exv4w4






Exhibit 4.4




Archer-Daniels-Midland Company




and




The Bank of New York,




as Purchase Contract Agent,




and




The Bank of New York,




as Collateral Agent, Custodial Agent and Securities Intermediary




PURCHASE CONTRACT AND PLEDGE AGREEMENT




Dated as of May [___], 2008




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION	 	 	1	 
	Section 1.01

	 	Definitions
	 	 	1	 
	Section 1.02

	 	Compliance Certificates and Opinions
	 	 	15	 
	Section 1.03

	 	Form of Documents Delivered to Purchase Contract Agent
	 	 	16	 
	Section 1.04

	 	Acts of Holders; Record Dates
	 	 	16	 
	Section 1.05

	 	Notices
	 	 	17	 
	Section 1.06

	 	Notice to Holders; Waiver
	 	 	17	 
	Section 1.07

	 	Effect of Headings and Table of Contents
	 	 	18	 
	Section 1.08

	 	Successors and Assigns
	 	 	18	 
	Section 1.09

	 	Separability Clause
	 	 	18	 
	Section 1.10

	 	Benefits of Agreement
	 	 	18	 
	Section 1.11

	 	Governing Law
	 	 	18	 
	Section 1.12

	 	Legal Holidays
	 	 	18	 
	Section 1.13

	 	Counterparts
	 	 	19	 
	Section 1.14

	 	Inspection of Agreement
	 	 	19	 
	Section 1.15

	 	Appointment of Financial Institution as Agent for the Company
	 	 	19	 
	Section 1.16

	 	No Waiver
	 	 	19	 
	 
	 	 	 	 	 	 
	ARTICLE 2 CERTIFICATE FORMS	 	 	19	 
	Section 2.01

	 	Forms of Certificates Generally
	 	 	19	 
	Section 2.02

	 	Form of Purchase Contract Agent’s Certificate of Authentication
	 	 	20	 
	 
	 	 	 	 	 	 
	ARTICLE 3 THE UNITS	 	 	20	 
	Section 3.01

	 	Amount; Form and Denominations
	 	 	20	 
	Section 3.02

	 	Rights and Obligations Evidenced by the Certificates
	 	 	20	 
	Section 3.03

	 	Execution, Authentication, Delivery and Dating
	 	 	21	 
	Section 3.04

	 	Temporary Certificates
	 	 	21	 
	Section 3.05

	 	Registration; Registration of Transfer and Exchange
	 	 	22	 
	Section 3.06

	 	Book-entry Interests
	 	 	23	 
	Section 3.07

	 	Notices to Holders
	 	 	24	 
	Section 3.08

	 	Appointment of Successor Depositary
	 	 	24	 
	Section 3.09

	 	Definitive Certificates
	 	 	24	 
	Section 3.10

	 	Mutilated, Destroyed, Lost and Stolen Certificates
	 	 	24	 
	Section 3.11

	 	Persons Deemed Owners
	 	 	26	 
	Section 3.12

	 	Cancellation
	 	 	26	 
	Section 3.13

	 	Creation of Treasury Units by Substitution of Treasury Securities
	 	 	26	 
	Section 3.14

	 	Recreation of Corporate Units
	 	 	28	 
	Section 3.15

	 	Transfer of Collateral Upon Occurrence of Termination Event
	 	 	30	 






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TABLE OF CONTENTS

(continued)



	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	Section 3.16

	 	No Consent to Assumption
	 	 	31	 
	Section 3.17

	 	Substitutions
	 	 	32	 
	 
	 	 	 	 	 	 
	ARTICLE 4 THE DEBENTURES	 	 	32	 
	Section 4.01

	 	Interest Payments; Rights to Interest Payments Preserved
	 	 	32	 
	Section 4.02

	 	Payments Prior to or on Purchase Contract Settlement Date
	 	 	33	 
	Section 4.03

	 	Notice and Voting
	 	 	33	 
	Section 4.04

	 	Special Event Redemption
	 	 	34	 
	Section 4.05

	 	Payments to Purchase Contract Agent
	 	 	35	 
	Section 4.06

	 	Payments Held in Trust
	 	 	35	 
	 
	 	 	 	 	 	 
	ARTICLE 5 THE PURCHASE CONTRACTS	 	 	35	 
	Section 5.01

	 	Purchase of Shares of Common Stock
	 	 	36	 
	Section 5.02

	 	Optional Remarketing
	 	 	38	 
	Section 5.03

	 	Cash Settlement; Final Remarketing; Payment of Purchase Price
	 	 	39	 
	Section 5.04

	 	Issuance of Shares of Common Stock
	 	 	44	 
	Section 5.05

	 	Adjustment of each Fixed Settlement Rate
	 	 	45	 
	Section 5.06

	 	Notice of Adjustments and Certain Other Events
	 	 	53	 
	Section 5.07

	 	Termination Event; Notice
	 	 	53	 
	Section 5.08

	 	Early Settlement
	 	 	54	 
	Section 5.09

	 	No Fractional Shares
	 	 	56	 
	Section 5.10

	 	Charges and Taxes
	 	 	57	 
	Section 5.11

	 	Contract Adjustment Payments
	 	 	57	 
	 
	 	 	 	 	 	 
	ARTICLE 6 RIGHTS AND REMEDIES OF HOLDERS	 	 	61	 
	Section 6.01

	 	Unconditional Right of Holders to Receive Contract Adjustment Payments
and to Purchase Shares of Common Stock
	 	 	61	 
	Section 6.02

	 	Restoration of Rights and Remedies
	 	 	61	 
	Section 6.03

	 	Rights and Remedies Cumulative
	 	 	61	 
	Section 6.04

	 	Delay or Omission Not Waiver
	 	 	62	 
	Section 6.05

	 	Undertaking for Costs
	 	 	62	 
	Section 6.06

	 	Waiver of Stay or Extension Laws
	 	 	62	 
	 
	 	 	 	 	 	 
	ARTICLE 7 THE PURCHASE CONTRACT AGENT	 	 	62	 
	Section 7.01

	 	Certain Duties and Responsibilities
	 	 	62	 
	Section 7.02

	 	Notice of Default
	 	 	63	 
	Section 7.03

	 	Certain Rights of Purchase Contract Agent
	 	 	63	 
	Section 7.04

	 	Not Responsible for Recitals or Issuance of Units
	 	 	65	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	Section 7.05

	 	May Hold Units
	 	 	65	 
	Section 7.06

	 	Money Held in Custody
	 	 	65	 
	Section 7.07

	 	Compensation and Reimbursement
	 	 	65	 
	Section 7.08

	 	Corporate Purchase Contract Agent Required; Eligibility
	 	 	66	 
	Section 7.09

	 	Resignation and Removal; Appointment of Successor
	 	 	66	 
	Section 7.10

	 	Acceptance of Appointment by Successor
	 	 	67	 
	Section 7.11

	 	Merger, Conversion, Consolidation or Succession to Business
	 	 	68	 
	Section 7.12

