Exhibit 4.2
EXECUTION COPY
XXXX'X CORPORATION
AND
THE BANK OF NEW YORK,
Trustee
________________________________________
First Supplemental Indenture
Dated as of June 1, 1999
To
Indenture
Dated as of December 1, 1995
_______________________________________
FIRST SUPPLEMENTAL INDENTURE, dated as
of June 1, 1999 (this "First Supplemental Indenture"),
between Xxxx'x Corporation, a corporation duly
organized and existing under the laws of the State of
Wisconsin (herein called the "Company"), having its
principal office at N56 X00000 Xxxxxxxxx Xxxxx,
Xxxxxxxxx Xxxxx, Xxxxxxxxx 00000, and The Bank of New
York, a New York banking corporation, as Trustee
(herein called the "Trustee") under the Indenture dated
as of December 1, 1995 between the Company and the
Trustee (the "Original Indenture").
Recitals of the Company
The Company has executed and delivered the
Original Indenture to the Trustee to provide for the
issuance from time to time of its unsecured debentures,
notes or other debt instruments (the "Securities"), to
be issued in one or more series as provided in the
Indenture.
Pursuant to the terms of the Original
Indenture, the Company desires to provide for the
establishment of a new series of its Securities to be
known as its 7 1/4% Debentures due June 1, 2029 (herein
called the "Debentures"), in this First Supplemental
Indenture.
All things necessary to make this First
Supplemental Indenture a valid agreement of the Company
have been done.
Now, Therefore, This First Supplemental
Indenture Witnesseth:
For consideration, the adequacy and
sufficiency of which are hereby acknowledged by the
parties hereto, each party agrees as follows, for the
benefit of the other parties and for the equal and
proportionate benefit of all Holders of the Debentures,
as follows:
ARTICLE ONE
DEFINED TERMS
Section 101. Defined Terms. Except as
otherwise expressly provided in this First Supplemental
Indenture or in the form of or otherwise clearly
required by the context hereof or thereof, all
capitalized terms used and not defined herein or in
said form of that are defined in the Original
Indenture shall have the meanings assigned to them in
the Original Indenture. The Original Indenture, as
supplemented from time to time, including by this First
Supplemental Indenture, is hereafter referred to as the
"Indenture". For all purposes of this First
Supplemental Indenture:
"Closing Date" means June 1, 1999.
"Commission" means the Securities and Exchange Commission.
"Debentures" means any of the securities, as
defined in the second paragraph of the recitals
hereof, that are authenticated and delivered under
the Indenture. For all purposes of the Indenture,
the term "Debentures" shall include the Debentures
initially issued on the Closing Date, any Exchange
Debentures to be issued and exchanged for any
Debentures pursuant to the Registration Rights
Agreement and the Indenture and any other
Debentures issued after the Closing Date under the
Indenture. For purposes of the Indenture, all
Debentures shall vote together as one series of
Debentures under the Indenture.
"Exchange Debentures" means any securities of
the Company containing terms identical to the
Debentures (except that such Exchange Debentures
shall be registered under the Securities Act and
shall not include the restrictions on transfer)
that are issued and exchanged for the Debentures
pursuant to the Registration Rights Agreement and
the Indenture.
"Exchange Offer Registration Statement" means
the Exchange Offer Registration Statement as
defined in the Registration Rights Agreement.
"Institutional Accredited Investor" means an
institution that is an "accredited investor" as
that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
"Non-U.S. Person" means a person who is not a
U.S. Person (as defined in Regulation S).
"Registration Rights Agreement" means the
Registration Rights Agreement, dated June 1, 1999,
between the Company and Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx, Xxxxxx Xxxxxxx & Co. Incorporated,
BNY Capital Markets, Inc. and Banc One Capital
Markets, Inc. and certain permitted assigns
specified therein.
"Registration Statement" means the
Registration Statement as defined and described in
the Registration Rights Agreement.
"Regulation S" means Regulation S under the
Securities Act.
"Restricted Security" means any Debenture
that has not been (i) exchanged for an Exchange
Debenture or (ii) sold in connection with an
effective Registration Statement pursuant to the
Registration Rights Agreement.
"Rule 144A" means Rule 144A under the
Securities Act.
"Securities Act" means the Securities Act of
1933, as amended from time to time.
"Shelf Registration Statement" means the
Shelf Registration Statement as defined in the
Registration Rights Agreement.
ARTICLE TWO
TERMS OF THE DEBENTURES
Section 201. Establishment of the
Debentures. There is hereby authorized a series of
Securities designated the 7 1/4% Debentures due June 1,
2029, initially limited in aggregate principal amount
to $200,000,000 (except as provided in Section 2.3.2 of
the Original Indenture, and except that the Company may
issue additional Debentures of this Series). The
Debentures shall be substantially in the form set forth
in Exhibit A hereto and shall include substantially the
legends set forth on the face of the form of so long
as the Debentures are Restricted Securities.
Section 202. Terms of the Debentures. The
Stated Maturity of the Debentures shall be June 1,
2029, and they shall bear interest at the rate of 7 1/4%
per annum, from June 1, 1999 or from the most recent
interest payment date to which interest has been paid
or duly provided for, as the case may be, payable
semiannually (to holders of record of the Debentures at
the close of business on the May 15 and November 15
immediately preceding the interest payment date) on
June 1 and December 1, commencing December 1, 1999
until payment of the principal amount shall have been
made or duly provided for.
The principal of and interest on the
Debentures shall be payable at the office or agency of
the Trustee in New York, New York maintained for such
purpose and at any other office or agency maintained by
the Company for such purpose; provided, however, that
at the option of the Company payment of interest may be
made by wire transfer or by check mailed to the address
of the Person entitled thereto as such address shall
appear in the list of Securityholders.
The Debentures are redeemable prior to
maturity and shall not have the benefit of a sinking
fund.
The Debentures shall not be superior in right
of payment to, and shall rank equal with, all other
unsecured and unsubordinated debt of the Company.
The Debentures shall be subject to defeasance
at the option of the Company as provided in Sections
8.3 and 8.4 of the Original Indenture.
Section 203. Denominations. The Debentures
shall be issued in denominations of $100,000 and
integral multiples of $1,000.
Section 204. Form. Debentures offered and
sold in reliance on Rule 144A shall be issued initially
in the form of one or more permanent global Debentures
in registered form, substantially in the form set forth
in Exhibit A (the "U.S. Global Debentures"), registered
in the name of the nominee of The Depository Trust
Company (the "Depositary" or "DTC"), deposited with the
Trustee, as custodian for the Depositary, duly executed
by the Company and
authenticated by the Trustee as
provided in Section 2.4 of the Original Indenture. The
aggregate principal amount of the U.S. Global
Debentures may from time to time be increased or
decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its
nominee, in accordance with the instructions given by
the Holder thereof, as hereinafter provided.
Debentures offered and sold in offshore
transactions in reliance on Regulation S shall be
issued initially in the form of one or more permanent
global Debentures in registered form substantially in
the form set forth in Exhibit A (the "Offshore Global
Debentures"), registered in the name of the nominee of
the Depositary, deposited with the Trustee, as
custodian for the Depositary, duly executed by the
Company and authenticated by the Trustee as provided in
Section 2.4 of the Original Indenture. The aggregate
principal amount of the Offshore Global Debentures may
from time to time be increased or decreased by
adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, as
hereinafter provided.
Debentures offered and sold to Institutional
Accredited Investors that are not QIBs (excluding non-
U.S. Persons) shall be issued in the form of permanent
certificated Debentures in registered form
substantially in the form set forth in Exhibit A (the
"Physical Debentures").
The U.S. Global Debentures and the Offshore
Global Debentures are sometimes referred to herein as
the "Global Debentures".
The definitive Debentures shall be typed,
printed, lithographed or engraved or produced by any
combination of these methods or may be produced in any
other manner permitted by the rules of any securities
exchange on which the Debentures may be listed, all as
determined by the Officers executing such Debentures,
as evidenced by their execution of such Debentures.
ARTICLE THREE
AMENDMENTS
Section 301. Article Four of the Original
Indenture shall be amended by adding the following
paragraph immediately following the two paragraphs
contained in Section 4.9:
"The Company will take all actions necessary
to permit resales of any Securities sold
pursuant to Rule 144A of the Securities Act
of 1933, as amended (the "Securities Act")
including, without limitation, furnishing
upon request of a Holder of such Security to
such Holder and a prospective purchaser
designated by such Holder financial and other
information of the Company required to be
delivered under Rule 144A(d)(4) of the
Securities Act, if at the time of such
request the Company is not a reporting
company under Section 13 or Section 15(d) of
the Securities Exchange Act of 1934, as
amended."
ARTICLE FOUR
REDEMPTION
Subject to the terms of Article Three of the
Original Indenture, the Company shall have the right to
redeem the Debentures, in whole but not in part, from
time to time and at any time (such redemption, an
"Optional Redemption", and the date thereof, the
"Optional Redemption Date") upon at least 30 days'
notice mailed to the registered address of each holder
of the Debentures, at a redemption price equal to the
sum of (A) the greater of (1) 100% of the principal
amount of the Debentures to be redeemed or (2) the sum
of the present values of the Remaining Scheduled
Payments thereon discounted to the Optional Redemption
Date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at a rate equal to
the sum of the Treasury Rate plus twenty-five basis
points, less the Applicable Accrued Interest Amount
plus (B) the Applicable Accrued Interest Amount.
"Applicable Accrued Interest Amount" means, at the
Optional Redemption Date, the amount of interest
accrued and unpaid from the prior interest payment date
to the Optional Redemption Date on the Debentures
subject to the Optional Redemption determined at the
rate per annum shown in the title thereof, computed on
the basis of a 360-day year of twelve 30-day months.
"Comparable Treasury Issue" means the United
States Treasury security, selected by a Reference
Treasury Dealer appointed by the Company, as having a
maturity comparable to the remaining term of the
Debentures to be redeemed that would be utilized, at
the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining
term of the Debentures to be redeemed pursuant to the
Optional Redemption.
"Comparable Treasury Price" means, with respect to
the Optional Redemption Date, (1) the average of the
Reference Treasury Dealer Quotations for such Optional
Redemption Date after excluding the highest and lowest
of those Reference Treasury Dealer Quotations, or (2)
if the Trustee obtains fewer than five Reference
Treasury Dealer Quotations, the average of all
quotations.
"Reference Treasury Dealer" means any nationally
recognized investment banking firm that is a primary
U.S. Government securities dealer.
"Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any
Optional Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing
to the Trustee by such Reference Treasury Dealer at
3:30 p.m., New York City time, on the third business
day preceding such Optional Redemption Date.
"Remaining Scheduled Payments" means, for each
Debenture to be redeemed, the remaining scheduled
payments of principal and interest on that Debenture
that would be due after the related Optional Redemption
Date but for that Optional Redemption. If the Optional
Redemption Date is not an interest payment date with
respect to that Debenture, the amount of the next
succeeding scheduled interest payment on that Debenture
will be reduced by the amount of interest accrued on
the Debenture to the Optional Redemption Date.
"Treasury Rate" means, with respect to the
Optional Redemption Date (if any), the rate per annum
equal to the semiannual equivalent yield to maturity of
the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of
its principal amount) equal to the Comparable Treasury
Price for such Optional Redemption Date.
ARTICLE FIVE
ORIGINAL ISSUE OF DEBENTURES
Section 501. Debentures in the aggregate
principal amount of $200,000,000, or in such additional
principal amount as the Company may issue pursuant to
Section 201 of this First Supplemental Indenture, may,
upon execution of this First Supplemental Indenture, or
from time to time thereafter, be executed by the
Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon
authenticate and deliver said Debentures upon a Company
Order without any further action by the Company.
Section 502. Exchange Debentures. Exchange
Debentures may from time to time be executed by the
Company and delivered to the Trustee for authentication
and the Trustee shall thereupon authenticate and
deliver said Exchange Debentures, upon cancellation of
an equal amount of Restricted Securities tendered in
exchange, upon a Company Order without further action
by the Company.
ARTICLE SIX
SPECIAL TRANSFER PROVISIONS
Section 601. Legend on Restricted
Securities. Unless and until a Debenture is exchanged
for an Exchange Debenture or sold in connection with an
effective Registration Statement pursuant to the
Registration Rights Agreement, (i) the U.S. Global
Debentures and Physical Debentures shall bear the
legend set forth on the face of the Debenture and (ii)
the Offshore Global Debentures shall bear the legend
set forth on the face of the Debenture until (A) at
least the 41st day after the Closing Date and (B)
receipt by the Company and the Trustee of a certificate
substantially in the form of Appendix B hereto.
Except as provided in Section 603 hereof, the
Trustee shall not issue any unlegended Debentures until
it has received an Officers' Certificate from the
Company directing it to do so.
Section 602. Book-Entry Provisions for
Global Debentures. (a) The U.S. Global Debentures and
Offshore Global Debentures initially shall (i) be
registered in the name of the Depositary for such
Global Debentures or the nominee of such Depositary,
(ii) be delivered to the Trustee as custodian for such
Depositary and (iii) bear legends as set forth on the
face of the form of the Debenture.
Members of, or participants in, the
Depositary ("Agent Members") shall have no rights under
this Indenture with respect to any Global Debenture
held on their behalf by the Depositary, or the Trustee
as its custodian, or under such Global Debenture, and
the Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as
the absolute owner of such Global Debenture for all
purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee
or any agent of the Company or the Trustee, from giving
effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as
between the Depositary and its Agent Members, the
operation of customary practices governing the exercise
of the rights of a holder of any Debenture.
(b) Transfers of a Global Debenture shall be
limited as specified in Section 2.15.2 of the Original
Indenture and the provisions of Section 603(b)(ii).
Interests of beneficial owners in Global Debentures may
be transferred in accordance with the rules and
procedures of the Depositary and the provisions of
Section 603. In addition, Physical Debentures shall be
transferred to all beneficial owners in exchange for
their beneficial interests in the U.S. Global
Debentures or Offshore Global Debentures, as the case
may be, as specified in Section 2.15.2 of the Original
Indenture.
(c) Any beneficial interest in one of the
Global Debentures that is transferred to a person who
takes delivery in the form of an interest in another
Global Debenture will, upon transfer, cease to be an
interest in such Global Debenture and become an
interest in such other Global Debenture and,
accordingly, will thereafter be subject to all transfer
restrictions, if any, and other procedures applicable
to beneficial interests in such other Global Debenture
for as long as it remains such an interest.
(d) In connection with any transfer of a
portion of the beneficial interests in a Global
Debenture to beneficial owners pursuant to paragraph
(b) of this Section 602, the Registrar shall reflect on
its books and records the date and a decrease in the
principal amount of such Global Debenture in an amount
equal to the principal amount of the beneficial
interest in such Global Debenture to be transferred,
and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Physical
Debentures of like tenor and amount.
(e) In connection with the transfer of the
U.S. Global Debentures or the Offshore Global
Debentures, in whole, to beneficial owners pursuant to
paragraph (b) of this Section 602, the U.S. Global
Debentures or Offshore Global Debentures, as the case
may be,
shall be deemed to be surrendered to the
Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and
deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in
the U.S. Global Debentures or Offshore Global
Debentures, as the case may be, an equal aggregate
principal amount of Physical Debentures of authorized
denominations.
(f) Any Physical Debenture delivered in
exchange for an interest in the U.S. Global Debentures
pursuant to paragraph (b), (d) or (e) of this Section
602 shall, except as otherwise provided by Section 601,
bear the legend regarding transfer restrictions
applicable to the Physical Debenture.
(g) The registered holder of a Global
Debenture may grant proxies and otherwise authorize any
person, including Agent Members and persons that may
hold interests through Agent Members, to take any
action which a Holder is entitled to take under this
Indenture or the Debentures.
Section 603. (a) Transfers to QIBs. The
following provisions shall apply with respect to the
registration of any proposed transfer of a Debenture
constituting a Restricted Security to a qualified
institutional buyer as defined in Rule 144A (a "QIB"):
(i) if the Debenture to be transferred
consists of (x) Physical Debentures, the Registrar
shall register the transfer if such transfer is
being made by a proposed transferor who has
checked the box provided for on the form of
Debenture stating, or has otherwise advised the
Company and the Registrar in writing, that the
sale has been made in compliance with the
provisions of Rule 144A to a transferee who has
signed the certification provided for on the form
of Debenture stating, or has otherwise advised the
Company and the Registrar in writing, that it is
purchasing the Debenture for its own account or an
account with respect to which it exercises sole
investment discretion and that it and any such
account is a QIB within the meaning of Rule 144A,
and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as
it has requested pursuant to Rule 144A or has
determined not to request such information and
that it is aware that the transferor is relying
upon its foregoing representations in order to
claim the exemption from registration provided by
Rule 144A or (y) an interest in the U.S. Global
Debentures, the transfer of such interest may be
effected through the book entry system maintained
by the Depositary; and
(ii) (a) If the proposed transferee is an
Agent Member and the Debentures to be transferred
consist of Physical Debentures which after
transfer are to be evidenced by an interest in the
Global Security, upon receipt by the Registrar of
instructions given in accordance with the
Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records
the date and an increase in the principal amount
of the Global Security in an amount equal to the
principal amount of the Physical Debentures to be
transferred, and the Trustee shall cancel the
Physical Debentures so transferred and (b)(1) if
the proposed transferor is an Agent Member holding
a beneficial interest in the
Offshore Global
Debentures, upon receipt by the Registrar of
instructions in accordance with the Depositary's
and the Registrar's procedures, the Registrar
shall reflect on its books and records the date
and a decrease in the principal amount of the
Offshore Global Debentures in an amount equal to
the principal amount of the beneficial interest in
the Offshore Global Debentures to be transferred,
and (b)(2) if the proposed transferee is an Agent
Member, upon receipt by the Registrar of
instructions given in accordance with the
Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records
the date and an increase in the principal amount
of the U.S. Global Debentures in an amount equal
to the principal amount of the Offshore Global
Debentures to be transferred and the Trustee shall
decrease the amount of the Offshore Global
Debentures.
