EXHIBIT 4(m)
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UTILICORP UNITED INC.
And
BANK ONE TRUST COMPANY, NA
As Purchase Contract Agent
FORM OF
PURCHASE CONTRACT AGREEMENT
Dated as of September ____, 1999
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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.............................................................10
Section 1.3. Form of Documents Delivered to Purchase Contract Agent...........................................11
Section 1.4. Acts of Holders; Record Dates....................................................................11
Section 1.5. Notices..........................................................................................12
Section 1.6. Notice to Holders; Waiver........................................................................13
Section 1.7. Effect of Headings and Table of Contents.........................................................14
Section 1.8. Successors and Assigns...........................................................................14
Section 1.9. Separability Clause..............................................................................14
Section 1.10. Benefits of Agreement...........................................................................14
Section 1.11. Governing Law...................................................................................14
Section 1.12. Legal Holidays..................................................................................15
Section 1.13. Counterparts....................................................................................15
Section 1.14. Inspection of Agreement.........................................................................15
ARTICLE II. Certificate Forms....................................................................................15
Section 2.1. Forms of Certificates Generally..................................................................15
Section 2.2. Form of Purchase Contract Agent's Certificate of Authentication..................................17
ARTICLE III. The Securities......................................................................................17
Section 3.1. Amount; Form and Denominations...................................................................17
Section 3.2. Rights and Obligations Evidenced by the Certificates.............................................17
Section 3.3. Execution, Authentication, Delivery and Dating...................................................18
Section 3.4. Temporary Certificates...........................................................................19
Section 3.5. Registration; Registration of Transfer and Exchange..............................................19
Section 3.6. Book-Entry Interests.............................................................................20
Section 3.7. Notices to Holders...............................................................................21
Section 3.8. Appointment of Successor Clearing Agency.........................................................21
Section 3.9. Definitive Certificates..........................................................................21
Section 3.10. Mutilated, Destroyed, Lost and Stolen Certificates..............................................22
Section 3.11. Persons Deemed Owners...........................................................................23
Section 3.12. Cancellation....................................................................................23
Section 3.13. Creation of Treasury PEPS Units by Substitution of Treasury Securities..........................24
Section 3.14. Reestablishment of PEPS Units...................................................................25
Section 3.15. Transfer of Collateral upon Occurrence of Termination Event.....................................26
Section 3.16. No Consent to Assumption........................................................................27
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ARTICLE IV. The Preferred Securities.............................................................................28
Section 4.1. Interest Payments; Rights to Interest Payments Preserved.........................................28
Section 4.2. Notice and Voting................................................................................29
Section 4.3. Distribution of Senior Deferrable Notes; Tax Event Redemption....................................29
ARTICLE V. The Purchase Contracts................................................................................31
Section 5.1. Purchase of Shares of Common Stock...............................................................31
Section 5.2. Purchase Contract Payments.......................................................................33
Section 5.3. Deferral of Purchase Contract Payments...........................................................34
Section 5.4. Payment of Purchase Price........................................................................34
Section 5.5. Issuance of Shares of Common Stock...............................................................38
Section 5.6. Adjustment of Settlement Rate....................................................................39
Section 5.7. Notice of Adjustments and Certain Other Events...................................................45
Section 5.8. Termination Event; Notice........................................................................46
Section 5.9. Early Settlement.................................................................................46
Section 5.10. Intentionally Omitted...........................................................................48
Section 5.11. No Fractional Shares............................................................................48
Section 5.12. Charges and Taxes...............................................................................49
ARTICLE VI. Remedies.............................................................................................49
Section 6.1. Unconditional Right of Holders to Receive Purchase Contract Payments and to
Purchase Shares of Common Stock ..............................................................................49
Section 6.2. Restoration of Rights and Remedies...............................................................49
Section 6.3. Rights and Remedies Cumulative...................................................................50
Section 6.4. Delay or Omission Not Waiver.....................................................................50
Section 6.5. Undertaking for Costs............................................................................50
Section 6.6. Waiver of Stay or Extension Laws.................................................................50
ARTICLE VII The Purchase Contract Agent..........................................................................51
Section 7.1. Certain Duties and Responsibilities..............................................................51