	 	Preservation of Information; Communications to Holders
	 	 	68	 
	Section 7.13

	 	No Obligations of Purchase Contract Agent
	 	 	68	 
	Section 7.14

	 	Tax Compliance
	 	 	69	 
	 
	 	 	 	 	 	 
	ARTICLE 8 SUPPLEMENTAL AGREEMENTS	 	 	69	 
	Section 8.01

	 	Supplemental Agreements without Consent of Holders
	 	 	69	 
	Section 8.02

	 	Supplemental Agreements with Consent of Holders
	 	 	70	 
	Section 8.03

	 	Execution of Supplemental Agreements
	 	 	71	 
	Section 8.04

	 	Effect of Supplemental Agreements
	 	 	71	 
	Section 8.05

	 	Reference to Supplemental Agreements
	 	 	71	 
	 
	 	 	 	 	 	 
	ARTICLE 9 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE	 	 	71	 
	Section 9.01

	 	Covenant Not To Consolidate, Merge, Convey, Transfer or Lease Property
except under Certain Conditions
	 	 	71	 
	Section 9.02

	 	Rights and Duties of Successor Corporation
	 	 	72	 
	Section 9.03

	 	Officers’ Certificate and Opinion of Counsel Given to Purchase Contract
Agent
	 	 	72	 
	 
	 	 	 	 	 	 
	ARTICLE 10 COVENANTS	 	 	72	 
	Section 10.01

	 	Performance under Purchase Contracts
	 	 	72	 
	Section 10.02

	 	Maintenance of Office or Agency
	 	 	72	 
	Section 10.03

	 	Company To Reserve Common Stock
	 	 	73	 
	Section 10.04

	 	Covenants as to Common Stock; Listing
	 	 	73	 
	Section 10.05

	 	Statements of Officers of the Company as to Default
	 	 	73	 
	Section 10.06

	 	ERISA
	 	 	73	 
	Section 10.07

	 	Tax Treatment
	 	 	74	 
	Section 10.08

	 	Remarketing Agreement
	 	 	74	 
	 
	 	 	 	 	 	 
	ARTICLE 11 PLEDGE	 	 	74	 
	Section 11.01

	 	Pledge
	 	 	74	 
	Section 11.02

	 	Termination
	 	 	74	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 
	 	 	 	 	 	 
	ARTICLE 12 ADMINISTRATION OF COLLATERAL	 	 	74	 
	Section 12.01

	 	Initial Deposit of Debentures
	 	 	74	 
	Section 12.02

	 	Establishment of Collateral Account
	 	 	75	 
	Section 12.03

	 	Treatment as Financial Assets
	 	 	75	 
	Section 12.04

	 	Sole Control by Collateral Agent
	 	 	75	 
	Section 12.05

	 	Jurisdiction
	 	 	75	 
	Section 12.06

	 	No Other Claims
	 	 	76	 
	Section 12.07

	 	Investment and Release
	 	 	76	 
	Section 12.08

	 	Statements and Confirmations
	 	 	76	 
	Section 12.09

	 	Tax Allocations
	 	 	76	 
	Section 12.10

	 	No Other Agreements
	 	 	76	 
	Section 12.11

	 	Powers Coupled with an Interest
	 	 	76	 
	Section 12.12

	 	Waiver of Lien; Waiver of Set-off
	 	 	76	 
	 
	 	 	 	 	 	 
	ARTICLE 13 RIGHTS AND REMEDIES OF THE COLLATERAL AGENT	 	 	76	 
	Section 13.01

	 	Rights and Remedies of the Collateral Agent
	 	 	76	 
	 
	 	 	 	 	 	 
	ARTICLE 14 REPRESENTATIONS AND WARRANTIES TO COLLATERAL AGENT; HOLDER COVENANTS	 	 	77	 
	Section 14.01

	 	Representations and Warranties
	 	 	77	 
	Section 14.02

	 	Covenants
	 	 	78	 
	 
	 	 	 	 	 	 
	ARTICLE 15 THE COLLATERAL AGENT, THE CUSTODIAL AGENT AND THE SECURITIES INTERMEDIARY	 	 	78	 
	Section 15.01

	 	Appointment, Powers and Immunities
	 	 	78	 
	Section 15.02

	 	Instructions of the Company
	 	 	79	 
	Section 15.03

	 	Reliance by Collateral Agent, Custodial Agent and Securities
Intermediary
	 	 	79	 
	Section 15.04

	 	Certain Rights
	 	 	80	 
	Section 15.05

	 	Merger, Conversion, Consolidation or Succession to Business
	 	 	80	 
	Section 15.06

	 	Rights in Other Capacities
	 	 	80	 
	Section 15.07

	 	Non-reliance on the Collateral Agent, Custodial Agent and Securities
Intermediary
	 	 	81	 
	Section 15.08

	 	Compensation and Indemnity
	 	 	81	 
	Section 15.09

	 	Failure to Act
	 	 	81	 
	Section 15.10

	 	Resignation of Collateral Agent, the Custodial Agent and the
Securities Intermediary
	 	 	82	 
	Section 15.11

	 	Right to Appoint Agent or Advisor
	 	 	83	 
	Section 15.12

	 	Survival
	 	 	83	 
	Section 15.13

	 	Exculpation
	 	 	83	 






-iv-









 




TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	Section 15.14

	 	Expenses, Etc
	 	 	83	 
	Section 15.15

	 	Force Majeure
	 	 	84	 
	 
	 	 	 	 	 	 
	ARTICLE 16 MISCELLANEOUS	 	 	84	 
	Section 16.01

	 	Security Interest Absolute
	 	 	84	 
	Section 16.02

	 	Notice of Special Event, Special Event Redemption and Termination
Event
	 	 	85	 







-v-









 








	 	 	 	 	 
	EXHIBITS	 	 	 	 
	 
	Exhibit A
	 	—	 	Form of Corporate Units Certificate
	Exhibit B
	 	—	 	Form of Treasury Units Certificate
	Exhibit C
	 	—	 	Instruction to Purchase Contract Agent From Holder to Create Treasury Units or Corporate Units
	Exhibit D
	 	—	 	Notice from Purchase Contract Agent to Holders Upon Termination Event
	Exhibit E
	 	—	 	Notice of Cash Settlement
	Exhibit F
	 	—	 	Instruction from Purchase Contract Agent to Collateral Agent (Creation of Treasury Units)
	Exhibit G
	 	—	 	Instruction from the Collateral Agent to the Securities Intermediary (Creation of Treasury Units)
	Exhibit H
	 	—	 	Instruction from Purchase Contract Agent to Collateral Agent (Recreation of Corporate Units)
	Exhibit I
	 	—	 	Instruction from Collateral Agent to Securities Intermediary (Recreation of Corporate Units)
	Exhibit J
	 	—	 	Notice of Cash Settlement from Purchase Contract Agent to Collateral Agent
	Exhibit K
	 	—	 	Instruction to Custodial Agent Regarding Remarketing
	Exhibit L
	 	—	 	Instruction to Custodial Agent Regarding Withdrawal from Remarketing
	Exhibit M
	 	—	 	Notice to Settle with Separate Cash
	Exhibit N
	 	—	 	Notice from Purchase Contract Agent to Collateral Agent
	Exhibit O
	 	—	 	Notice of Settlement with Separate Cash from Securities Intermediary to Purchase Contract Agent
	Exhibit P
	 	—	 	Form of Remarketing Agreement






 









 





     PURCHASE CONTRACT AND PLEDGE AGREEMENT, dated as of May [___], 2008, among
Archer-Daniels-Midland Company, a Delaware corporation (the “Company”), The Bank of New York, a New
York banking corporation, acting as purchase contract agent for, and as attorney-in-fact of, the
Holders from time to time of the Units (in such capacities, together with its successors and
assigns in such capacities, the “Purchase Contract Agent”), and The Bank of New York, as collateral
agent hereunder for the benefit of the Company (in such capacity, together with its successors in
such capacity, the “Collateral Agent”), as custodial agent (in such capacity, together with its
successors in such capacity, the “Custodial Agent”), and as securities intermediary (as defined in
Section 8-102(a)(14) of the UCC) with respect to the Collateral Account (in such capacity, together
with its successors in such capacity, the “Securities Intermediary”).