(b) Transfers to Non-QIB Institutional
Accredited Investors. The following provisions shall
apply with respect to the registration of any proposed
transfer of a Debenture constituting a Restricted
Security to any Institutional Accredited Investor which
is not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the
transfer of any Debenture, if the proposed
transferee has delivered to the Registrar (A) a
certificate substantially in the form of Appendix
A hereto and (B) an opinion of counsel acceptable
to the Company that such transfer is in compliance
with the Securities Act.
(ii) If the proposed transferor is an Agent
Member holding a beneficial interest in the Global
Security, upon receipt by the Registrar of (x) the
documents, if any, required by paragraph (i) above
and (y) instructions given in accordance with the
Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records
the date and a decrease in the principal amount of
the Global Security in an amount equal to the
principal amount of the beneficial interest in the
Global Security to be transferred, and the Company
shall execute, and the Trustee shall authenticate
and deliver, one or more Physical Debentures of
like tenor and amount.
(c) Transfers of Interests in the Offshore Global
Debentures. The following provisions shall apply with
respect to any transfer of interests in Offshore Global
Debentures:
(i) until the expiration of the 40-day
distribution compliance period within the meaning
of Rule 903 of Regulation S, any offer or sale of
interests in the Offshore Global Debenture shall
be made (a) outside the United States (1) in
compliance with Rule 903 or 904 under the
Securities Act or (2) to a QIB in compliance with
Rule 144A and (b) in accordance with all
applicable securities laws of the states of the
United States or any other applicable
jurisdiction;
(ii) prior to the removal of the legend from
the Offshore Global Debentures pursuant to Section
601, the Registrar shall refuse to register such
transfer unless such transfer complies with this
Section 603, and
(iii) after such removal, the Registrar
shall register the transfer of any such Debenture
without requiring any additional certification.
(d) Transfers to Non-U.S. Persons at Any Time.
The following provisions shall apply with respect to
any transfer of a Restricted Security to a Non-U.S.
Person:
(i) The Registrar shall register any
proposed transfer to any Non-U.S. Person if (A)
the Debenture to be transferred is a Physical
Debenture or an interest in U.S. Global
Debentures, (B) the proposed transferor has
delivered to the Registrar a certificate
substantially in the form of Appendix B hereto and
(C) the proposed transferee has delivered to the
Registrar an opinion of counsel acceptable to the
Company that such transfer is in compliance with
the Securities Act..
(ii) (a) If the proposed transferor is
an Agent Member holding a beneficial interest in
the U.S. Global Debentures, upon receipt by the
Registrar of (x) the documents, if any, required
by paragraph (i) and (y) instructions in
accordance with the Depositary's and the
Registrar's procedures, the Registrar shall
reflect on its books and records the date and a
decrease in the principal amount of the U.S.
Global Debentures in an amount equal to the
principal amount of the beneficial interest in the
U.S. Global Debentures to be transferred, and (b)
if the proposed transferee is an Agent Member,
upon receipt by the Registrar of instructions
given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall
reflect on its books and records the date and an
increase in the principal amount of the Offshore
Global Debentures in an amount equal to the
principal amount of the Physical Debentures or the
U.S. Global Debentures, as the case may be, to be
transferred, and the Trustee shall cancel the
Physical Debenture, if any, so transferred or
decrease the amount of the U.S. Global Debentures.
Section 604. General. By its acceptance of
any Debenture bearing the legends set forth on the face
of the form of Debenture, each Holder of such a
Debenture acknowledges the restrictions on transfer of
such Debenture set forth in the Indenture and in such
legends and agrees that it will transfer such Debenture
only as provided in the Indenture.
The Registrar shall retain, in accordance
with its customary procedures, copies of all letters,
notices and other written communications received
pursuant to this Section 604. The Company shall have
the right to inspect and make copies of all such
letters, notices or other written communications at any
reasonable time upon the giving of reasonable written
notice to the Registrar.
ARTICLE SEVEN
SUNDRY PROVISIONS
Section 701. No exchange of Debentures for
Exchange Debentures pursuant to Section 2.8 of the
Original Indenture shall occur until a Registration
Statement shall have been declared effective by the
Commission and that any Debentures that are exchanged
for Exchange Debentures shall be canceled by the
Trustee.
Section 702. The Original Indenture, as
supplemented by this First Supplemental Indenture, is
in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the
Indenture in the manner and to the extent herein and
therein provided.
_____________________________________________
This instrument may be executed in any number
of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts
shall together constitute but one and the same
instrument.
In Witness Whereof, the parties hereto have
caused this First Supplemental Indenture to be duly
executed as of the day and year first above written.
XXXX'X CORPORATION
By: /s/R. Xxxxxxxx Xxxxxxxxxx
---------------------------
Name: R. Xxxxxxxx Xxxxxxxxxx
Title: Vice Chairman of the Board and
Chief Executive Officer
THE BANK OF NEW YORK
as Trustee
By: /s/Xxxx Xx Xxxxxx
--------------------
Xxxx Xx Xxxxxx
Assistant Vice President
EXHIBIT A
[Form of Debenture]
[Each Global Security, whether or not an Exchange
Debenture, shall bear the following legend: Unless
this certificate is presented by an authorized
representative of The Depository Trust Company, a New
York corporation ("DTC"), to Xxxx'x Corporation or its
agent for registration of transfer, exchange or
payment, and any certificate issued is registered in
the name of Cede & Co. or to such other entity or in
such other name as is requested by an authorized
representative of DTC (and any payment hereon is made
to Cede & Co. or to such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.]
[Any Global Security issued hereunder shall bear a
legend in substantially the following form: This
Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in
the name of the Depositary or a nominee of the
Depositary. This Security is exchangeable for
Securities registered in the name of a person other
than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and may not
be transferred except as a whole by the Depositary to a
nominee of the Depositary by a nominee of the
Depositary, by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by
the Depositary or any such nominee to a successor
Depositary or a nominee of such a successor
Depositary.]
[Unless and until a Debenture is exchanged for an
Exchange Debenture or sold in connection with an
effective Registration Statement pursuant to the
Registration Rights Agreement,(i) the U.S. Global
Debentures and Physical Debentures shall bear the
legend set forth below on the face thereof and (ii) the
Offshore Physical Debentures and Offshore Global
Debentures shall bear the legend set forth below on the
face thereof until at least the 41st day after the
Closing Date and receipt by the Company and the Trustee
of a certificate substantially in the form of Appendix
B hereto: THE DEBENTURES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES
LAWS. NEITHER THIS DEBENTURE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. BY
ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT ("RULE 144A")),
(B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPHS (a)(1), (2), (3) or (7) OF
RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
DEBENTURES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR" FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS DEBENTURE IN AN "OFFSHORE
TRANSACTION" PURSUANT TO RULE 903 OR 904 OF REGULATION
S, (2) AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH DEBENTURE PRIOR TO THE DATE WHICH IS THE LATER OF
(X) TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS
PERMITTED BY RULE 144(k) OF THE SECURITIES ACT) AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR ANY
PREDECESSOR OF THIS DEBENTURE) AND THE LAST DATE ON
WHICH XXXX'X CORPORATION OR ANY AFFILIATE OF XXXX'X
CORPORATION WAS THE OWNER OF THIS DEBENTURE (OR ANY
PREDECESSOR OF THIS DEBENTURE) AND (Y) SUCH LATER DATE,
IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE
"RESALE RESTRICTION TERMINATION DATE") EXCEPT (A) TO
XXXX'X CORPORATION OR ANY SUBSIDIARY THEREOF, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE DEBENTURES ARE ELIGIBLE FOR RESALE PURSUANT
TO RULE 000X XXXXXX XXX XXXXXX XXXXXX, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
OUTSIDE THE UNITED STATES PURSUANT TO OFFERS AND SALES
TO NON-U.S. PERSONS IN AN OFFSHORE TRANSACTION WITHIN
THE MEANING AND CONSISTENT WITH THE TERMS AND
CONDITIONS OF REGULATION S UNDER THE SECURITIES ACT,
(E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF SUBPARAGRAPHS (a)(1), (2), (3) or (7) OF
RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
DEBENTURES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR" FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT
IT WILL GIVE TO EACH PERSON TO WHOM THIS DEBENTURE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND; PROVIDED THAT XXXX'X CORPORATION, THE
TRUSTEE, THE TRANSFER AGENT AND THE REGISTRAR SHALL
HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (I) PURSUANT TO CLAUSES (D), (E) OR (F) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM, AND (II) IN EACH OF THE FOREGOING CASES,
TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE
OF THIS DEBENTURE IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO XXXX'X
CORPORATION AND THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE
TERMS "UNITED STATES", "OFFSHORE TRANSACTION" AND "U.S.
PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.]
[Each Offshore Global Debenture shall bear the
following legend: PRIOR TO EXPIRATION OF THE 40-DAY
DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF
REGULATION S, THIS DEBENTURE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED
STATES OR TO A U.S. PERSON OR FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON.]
XXXX'X CORPORATION
7 1/4% DebentureS
Due June 1, 2029
CUSIP No. _________
No. _____
$_____________
Principal Amount
Xxxx'x Corporation, a corporation duly organized
and existing under the laws of the State of Wisconsin
(herein called the "Company", which term includes any
successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to
pay to [________] [Cede & Co.] or registered assigns,
the principal sum of
($ ) on June 1, 2029, and to pay
interest thereon semiannually (to holders of record of
the Debentures at the close of business on the May 15
and November 15 immediately preceding the interest
payment date) on June 1 and December 1 in each year,
commencing December 1, 1999, at the rate of 7 1/4% per
annum, until the principal hereof is paid or made
available for payment.
The interest so payable, and punctually paid or
duly provided for, on any interest payment date, as
provided in the Indenture, shall be paid to the Person
in whose name this Debenture (or one or more
predecessor Debentures) is registered at the close of
business on the May 15 or November 15 (whether or not a
business day), as the case may be, next preceding such
interest payment date. If the Company defaults in a
payment of interest, it will pay the defaulted interest
plus, to the extent permitted by law, any interest
payable on the defaulted interest, to the persons who
are Securityholders on a subsequent special record
date, determined in accordance with the Indenture. The
Company may pay the defaulted interest in any other
lawful manner.
The statements set forth in the restrictive legend
above are an integral part of the terms of this
Debenture and by acceptance hereof each holder of this
Debenture agrees to be subject to and bound by the
terms and provisions set forth in such legend.
Payments of principal and interest on this
Debenture will be made at the office or agency of the
Company maintained for that purpose in New York, New
York, in such coin or currency of the United States of
America as at the time of payment is legal tender for
payment of public and private debts; provided, however,
that at the option of the Company payment of interest
may be made by wire transfer or by check mailed on or
prior to an interest payment date to the address of the
Person entitled thereto as such address shall appear in
the list of Securityholders.
Any payment of this Debenture due on any day which
is not a business day in New York, New York need not be
made on such day, but may be made on the next
succeeding business day with the same force and effect
as if made on the due date and no interest shall accrue
for the period from and after such date, unless such
payment is a payment at maturity or upon redemption, in
which case interest shall accrue thereon at the stated
rate for such additional days.
This Debenture is one of a duly authorized issue
of securities of the Company, designated 7 1/4% Debentures
due June 1, 2029 (the "Debentures"), issued and to be
issued in one or more series under an Indenture, dated
as of December 1, 1995, as supplemented by the First
Supplemental Indenture, dated as of June 1, 1999 (the
"Indenture"), between the Company and The Bank of New
York, as Trustee (the "Trustee", which term includes
any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the
respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and
the Holders of the Debentures and of the terms upon
which the Debentures are, and are to be, authenticated
and delivered. This Debenture is one of a series
designated on the face hereof, issued initially in the
aggregate principal amount of $200,000,000.
[INCLUDE IF SECURITY IS A GLOBAL DEBENTURE -
This Debenture is a "book-entry" Debenture and is being
registered in the name of Cede & Co. as nominee of The
Depository Trust Company ("DTC"), a clearing agency.
Subject to the terms of the Indenture, this Debenture
will be held by a clearing agency or its nominee, and
beneficial interests will be held by beneficial owners
through the book-entry facilities of such clearing
agency or its nominee in minimum denominations of
$100,000 and integral multiples of $1,000. As long as
this Debenture is registered in the name of DTC or its
nominee, the Trustee will make payments of principal of
and interest on this Debenture by wire transfer of
immediately available funds to DTC or its nominee.
Notwithstanding the above, the final payment on this
Debenture will be made after due notice by the Trustee
of the pendency of such payment and only upon
presentation and surrender of this Debenture at its
principal corporate trust office or such other offices
or agencies appointed by the Trustee for that purpose
and such other locations provided in the Indenture.]
The Holder of this Debenture is entitled to the
benefits of the Registration Rights Agreement, dated as
of June 1, 1999. In the event that (i) the Company
fails to file an Exchange Offer Registration Statement
with respect to the Debentures with the Commission on
or prior to the 135th calendar day following the
Closing Date, (ii) the Commission does not declare such
Exchange Offer Registration Statement effective on or
prior to the 180th calendar day following the Closing
Date, (iii) the Exchange Offer is not consummated on or
prior to the 45th calendar day following the effective
date of the Exchange Offer Registration Statement or
(iv) if required, a Shelf Registration Statement with
respect to the Debentures is not declared effective by
the Commission on or prior to the 210th calendar day
following the Closing Date (each, a "Registration
Default"), the per annum interest rate borne by the
Debentures shall be increased by one-quarter of one
percent (0.25%) per annum from the end of the
applicable period giving rise to such Registration
Default. The interest rate borne by the Debentures
will be increased by an additional one-quarter of one
percent (0.25%) per annum for each subsequent 90-day period
(or portion thereof) during which any such
Registration Default continues up to a maximum
aggregate increase in the annual interest rate of one-
half of one percent (0.50%) per annum. Following the
cure of all Registration Defaults, the interest rate
borne by the Debentures shall be reduced to the
original interest rate borne by the Debentures. No
increase in the rate shall be payable for any period
during which a Shelf Registration is effective. All
accrued additional interest shall be paid to Holders by
the Company in the same manner as interest is paid
pursuant to the Indenture. All terms used in this
Debenture that are defined in the Registration Rights
Agreement shall have the meanings assigned to them in
the Registration Rights Agreement.
The Debentures do not have the benefit of any
sinking fund obligations.
Subject to the terms of Article Three of the
Indenture, the Company shall have the right to redeem
the Debentures, in whole but not in part, from time to
time and at any time (such redemption, an "Optional
Redemption", and the date thereof, the "Optional
Redemption Date") upon at least 30 days' notice mailed
to the registered address of each holder of the
Debentures, at a redemption price equal to the sum of
(A) the greater of (1) 100% of the principal amount of
the Debentures to be redeemed or (2) the sum of the
present values of the Remaining Scheduled Payments
thereon discounted to the Optional Redemption Date on a
semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at a rate equal to the sum of the
Treasury Rate plus twenty-five basis points, less the
Applicable Accrued Interest Amount plus (B) the
Applicable Accrued Interest Amount.
"Applicable Accrued Interest Amount" means, at the
Optional Redemption Date, the amount of interest
accrued and unpaid from the prior interest payment date
to the Optional Redemption Date on the Debentures
subject to the Optional Redemption determined at the
rate per annum shown in the title thereof, computed on
the basis of a 360-day year of twelve 30-day months.
"Comparable Treasury Issue" means the United
States Treasury security, selected by a Reference
Treasury Dealer appointed by the Company, as having a
maturity comparable to the remaining term of the
Debentures to be redeemed that would be utilized, at
the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining
term of the Debentures to be redeemed pursuant to the
Optional Redemption.
"Comparable Treasury Price" means, with respect to
the Optional Redemption Date, (1) the average of the
Reference Treasury Dealer Quotations for such Optional
Redemption Date after excluding the highest and lowest
of those Reference Treasury Dealer Quotations, or (2)
if the Trustee obtains fewer than five Reference
Treasury Dealer Quotations, the average of all
quotations.
"Reference Treasury Dealer" means any nationally
recognized investment banking firm that is a primary
U.S. Government securities dealer.
"Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any
Optional Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing
to the Trustee by such Reference Treasury Dealer at
3:30 p.m., New York City time, on the third business
day preceding such Optional Redemption Date.
"Remaining Scheduled Payments" means, for each
Debenture to be redeemed, the remaining scheduled
payments of principal and interest on that Debenture
that would be due after the related Optional Redemption
Date but for that Optional Redemption. If the Optional
Redemption Date is not an interest payment date with
respect to that Debenture, the amount of the next
succeeding scheduled interest payment on that Debenture
will be reduced by the amount of interest accrued on
the Debenture to the Optional Redemption Date.
"Treasury Rate" means, with respect to the
Optional Redemption Date (if any), the rate per annum
equal to the semiannual equivalent yield to maturity of
the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of
its principal amount) equal to the Comparable Treasury
Price for such Optional Redemption Date.
If an Event of Default with respect to Debentures
of this series shall occur and be continuing, the
principal of all the Debentures of this series may be
declared due and payable in the manner and with the
effect provided in the Indenture.
[INCLUDE IF SECURITY IS A GLOBAL SECURITY - In the
event of a deposit or withdrawal of an interest in this
Debenture, including an exchange, transfer, repurchase
or conversion of this Debenture in part only, the
Trustee, as custodian of the Depositary, shall make an
adjustment on its records to reflect such deposit or
withdrawal in accordance with the rules and procedures
of the Depositary.]
[INCLUDE IF SECURITY IS A RESTRICTED SECURITY -
Subject to certain limitations in the Indenture, at any
time when the Company is not subject to Section 13 or
15(d) of the U.S. Securities Exchange Act of 1934, as
amended, upon the request of a Holder of a Restricted
Security, the Company will promptly furnish or cause to
be furnished Rule 144A Information (as defined below)
to such Holder of Restricted Securities, or to a
prospective purchaser of any such security designated
by any such Holder, to the extent required to permit
compliance by any such Holder with Rule 144A under the
Securities Act of 1933, as amended (the "Securities
Act"). "Rule 144A Information" shall be such
information as is specified pursuant to Rule 144A(d)(4)
under the Securities Act (or any successor provision
thereto).]
The Indenture contains provisions for defeasance
at any time of (a) the entire indebtedness of the
Company under this Debenture and (b) certain
restrictive covenants and the related defaults and
Events of Default applicable to the Company, in each
case, upon compliance by the Company with certain
conditions set forth in the Indenture, which provisions
apply to this Debenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the
modification of the rights and obligations of the
Company and the rights of the Holders of the Securities
of each series to be affected under the Indenture at
any time by the Company and the Trustee with the
consent of the Holders of at least 66_% in aggregate
principal amount of the Securities at the time
Outstanding of each series to be affected. The
Indenture also contains provisions permitting the
Holders of a majority in aggregate principal amount of
the Securities of each series at the time Outstanding,
on behalf of the Holders of all Securities of each
series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Debenture shall
be conclusive and binding upon such Holder and upon all
future Holders of this Debenture and of any Debenture
issued upon the registration of transfer thereof or in
exchange hereof or in lieu hereof, whether or not
notation of such consent or waiver is made upon this
Debenture.
No reference herein to the Indenture and provision
of this Debenture or of the Indenture shall alter or
impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and any
premium, and interest on this Debenture at the times,
place and rate, and in the coin or currency, herein
prescribed.
As provided in and subject to the provisions of
the Indenture, the Holder of this Debenture shall not
have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver
or trustee or for any other remedy thereunder, unless
such holder shall have previously given the Trustee
written notice of a continuing Event of Default with
respect to the Debentures of this series, the Holders
of not less than 25% in principal amount of the
Debentures of this series at the time Outstanding shall
have made written request to the Trustee to institute
proceedings in respect of such Event of Default as
Trustee and offered the Trustee reasonable indemnity
and the Trustee shall not have received from the
Holders of a majority in principal amount of Debentures
of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed
to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity.
The foregoing shall not apply to any suit instituted by
the Holder of this Debenture for the enforcement of any
payment of principal hereof or any interest hereon on
or after the respective due dates expressed herein.
As provided in the Indenture and subject to
certain limitations therein set forth, the transfer of
this Debenture is registrable upon surrender of this
Debenture to the Registrar, for registration of
transfer duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the
Company and the Registrar attached hereto duly executed
by the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Debentures, and
of like tenor, of authorized denominations and for the
same aggregate principal amount, shall be issued to the
designated transferee or transferees.
The Debentures of this Series are issuable only in
fully registered form without coupons in denominations
of $100,000 and any integral multiples of $1,000. As
provided in the Indenture and subject to certain
limitations therein set forth, the Debentures of this
Series are exchangeable
for a like aggregate principal
amount of Debentures of a different authorized
denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such
registration of transfer or exchange of Debentures, but
the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Debenture for
registration of transfer, the Company, the Trustee and
any agent of the Company, or the Trustee may treat the
Person in whose name this Debenture is registered as
the owner hereof for all purposes, whether or not this
Debenture be overdue, and none of the Company, the
Trustee or any such agent shall be affected by notice
to the contrary.
Interest on this Debenture shall be computed on
the basis of a 360-day year of twelve 30-day months.
The Company shall furnish to any Holder of record
of Debentures, upon written request and without charge,
a copy of the Indenture.
The Indenture and this Debenture each shall be
governed by and construed in accordance with the laws
of the State of New York without regard to principles
of conflicts of law.
Unless the certificate of authentication hereon
has been executed by the Trustee by manual signature,
this Debenture shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any
purpose.
All terms used in this Debenture that are defined
in the Indenture shall have the meanings assigned to
them in the Indenture.
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
TEN ENT - as tenants by the entireties
IT TEN - as joint tenants with right of
survivorship and not as tenants in common.
UNIF GIFT MIN ACT - ______________ Custodian _____________
(Cust) (Minor)
under the Uniform Gifts to Minors Act
------------------------------------------
(State)
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
OTHER IDENTIFYING NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
----------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of assignee
-----------------------------------------------------------------------------
the within Security and all rights thereunder, hereby
irrevocably constituting and appointing
-----------------------------------------------------------------------------
attorney to transfer said Security on the books of the
Company, with full power of substitution in the premises.
Date:_______________
--------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the
within instrument in ever particular, without
alteration or enlargement, or any change
whatsoever.
In Witness Whereof, the Company has caused this
instrument to be duly executed
Dated: June 1, 1999 XXXX'X CORPORATION
By: ____________________________
Attest:
____________________________________
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities of the Series
originated therein referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:________________________
Authorized Officer
APPENDIX A
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
_______________
The Bank of New York
000 Xxxxxxx Xxxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Re: Xxxx'x Corporation (the "Company")
7 1/4% Debentures due June 1, 2029, (the Debentures)
Ladies and Gentlemen:
In connection with our proposed purchase of
$_________ aggregate principal amount of the 7 1/4%
Debentures due June 1, 2029 (the "Debentures") of
Xxxx'x Corporation, a Wisconsin corporation ("Kohl's"),
we confirm that:
1. We are an institutional "accredited
investor" (as defined in Rule 501(a)(1), (2), (3)
or (7) of Regulation D under the Securities Act of
1933, as amended (the "Securities Act")),
purchasing for our own account or for the account
of such an institutional "accredited investor,"
and we are acquiring the Debentures for investment
purposes and not with a view to, or for offer or
sale in connection with, any distribution in
violation of the Securities Act or other
applicable securities law and we have such
knowledge and experience in financial and business
matters as to be capable of evaluating the merits
and risks of our investment in the Debentures, and
we and any accounts for which we are acting are
each able to bear the economic risk of our or its
investment.
2. We understand and acknowledge that the
Debentures have not been registered under the
Securities Act or any other applicable securities
law and may not be offered, sold or otherwise
transferred except in compliance with the
registration requirements of the Securities Act or
any other applicable securities law, or pursuant
to an exemption therefrom, or in a transaction not
subject thereto, and in each case in compliance
with the conditions for transfer set forth below.
We agree on our own behalf and on behalf of any
investor account for which we are purchasing
Debentures to offer, sell or otherwise transfer
such Debentures prior to (x) the date which is two
years (or such shorter period of time as permitted
by Rule 144(k) under the Securities Act) after the
later of the date of original issue and the last
date on which Kohl's or any affiliate of Kohl's
was the owner
of such Debentures (or any
predecessor thereto) and (y) such later date, if
any, as may be required by applicable law (the
"Resale Restriction Termination Date") only (a) to
Kohl's or any of Kohl's subsidiaries, (b) pursuant
to a registration statement which has been
declared effective under the Securities Act, (c)
for so long as the Debentures are eligible for
resale pursuant to Rule 144A under the Securities
Act, to a person we reasonably believe is a
"Qualified Institutional Buyer" within the meaning
of Rule 144A (a "QIB") that purchases for its own
account or for the account of a QIB and to whom
notice is given that the transfer is being made in
reliance on Rule 144A, (d) pursuant to offers and
sales to non-U.S. persons in an offshore
transaction within the meaning and consistent with
the terms and conditions of Regulation S under the
Securities Act, (e) to an institutional
"accredited investor" within the meaning of
subparagraph (a)(1), (2),(3) or (7) of Rule 501
under the Securities Act that is acquiring the
Debentures for its own account or for the account
of such an institutional "accredited investor" for
investment purposes and not with a view to, or for
offer or sale in connection with, any distribution
in violation of the Securities Act or (f) pursuant
to any other available exemption from the
registration requirements of the Securities Act,
subject in each of the foregoing cases to any
requirement of law that the disposition of our
property or the property of such investor account
or accounts be at all times within our or their
control and to compliance with any applicable
state or other securities laws. The foregoing
restrictions on resale will not apply subsequent
to the Resale Restriction Termination Date. If
any resale or other transfer of the Debentures is
proposed to be made pursuant to clause (e) above
prior to the Resale Restriction Termination Date,
the transferor shall deliver to the trustee (the
"Trustee") a letter from the transferee
substantially in the form of this letter, which
shall provide, among other things, that the
transferee is a person or entity as defined in
paragraph 1 of this letter and that it is
acquiring such Debentures for investment purposes
and not for distribution in violation of the
Securities Act. We acknowledge that the Company
and the Trustee reserve the right prior to any
offer, sale or other transfer of the Debentures
pursuant to clauses (d), (e) or (f) above prior to
the Resale Restriction Termination Date to require
the delivery of an opinion of counsel,
certifications and/or other information
satisfactory to Kohl's and the Trustee.
3. We are acquiring the Debentures purchased
by us for our own account or for one or more
accounts as to each of which we exercise sole
investment discretion.
4. You are entitled to rely upon this letter
and you are irrevocably authorized to produce this
letter or a copy hereof to any interested party in
any administrative or legal proceeding or official
inquiry with respect to the matters covered
hereby.
Very truly yours,
By: (Name of Purchaser)
Date:
Upon transfer the Debentures would be registered
in the name of the new beneficial owner as follows:
Taxpayer ID
Name Address Number
----- ------- -------------
APPENDIX B
Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to Regulation S
________________
Xxxx'x Corporation
x/x Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Re: Xxxx'x Corporation (the "Company")
71/4% Debentures due June 1, 2029 (the "Debentures")
Dear Sirs:
In connection with our proposed sale of U.S.$
aggregate principal amount of the Debentures, we
confirm that such sale has been effected pursuant to
and in accordance with Regulation S under the
Securities Act of 1933 and, accordingly, we represent
that:
(1) the offer of the Debentures was not made
to a person in the United States;
(2) at the time the buy order was
originated, the transferee was outside the United
States or we and any person acting on our behalf
reasonably believed that the transferee was
outside the United States;
(3) no directed selling efforts have been
made by us in the United States in contravention
of the requirements of Rule 903(b) or Rule 904(b)
of Regulation S, as applicable; and
(4) the transaction is not part of a plan or
scheme to evade the registration requirements of
the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this
letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used
in this certificate have the meanings set forth in
Regulation S.
Very truly yours,
[Name of Transferor]
By:______________________
Authorized Signature
