EXHIBIT 4.2
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STILWELL FINANCIAL INC.
OFFICERS' CERTIFICATE PURSUANT TO
SECTION 201, SECTION 203 AND SECTION 301 OF THE INDENTURE
ESTABLISHING TERMS AND PROVISIONS OF
7.00% SENIOR NOTES DUE 2006
November 6, 2001
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1. Each of the undersigned, Daniel P. Connealy, being the duly
appointed Chief Financial Officer of Stilwell Financial Inc., a Delaware
corporation (the "Company"), and Gwen Royle, being Vice President - Legal and
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Corporate Secretary of the Company, does hereby certify pursuant to the
authority delegated to the undersigned pursuant to resolutions adopted on
October 4, 2001 by the Board of Directors of the Company (the "Board") (a copy
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of such resolutions which is attached hereto as Exhibit I), that, pursuant to
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Section 301 of the Indenture, dated as of November 6, 2001 (the "Indenture"),
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between the Company and The Chase Manhattan Bank, a New York banking
corporation, as trustee (the "Trustee"), a series of senior debt securities of
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the Company is hereby established with the terms and provisions set forth below.
Unless otherwise defined herein, capitalized terms used herein have the meanings
given thereto in the Indenture.
(1) The title of such series of debt securities is the "7.00% Senior
Notes due 2006" (the "Notes").
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(2) The aggregate principal amount that may be authenticated and
delivered under the Indenture is unlimited. The Notes need not all be
issued at the same time and such series of Notes may be reopened,
without the consent of the Holders, for issuances of additional Notes of
such series.
(3) The Stated Maturity of the Notes is November 1, 2006.
(4) The Notes shall bear interest at 7.00% per annum from November 6,
2001, or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, payable semiannually on May l and
November 1 of each year (each, an "Interest Payment Date"), commencing
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May 1, 2002, to the Persons in whose names the Notes are registered at
the close of business on the Regular Record Date for such interest,
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which shall be the April 16 and October 17 (as the case may be), whether
or not a Business Day, immediately preceding such Interest Payment Date.
Interest on the Notes shall be calculated on the basis of a 360-day year
of twelve 30-day months and, for any period shorter than a full
six-month interest period, on the basis of the actual number of days
elapsed in such period.
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(5) The Company hereby designates as Places of Payment for the Notes the
office or agency of the Company in the Borough of Manhattan, The City of
New York, and initially appoints the Trustee at its Corporate Trust
Office as Paying Agent in such city and as its agent to receive all such
presentations, surrenders, notices and demands.
(6) The Note are not redeemable.
(7) The Company shall have no obligation to redeem, repay or purchase
the Notes pursuant to any sinking fund or analogous provision or at the
option of a Holder thereof.
(8) The Notes are issuable in denominations of $1,000 and any integral
multiples of $1,000.
(9) The Trustee, at its Corporate Trust Office, is hereby initially
appointed Security Registrar and Paying Agent for the Notes.
(10) The aggregate principal amount of the Notes then Outstanding shall
be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 under the Indenture.
(11) Payment of principal of and interest on the Notes will be made in
Dollars.
(12) NOT APPLICABLE.
(13) Holders of the Notes shall not have the option to receive payments
of principal of or interest on the Notes in Currencies other than the
Dollar.
(14) Other than as set forth in this Officers' Certificate, there are no
other provisions granting special rights to the Holders of the Notes.
(15) The Events of Default set forth in Section 501 of the Indenture
(other than the Event of Default set forth in Section 501(3) of the
Indenture, which shall not be applicable to the Notes) and the covenants
set forth in Article Ten of the Indenture will apply to the Notes. In
addition, solely with respect to the Notes (and not with respect to any
other series of Securities that may be issued under the Indenture), the
following covenant shall be added to, and shall be deemed a part of,
Article Ten of the Indenture:
"SECTION 1007. Limitation on Liens. The Company will
not, and it will not cause or permit any of its subsidiaries
to, create, assume, incur or guarantee any indebtedness for
money borrowed that is secured by a pledge, mortgage, deed of
trust or other lien on any voting stock or profit
participating equity interests of Janus Capital Corporation
("Janus") or any entity that succeeds (whether by merger,
consolidation, sale of assets or otherwise) to all or any
substantial part of the business of Janus, without providing
that the Notes (together with, if the Company shall so
determine, any other indebtedness of, or guarantee by, the
Company ranking equally with the Notes and existing as of the
date hereof or hereafter created) will be secured equally and
ratably with or prior to all
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other indebtedness secured by such pledge, mortgage, deed of trust
or other lien on the voting stock or profit participating equity
interests of Janus; provided that this Section 1007 shall not limit
the Company's ability or the ability of the Company's subsidiaries
to incur indebtedness or other obligations secured by liens on
assets other than the shares of common stock of Janus."