RECITALS




     WHEREAS, the Company has duly authorized the execution and delivery of this Agreement and the
Certificates evidencing the Units;



     WHEREAS, 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; and



     WHEREAS, pursuant to the terms of this Agreement and the Purchase Contracts, the Holders of
the Units have irrevocably authorized the Purchase Contract Agent, as attorney-in-fact of such
Holders, among other things, to execute and deliver this Agreement on behalf of such Holders and to
grant the Pledge provided herein of the Collateral to secure the Obligations.



     NOW, THEREFORE, the parties hereto agree as follows:



ARTICLE 1




DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION




     Section 1.01 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 which are defined in the UCC shall have the meanings set forth
therein: “certificated security,” “control,” “financial asset,” “entitlement order,” “securities
account” and “security entitlement”; and




          (e) the following terms have the meanings given to them in this Section 1.01(e):




1









 








     “Accounting Event” has the meaning set forth in the Supplemental Indenture.



     “Act” has the meaning, with respect to any Holder, set forth in Section 1.04.



     “Adjustment Factor” has the meaning set forth in Section 5.05(a)(vii).



     “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 5.01(a).



     “Applicable Ownership Interest in Debentures” means, a 1/20 or a 5.0% undivided beneficial
ownership interest in $1,000 principal amount of Debentures that is a component of a Corporate
Unit, and “Applicable Ownership Interests in Debentures” means the aggregate of each Applicable
Ownership Interest in Debentures that is a component of each Corporate Unit then Outstanding.



     “Applicable Ownership Interest in the Treasury Portfolio” shall mean, with respect to a
Corporate Unit and the Treasury Portfolio, (i) 1/20th or a 5.0% undivided beneficial
ownership interest in $1,000 face amount of U.S. treasury securities (or principal or interest
strips thereof) included in such Treasury Portfolio that matures on or prior to May 31, 2011, and
(ii) for each scheduled Payment Date on the Debentures that occurs after the Special Event
Redemption Date or the date of a Successful Optional Remarketing, as the case may be, and on or
prior to Purchase Contract Settlement Date, a [•]% undivided beneficial ownership interest in
$1,000 face amount of U.S. treasury securities (or principal or interest strips thereof) included
in such Treasury Portfolio that mature on or prior to the Business Day immediately preceding such
scheduled Payment Date.



     “Applicable Remarketing Period” means any of (i) any Optional Remarketing Period for which the
Company has elected to conduct an Optional Remarketing pursuant to Section 5.02 or (ii) the Final
Remarketing Period, as the context requires.



     “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 Book-Entry Interest, a Person who is the
beneficial owner of such Book-Entry Interest as reflected on the books of the Depositary or on the
books of a Person maintaining an account with such Depositary (directly as a Depositary Participant
or as an indirect participant, in each case in accordance with the rules of such Depositary).



     “Board of Directors” means the board of directors of the Company or a duly authorized
committee of that board.



2









 





     “Board Resolution” means one or more resolutions of the Board of Directors, a copy of which
has been certified by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors 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, registered in the
name of a Depositary or a nominee thereof, ownership and transfers of which shall be maintained and
made through book entries by such Depositary as described in Section 3.06.



     “Business Day” means any day other than a Saturday or Sunday or any other day on which banking
institutions in New York City, New York are authorized or required by law or executive order to
remain closed; 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 the Depositary is closed.



     “Cash” means any coin or currency of the United States as at the time shall be legal tender
for payment of public and private debts.



     “Cash Settlement” has the meaning set forth in Section 5.03(a)(i).



     “Certificate” means a Corporate Units Certificate or a Treasury Units Certificate, as the case
may be.



     “Closing Price” has the meaning set forth in Section 5.01(a).



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



     “Collateral” means the collective reference to:




     (i) the Collateral Account and all investment property and other financial assets from
time to time credited to the Collateral Account and all security entitlements with respect
thereto, including, without limitation, (A) the Applicable Ownership Interests in Debentures
and security entitlements relating thereto (and the Debentures and security entitlements
relating thereto delivered to the Collateral Agent in respect of such Applicable Ownership
Interests in Debentures), (B) the Applicable Ownership Interests in the Treasury Portfolio
(as specified in clause (i) of the definition of such term) and security entitlements
relating thereto, (C) any Treasury Securities and security entitlements relating thereto
Transferred to the Securities Intermediary from time to time in connection with the creation
of Treasury Units in accordance with Section 3.13 hereof and (D) payments made by Holders
pursuant to Section 5.03 hereof;




     (ii) all Proceeds of any of the foregoing (whether such Proceeds arise before or after
the commencement of any proceeding under any applicable bankruptcy, insolvency or other
similar law, by or against the pledgor or with respect to the pledgor); and




     (iii) all powers and rights now owned or hereafter acquired under or with respect to
the Collateral.



     “Collateral Account” means the securities account of The Bank of New York, as Collateral
Agent, maintained on the books of the Securities Intermediary and designated “The Bank of New York,
as Collateral Agent of Archer-Daniels-Midland Company, as pledgee of The Bank of New York, as the
Purchase Contract Agent on behalf of and as attorney-in-fact for the Holders”.



3









 





     “Collateral Agent” means the Person named as” Collateral Agent” in the first paragraph of this
Agreement until a successor Collateral Agent shall have become such pursuant to this Agreement, and
thereafter” Collateral Agent “shall mean the Person who is then the Collateral Agent hereunder.



     “collateral event of default” has the meaning set forth in Section 13.01(b).



     “Collateral Substitution” means, prior to any Successful Optional Remarketing (i) with respect
to the Corporate Units, (x) if no Special Event Redemption has occurred, the substitution of the
Pledged Applicable Ownership Interests in Debentures included in such Corporate Units with Treasury
Securities in an aggregate principal amount at maturity equal to the aggregate principal amount of
such Pledged Applicable Ownership Interests in Debentures, or (y) following a Special Event
Redemption, the substitution of the Pledged Applicable Ownership Interests in the Treasury
Portfolio included in such Corporate Units with Treasury Securities in an aggregate principal
amount at maturity equal to the Pledged Applicable Ownership Interests in the Treasury Portfolio
specified in clause (i) of the definition thereof or (ii) with respect to the Treasury Units, (x)
if no Special Event Redemption has occurred, the substitution of the Pledged Treasury Securities
included in such Treasury Units with Debentures in an aggregate principal amount equal to the
aggregate principal amount at stated maturity of the Pledged Treasury Securities, or (y) following
a Special Event Redemption, the substitution of the Pledged Treasury Securities included in such
Treasury Units with Applicable Ownership Interests in the Treasury Portfolio (such that the amount
specified in clause (i) of the definition thereof equals the aggregate principal amount at maturity
of such Pledged Treasury Securities).



     “Common Stock” means the common stock, without par value, of the Company.



     “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 5.05(b).



     “Contract Adjustment Payments” means the payments payable by the Company on the Payment Dates
in respect of each Purchase Contract, at a rate per year of
[•]% of the Stated Amount per
Purchase Contract.



     “Corporate Trust Office” means the office of the Purchase Contract Agent at which, at any
particular time, its corporate trust business shall be principally administered, which office at
the date hereof is located at 101 Barclay Street — 8W New York, NY 10286 Attention: Corporate
Finance Division, Phone: 212-815-5995.



     “Corporate Unit” means the collective rights and obligations of a Holder of a Corporate Units
Certificate in respect of the Applicable Ownership Interest in Debentures or the Applicable
Ownership Interest in the Treasury Portfolio, as the case may be, subject in each case (except that
the Applicable Ownership Interest in the Treasury Portfolio as specified in clause (ii) of the
definition of such term shall not be subject to the Pledge) to the Pledge thereof, and the related
Purchase Contract.



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



     “Coupon Rate” has the meaning set forth in the Supplemental Indenture.



4









 





     “Current Market Price” means, in respect of a share of Common Stock on any date of
determination, the average of the daily Closing Prices for the 20 consecutive Trading Days
preceding the earlier of the day preceding 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
definition, the term “ex date,” when used with respect to any issuance or distribution, shall mean
the first date on which Common Stock trades regular way on the principal U.S. securities exchange
or quotation system on which shares of Common Stock are listed or quoted at that time without the
right to receive such issuance or distribution.



     “Custodial Agent” means the Person named as Custodial Agent in the first paragraph of this
Agreement until a successor Custodial Agent shall have become such pursuant to the applicable
provisions of this Agreement, and thereafter “Custodial Agent” shall mean the Person who is then
the Custodial Agent hereunder.



     “Debentures” means the series of debentures designated the [___]% Debentures due 2041 of the Company.



     “Depositary” means a clearing agency registered under Section 17A of the Exchange Act that is
designated to act as Depositary for the Units as contemplated by Sections 3.06 and 3.08.



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



     “DTC” means The Depository Trust Company.



     “Early Settlement” has the meaning set forth in Section 5.08(a).



     “Early Settlement Amount” has the meaning set forth in Section 5.08(b).



     “Early Settlement Date” has the meaning set forth in Section 5.08(b).



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.



     “Exchange Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in
each case as amended from time to time, and the rules and regulations promulgated thereunder.



     “Exchange Property Unit” has the meaning set forth in Section 5.05(b)(i).



     “Expiration Date” has the meaning set forth in Section 1.04(e).



     “Expiration Time” has the meaning set forth in Section 5.05(a)(vi).



     “Failed Final Remarketing” has the meaning set forth in Section 5.03(b)(iii).



     “Failed Optional Remarketing” has the meaning set forth in Section 5.02(a)(iv).



     “Failed Remarketing” means, as applicable, a Failed Optional Remarketing or a Failed Final
Remarketing.



5









 





     “Fair Market Value” means




	 	(a)	 	in the case of any Spin-Off that is effected simultaneously
with an Initial Public Offering of the securities being distributed in the
Spin-Off, the initial public offering price of those securities, and
	 
	 	(b)	 	in the case of any other Spin-Off, the average of the Closing
Prices of the securities being distributed in the Spin-Off over the first 10
Trading Days after the effective date of such Spin-Off.





     “Final Remarketing” means the remarketing of the Debentures on a Final Remarketing Date by the
Remarketing Agent pursuant to the Remarketing Agreement.



     “Final Remarketing Date” means the third Business Day immediately preceding the Purchase
Contract Settlement Date.



     “Final Remarketing Period” means the period beginning May 13, 2011 and ending May 26, 2011.



     “Fixed Settlement Rate” means the Minimum Settlement Rate and the Maximum Settlement Rate,
collectively.



     “Fundamental Change” means




	 	(a)	 	[a “person” or “group” within the meaning of Section 13(d) of
the Exchange Act has become the direct or indirect “beneficial owner,” as
defined in Rule 13d-3 under the Exchange Act, of Common Stock representing more
than 50% of the voting power of the Common Stock (other than in connection with
a consolidation, merger or other transaction described in clause (b) below, in
which case clause (b) shall apply)]; or
	 
	 	(b)	 	the Company is involved in a consolidation with or merger into
any other person, or any merger of another person into the Company, or any
transaction or series of related transactions (other than a merger that does
not result in any reclassification, conversion, exchange or cancellation of
outstanding shares of the Common Stock), in each case in which 10% or more of
the total consideration paid to the Company’s shareholders consists of cash or
cash equivalents.





     “Fundamental Change Early Settlement” has the meaning set forth in Section 5.05(b)(ii).



     “Fundamental Change Early Settlement Date” has the meaning set forth in Section 5.05(b)(ii).



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



     “Holder” means, with respect to a Unit, the Person in whose name the Unit evidenced by a
Certificate is registered in the Security Register.



     “Indemnitees” has the meaning set forth in Section 7.07(c).



6









 





     “Indenture” means the Indenture, dated as of September 20, 2006, between the Company and the
Indenture Trustee (including any provisions of the TIA that are deemed incorporated therein), as
amended and supplemented by the Supplemental Indenture.



     “Indenture Trustee” means The Bank of New York, a New York banking corporation, as successor
trustee to JPMorgan Chase Bank, N.A. under the Indenture, or any successor thereto as described in
the Indenture.



     “Initial Public Offering” means the first time securities of the same class or type as the
securities being distributed in the Spin-Off are offered to the public for cash.



     “Issuer Order” or “Issuer Request” means a written order or request signed in the name of the
Company by the Chairman, a Vice Chairman, the Chief Executive Officer, the Chief Financial Officer,
the President, any Vice President, and the Secretary or any Assistant Secretary, the Treasurer or
any Assistant Treasurer of the Company, and delivered to the Purchase Contract Agent.



     “Losses” has the meaning set forth in Section 15.08(b).



     “Make-Whole Share Amount” has the meaning set forth in Section 5.05(b)(ii).



     “Maximum Settlement Rate” has the meaning set forth in Section 5.01(a)(iii).



     “Minimum Settlement Rate” has the meaning set forth in Section 5.01(a)(i).



     “Minimum Stock Price” has the meaning set fort in Section 5.05(b)(iii)(3).



     “NYSE” has the meaning set forth in Section 5.01(a).



     “Obligations” means, with respect to each Holder, all obligations and liabilities of such
Holder under such Holder’s Purchase Contract and this Agreement or any other document made,
delivered or given in connection herewith or therewith, in each case whether on account of
principal, interest (including, without limitation, interest accruing before and after the filing
of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to such Holder, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to the Company or the
Collateral Agent or the Securities Intermediary that are required to be paid by the Holder pursuant
to the terms of any of the foregoing agreements).



     “Observation Period” means the 20 consecutive Trading Days ending on the third Trading Day
immediately preceding the applicable Settlement Date.



     “Officers’ Certificate” means a certificate signed by (i) either the Chairman, Vice Chairman,
Chief Executive Officer, its President or any Vice President of the Company, and (ii) the Chief
Financial Officer, the Secretary, an Assistant Secretary or its Treasurer or an Assistant Treasurer
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 (other than
the Officers’ Certificate provided for in Section 10.05) shall include the information set forth in
Section 1.02 hereof.



     “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.



7









 





     “Optional Remarketing” means the Remarketing of the Debentures on an Optional Remarketing Date
by the Remarketing Agent pursuant to the Remarketing Agreement.



     “Optional Remarketing Date” has the meaning set forth in Section 5.02(a).



     “Optional Remarketing Period” means (i) the period beginning on, and including, February 10,
2011 and ending on, and including, February 24, 2011 and (ii) unless a Successful Optional
Remarketing has occurred, the period beginning on, and including, March 29, 2011 and ending on, and
including, April 12, 2011, in each case during which the Company may elect for an Optional
Remarketing to occur pursuant to Section 5.02.



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




     (i) all Units, if a Termination Event has occurred;




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



     “Payment Date” means each March 1, June 1, September 1 and December 1, of each year,
commencing September 1, 2008.



     “Permitted Investments” means any one of the following, in each case maturing on the Business
Day following the date of acquisition:




     (1) any evidence of indebtedness with an original maturity of 365 days or less issued,
or directly and fully guaranteed or insured, by the United States of America or any agency
or instrumentality thereof (provided that the full faith and credit of the United States of
America is pledged in support of the timely payment thereof or such indebtedness constitutes
a general obligation of it);




     (2) deposits, certificates of deposit or acceptances with an original maturity of 365
days or less of any institution which is a member of the Federal Reserve System having
combined



8









 







capital and surplus and undivided profits of not less than $500 million at the time of
deposit (and which may include the Collateral Agent);




     (3) investments with an original maturity of 365 days or less of any Person that is
fully and unconditionally guaranteed by a bank referred to in clause (2);




     (4) repurchase agreements and reverse repurchase agreements relating to marketable
direct obligations issued or unconditionally guaranteed by the United States of America or
issued by any agency thereof and backed as to timely payment by the full faith and credit of
the United States of America;




     (5) investments in commercial paper, other than commercial paper issued by the Company
or its affiliates, of any corporation incorporated under the laws of the United States or
any State thereof, which commercial paper has a rating at the time of purchase at least
equal to “A-1” by Standard & Poor’s Ratings Services (“S&P”) or at least equal to “P-1” by
Moody’s Investors Service, Inc. (“Moody’s”); and




     (6) investments in money market funds (including, but not limited to, money market
funds managed by the Collateral Agent or an affiliate of the Collateral Agent) registered
under the Investment Company Act of 1940, as amended, rated in the highest applicable rating
category by S&P or Moody’s.



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



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



     “Pledge” means the lien and security interest in the Collateral created by this Agreement.



     “Pledged Applicable Ownership Interests in Debentures” means the Applicable Ownership
Interests in Debentures and security entitlements with respect thereto from time to time credited
to the Collateral Account and not then released from the Pledge.



     “Pledged Applicable Ownership Interests in the Treasury Portfolio” means the Applicable
Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the definition
thereof) and security entitlements with respect thereto from time to time credited to the
Collateral Account and not then released from the Pledge.



     “Pledged Securities” means the Pledged Applicable Ownership Interests in Debentures, the
Pledged Applicable Ownership Interests in the Treasury Portfolio and the Pledged Treasury
Securities, collectively.



     “Pledged Treasury Securities” means Treasury Securities and security entitlements with respect
thereto from time to time credited to the Collateral Account and not then released from the Pledge.



     “Pledge Indemnitees” has the meaning set forth in Section 15.08(b).



9









 





     “Predecessor Certificate” means a Predecessor Corporate Units Certificate or a Predecessor
Treasury Units Certificate.



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



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



     “Pro Rata” or “pro rata” shall mean pro rata to each Holder according to the aggregate Stated
Amount of the Units held by such Holder in relation to the aggregate Stated Amount of all Units
outstanding.



     “Proceeds” has the meaning ascribed thereto in the UCC and includes, without limitation, all
interest, dividends, cash, instruments, securities, financial assets and other property received,
receivable or otherwise distributed upon the sale (including, without limitation, any Remarketing),
exchange, collection or disposition of any financial assets from time to time credited to the
Collateral Account.



     “Prospectus” means the prospectus relating to the delivery of shares or any securities in
connection with an Early Settlement pursuant to Section 5.08 or a Fundamental Change Early
Settlement of Purchase Contracts pursuant to Section 5.05(b)(ii), in the form in which first filed,
or transmitted for filing, with the Securities and Exchange Commission after the effective date of
the Registration Statement pursuant to Rule 424(b) under the Securities Act, including the
documents incorporated by reference therein as of the date of such Prospectus.



     “Purchase Contract” means, with respect to any Unit, the contract forming a part of such Unit
and obligating the Company to (i) sell, and the Holder of such Unit to purchase, shares of Common
Stock equal to the applicable Settlement Rate and (ii) pay to the Holder thereof Contract
Adjustment Payments, in each case on the terms and subject to the conditions set forth in Article 5
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 or any subsequent successor who is appointed pursuant to this Agreement.



     “Purchase Contract Settlement Date” means June 1, 2011.



     “Purchase Contract Settlement Fund” has the meaning set forth in Section 5.04.



     “Purchase Price” has the meaning set forth in Section 5.01(a).



10









 





     “Purchased Shares” has the meaning set forth in Section 5.05(a)(vi).



     “Put Right” has the meaning set forth in Section 8.05(a) of the Supplemental Indenture.



     “Quotation Agent” has the meaning set forth in the Supplemental Indenture.



     “Record Date” for any distribution, including any Contract Adjustment Payment, payable on any
Payment Date means the fifteenth day of the calendar month preceding the calendar month in which
the relevant Payment Date falls (whether or not a Business Day).



     “Redemption Amount” has the meaning set forth in the Supplemental Indenture.



     “Redemption Price” has the meaning set forth in clause (i) of the definition of such term in
the Supplemental Indenture.



     “Reference Price” has the meaning set forth in Section 5.01(a)(ii).



     “Registration Statement” means a registration statement under the Securities Act prepared by
the Company covering, inter alia, the delivery by the Company of any securities in connection with
an Early Settlement on the Early Settlement Date or a Fundamental Change Early Settlement of
Purchase Contracts on the Fundamental Change Early Settlement Date under Section 5.05(b)(ii),
including all exhibits thereto and the documents incorporated by reference in the prospectus
contained in such registration statement, and any post-effective amendments thereto.



     “Remarketing” means the remarketing of the Debentures pursuant to the Remarketing Agreement on
any Remarketing Date.



     “Remarketing Agent(s)” has the meaning set forth in the Supplemental Indenture.



     “Remarketing Agreement” means the Remarketing Agreement, in substantially the form set forth
in Exhibit P hereto, to be entered into among the Company, the Purchase Contract Agent and the
Remarketing Agent(s).



     “Remarketing Date” means any of the Business Days selected for Remarketing in an Optional
Remarketing Period or the Final Remarketing Period.



     “Remarketing Fee” means, in the event of a Successful Remarketing, a remarketing fee paid by
the Company to the Remarketing Agent to be agreed upon in writing by the Company and the
Remarketing Agent prior to any such Remarketing pursuant to the Remarketing Agreement.



     “Remarketing Per Debenture Price” means the Treasury Portfolio Purchase Price divided by the
number of $1,000 principal amount of Debentures underlying the Pledged Applicable Ownership
Interests that are held as components of Corporate Units and remarketed in an Optional Remarketing.



     “Remarketing Price” means (i) in the case of an Optional Remarketing, 100% of the Treasury
Portfolio Purchase Price (including, in the case of an Optional Remarketing occurring between March
29, 2011 and April 12, 2011, accrued and unpaid interest (prior to any reset of the interest rate
on the Debentures) to the Remarketing Settlement Date plus the Separate Debentures Purchase Price
(if any) and (ii) in the case of a Final Remarketing, 100% of the aggregate principal amount of
Debentures underlying the Pledged Applicable Ownership Interests in Debentures and Separate
Debentures to be remarketed in such Final Remarketing.



11









 





     “Remarketing Settlement Date” means (i) in the case of a Successful Optional Remarketing
occurring during an Optional Remarketing Period, March 1, 2011 (in the case of a Successful
Optional Remarketing during the Optional Remarking Period ending February 24, 2011) or the third
Business Day following a Successful Optional Remarketing (in the case of a Successful Optional
Remarketing during the Optional Remarketing Period ending April 12, 2011), and (ii) in the case of
a Final Remarketing, the Purchase Contract Settlement Date.



     “Reorganization Event” means:




	 	(i)	 	any consolidation or merger of the Company with or into another
Person or of another Person with or into the Company; or
	 
	 	(ii)	 	any sale, transfer, lease or conveyance to another Person of
the property of the Company as an entirety or substantially as an entirety; or
	 
	 	(iii)	 	any statutory share exchange of the Company with another
Person (other than in connection with a merger or acquisition); or
	 
	 	(iv)	 	any liquidation, dissolution or termination of the Company
(other than as a result of or after the occurrence of a Termination Event).





     “Reset Rate” means, in connection with each Remarketing, the rate per annum rounded to the
nearest one-thousandth (0.001) of one percent that the Debentures shall bear as determined by the
Remarketing Agent in consultation with the Company pursuant to the Remarketing Agreement.



     “Responsible Officer” means, when used with respect to the Purchase Contract Agent, any
officer of the Purchase Contract Agent within the Corporate Trust Division—Corporate Finance Unit
(or any successor unit, department or division of the Purchase Contract Agent) located at the
Corporate Trust Office of the Purchase Contract Agent who has direct responsibility for the
administration of the Agreement and for the purposes of Section 7.03(i), also means, with respect
to a particular corporate trust matter, any other officer, trust officer or person performing
similar functions to whom such matter is referred because of his or her knowledge of and
familiarity of the particular subject.



     “Rights” has the meaning set forth in Section 5.05(a)(x).



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



     “Securities Intermediary” means the Person named as Securities Intermediary in the first
paragraph of this Agreement until a successor Securities Intermediary shall have become such
pursuant to the applicable provisions of this Agreement, and thereafter “Securities Intermediary”
shall mean such successor or any subsequent successor.



     “Security Register” and “Securities Registrar” have the respective meanings set forth in
Section 3.05.



     “Senior Indebtedness” means indebtedness of any kind of the Company unless the instrument
under which such indebtedness is incurred expressly provides that it is on a parity in right of
payment with or subordinate in right of payment to the Contract Adjustment Payments.



12









 






     “Separate Debentures” means Debentures that have been released from the Pledge following
Collateral Substitution and therefore no longer underlie Corporate Units.



     “Separate Debentures Purchase Price” means, for any Optional Remarketing, the amount in cash
equal to the product of the Remarketing Per Debenture Price multiplied by the number of $1,000
principal amount of Separate Debentures remarketed in such Optional Remarketing.



     “Settlement Date” means, as applicable, the Purchase Contract Settlement Date, the Early
Settlement Date or the Fundamental Change Early Settlement Date.



     “Settlement Rate” has the meaning set forth in Section 5.01(a).



     “Special Event” has the meaning set forth in the Supplemental Indenture.



     “Special Event Redemption” has the meaning set forth in the Supplemental Indenture.



     “Special Event Redemption Date” has the meaning set forth in the Supplemental Indenture.



     “Spin-Off” means payment of a dividend or distribution on the Common Stock of shares of
capital stock of any class or series, or similar equity interests, of or relating to a subsidiary
or other business unit of the Company.



     “Stated Amount” means $50.



     “Successful Final Remarketing” has the meaning set forth in Section 5.03(b)(ii).



     “Successful Optional Remarketing” has the meaning set forth in Section 5.02(a)(ii).



     “Successful Remarketing” means, as applicable, a Successful Optional Remarketing or a
Successful Final Remarketing.



     “Supplemental Indenture” means the Supplemental Indenture dated as of the date hereof between
the Company and the Indenture Trustee pursuant to which the Debentures are issued.



     “Tax Event” has the meaning set forth in the Supplemental Indenture.



     “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 decree or order by a court having jurisdiction in the premises shall
have been entered adjudging the Company a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization of the Company under the
Bankruptcy Code or any other similar applicable Federal or state law and if
such judgment, decree or order shall have been entered more than 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;




13









 












	 	(ii)	 	at any time on or prior to the Purchase Contract Settlement
Date, a decree or order of a court having jurisdiction in the premises for the
appointment of a receiver or liquidator or trustee or assignee (or other
similar official) in bankruptcy or insolvency of the Company or of all or
substantially all of its property, or for the winding up or liquidation of its
affairs, shall have been entered and if such decree or order shall have been
entered more than 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 institute proceedings to be adjudicated a voluntary
bankrupt, or shall consent to the filing of a bankruptcy proceeding against it,
or shall file a petition or answer or consent seeking reorganization 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 (or other similar official)
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 5.01(a)(i).



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



     “TRADES” means the Treasury/Reserve Automated Debt Entry System maintained by the Federal
Reserve Bank of New York pursuant to the TRADES Regulations.



     “TRADES Regulations” means the regulations of the United States Department of the Treasury,
published at 31 C.F.R. Part 357, as amended from time to time. Unless otherwise defined herein,
all terms defined in the TRADES Regulations are used herein as therein defined.



     “Trading Day” has the meaning set forth in Section 5.01(a).



     “Transfer” means (i) in the case of certificated securities in registered form, delivery as
provided in Section 8-301(a) of the UCC, indorsed to the transferee or in blank by an effective
endorsement; (ii) in the case of Treasury Securities, registration of the transferee as the owner
of such Treasury Securities on TRADES; and (iii) in the case of security entitlements, including,
without limitation, security entitlements with respect to Treasury Securities, a securities
intermediary indicating by book entry that such security entitlement has been credited to the
transferee’s securities account.



     “Treasury Portfolio” has the meaning set forth in the Supplemental Indenture.



     “Treasury Portfolio Purchase Price” has the meaning set forth in Supplemental Indenture.



     “Treasury Securities” means zero-coupon U.S. treasury securities that mature on May 31, 2011
(CUSIP No. 91282ONE3).



     “Treasury Unit” means, following the substitution of Treasury Securities for Pledged
Applicable Ownership Interests in Debentures or Pledged Applicable Ownership Interests in the
Treasury Portfolio, as the case may be, as collateral to secure a Holder’s obligations under the
Purchase Contract, the



14









 




collective rights and obligations of a Holder of a Treasury Units Certificate in respect of
such Treasury Securities, subject to the Pledge thereof, and the related Purchase Contract.




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



     “UCC” means the Uniform Commercial Code as in effect in the State of New York from time to
time.



     “Underwriters” means the underwriters identified in Schedule I of the Underwriting Agreement,
for whom Citigroup Global Markets Inc. [and [•]] J.P.Morgan Securities, Inc. act as representatives.



     “Underwriting Agreement” means the Underwriting Agreement dated as of May [___], 2008, among
the Company and Citigroup Global Markets Inc. [and [•]] J.P.Morgan Securities, Inc., as representatives of the Underwriters.



     “Unit” means a Corporate Unit or a Treasury Unit, as the case may be.



     “Value” means, with respect to any item of Collateral on any date, as to (1) Cash, the amount
thereof, (2) Treasury Securities, the aggregate principal amount thereof at maturity, (3)
Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the
definition of such term), the appropriate aggregate percentage of the aggregate principal amount at
maturity of the Treasury Portfolio and (4) Applicable Ownership Interests in Debentures, the
appropriate aggregate principal amount of the underlying Debentures.



     “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 1.02 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 (other than the Officers’ Certificate provided for in Section 10.05) shall
include:




          (i) a statement that each individual signing such certificate or opinion has read such
condition or covenant and the definitions herein relating thereto;




          (ii) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;




          (iii) a statement that, in the opinion of each such individual, he or she has made such
examination or investigation as is necessary to enable such individual to express an
informed opinion as to whether or not such condition or covenant has been complied with; and



15









 






          (iv) a statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.



     Section 1.03 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 its certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such matters are
erroneous.



     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 1.04 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 7.01)
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 that the Purchase Contract Agent deems sufficient.




          (c) The ownership of Units shall be proved by the Security Register.




          (d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Unit shall bind every future Holder of the same Unit and the Holder of every
Certificate evidencing such Unit 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 date as a record date for the purpose of determining the Holders
of Outstanding Units 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. If any record date is set pursuant to this paragraph, the Holders of the
Outstanding Corporate Units and the Outstanding Treasury 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
Corporate Units or the Treasury Units, as the case may be, whether or not such Holders remain
Holders after such record


16









 







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 Units 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
Units 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 in the manner set forth in Section 1.06.




     With respect to any record date set pursuant to this Section 1.04(e), the Company may
designate any date as the “Expiration Date” and from time to time may change the Expiration Date to
any 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 in the
manner set forth in Section 1.06, 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 1.05 Notices. All notices, requests, consents and other communications provided for
herein (including, without limitation, any modifications of, or waivers or consents under, this
Agreement) shall be given or made in writing (including, without limitation, by telecopy) delivered
to the intended recipient at the “Address for Notices” specified below its name on the signature
pages hereof or, as to any party, at such other address as shall be designated by such party in a
notice to the other parties. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by telecopier or personally
delivered or, in the case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.



     The Purchase Contract Agent shall send to the Indenture Trustee at the following address a
copy of any notices in the form of Exhibits C, D, E, F, H, J, M or O it sends or receives:


The Bank of New York

101 Barclay Street, 8W

New York, NY 10286

Attention: Corporate Finance Division

Tel: 212-815-5995

Fax: 212-815-5704




     Section 1.06 Notice to Holders; Waiver. Where this Agreement provides for notice to Holders
of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at
its address as it appears in the Security 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.



17









 





     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 1.07 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 1.08 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the Company, the Purchase Contract Agent, the
Collateral Agent, the Custodial Agent and the Securities Intermediary, and the Holders from time to
time of the Units, by their acceptance of the same, shall be deemed to have agreed to be bound by
the provisions hereof and to have ratified the agreements of, and the grant of the Pledge hereunder
by, the Purchase Contract Agent.



     Section 1.09 Separability Clause. In case any provision in this Agreement or in the Units
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 Units,
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 Units
evidenced by their Certificates by their acceptance of delivery of such Certificates.



     Section 1.11 Governing Law. THIS AGREEMENT AND THE UNITS SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND PERFORMED
WHOLLY WITHIN SUCH STATE. The Company, the Collateral Agent, the Custodial Agent, the Securities
Intermediary and the Holders from time to time of the Units, acting through the Purchase Contract
Agent as their attorney-in-fact, hereby submit to the nonexclusive jurisdiction of the United
States District Court for the Southern District of New York and of any New York state court sitting
in New York City for the purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. The Company, the Collateral Agent, the
Custodial Agent, the Securities Intermediary and the Holders from time to time of the Units, acting
through the Purchase Contract Agent as their attorney-in-fact, irrevocably waive, to the fullest
extent permitted by applicable law, any objection which they may now or hereafter have to the
laying of the venue of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum. Each of the Company,
the Purchase Contract Agent, the Collateral Agent, the Custodial Agent and the Securities
Intermediary irrevocably waives, to the fullest extent permitted by applicable law, any and all
right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.



     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 Units), the interest payment on the
Debentures, Contract Adjustment Payments and other distributions shall not be paid on such date,
but the interest payment on the Debentures, Contract Adjustment Payments and other distributions
shall be paid on the next succeeding Business Day, with the same force and effect as if made on
such scheduled Payment Date; provided that no interest shall accrue or be payable by the Company or
to any Holder in respect of such delay.



18









 





     In any case where the Purchase Contract Settlement Date or any Early Settlement Date or
Fundamental Change Early Settlement Date shall not be a Business Day (notwithstanding any other
provision of this Agreement or the Units), Purchase Contracts shall not be performed and Early
Settlement and Fundamental Change Early Settlement shall not be effected on such date, but Purchase
Contracts shall be performed or Early Settlement or Fundamental Change Early Settlement shall be
effected, as applicable, on the next succeeding Business Day with the same force and effect as if
made on such Purchase Contract Settlement Date, Early Settlement Date or Fundamental Change Early
Settlement Date, as applicable.



     Section 1.13 Counterparts. This Agreement may be executed in any number of counterparts by
the parties hereto, each of which, when so executed and delivered, shall be deemed an original, but
all such counterparts shall together constitute one and the same instrument.



     Section 1.14 Inspection of Agreement. A copy of this Agreement shall be available at all
reasonable times during normal business hours at the Corporate Trust Office for inspection by any
Holder or Beneficial Owner.



     Section 1.15 Appointment of Financial Institution as Agent for the Company. The Company may
appoint a financial institution (which may be the Collateral Agent) to act as its agent in
performing its obligations and in accepting and enforcing performance of the obligations of the
Purchase Contract Agent and the Holders, under this Agreement and the Purchase Contracts, by giving
notice of such appointment in the manner provided in Section 1.05 hereof. Any such appointment
shall not relieve the Company in any way from its obligations hereunder.