Section 7.2. Notice of Default................................................................................52
Section 7.3. Certain Rights of Purchase Contract Agent........................................................52
Section 7.4. Not Responsible for Recitals or Issuance of Securities...........................................53
Section 7.5. May Hold Securities..............................................................................53
Section 7.6. Money Held in Custody............................................................................53
Section 7.7. Compensation and Reimbursement...................................................................53
Section 7.8. Corporate Purchase Contract Agent Required; Eligibility..........................................54
Section 7.9. Resignation and Removal; Appointment of Successor................................................54
Section 7.10. Acceptance of Appointment by Successor..........................................................55
Section 7.11. Merger, Conversion, Consolidation or Succession to Business.....................................56
Section 7.12. Preservation of Information; Communications to Holders..........................................56
Section 7.13. No Obligations of Purchase Contract Agent.......................................................56
Section 7.14. Tax Compliance..................................................................................57
ARTICLE VIII Supplemental Agreements.............................................................................58
Section 8.1. Supplemental Agreements Without Consent of Holders...............................................58
Section 8.2. Supplemental Agreements With Consent of Holders..................................................58
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Section 8.3. Execution of Supplemental Agreements.............................................................59
Section 8.4. Effect of Supplemental Agreements................................................................59
Section 8.5. Reference to Supplemental Agreements.............................................................60
ARTICLE IX. Merger, Consolidation, Share exchange, Sale or Conveyance...........................................60
Section 9.1. Covenant Not to Merge, Consolidate, Enter into a Share Exchange, Sell or
Convey Property Except Under Certain Conditions ..............................................................60
Section 9.2. Rights and Duties of Successor Corporation.......................................................61
Section 9.3. Officers'Certificate and Opinion of Counsel Given to Purchase Contract Agent.....................61
ARTICLE X Covenants..............................................................................................61
Section 10.1. Performance Under Purchase Contracts............................................................61
Section 10.2. Maintenance of Office or Agency.................................................................61
Section 10.3. Company to Reserve Common Stock.................................................................62
Section 10.4. Covenants as to Common Stock....................................................................62
Section 10.5. Statements of Officers of the Company as to Default.............................................62
Section 10.6. ERISA...........................................................................................63
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
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PURCHASE CONTRACT AGREEMENT, dated as of September ____, 1999,
between UTILICORP UNITED INC., a Delaware corporation (the "Company"), and
BANK ONE TRUST COMPANY, NA, a national 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) Reset Rate, (xii) Tax Event
Redemption, (xiii) Tax Event Redemption Date; (xiv) Two-Year Benchmark
Treasury Rate; (xv) Treasury Portfolio; and (xvi) 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.
"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.
"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.
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"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 Chase Manhattan Trust Company, National
Association, 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).
"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 Bank One Trust Company, NA, One North State Street,
Ninth Floor, Chicago, Illinois 60602, Attention: Corporate Trust
Administration.
"Coupon Rate" means the percentage rate per annum at which each
Senior Deferrable Note will bear interest initially.
"Current Market Price" has the meaning set forth in Section
5.6(a)(8).
"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
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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.
"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).
"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, as
amended, 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).
"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 November 1, 1990,
between the Company and the Indenture Trustee (including any provisions of
the TIA that are deemed incorporated therein), as supplemented by the Twelfth
Supplemental Indenture dated as of September __, 1999, pursuant to which the
Senior Deferrable Notes will be issued.
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"Indenture Trustee" means Bank One Trust Company, NA, a national
banking association and the successor in interest to The First National Bank
of Chicago, 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 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, in the opinion of each such
officer, each such officer has made such examination or
investigation as 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;
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(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 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 February 16, May 16, August 16 and
November 16, commencing November 16, 1999.
"PEPS Unit" means the collective rights and obligations of a Holder
of a PEPS Units Certificate in respect of a Preferred Security, the Senior
Deferrable Notes 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.
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"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 Senior Deferrable Notes, 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.
"Pledged Senior Deferrable Notes" 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 Bank One Trust Company, NA, as property
trustee under the Declaration, or any successors thereto that is a financial
institution unaffiliated with the Company.
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"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.
"Purchase Contract Settlement Date" means November 16, 2002.
"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.
"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).
"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.
"Securities Intermediary" means Chase Manhattan Trust Company,
National Association, 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.
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"Security" means a PEPS Unit or a Treasury PEPS Unit, as the case
may be.
"Senior Deferrable Notes" means the series of Senior Deferrable
Notes issued by the Company under the Indenture and held by the Property
Trustee.
"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.
"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.
"Treasury PEPS Unit" means, following the substitution of Treasury
Securities for Preferred Securities or Senior Deferrable Notes as collateral
to secure a Holder's obligations
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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. 912833 FR6) which are the principal strip of the ____% U.S.
Treasury Securities which mature on November 16, 2002.
"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
September _____, 1999, between the Company and Morgan Stanley & Co.
Incorporated, Merrill Lynch, Pierce, Fenner & Smith Incorporated and
PaineWebber Incorporated.
"Vice President" means any vice president, whether or not designated
by a number or a word or words added before or after the title "vice
president."
SECTION 1.2. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided by this Agreement, upon any
application or request by the Company to the 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;
10
(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.
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.
11
(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, 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;
12
provided that notice shall be deemed given to the Purchase Contract Agent
only upon receipt thereof:
If to the Purchase Contract Agent:
Bank One Trust Company, NA
One North State Street
Ninth Floor
Chicago, Illinois 60602
Telecopier No.: (312) 407-1708
Attention: Corporate Trust Administration
If to the Company:
UtiliCorp United Inc.
20 West Ninth Street
Kansas City, Missouri 64105
Telecopier No.: (816) 421-3591
Attention: Corporate Treasurer
If to the Collateral Agent:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001-2697
Telecopier No.: (212) 946-8154
Attention: Corporate Trust Department
If to the Property Trustee:
Bank One Trust Company, NA
One North State Street
Ninth Floor
Chicago, Illinois 60602
Telecopier No.: (312) 407-1708
Attention: Corporate Trust Administration
If to the Indenture Trustee:
Bank One Trust Company, NA
One North State Street
Ninth Floor
Chicago, Illinois 60602
Telecopier No.: (312) 407-1708
Attention: Corporate Trust Administration
SECTION 1.6. NOTICE TO HOLDERS; WAIVER.
13
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 and
the Purchase Contract Agent shall bind their respective successors and
assigns, whether so expressed or not.
SECTION 1.9. SEPARABILITY CLAUSE.
In case any provision in this Agreement or in the 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.
14
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 to 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.
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.
15
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 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."
16
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 10,000,000 (including 1,000,000 Securities 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 Senior
Note or the Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, subject to the Pledge of such Preferred Security, such Senior
Note 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 Senior Note 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 Senior Note 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
17
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.
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
18
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.
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.
19
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 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
20
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 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,
21
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 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 Senior Note 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.
22
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 Treasury Securities, the Senior Deferrable
Notes, 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 Treasury Securities,
the Senior Deferrable Notes, 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.
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, Senior Deferrable Notes, 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
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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.
Subject to the conditions set forth in this Agreement, Holder may
separate the Preferred Securities or the Senior Deferrable Notes, as
applicable, from the related Purchase Contracts in respect of such Holder's
PEPS Units by substituting for such Preferred Securities or Senior Deferrable
Notes, 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 Senior Deferrable Notes, 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
November 16, 2002:
(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 Senior
Deferrable Notes comprising part of such PEPS Units, as the
case may be; and
(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 Senior Deferrable Notes, 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 Senior Deferrable Notes, 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 Senior Deferrable Notes, 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;
24
(ii) transfer the Preferred Securities or the Senior
Deferrable Notes, 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 Senior
Deferrable Notes, as the case may be, from the related Purchase Contracts and
to substitute Treasury Securities for such Preferred Securities or the Senior
Deferrable Notes, 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. If a Tax Event Redemption has occurred, Holders may no
longer convert their PEPS Units into Treasury 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
Senior Deferrable Notes, 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.
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
Senior Deferrable Notes, 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.
Subject to the conditions set forth in this Agreement, Holder of
Treasury PEPS Units may reestablish PEPS Units at any time (i) prior to or on
the seventh Business Day immediately preceding November 16, 2002, by:
(i) depositing with the Securities Intermediary Preferred
Securities or the Senior Deferrable Notes, as the case may be,
having an aggregate liquidation amount in the case of Preferred
Securities or aggregate principal amount in the case of Senior
Deferrable Notes, as the case may be, equal to the aggregate
25
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 Senior Deferrable Notes, 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 Senior Deferrable Notes, 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.
Holders of Treasury PEPS Units may only reestablish PEPS Units in
integral multiples of 40 Treasury PEPS Units. If a Tax Event Redemption has
occurred, Holders may no longer convert their Treasury PEPS Units into PEPS
Units.
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, Senior Deferrable Notes,
the appropriate Applicable
26
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, Senior Deferrable Notes, 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, Senior
Deferrable Notes, 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, Senior
Deferrable Notes, 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.
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.
27
ARTICLE IV
THE PREFERRED SECURITIES
SECTION 4.1. INTEREST PAYMENTS; RIGHTS TO INTEREST PAYMENTS PRESERVED.
Any distribution on any Preferred Security, any Senior Note 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 Senior Note 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, Senior
Deferrable Notes 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,
Senior Deferrable Notes 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, Senior Deferrable
Notes 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, Senior
Deferrable Notes or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the 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 Senior Deferrable Notes 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 Senior Deferrable Notes.
28
The applicable Coupon Rate on the Senior Deferrable Notes on and
after November 16, 2002, shall be equal to the Reset Rate (such Reset Rate to
be in effect on and after November 16, 2002).
Not later than 15 calendar days nor more than 30 calendar days prior
to the Remarketing Date, the Company shall request DTC (or any successor
Clearing Agency), to notify the Beneficial Owners or Clearing Agency
Participants holding PEPS Units or Treasury 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 Senior Deferrable
Notes, 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 Senior Deferrable Notes are entitled to vote or upon
any solicitation of consents, waivers or proxies of holders of Preferred
Securities or Senior Deferrable Notes, 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 Senior Deferrable Notes, 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 Senior Deferrable Notes
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 Senior
Deferrable Notes, 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 Senior Deferrable Notes underlying such PEPS
Unit. The Company hereby agrees, if applicable, to solicit Holders of PEPS
Units to timely instruct the Purchase Contract Agent in order to enable the
Purchase Contract Agent to vote such Preferred Securities or Senior
Deferrable Notes and the Trust shall covenant to this effect in the
Declaration.
SECTION 4.3. DISTRIBUTION OF SENIOR DEFERRABLE NOTES; TAX EVENT
REDEMPTION.
Upon the dissolution and liquidation of the Trust in accordance with
the Declaration, a principal amount at maturity of Senior Deferrable Notes
constituting the assets of the Trust and underlying the Preferred Securities
equal to the aggregate liquidation amount of the Pledged
29
Preferred Securities shall be delivered to the Securities Intermediary in
exchange for the Pledged Preferred Securities. Thereafter, the Senior
Deferrable Notes 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 dissolution and liquidation of the Trust, the
Holders and the Collateral Agent shall have such security interests, rights
and obligations with respect to the Senior Deferrable Notes as the Holders
and the Collateral Agent had in respect of the Preferred Securities subject
to the Pledge thereof as provided in 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 dissolution and liquidation of the Trust and the substitution
of Senior Deferrable Notes 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 Senior Deferrable Notes. 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
Senior Deferrable Notes, 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 Senior
Deferrable Notes, as the case may be, subject to the Pledge thereof as
provided in the Pledge Agreement, and any reference herein to the Preferred
Securities or the Senior Deferrable Notes 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 form (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 Senior Deferrable Notes as Collateral.
30
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;
31
(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, Senior Deferrable Notes, 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 Senior Deferrable Notes 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
32
maturity on the Purchase 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 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 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.
33
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 November 16, 2002. 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.
(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 November 16, 2002, 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
Contracts 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 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.
(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
34
to have consented to the disposition of the Pledged Preferred
Securities or the Pledged Senior Deferrable Notes pursuant to the
Remarketing as described in paragraph (b) below.
(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 Senior
Deferrable Notes 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 Senior
Deferrable Notes, 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 Morgan Stanley & Co. Incorporated (the "Remarketing
Agent") pursuant to the Remarketing Agreement to sell such Preferred
Securities or Senior Deferrable Notes. 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
November 16, 2002, of the aggregate number of Preferred Securities or Senior
Deferrable Notes 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 Senior Deferrable Notes to be presented to
the Remarketing Agent for Remarketing.
Upon receipt of such notice from the Purchase Contract Agent and
such Preferred Securities or Senior Deferrable Notes, the Remarketing Agent
shall, on the third Business Day immediately preceding November 16, 2002, use
reasonable efforts to remarket such Preferred Securities or Senior Deferrable
Notes on such date at a price equal to at least 100.25% of the Stated Amount
($25.0625) per Preferred Security or Senior Deferrable Note, as provided in
the Remarketing Agreement. The proceeds from the Remarketing shall be
invested by the Collateral Agent in Permitted Investments, in accordance with
the Pledge Agreement, and then applied 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. In addition, $.0625 per Preferred Security or Senior Deferrable Note of
the proceeds shall automatically be remitted to the Remarketing Agent for
services rendered in connection with the Remarketing (the "Remarketing Fee").
Any proceeds remaining after satisfaction of the Purchase Contract and
payment of the Remarketing Fee shall be payable to the Holder of such PEPS
Unit.
If, in spite of using its reasonable efforts, the Remarketing Agent
cannot remarket the related Preferred Securities or Senior Deferrable Notes
of such Holders of PEPS Units at a price equal to at least 100.25% of the
Stated amount ($25.0625), then the Remarketing Agent shall increase the
distribution rate on the Preferred Securities or the interest rate on the
Senior Deferrable Notes, as the case may be, so that the market value of such
Preferred Securities will
35
equal $25.0625. If the Remarketing Agent cannot Remarket the Preferred
Securities or the Senior Deferrable Notes, as the case may be, after such
increase the Remarketing shall be deemed to have failed (a "Failed
Remarketing") and in accordance with the terms of the Pledge Agreement, the
Collateral Agent, for the benefit of the Company, shall exercise its rights
as a secured party with respect to such Preferred Securities or Senior
Deferrable Notes, 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 Senior Deferrable Notes, any accrued and unpaid distributions
on such Preferred Securities or Senior Deferrable Notes 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 Senior
Deferrable Notes relate. The Company shall cause a notice of such Failed
Remarketing to be published on the second 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, and on Bloomberg News.
(c) With respect to any Preferred Securities or Senior Deferrable
Notes 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 Senior Deferrable
Notes in full satisfaction of the Holders' obligations under the Purchase
Contracts or (ii) sell the Preferred Securities or Senior Deferrable Notes 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 November 16, 2002. 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. Treasury PEPS Unit holders may make Cash
Settlements only in integral multiples of 40 Treasury PEPS Units.
(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 November 16, 2002, 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
36
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.
(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 or a holder of a
Preferred Security that is no longer part of a PEPS Unit may elect
to have the Preferred Securities or the Senior Deferrable Notes, as
the case may be, that are 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 November 16, 2002, of the
aggregate number of Preferred Securities or Senior Deferrable Notes,
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 Senior Deferrable Notes, 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:
37
(i) the Collateral Agent will in accordance with the
terms of the Pledge Agreement cause the Pledged Preferred
Securities, Pledged Senior Deferrable Notes, 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 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, Senior
Deferrable Notes, 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, Senior Deferrable Notes, 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, 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.
38
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 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
39
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
(except pursuant to the Company's Dividend Reinvestment and Common
Stock Purchase Plan) the Settlement Rate in effect at the opening of
business on 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:
40
(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
(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) 3.75% 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
41
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 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 15%
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
42
(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").
(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 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
43
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.
(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.
(i) 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,
44
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 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.
(ii) In the event of a 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) where more than 30% of the
purchase price with respect to each share of Common Stock is payable in cash
on the closing date of such consolidation or merger, then a Holder of PEPS
Units or Treasury PEPS Units, as the case may be, may settle his Purchase
Contract for cash as described in Section 5.4(a)(i) or 5.4(d)(i) hereof, as
applicable, during the one week period beginning on the twenty-first Trading
Day after the closing date of such merger (the "Early Settlement Week") at
the then applicable Settlement Rate. For the purposes of this Section, the
twenty-fourth Trading Day after the closing of the merger or consolidation
shall be deemed to be the Purchase Contract Settlement Date for the purpose
of determining the Applicable Market Value and that the deadline for
submitting the notice to settle early and the related cash payment shall be
5:00 p.m. (New York City time) of the last Business Day of the Early
Settlement Week.
(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
45
(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.
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
Senior Deferrable Notes, 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. Holders of Treasury PEPS Units may only settle the related
Purchase Contracts in integral multiples of 40 Purchase Contracts. In order
to exercise the right
46
to effect Early Settlement with respect to any Purchase Contracts, the Holder
of the Certificate evidencing Securities shall deliver to the Purchase
Contract Agent at the Corporate Trust Office an Election to Settle Early form
(on the reverse side of the Certificate) and any other documents requested by
the Purchase Contract Agent 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 Senior Deferrable Notes 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 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, Senior Deferrable
Notes 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
47
(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, Senior Deferrable Notes, 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
Election to Settle Early form (on the reverse of the Certificate evidencing
the related Securities):
(i) transfer to the Holder the Preferred Securities,
Senior Deferrable Notes, 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 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 Senior Deferrable Notes, 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 November 16, 2002, of the aggregate number of Preferred
Securities or Senior Deferrable Notes 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 Senior Deferrable Notes, 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
48
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.
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
49
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 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
50
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.
(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.
51
(d) The Purchase Contract Agent is authorized to execute and
deliver the Pledge Agreement in its capacity as Purchase Contract Agent.
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, Senior Note, 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, debebture, 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 relevant books, records and premises of the
Company, personally or by agent or attorney; and
52
(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 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. The Company may become the owner or pledgee of Securities.
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 provided hereunder 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
53
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 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;
54
(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
(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.
55
(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.
(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
56
execution of the Certificates on behalf of the Holders shall be solely as
agent and attorney-in-fact for the Holders, and that the Purchase Contract
Agent shall have no obligation to perform such Purchase Contracts on behalf
of the Holders, except to the extent expressly provided in Article Five
hereof. Anything contained in this Agreement to the contrary notwithstanding,
in no event shall the Purchase Contract Agent or its officers, 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 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.
57
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;
(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
58
rights of Holders of PEPS Units to substitute Treasury Securities
for the Pledged Preferred Securities or Pledged Senior Deferrable
Notes or the Applicable Ownership Interest of the Treasury Portfolio
or the rights of Holders or Treasury PEPS Units to substitute Preferred
Securities, Senior Deferrable Notes 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 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.
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.
59
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 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.
60
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.
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.
61
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.
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
62
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.
63
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:
BANK ONE TRUST COMPANY, NA
As Purchase Contract Agent
By:
-----------------------
Name:
Title:
64
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
Purchase Contract Agent to the account designated by the Purchase Contract
Agent, no later than 2:00 p.m., New York City time, on the Business Day such
payment is received by the Securities Intermediary (provided that in the event
such payment is received by the Securities Intermediary on a day that is not a
Business Day or after 12:30 p.m., New York City time, on a Business Day, then
such payment shall be made no later than 10:30 a.m., New York City time, on the
next succeeding Business Day) and (ii) in the case of payments 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 Purchase Contract 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 November, 16,
2002 (the "Purchase Contract Settlement Date"), at a price equal to $25 (the
"Stated Amount"), a number of shares of Common
A-2
Stock, $1.00 par value ("Common Stock"), of the Company, equal to the
Settlement Rate, unless 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 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 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, the Applicable Ownership (as
specified in clause (B) of the definition of such term) 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:
HOLDER SPECIFIED ABOVE (as
to obligations of such
Holder under the Purchase
Contracts evidenced hereby)
By: BANK ONE TRUST
COMPANY, NA, not
individually but solely as
Attorney-in-Fact of such
Holder
By:
-----------------------
Name:
Title:
DATED: September _____, 1999
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: BANK ONE TRUST
COMPANY, NA, as Purchase
Contract Agent
By:
----------------------
Authorized Officer
Dated: September _____, 1999
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(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 Bank One Trust Company, NA, 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.
Unless a Cash Settlement or an Early Settlement has occurred, 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
greater than or equal to $_________ (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
_______________; 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 (and in each case rounded upward or downward to the nearest
1/10,000th of a share).
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:
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(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;
(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. 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 the Purchase Contract Settlement Date (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, who does not effect on or
prior to 5:00 p.m. (New York City time) on the seventh Business Day prior to
the Purchase Contract Settlement Date, an effective Early Settlement, shall
pay the Purchase Price for the shares of Common Stock to be delivered under
the related Purchase Contract from the proceeds of the sale of the 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 the Purchase Contract 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.
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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 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 dissolution and liquidation of the Trust, a principal
amount of the Senior Deferrable Notes 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 Senior Deferrable Notes 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
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constituting a part of such PEPS Units. Following the dissolution and
liquidation of the Trust, the Holders and the Collateral Agent shall have
such security interests, rights and obligations with respect to the
Subordinated Senior Deferrable Notes 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 Senior
Deferrable Notes and any reference herein to the liquidation amount of the
Preferred Securities shall be deemed to be a reference to the principal
amount of the Senior Deferrable Notes.
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 Senior
Deferrable Notes 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 on
behalf of the Holders of PEPS Units, 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 Purchase
Contract Agent for the benefit of the Holders of such PEPS Units and (iii)
remit the remaining portion of such Redemption Price to the Purchase Contract
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 Senior Deferrable Notes, as the case may be, subject to the
Pledge thereof as provided in 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.
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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 in
accordance with the terms of the Purchase 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.
A Holder of Treasury PEPS Units may recreate PEPS Units by
delivering to the Securities Intermediary Preferred Securities 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. A Holder may
recreate PEPS Units in integral multiples of 40 Treasury PEPS Units for 40
PEPS Units.
If a Tax Event Redemption has occurred, a PEPS Unit Holder may not
create Treasury Peps Units, and a Treasury PEPS Unit Holder may not recreate
a PEPS Unit.
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 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.
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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 to the Purchase Contract Agent at the Corporate Trust Office an
Election to Settle Early form set forth below and any other documents
requested by the Purchase Contract Agent 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 $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 sum of (x) the Purchase Contract
Payments payable on such Payment Date with respect to such Purchase
Contracts plus (x) the distributions on the related Preferred
Securities payable on such Payment Date.
Upon Early Settlement of Purchase Contracts by a Holder of the related
Securities, 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, 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 _____ 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 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 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
A-11
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.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM: as tenants in common
UNIF GIFT MIN ACT: _________________ Custodian _________________
(cust) (minor)
Under Uniform Gifts to Minors Act of _________
______________________________________________
TENANT: as tenants by the entireties
JT TEN: as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- --------------------------------------------------------------------------------
(Please insert Social Security or Taxpayer I.D. or other
Identifying Number of Assignee)
- --------------------------------------------------------------------------------
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within 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.
and UCU Capital Trust I 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:
---------------------------------
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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 REGISTERED HOLDER
a Person other than the Holder,
please (i) print such Person's
name and address and (ii) Please print name and address of
provide a guarantee of your Registered Holder:
signature:
- ---------------------------------- ----------------------------------------
Name Name
- ---------------------------------- ----------------------------------------
Address Address
- ---------------------------------- ----------------------------------------
- ---------------------------------- ----------------------------------------
- ---------------------------------- ----------------------------------------
Social Security or other
Taxpayer Identification
Number, if any
----------------------------------------
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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:
-----------------------------
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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 --------------------------
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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:
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[TO BE ATTACHED TO GLOBAL CERTIFICATES]
(4) SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
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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
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EXHIBIT B
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 November 16, 2002, 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, on each 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 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:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder
under the Purchase Contracts)
By: BANK ONE TRUST COMPANY, NA,
not individually but solely
as Attorney-in-Fact of such
Holder
By:
---------------------------
Name:
Title:
Dated: September __, 1999
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: BANK ONE TRUST COMPANY, NA, as
Purchase Contract Agent
By:
------------------------------
Authorized Officer
Dated: September __, 1999
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
Bank One Trust Company, NA, 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.
Unless a Cash Settlement or an Early Settlement has occurred, 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 greater
than or equal to $________ (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 $______; 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 (and in each case rounded upward or downward to the nearest
1/10,000th of a share).
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.
B-5
The "Closing Price" per share of Common Stock on any date of
determination means the:
(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 a Cash Settlement or 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 the
Purchase Contract Settlement Date, an effective Cash Settlement or who does
not effect on or prior to 5 p.m. (New York City time) on the seventh Business
Day prior to the Purchase Contract Settlement Date 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
B-6
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 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
or Senior Deferrable Notes, 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 Senior Deferrable Notes with a
liquidation amount, in the case of such Preferred Securities or with a
principal amount in the case of such Senior Deferrable Notes, 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". Any such creation of PEPS Units may be effected in
multiples of 40 Treasury PEPS Units for 40 PEPS Units.
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
or the aggregate principal amount at maturity of the Pledged Senior
Deferrable Notes, as the case may be, in accordance with the terms of the
Purchase Contract Agreement and the Pledge Agreement. Any such recreation of
Treasury PEPS Units may be effected only in multiples of 40 PEPS Units for 40
Treasury PEPS Units.
If a Tax Event Redemption has occurred, a Treasury PEPS Unit Holder may
not recreate PEPS Units, and a PEPS Unit Holder may not create a Treasury
PEPS Unit.
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
B-7
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 and after 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 to the Purchase Contract Agent at the Corporate Trust Office an
Election to Settle Early form set forth below and any other documents
requested by the Purchase Contract Agent 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) $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.
B-8
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.
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
B-9
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 __________
_______________________________________________
TENANT: as tenants by the entireties
JT TEN: as joint tenants with right of survivorship and
not as tenants in common
Additional abbreviations may also be used though not in the above list.
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- -------------------------------------------------------------------------------
(Please insert Social Security or Taxpayer I.D. or other Identifying Number
of Assignee)
- -------------------------------------------------------------------------------
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Treasury PEPS Units Certificates and all rights thereunder, hereby
irrevocably constituting and appointing _________________attorney to transfer
said Treasury PEPS Units Certificates on the books of UtiliCorp United Inc.
and UCU Capital Trust I with full power of substitution in the premises.
Dated:
---------------------------- ---------------------------------------
Signature
NOTICE: The signature to this
assignment must correspond with the
name as it appears upon the face of
the within Treasury 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:
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
Number of Treasury PEPS
Amount of decrease in Amount of decrease in Units evidenced by this Signature of
Number of Treasury PEPS Number of Treasury PEPS Global Certificate authorized officer of
Units evidenced by the Units evidenced by the following such decrease Trustee or Securities
Date Global Certificate Global Certificate or increase Custodian
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
B-15
EXHIBIT C
INSTRUCTION TO PURCHASE CONTRACT AGENT
Bank One Trust Company, NA
One North State Street
Ninth Floor
Chicago, Illinois 60602
Attention: Corporate Trust Administration
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
Chase Manhattan Bank, as Securities Intermediary, for credit to the Collateral
Account, $______ aggregate [principal] [liquidation] amount of [Preferred
Securities] [Senior Deferrable Notes] [Treasury Securities] in exchange for the
[Pledged Preferred Securities] [Pledged Senior Deferrable Notes] [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 Senior Deferrable Notes]
[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 Senior Deferrable Notes][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 [Senior Deferrable Notes][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: BANK ONE TRUST COMPANY, NA
-----------------------------------
Name:
Title: Authorized Officer
D-1
EXHIBIT E
NOTICE TO SETTLE BY CASH
Bank One Trust Company, NA
One North State Street
Ninth Floor
Chicago, Illinois 60602
Attention: Corporate Trust Administration
Re: [_______ PEPS Units] [Treasury 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 the Purchase Contract Settlement Date (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] [Treasury 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 Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trust Group
Telecopy: 212-946-8159
Bank One Trust Company, NA
One North State Street, 9th Floor
Chicago, Illinois 60602
Attention: Corporate Trust Administration
Telecopy: 312-402-1708
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 the
Purchase Contract Settlement Date, we hereby notify you that ______ [Preferred
Securities] [Senior Deferrable Notes] are to be tendered for purchase in the
Remarketing.
Date: By: BANK ONE TRUST COMPANY, NA
-----------------------------------
Name:
Title: Authorized Officer
F-1