(16) The Notes shall be issued as one or more Registered Securities in
permanent global form without coupons. The Company initially appoints
The Depository Trust Company, New York, New York ("DTC"), to act as the
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depositary with respect to the Notes.
(17) NOT APPLICABLE.
(18) Interest on the Notes that is payable on any Interest Payment Date
shall be paid to the Person in whose name the Note is registered at the
close of business on the Regular Record Date for such interest, which
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shall be the April 16 and October 17 (as the case may be), whether or
not a Business Day, immediately preceding such Interest Payment Date.
(19) Section 1402 (Defeasance and Discharge) and Section 1403 (Covenant
Defeasance) shall apply to the Notes, in accordance with the provisions,
terms and conditions set forth in Article Fourteen.
(20) NOT APPLICABLE.
(21) The Notes do not provide for the payment of any Additional Amounts.
(22) NOT APPLICABLE.
(23) NOT APPLICABLE.
(24) With respect to any action or consent to be taken pursuant to the
terms of the Indenture, Holders of the Notes shall vote as one class
with Holders of Securities of all other series issued or to be issued
under the Indenture.
2. The Notes will be evidenced by a Security in global form in
substantially the form attached hereto as Exhibit II, with such appropriate
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insertions, omissions, substitutions and other variations as are required or
permitted by the Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of the Indenture, as may be required to comply with any law or with
any rules or regulations pursuant thereto, or with any rules of any securities
exchange or to conform to general usage, all as may be determined by the Officer
executing such global Security on behalf of the Company, as evidenced by the
execution of such global Security by such Officer. In the event that
certificated Notes (the "Certificated Notes") are issued in exchange for the
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global Security, the form of certificate evidencing each Certificated Note shall
be in substantially the form of the attached global Security, with such changes
as are necessary to evidence the Notes in definitive form rather than as a
global Security.
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IN WITNESS WHEREOF, I have executed this certificate this
6/th/ day of November, 2001.
/s/ Daniel P. Connealy
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Name: Daniel P. Connealy
Title: Chief Financial Officer
/s/ Gwen Royle
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Name: Gwen Royle
Title: Vice President - Legal and
Corporate Secretary
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EXHIBIT I
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OCTOBER 4, 2001 BOARD RESOLUTIONS
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WHEREAS, Stilwell Financial Inc. (the "Corporation") and Janus Capital
Corporation ("Janus") are parties to each of the 364 Day Competitive Advance and
Revolving Credit Facility Agreement ("364-Day Agreement") and a Five Year
Competitive Advance and Revolving Credit Facility Agreement ("Five-Year
Agreement"), each with certain lenders party thereto ("Lenders") and Citibank,
N.A. as administrative agent, The Chase Manhattan Bank as syndication agent and
Wells Fargo Bank West, N.A. as documentation agent (the 364-Day Agreement
together with the Five-Year Agreement, collectively, the "Credit Agreements")
pursuant to which the Lenders have agreed to make loans to the Corporation in
the aggregate principal amount of $350,000,000 and to Janus in the aggregate
principle amount of up to $250,000,000;
WHEREAS, the commitments of the Lenders under the 364-Day Agreement are
scheduled to terminate on December 6, 2001;
WHEREAS, in anticipation of Thomas H. Bailey's exercise of his right to
sell the Corporation to the remainder of his holdings of Janus common stock
prior to the end of 2001 and the obligation of the Corporation to honor puts by
holders of the Corporation's Liquid Yield Option Notes which may occur in April
of 2002, the Corporation will need the continued availability of the credit
under the 364-Day Agreement and the ability to issue additional debt;
WHEREAS, the Board of Directors has discussed the issuance of certain
medium term debt pursuant to the Corporation's shelf registration statement on
Form S-3 (SEC File No. 333-69578) to be evidenced by notes with an aggregate
principal amount of up to $500,000,000 (the "Term Notes");
WHEREAS, the Board of Directors has determined that it is in the best
interest of the Corporation to issue the Term Notes, amend the Credit Agreements
to permit the issuance of the Term Notes and renew the commitments under the
364-Day Agreement for another 364 days at this time;
WHEREAS, the Board of Directors has reviewed the terms of proposed
amendments to the Credit Agreements (the "Amendments).
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors of the
Corporation deems it to be advisable and in the best interests of the
Corporation and its stockholders that the Corporation enter into the Amendments
and issue the Term Notes.
FURTHER RESOLVED, that the Amendments, with such changes as the Authorized
Officers (as defined below) may deem necessary or appropriate, and the other
transactions contemplated thereby are approved and authorized in all respects,
including, without limitation, for purposes of the General Corporation Law of
the State of Delaware, such approval to be conclusively established by execution
of the applicable documentation by Landon H. Rowland, Joseph D. Monello, Danny
R. Carpenter, Daniel P. Connealy or Gwen E. Royle (collectively, the "Authorized
Officers").
FURTHER RESOLVED, that the Authorized Officers be, and each of them hereby
is, authorized, in the name and on behalf of the Corporation, to execute and
deliver all such agreements and instruments as may be required to effect the
Amendments, and issue the Term Notes including, without limitation, engagement
letters with one or more underwriters, with such terms and conditions as the
Authorized Officers may deem necessary or appropriate.
FURTHER RESOLVED, solely for purposes of Section 2(a)(41) of the Investment
Company Act of 1940, the "value" of the Company's assets, other than the shares
of DST Systems, Inc., is hereby determined to be at least $2.9 billion.
FURTHER RESOLVED, that the Authorized Officers of this Corporation be, and
each of them hereby is, authorized and empowered to do and perform, or cause to
be done and performed, all such acts, deeds and things and to make, execute and
deliver, or cause to be made, executed and delivered, all such agreements,
undertakings, guarantees, documents, instruments or certificates in the name and
on behalf of the Corporation or otherwise as each such officer may deem
necessary or appropriate to carry out the purpose and intent of the foregoing
resolutions.
FURTHER RESOLVED, that all acts and actions of the Authorized Officers of
this Corporation heretofore undertaken or performed for the purpose of carrying
out the intent of the foregoing resolutions be and the same are hereby ratified,
confirmed and approved.
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EXHIBIT II
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FORM OF GLOBAL NOTE
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CUSIP NO.: 860831AD8
No. 1
7.00% Senior Notes due 2006
$400,000,000
STILWELL FINANCIAL INC.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE REGISTERED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME
AS 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.
Stilwell Financial Inc., a Delaware corporation (herein referred to as
the "Company", which term includes any successor corporation under the Indenture
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hereinafter defined), for value received, hereby promises to pay to Cede & Co.,
or registered assigns, the principal sum of $400,000,000 on November 1, 2006
(the "Maturity Date") and to pay interest thereon from November 6, 2001, or from
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the most recent Interest Payment Date (hereinafter defined) to which interest
has been paid or duly provided for, semiannually on May 1 and November 1 of each
year (each, an "Interest Payment Date"), commencing May 1, 2002, at 7.00% per
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annum until the principal hereof is paid or duly provided for.
Any payment of principal or interest required to be made on a day that
is not a Business Day 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 such day
and no interest shall accrue as a result of such delayed payment. Interest
payable on each Interest Payment Date will include interest accrued from and
including November 6, 2001, or from and including the most recent Interest
Payment Date to which interest has been paid or duly provided for, as the case
may be, to but excluding such Interest Payment Date.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to the
person (the "Holder") in whose name this Note (or one or more predecessor
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Securities) is registered at the close of business on
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the April 16 and October 17 (whether or not a Business Day) immediately
preceding such Interest Payment Date (each, a "Regular Record Date"). Any such
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interest not so punctually paid or duly provided for ("Defaulted Interest") will
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forthwith cease to be payable to the Holder on such Regular Record Date and may
either (1) be paid to the Person in whose name this Note is registered at the
close of business on a special record date (the "Special Record Date") for the
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payment of such Defaulted Interest to be fixed by the Trustee (referred to
herein), notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefore having been given to the Holder of this Note not
less than ten days prior to such Special Record Date, or (2) be paid at any time
in any other lawful manner, all as more fully provided in the Indenture.
For purposes of this Note, "Business Day" means each Monday, Tuesday,
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Wednesday, Thursday and Friday that is not a day on which banking institutions
in the city of New York, New York are authorized or obligated by law or
executive order to close
Payment of the principal of this Note on the Maturity Date will be made
against presentation of this Note at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, the City of New York,
in such coin or currency of the United States of America as at the time of
payment is legal tender for the payment of public and private debts. So long as
this Note remains in book-entry form, all payments of principal and interest
will be made by the Company in immediately available funds.
General. This Note is one of a duly authorized issue of securities
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(herein called the "Securities") of the Company, issued under an Indenture,
dated as of November 6, 2001 (the "Indenture"), between the Company and The
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Chase Manhattan Bank, a New York banking corporation, as trustee (herein called
the "Trustee," which term includes any successor trustee under the Indenture
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with respect to a series of which this Note is a part). Reference is made to the
Indenture and all indentures supplemental thereto for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities, and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Note is one of a duly authorized series of Securities designated as "7.00%
Senior Notes due 2006" (collectively, the "Notes").
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Events of Default. If an Event of Default with respect to the Notes
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shall have occurred and be continuing, the principal of the Notes may be
declared due and payable in the manner and with the effect provided in the
Indenture.
Modification and Waivers; Obligations of the Company Absolute. The
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Indenture permits the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Notes, subject
to certain exceptions set forth in the Indenture. Such amendments may be
effected under the Indenture at any time with the consent of the Holders of not
less than a majority in principal amount of all Notes then Outstanding issued
under the Indenture and affected thereby, subject to certain exceptions set
forth in the Indenture. The Indenture also contains provisions permitting the
Holders of not less than a majority in principal amount of the Notes at the time
Outstanding, on behalf of the Holders of all Notes at such time Outstanding, to
waive compliance by the Company with certain provisions of the Indenture.
Furthermore, provisions in the Indenture permit the Holders of not less than a
majority in principal amount of the Notes then Outstanding to waive on behalf of
all of the
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Holders of such Notes certain past defaults under the Indenture and their
consequences. Any such consent or waiver shall be conclusive and binding upon
the Holder of this Note and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Defeasance and Covenant Defeasance. The Indenture contains provisions
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for defeasance at any time of (a) the entire indebtedness of the Company on this
Note and (b) certain restrictive covenants and the related defaults and Events
of Default, upon compliance by the Company with certain conditions set forth
therein, which provisions apply to this Note.
Authorized Denominations. The Notes are issuable only in registered
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form without coupons in denominations of $1,000 or any integral multiple of
$1,000.
Registration of Transfer or Exchange. As provided in the Indenture and
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subject to certain limitations herein and therein set forth, the transfer of
this Note is registrable in the Security Register upon presentation of this Note
for registration of transfer at the office or agency of the Company in any place
where the principal of and interest on this Note are payable, duly endorsed by
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations herein
and therein set forth, the Notes are exchangeable for a like aggregate principal
amount of Notes of different authorized denominations, as requested by the
Holders surrendering the same.
This Note is a Global Security. If the depositary with respect to the
Notes (which shall initially be DTC) is at any time unwilling, unable or
ineligible to continue as depositary and a successor depositary is not appointed
by the Company within 90 days, the Company will issue Notes in definitive
registered form without coupons, in any authorized denominations, of like tenor,
in an aggregate principal amount equal to the principal amount of the Registered
Securities in global form (the "Registered Global Note"), in exchange for such
Registered Global Note(s). In addition, the Company may at any time and in its
sole discretion determine that the Notes will no longer be represented by
Registered Global Notes and, in such event, will issue Notes in definitive
registered form, in such tenor, in any authorized denominations and in an
aggregate principal amount equal to the principal amount of the Registered
Global Notes representing such Notes, in exchange for such Registered Global
Notes. In any such instance, an owner of a beneficial interest in a Registered
Global Note will be entitled to physical delivery in definitive registered form
of Notes equal in principal amount to such beneficial interest and to have such
Notes registered in its name. Notes so issued in definitive registered form will
be issued in
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denominations of $1,000 or any amount in excess thereof which is an integral
multiple of $1,000 and will be issued in registered form only, without coupons.
No service charge shall be made for any such registration of transfer
or exchange, 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 Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Holder as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Defined Terms. Unless otherwise defined in this Note, all capitalized
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terms used in this Note shall have the meanings assigned to them in the
Indenture.
Governing Law. This Note shall be governed by and construed in
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accordance with the law of the State of New York, without regard to principles
of conflicts of laws.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
* * * * * *
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed as of the date hereof.
Dated: November 6, 2001 STILWELL FINANCIAL INC.
By: ______________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the
within-mentioned Indenture
THE CHASE MANHATTAN BANK,
as Trustee
By: ________________________
Authorized Officer
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of Stilwell Financial Inc. The agent may
substitute another to act for him.
________________________________________________________________________________
Date:______________________
Your Signature:
___________________________________
(Sign exactly as your name appears
on the face of this Note)
Signature guarantee:
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