     Section 1.16 No Waiver. No failure on the part of the Company, the Purchase Contract Agent,
the Collateral Agent, the Custodial Agent, the Securities Intermediary or any of their respective
agents to exercise, and no course of dealing with respect to, and no delay in exercising, any
right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise by the Company, the Collateral Agent, the Custodial Agent, the Securities Intermediary or
any of their respective agents of any right, power or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or remedy. The remedies herein
are cumulative and are not exclusive of any remedies provided by law.



ARTICLE 2




CERTIFICATE FORMS




     Section 2.01 Forms of Certificates Generally. The Certificates (including the form of
Purchase Contract forming part of each Unit evidenced thereby) shall be in substantially the form
set forth in Exhibit A hereto (in the case of Corporate Units Certificates) or Exhibit B hereto (in
the case of Treasury Units Certificates), 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 Units are listed or
any depositary therefor, or as may, consistently herewith, be determined by the officers of the
Company executing such Certificates, as evidenced by their execution of the Certificates.



     The definitive Certificates shall be produced in any manner as determined by the officers of
the Company executing the Units evidenced by such Certificates, consistent with the provisions of
this Agreement, as evidenced by their execution thereof.



19









 





     Every Global Certificate authenticated, executed on behalf of the Holders and delivered
hereunder shall bear a legend substantially in the form set forth in Exhibit A and Exhibit B for a
Global Certificate.



     Section 2.02 Form of Purchase Contract Agent’s Certificate of Authentication. The form of the
Purchase Contract Agent’s certificate of authentication of the Units shall be in substantially the
form set forth on the form of the applicable Certificates.



ARTICLE 3




THE UNITS




     Section 3.01 Amount; Form and Denominations. The aggregate number of Units evidenced by
Certificates authenticated, executed on behalf of the Holders and delivered hereunder is limited to
[•], or [•] Units if the Underwriters exercise their over-allotment option in full, except for
Certificates authenticated, executed and delivered upon registration of transfer of, in exchange
for, or in lieu of, other Certificates pursuant to Section 3.04, Section 3.05, Section 3.10,
Section 3.13, Section 3.14 or Section 8.05.



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



     Section 3.02 Rights and Obligations Evidenced by the Certificates. Each Corporate Units
Certificate shall evidence the number of Corporate Units specified therein, with each such
Corporate Unit representing (1) the ownership by the Holder thereof of an Applicable Ownership
Interest in Debentures or an Applicable Ownership Interest in the Treasury Portfolio, as the case
may be, subject to the Pledge of such Applicable Ownership Interest in Debenture or Applicable
Ownership Interest in the Treasury Portfolio (as specified in clause (i) of the definition of such
term), as the case may be, by such Holder pursuant to this Agreement, and (2) the rights and
obligations of the Holder thereof and the Company under one Purchase Contract. The Purchase
Contract Agent is hereby authorized, as attorney-in-fact for, and on behalf of, the Holder of each
Corporate Unit, to pledge, pursuant to Article 11 hereof, the Applicable Ownership Interest in
Debentures, or the Applicable Ownership Interest in the Treasury Portfolio (as specified in clause
(i) of the definition of such term) forming a part of such Corporate Unit, to the Collateral Agent
for the benefit of the Company, and to grant to the Collateral Agent, for the benefit of the
Company, a security interest in the right, title and interest of such Holder in such Applicable
Ownership Interest in Debentures or Applicable Ownership Interest in the Treasury Portfolio (as
specified in clause (i) of the definition of such term) to secure the obligation of the Holder
under each Purchase Contract to purchase shares of Common Stock. To effect such Pledge and grant
such security interest, the Purchase Contract Agent on behalf of the Holders of Corporate Units
has, on the date hereof, delivered to the Collateral Agent the Debentures underlying the Applicable
Ownership Interests in Debentures.



     Upon the formation of a Treasury Unit pursuant to Section 3.13, each Treasury Unit Certificate
shall evidence the number of Treasury Units specified therein, with each such Treasury Unit
representing (1) the ownership by the Holder thereof of a 1/20 or 5.0% undivided beneficial
interest in a Treasury Security with a principal amount equal to $1,000, subject to the Pledge of
such interest by such Holder pursuant to this Agreement, and (2) the rights and obligations of the
Holder thereof and the Company under one Purchase Contract. The Purchase Contract Agent is hereby
authorized, as attorney-in-fact for, and on behalf of, the Holder of each Treasury Unit, to pledge,
pursuant to Article 11 hereof, such Holder’s interest in the Treasury Security forming a part of
such Treasury Unit to the Collateral Agent, for the benefit of the Company, and to grant to the
Collateral Agent, for the benefit of the Company, a



20









 




security interest in the right, title and interest of such Holder in such Treasury Security 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
Contract shall not entitle the Holder of a Unit 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 3.03 Execution, Authentication, Delivery and Dating. Subject to the provisions of
Section 3.13 and Section 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 of
Directors, a Vice Chairman, its Chief Executive Officer, its Chief Financial Officer, its
President, its Treasurer or a Vice President. 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 of authentication upon any Certificate
shall be conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder.



     Section 3.04 Temporary Certificates. Pending the preparation of definitive Certificates, the
Company may 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 Corporate Units or Treasury 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.




21











 





     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 Units
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 Units evidenced thereby as definitive Certificates.



     Section 3.05 Registration; Registration of Transfer and Exchange. The Purchase Contract Agent
shall keep at the Corporate Trust Office a register (the “Security Register”) in which, subject to
such reasonable regulations as it may prescribe, the Purchase Contract Agent shall provide for the
registration of Certificates and of transfers of Certificates (the Purchase Contract Agent, in such
capacity, the “Security Registrar”). The Security Registrar shall record separately the
registration and transfer of the Certificates evidencing Corporate Units and Treasury Units.



     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, of like tenor, and evidencing a like number of Corporate Units or
Treasury Units, as the case may be.



     At the option of the Holder, Certificates may be exchanged for other Certificates, of any
authorized denominations and evidencing a like number of Corporate Units or Treasury 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 Corporate Units or Treasury Units, as the case may be,
and be entitled to the same benefits and subject to the same obligations under this Agreement as
the Corporate Units or Treasury 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 Section
3.04, Section 3.05(ii) and Section 8.05 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



22









 







surrendered for registration of transfer or for exchange on or after the Business Day
immediately preceding the earliest to occur of any Early Settlement Date with respect to such
Certificate, any Fundamental Change Early Settlement Date with respect to such Certificate, 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 (including upon any Cash Settlement) or an
Early Settlement Date or a Fundamental Change Early Settlement Date with respect to such
other Certificate (or portion thereof) has occurred, deliver the shares of Common Stock
issuable in respect of the Purchase Contracts forming a part of the Units evidenced by such
other Certificate (or portion thereof); or




          (ii) if a Termination Event, Early Settlement, or Fundamental Change Early Settlement
shall have occurred prior to the Purchase Contract Settlement Date, or a Cash Settlement
shall have occurred, transfer the Debentures, the Treasury Securities, or the Applicable
Ownership Interests in the Treasury Portfolio, as the case may be, underlying such
Certificate, in each case subject to the applicable conditions and in accordance with the
applicable provisions of Section 3.15 and Article 5 hereof.



     Section 3.06 Book-entry Interests. The Certificates will be issued in the form of one or more
fully registered Global Certificates, to be delivered to the Depositary or its custodian by, or on
behalf of, the Company. The Company hereby designates DTC as the initial Depositary. