") as provided
in the Purchase Contract Agreement. In order to exercise the right to effect
Early Settlement with respect to any Purchase Contracts evidenced by this
PEPS Units Certificate, the Holder of this PEPS Units Certificate shall
deliver this PEPS Units Certificate to the Purchase Contract Agent at the
Corporate Trust Office duly endorsed for transfer to the Company or in blank
with the form of Election to Settle Early set forth below duly completed and
accompanied by payment in the form of immediately available funds payable to
the order of the Company in an amount (the "Early Settlement Amount") equal
to:
(1) the product of (A) the Stated Amount times (B) the number of
Purchase Contracts with respect to which the Holder has elected to effect
Early Settlement, plus
(2) if such delivery is made with respect to any Purchase Contracts
during the period from the close of business on any Record Date for any
Payment Date to the opening of business on such Payment Date, an amount
equal to the Purchase Contract Payments payable on such Payment Date with
respect to such Purchase Contracts.
Upon Early Settlement of Purchase Contracts by a Holder of the related
Securities, the Preferred Securities or the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) of the
Treasury Portfolio, as the case may be, underlying such Securities shall be
released from the Pledge as provided in the Pledge Agreement and the Holder
shall be entitled to receive a number of shares of Common Stock on account of
each Purchase Contract forming part of a PEPS Unit as to which Early Settlement
is effected equal to the Early Settlement Rate. The Early Settlement Rate shall
initially be equal to _____ shares of Common Stock and shall be adjusted in the
same manner and at the same time as the Settlement Rate is adjusted as provided
in the Purchase Contract Agreement.
Upon registration of transfer of this PEPS Units Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Purchase Contract Agent
pursuant to the Purchase Contract Agreement), under the terms of the Purchase
Contract Agreement and the Purchase Contracts evidenced hereby and the
transferor shall be released from the obligations under the Purchase Contracts
evidenced by this PEPS Units Certificate. The Company covenants and agrees, and
the Holder, by its acceptance hereof, likewise covenants and agrees, to be bound
by the provisions of this paragraph.
The Holder of this PEPS Units Certificate, by its acceptance hereof,
authorizes the Purchase Contract Agent to enter into and perform the related
Purchase Contracts forming part of
A-11
the PEPS Units evidenced hereby on its behalf as its attorney-in-fact,
expressly withholds any consent to the assumption (i.e., affirmance) of the
Purchase Contracts by the Company or its trustee in the event that the
Company becomes the subject of a case under the Bankruptcy Code, agrees to be
bound by the terms and provisions thereof, covenants and agrees to perform
his obligations under such Purchase Contracts, consents to the provisions of
the Purchase Contract Agreement, authorizes the Purchase Contract Agent to
enter into and perform the Purchase Contract Agreement and the Pledge
Agreement on its behalf as its attorney-in-fact, and consents to the Pledge
of the Preferred Securities or the appropriate Applicable Ownership Interest
(as specified in clause (A) of the definition of such term) of the Treasury
Portfolio, as the case may be, underlying this PEPS Units Certificate
pursuant to the Pledge Agreement. The Holder further covenants and agrees
that, to the extent and in the manner provided in the Purchase Contract
Agreement and the Pledge Agreement, but subject to the terms thereof,
payments in respect to the aggregate liquidation amount of the Pledged
Preferred Securities or the appropriate Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio, as the case may be, on the Purchase Contract Settlement Date shall
be paid by the Collateral Agent to the Company in satisfaction of such
Holder's obligations under such Purchase Contract and such Holder shall
acquire no right, title or interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall be governed by, and construed in accordance
with, the laws of the State of New York.
The Company, the Purchase Contract Agent and its Affiliates and any agent
of the Company or the Purchase Contract Agent may treat the Person in whose name
this PEPS Units Certificate is registered as the owner of the PEPS Units
evidenced hereby for the purpose of receiving payments of distributions payable
quarterly on the Preferred Securities, receiving payments of Purchase Contract
Payments, performance of the Purchase Contracts and for all other purposes
whatsoever, whether or not any payments in respect thereof be overdue and
notwithstanding any notice to the contrary, and neither the Company, the
Purchase Contract Agent nor any such agent shall be affected by notice to the
contrary.
The Purchase Contracts shall not, prior to the settlement thereof, entitle
the Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection at
the offices of the Purchase Contract Agent.
A-12
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 __________
________________________________________________
TEN ENT: 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 PEPS Units Certificates and all rights thereunder, hereby irrevocably
constituting and appointing attorney to transfer said PEPS Units Certificates on
the books of UtiliCorp United 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 PEPS Units
Certificates in every particular, without
alteration or enlargement or any change
whatsoever.
Signature Guarantee:_______________________________
A-13
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of PEPS Units evidenced by
this PEPS Units Certificate be registered in the name of, and delivered,
together with a check in payment for any fractional share, to the undersigned at
the address indicated below unless a different name and address have been
indicated below. If shares are to be registered in the name of a Person other
than the undersigned, the undersigned will pay any transfer tax payable incident
thereto.
Dated:_________________________ _______________________________
Signature
Signature Guarantee:___________
(if assigned to another person)
If shares are to be registered in the
name of and delivered to a Person other REGISTERED HOLDER
than the Holder, please (i) print such
Person's name and address and (ii)
provide a guarantee of your signature: Please print name and address
of Registered Holder:
_______________________________ _______________________________
Name Name
_______________________________ _______________________________
Address Address
_______________________________ _______________________________
_______________________________ _______________________________
_______________________________ _______________________________
Social Security or other
Taxpayer Identification
Number, if any _______________________________
A-14
ELECTION TO SETTLE EARLY
The undersigned Holder of this PEPS Units Certificate hereby irrevocably
exercises the option to effect Early Settlement in accordance with the terms of
the Purchase Contract Agreement with respect to the Purchase Contracts
underlying the number of PEPS Units evidenced by this PEPS Units Certificate
specified below. The undersigned Holder directs that a certificate for shares
of Common Stock deliverable upon such Early Settlement be registered in the name
of, and delivered, together with a check in payment for any fractional share and
any PEPS Units Certificate representing any PEPS Units evidenced hereby as to
which Early Settlement of the related Purchase Contracts is not effected, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. Pledged Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may be,
deliverable upon such Early Settlement will be transferred in accordance with
the transfer instructions set forth below. If shares are to be registered in
the name of a Person other than the undersigned, the undersigned will pay any
transfer tax payable incident thereto.
Dated:______________________________ _________________________________
Signature
Signature Guarantee:________________________________
A-15
Number of Securities evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected:
If shares of Common Stock or REGISTERED HOLDER
PEPS Units Certificates are
to be registered in the name of and
delivered to and Pledged Preferred Securities,
or the Applicable Ownership Interest of the
Treasury Portfolio, as the case may be,
are to be transferred to a Person other
than the Holder, please print such Person's
name and address:
Please print name and address
of Registered Holder:
_______________________________ ____________________________
Name Name
_______________________________ ____________________________
Address Address
_______________________________ ____________________________
_______________________________ ____________________________
_______________________________ ____________________________
Social Security or other
Taxpayer Identification
Number, if any ____________________________
A-16
Transfer Instructions for Pledged Preferred Securities or the Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, Transferable
Upon Early Settlement or a Termination Event:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
A-17
[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:
===============================================================================
Amount of decrease in Amount of decrease in Number of PEPS Units
Number of PEPS Units Number of PEPS Units evidenced by this Global Signature of authorized
evidenced by the Global evidenced by the Global Certificate following such officer of Trustee or
Date Certificate Certificate decrease or increase Securities Custodian
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
X-00
XXXXXXX X
FACE OF TREASURY PEPS CERTIFICATE
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"),
OR A 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 PEPS Units _________
UTILICORP UNITED INC.
UCU CAPITAL TRUST I
TREASURY PEPS UNITS
This Treasury PEPS Units Certificate certifies that Cede & Co. is the
registered Holder of the number of Treasury PEPS Units set forth above. Each
Treasury PEPS Unit consists of (i) a 1/40 undivided beneficial ownership
interest of a Treasury Security having a principal amount at maturity equal to
$1,000, subject to the Pledge of such Treasury Security by such Holder pursuant
to the Pledge Agreement, and (ii) the rights and obligations of the Holder under
one Purchase Contract with UtiliCorp United Inc., a Delaware corporation (the
"Company"). All capitalized terms used herein which are defined in the Purchase
Contract Agreement (as defined on the reverse hereof) have the meaning set forth
therein.
Pursuant to the Pledge Agreement, the Treasury Securities constituting part
of each Treasury PEPS Unit evidenced hereby have been pledged to the Collateral
Agent, for the benefit
of the Company, to secure the obligations of the Holder under the Purchase
Contract comprising part of such Treasury PEPS Unit. Each Purchase Contract
evidenced hereby obligates the Holder of this Treasury PEPS Units Certificate
to purchase, and the Company, to sell, on the Purchase Contract Settlement
Date, at a price equal to $25 (the "Stated Amount"), a number of shares of
Common Stock, $1.00 par value ("Common Stock") of the Company, equal to the
Settlement Rate, unless prior to or on the Purchase Contract Settlement Date
there shall have occurred a Termination Event or an Early Settlement with
respect to the Treasury PEPS Unit of which such Purchase Contract is a part,
all as provided in the Purchase Contract Agreement and more fully described
on the reverse hereof. The purchase price (the "Purchase Price") for the
shares of Common Stock purchased pursuant to each Purchase Contract evidenced
hereby, if not paid earlier, shall be paid on the Purchase Contract
Settlement Date by application of the proceeds from the Treasury Securities
at maturity pledged to secure the obligations of the Holder under such
Purchase Contract of the Treasury PEPS Unit of which such Purchase Contract
is a part.
The Company shall pay, quarterly in arrears on February 16, May 16, August
16 and November 16, commencing November 16, 1999 (each, a "Payment Date"), in
respect of each Purchase Contract evidenced hereby an amount (the "Purchase
Contract Payments") equal to .% per annum of the Stated Amount. Such Purchase
Contract Payments shall be payable to the Person in whose name this Treasury
PEPS Units Certificate (or a Predecessor Treasury PEPS Units Certificate) is
registered at the close of business on the Record Date for such Payment Date.
The Company may, at its option, defer Purchase Contract Payments.
Purchase Contract Payments will be payable at the office of the Purchase
Contract Agent in New York City or, at the option of the Company, by check
mailed to the address of the Person entitled thereto as such address appears on
the Treasury PEPS Units Register.
Reference is hereby made to the further provisions set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Purchase Contract Agent by manual signature, this Treasury PEPS Units
Certificate shall not be entitled to any benefit under the Pledge Agreement or
the Purchase Contract Agreement or be valid or obligatory for any purpose.
B-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
UTILICORP UNITED INC.
By:__________________
Name:
Title:
By:__________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under
the Purchase Contracts)
By: THE CHASE MANHATTAN BANK,
not individually but solely
as Attorney-in-Fact of such
Holder
By:__________________
Name:
Title:
Dated:
B-3
CERTIFICATE OF AUTHENTICATION OF
PURCHASE CONTRACT AGENT
This is one of the Treasury PEPS Units referred to in the within-mentioned
Purchase Contract Agreement.
By: THE CHASE MANHATTAN BANK, as Purchase
Contract Agent
By:_____________________________________
Authorized Officer
Dated:
B-4
(REVERSE OF TREASURY PEPS UNITS CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase Contract
Agreement, dated as of September ___, 1999 (as may be supplemented from time to
time, the "Purchase Contract Agreement") between the Company and The Chase
Manhattan Bank, as Purchase Contract Agent (including its successors thereunder,
herein called the "Purchase Contract Agent"), to which the 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 Purchase Contract Agent, the Company and the
Holders and of the terms upon which the Treasury PEPS Units Certificates are,
and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Treasury PEPS Units Certificate to purchase, and the Company to sell, on the
Purchase Contract Settlement Date at a price equal to the Stated Amount (the
"Purchase Price") a number of shares of Common Stock equal to the Settlement
Rate, unless prior to the Purchase Contract Settlement Date, there shall have
occurred a Termination Event with respect to the Security of which such Purchase
Contract is a part or an Early Settlement shall have occurred. The "Settlement
Rate" is equal to:
(1) if the Applicable Market Value (as defined below) is equals or
exceeds $________ (the "Threshold Appreciation Price"), _____ shares of
Common Stock per Purchase Contract;
(2) if the Applicable Market Value is less than the Threshold
Appreciation Price but greater than $________ (the "Reference Price"), the
number of shares of Common Stock per Purchase Contract having a value equal
to the Stated Amount divided by the Applicable Market Value; and
(3) if the Applicable Market Amount is less than or equal to
$________, then _________ shares of Common Stock per Purchase Contract,
in each case subject to adjustment as provided in the Purchase Contract
Agreement.
No fractional shares of Common Stock will be issued upon settlement of
Purchase Contracts, as provided in Section 5.11 of the Purchase Contract
Agreement.
Each Purchase Contract evidenced hereby, which is settled either through
Early Settlement or Cash Settlement, shall obligate the Holder of the related
Treasury PEPS Unit to purchase at the Purchase Price for cash, and the Company
to sell, a number of shares of Common Stock equal to the Early Settlement Rate
or the Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the Closing Prices per
share of Common Stock on each of the 20 consecutive Trading Days ending on the
third Trading Day immediately preceding the Purchase Contract Settlement Date or
applicable Early Settlement Date.
The "Closing Price" per share of Common Stock on any date of determination
means the:
B-5
(1) closing sale price (or, if no closing price is reported, the last
reported sale price) per share on the New York Stock Exchange, Inc. (the
"NYSE") on such date;
(2) if the Common Stock is not listed for trading on the NYSE on any
such date, the closing sale price per share as reported in the composite
transactions for the principal United States securities exchange on which
the Common Stock is so listed;
(3) if the Common Stock is not so listed on a United States national
or regional securities exchange, the closing sale price per share as
reported by The Nasdaq Stock Market, Inc.;
(4) if the Common Stock is not so reported, the last quoted bid price
for the Common Stock in the over-the-counter market as reported by the
National Quotation Bureau or similar organization; or
(5) if such bid price is not available, the average of the mid-point
of the last bid and ask prices of the Common Stock on such date from at
least three nationally recognized independent investment banking firms
retained for this purpose by the Company.
A "Trading Day" means a day on which the Common Stock (1) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (2) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this Treasury PEPS Unit shall pay the Purchase Price for the shares
of the Common Stock purchased pursuant to each Purchase Contract evidenced
hereby either by effecting an Early Settlement of each such Purchase Contract
or by applying a principal amount of the Pledged Treasury Securities
underlying such Holder's Treasury PEPS Unit equal to the Stated Amount of
such Purchase Contract to the purchase of the Common Stock. A Holder of
Treasury PEPS Unit who does not effect, prior to or on 11:00 a.m. (New York
City time) on the fifth Business Day immediately preceding August 16, 2002,
an effective Early Settlement, shall pay the Purchase Price for the shares of
Common Stock to be issued under the related Purchase Contract from the
proceeds of the Pledged Treasury Securities.
The Company shall not be obligated to issue any shares of Common Stock in
respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment of the aggregate purchase price for
the shares of Common Stock to be purchased thereunder in the manner herein set
forth.
Each Purchase Contract evidenced hereby and all obligations and rights of
the Company and the Holder thereunder shall terminate if a Termination Event
shall occur. Upon the occurrence of a Termination Event, the Company shall give
written notice to the Purchase Contract Agent and to the Holders, at their
addresses as they appear in the Treasury PEPS Units Register. Upon and after
the occurrence of a Termination Event, the Collateral Agent shall release the
Pledged Treasury Securities (as defined in the Pledge Agreement) forming a part
of
B-6
each Treasury PEPS Unit. A Treasury PEPS Unit shall thereafter represent the
right to receive the interest in the Treasury Security forming a part of such
Treasury PEPS Unit, in accordance with the terms of the Purchase Contract
Agreement and the Pledge Agreement.
The Treasury PEPS Units Certificates are issuable only in registered
form and only in denominations of a single Treasury PEPS and any integral
multiple thereof. The transfer of any Treasury PEPS Certificate will be
registered and Treasury PEPS Certificates may be exchanged as provided in the
Purchase Contract Agreement. The Treasury PEPS Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents permitted by the Purchase Contract Agreement. No service charge
shall be required for any such registration of transfer or exchange, but the
Company and the Purchase Contract Agent may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith. A Holder who elects to substitute Preferred
Securities, Subordinated Debentures or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be, for Treasury
Securities, thereby recreating PEPS Units, shall be responsible for any fees
or expenses associated therewith. Except as provided in the Purchase Contract
Agreement, for so long as the Purchase Contract underlying a Treasury PEPS
Unit remains in effect, such Treasury PEPS Unit shall not be separable into
its constituent parts, and the rights and obligations of the Holder of such
Treasury PEPS Unit in respect of the Treasury Security and the Purchase
Contract constituting such Treasury PEPS Unit may be transferred and
exchanged only as a Treasury PEPS Unit. A Holder of Treasury PEPS Units may
recreate PEPS Units by delivering to the Collateral Agent, Preferred
Securities or Subordinated Debentures with a liquidation amount, in the case
of such Preferred Securities, or with a principal amount in the case of such
Subordinated Debentures, 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 Purchase
Contract Agreement and the Pledge Agreement. From and after such
substitution, the Holder's Security shall be referred to as a "PEPS Unit".
Such substitution may cause the equivalent aggregate principal amount of this
Certificate to be increased or decreased; provided, however, this Treasury
PEPS Units Certificate shall not represent more than _____________ Treasury
PEPS Units. All such adjustments to the equivalent aggregate principal
amount of this Treasury PEPS Units Certificate shall be duly recorded by
placing an appropriate notation on the Schedule attached hereto.
A Holder of PEPS Units may recreate Treasury PEPS Units by delivering to
the Collateral Agent Treasury Securities in an aggregate principal amount
equal to the aggregate liquidation amount of the Pledged Preferred
Securities, the aggregate principal amount at maturity of the Pledged
Debentures in exchange for the release of such Pledged Preferred Securities
or Pledged Debentures in accordance with the terms of the Purchase Contract
Agreement and the Pledge Agreement. Any such recreation of Treasury PEPS
Units
B-7
may be effected only in multiples of 40 PEPS Units for 40 Treasury PEPS
Units; provided, however, if a Tax Event Redemption has occurred and the
Treasury Portfolio has become a component of the PEPS Units, a Holder may
recreate PEPS Units in integral multiples of _____ PEPS Units for ____
Treasury PEPS Units.
The Company shall pay, on each Payment Date, the Purchase Contract Payments
payable in respect of each Purchase Contract to the Person in whose name the
Treasury PEPS Units Certificate evidencing such Purchase Contract is registered
at the close of business on the Record Date for such Payment Date. Purchase
Contract Payments will be payable at the office of the Purchase Contract Agent
in New York City or, at the option of the Company, by check mailed to the
address of the Person entitled thereto at such address as it appears on the
Treasury PEPS Units Register.
The Company has the right to defer payment of all or part of the Purchase
Contract Payments in respect of each Purchase Contract until no later than the
Purchase Contract Settlement Date. If the Company so elects to defer Purchase
Contract Payments, the Company shall pay additional Purchase Contract Payments
on such deferred installments of Purchase Contract Payments at a rate equal to
___% per annum, compounding quarterly, until such deferred installments are
paid. If a Holder effects an Early Settlement or if a Termination Event shall
occur, such Holder will have no right to receive any accrued and unpaid or
deferred Purchase Contract Payments.
The Purchase Contracts and all obligations and rights of the Company and
the Holders thereunder, including, without limitation, the rights of the Holders
to receive and the obligation of the Company to pay Purchase Contract Payments,
shall immediately and automatically terminate, without the necessity of any
notice or action by any Holder, the Purchase Contract Agent or the Company, if,
on or prior to the Purchase Contract Settlement 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 Purchase Contract Agent, the Collateral Agent and the Holders, at
their addresses as they appear in the Treasury PEPS Units Register. Upon the
occurrence of a Termination Event, the Collateral Agent shall release the
Treasury Securities from the Pledge in accordance with the provisions of the
Pledge Agreement. A Treasury PEPS Unit shall thereafter represent the right to
receive the interest in the Treasury Security forming a part of such Treasury
PEPS Unit, in accordance with the terms of the Purchase Contract Agreement and
the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase Contract
Agreement, at the option of the Holder thereof, Purchase Contracts underlying
Securities may be settled early ("Early Settlement") as provided in the Purchase
Contract Agreement. In order to exercise the right to effect Early Settlement
with respect to any Purchase Contracts evidenced by this Treasury PEPS Unit, the
Holder of this Treasury PEPS Units Certificate shall deliver this Treasury PEPS
Units Certificate to the Purchase Contract Agent at the Corporate Trust Office
duly endorsed for transfer to the Company or in blank with the form of Election
to Settle Early set forth below duly completed and accompanied by payment in the
form of immediately available funds payable to the order of the Company in an
amount (the "Early Settlement Amount") equal to:
B-8
(1) the product of (A) $25 times (B) the number of Purchase Contracts
with respect to which the Holder has elected to effect Early Settlement,
plus
(2) if such delivery is made with respect to any Purchase Contracts
during the period from the close of business on any Record Date for any
Payment Date to the opening of business on such Payment Date, an amount
equal to the Purchase Contract Payments payable, if any, on such Payment
Date with respect to such Purchase Contracts.
Upon Early Settlement of Purchase Contracts by a Holder of the related
Securities, the Pledged Treasury Securities underlying such Securities shall be
released from the Pledge as provided in the Pledge Agreement and the Holder
shall be entitled to receive a number of shares of Common Stock on account of
each Purchase Contract forming part of a Treasury PEPS Unit as to which Early
Settlement is effected equal to ______ shares of Common Stock per Purchase
Contract (the "Early Settlement Rate"). The Early Settlement Rate shall be
adjusted in the same manner and at the same time as the Settlement Rate is
adjusted as provided in the Purchase Contract Agreement. Upon registration of
transfer of this Treasury PEPS Certificate, the transferee shall be bound
(without the necessity of any other action on the part of such transferee,
except as may be required by the Purchase Contract Agent pursuant to the
Purchase Contract Agreement), under the terms of the Purchase Contract Agreement
and the Purchase Contracts evidenced hereby and the transferor shall be released
from the obligations under the Purchase Contracts evidenced by this Treasury
PEPS Units Certificate. The Company covenants and agrees, and the Holder, by
its acceptance hereof, likewise covenants and agrees, to be bound by the
provisions of this paragraph.
The Holder of this Treasury PEPS Units Certificate, by its acceptance
hereof, authorizes the Purchase Contract Agent to enter into and perform the
related Purchase Contracts forming part of the Treasury PEPS Units evidenced
hereby on its behalf as its attorney-in-fact, expressly withholds any consent to
the assumption (i.e., affirmance) of the Purchase Contracts by the Company or
its trustee in the event that the Company becomes the subject of a case under
the Bankruptcy Code, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform its obligations under such Purchase Contracts,
consents to the provisions of the Purchase Contract Agreement, authorizes the
Purchase Contract Agent to enter into and perform the Purchase Contract
Agreement and the Pledge Agreement on its behalf as its attorney-in-fact, and
consents to the Pledge of the Treasury Securities underlying this Treasury PEPS
Units Certificate pursuant to the Pledge Agreement. The Holder further
covenants and agrees, that, to the extent and in the manner provided in the
Purchase Contract Agreement and the Pledge Agreement, but subject to the terms
thereof, payments in respect to the aggregate principal amount of the Pledged
Treasury Securities on the Purchase Contract Settlement Date shall be paid by
the Collateral Agent to the Company in satisfaction of such Holder's obligations
under such Purchase Contract and such Holder shall acquire no right, title or
interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
B-9
The Company, the Purchase Contract Agent and its Affiliates and any agent
of the Company or the Purchase Contract Agent may treat the Person in whose name
this Treasury PEPS Units Certificate is registered as the owner of the Treasury
PEPS Units evidenced hereby for the purpose of receiving payments of interest on
the Treasury Securities, receiving payments of Purchase Contract Payments,
performance of the Purchase Contracts and for all other purposes whatsoever,
whether or not any payments in respect thereof be overdue and notwithstanding
any notice to the contrary, and neither the Company, the Purchase Contract Agent
nor any such agent shall be affected by notice to the contrary. The Purchase
Contracts shall not, prior to the settlement thereof, entitle the Holder to any
of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection at
the offices of the Purchase Contract Agent.
B-10
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM: as tenants in common
UNIF GIFT MIN ACT: ___________________ Custodian __________________
(cust) (minor)
Under Uniform Gifts to Minors Act of __________
________________________________________________
TEN ENT: as tenants by the entireties
JT TEN: as joint tenants with right of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
(Please insert Social Security or Taxpayer I.D. or other Identifying Number
of Assignee)
--------------------------------------------------------------------------------
(Please Print or Type Name and Address Including Postal Zip Code of
Assignee) the within Treasury PEPS Units Certificates and all rights
thereunder, hereby irrevocably constituting and appointing
_____________________attorney to transfer said Treasury PEPS Units
Certificates on the books of __________________ with the 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 PEPS
Units Certificates in every particular,
without alteration or enlargement or any
change whatsoever.
Signature Guarantee:________________________________
B-11
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of Treasury PEPS Units
evidenced by this Treasury PEPS Units Certificate be registered in the name of,
and delivered, together with a check in payment for any fractional share, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated:------------------------- -------------------------------------
Signature
Signature Guarantee:_________________
(if assigned to another person)
If shares are to be registered in the
name of and delivered to a Person other REGISTERED HOLDER
than the Holder, please (i) print such
Person's name and address and (ii)
provide a guarantee of your signature: Please print name and address
of Registered Holder:
---------------------------------- -----------------------------
Name Name
---------------------------------- -----------------------------
Address Address
---------------------------------- -----------------------------
---------------------------------- -----------------------------
---------------------------------- -----------------------------
Social Security or other
Taxpayer Identification
Number, if any -----------------------------
B-12
ELECTION TO SETTLE EARLY
The undersigned Holder of this Treasury PEPS Units Certificate irrevocably
exercises the option to effect Early Settlement in accordance with the terms of
the Purchase Contract Agreement with respect to the Purchase Contracts
underlying the number of Treasury PEPS Units evidenced by this Treasury PEPS
Units Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Treasury PEPS with
an aggregate Stated Amount equal to $1,000 or an integral multiple thereof. The
undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon such Early Settlement be registered in the name of, and
delivered, together with a check in payment for any fractional share and any
Treasury PEPS Units Certificate representing any Treasury PEPS Units evidenced
hereby as to which Early Settlement of the related Purchase Contracts is not
effected, to the undersigned at the address indicated below unless a different
name and address have been indicated below. Pledged Treasury Securities
deliverable upon such Early Settlement will be transferred in accordance with
the transfer instructions set forth below. If shares are to be registered in
the name of a Person other than the undersigned, the undersigned will pay any
transfer tax payable incident thereto.
Dated:_____________________ ___________________________________
Signature
Signature Guarantee:_____________________________________
B-13
Number of Securities evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected:
If shares of Common Stock of
Treasury PEPS Units Certificates are to be REGISTERED HOLDER
registered in the name of and delivered to
and Pledged Treasury Securities are to be
transferred to a Person other than the
Holder, please print such Person's name and
address:
Please print name and address
of Registered Holder:
---------------------------------- -----------------------------
Name Name
---------------------------------- -----------------------------
Address Address
---------------------------------- -----------------------------
---------------------------------- -----------------------------
---------------------------------- -----------------------------
Social Security or other
Taxpayer Identification
Number, if any -----------------------------
Transfer Instructions for Pledged Treasury Securities Transferable Upon Early
Settlement or a Termination Event:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
B-14
[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:
================================================================================
Amount of Amount of Number of
decrease in decrease in Treasury PEPS Signature of
Number of Number of Units evidenced authorized
Treasury PEPS Treasury PEPS by this Global officer of
Units evidenced Units evidenced Certificate Trustee or
by the Global by the Global following such Securities
Date Certificate Certificate decrease or increase Custodian
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
B-15
EXHIBIT C
INSTRUCTION TO PURCHASE CONTRACT AGENT
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Group
Re: [_______ PEPS Units] [_______ Treasury PEPS Units] of UtiliCorp United
Inc., a Delaware corporation (the "Company") and UCU Capital Trust I.
The undersigned Holder [hereby notifies you that it has delivered to The
First National Bank of Chicago, as Securities Intermediary, for credit to the
Collateral Account, $______ aggregate [principal] [liquidation] amount of
[Preferred Securities], [Subordinated Debentures] [Treasury Securities] in
exchange for the [Pledged Preferred Securities], [Pledged Subordinated
Debentures] [Pledged Treasury Securities] held in the Collateral Account, in
accordance with the Pledge Agreement, dated as of September, 1999 (the "Pledge
Agreement"; unless otherwise defined herein, terms defined in the Pledge
Agreement are used herein as defined therein), between you, the Company, the
Collateral Agent and the Securities Intermediary. The undersigned Holder has
paid all applicable fees 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 Preferred Securities], [Pledged
Subordinated Debentures] or clause(A) [Pledged Treasury Securities] related to
such [PEPS Units] [Treasury PEPS Units].
Date:
----------------------- -----------------------------
Signature
Signature Guarantee:
------------------------
C-1
Please print name and address of Registered Holder:
---------------------------- ------------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
Address
___________________________
___________________________
___________________________
___________________________
C-2
EXHIBIT D
NOTICE FROM PURCHASE CONTRACT AGENT
TO HOLDERS
(Transfer of Collateral upon Occurrence of a Termination Event)
[HOLDER]
________________________
________________________
Attention:
Telecopy: __________
Re: [__________ PEPS Units] [______ Treasury PEPS Units] of UtiliCorp
United Inc., a Delaware corporation (the "Company") and UCU
Capital Trust I
Please refer to the Purchase Contract Agreement, dated as of September
__, 1999 (the "Purchase Contract Agreement"; unless otherwise defined herein,
terms defined in the Purchase Contract Agreement are used herein as defined
therein), between the Company and the undersigned, as Purchase Contract Agent
and as attorney-in-fact for the holders of PEPS Units and Treasury PEPS Units
from time to time.
We hereby notify you that a Termination Event has occurred and that
[the Subordinated Debentures][the Treasury Securities] underlying your
ownership interest in _____ [PEPS Units] [Treasury PEPS Units] have been
released and are being held by us for your account pending receipt of
transfer instructions with respect to such [Subordinated Debentures]
[Treasury Securities] (the "Released Securities").
Pursuant to Section 3.15 of the 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
[PEPS Units][Treasury PEPS Units] effected through book-entry or by delivery
to us of your [PEPS Units Certificate][Treasury PEPS Units Certificate], we
shall transfer the Released Securities by book-entry transfer or other
appropriate procedures, in accordance with your instructions. In the event
you fail to effect such transfer or delivery, the Released Securities and any
distributions thereon, shall be held in our name, or a nominee in trust for
your benefit, until such time as such [PEPS Units][Treasury PEPS Units] are
transferred or your [PEPS Units Certificate] [Treasury PEPS Units Certificate]
is surrendered or satisfactory evidence is provided that such your
[PEPS Units Certificate][Treasury PEPS Units Certificate] has been destroyed,
lost or stolen, together with any indemnification that we or the Company may
require.
Date: By: THE CHASE MANHATTAN BANK
D-1
-------------------------------------------
Name:
Title: Authorized Officer
D-2
EXHIBIT E
NOTICE TO SETTLE BY CASH
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Group
Re: _______ PEPS Units of UtiliCorp United Inc., a Delaware
corporation (the "Company") and UCU Capital Trust I
The undersigned Holder hereby irrevocably notifies you in accordance
with Section 5.4 of the Purchase Contract Agreement, dated as of September
__, 1999 (the "Purchase Contract Agreement"; unless otherwise defined herein,
terms defined in the Purchase Contract Agreement are used herein as defined
therein), between the Company and you, as Purchase Contract Agent and as
Attorney-in-Fact for the Holders of the Purchase Contracts, that such Holder
has elected to pay to the Securities Intermediary for deposit in the
Collateral Account, prior to or on 11:00 a.m. (New York City time) on the
fifth Business Day immediately preceding August 16, 2002 (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 shares of
Common Stock issuable to such Holder by the Company under the related Purchase
Contracts on the Purchase Contract Settlement Date. The undersigned Holder
hereby instructs you to notify promptly the Collateral Agent of the undersigned
Holders' election to make such cash settlement with respect to the Purchase
Contracts related to such Holder's PEPS Units.
Date:
----------------------- ---------------------------------
Signature
Signature Guarantee:
------------------------
Please print name and address of Registered Holder:
E-1
EXHIBIT F
NOTICE FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT AND INDENTURE TRUSTEE
(Settlement of Purchase Contract through Remarketing)
The First National Bank of Chicago
0 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration Department
Telecopy: 000-000-0000
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Group
Telecopy: 000-000-0000
Re: __________ PEPS Units of UtiliCorp United Inc., a Delaware
corporation (the "Company") and UCU Capital Trust I
Please refer to the Purchase Contract Agreement, dated as of September
__, 1999 (the "Purchase Contract Agreement"; unless otherwise defined herein,
terms defined in the Purchase Contract Agreement are used herein as defined
therein), between the Company and the undersigned, as Purchase Contract Agent
and as attorney-in-fact for the Holders of PEPS Units from time to time.
In accordance with Section 5.4 of the Purchase Contract Agreement and,
based on instructions and Cash Settlements received from Holders of PEPS
Units as of 11:00 a.m. (New York City time), the fifth Business Day preceding
August 16, 2002, we hereby notify you that ______ [Preferred Securities]
[Subordinated Debentures] are to be tendered for purchase in the Remarketing.
Date: By: THE CHASE MANHATTAN BANK
-------------------------------------------
Name:
Title: Authorized Officer
F-1
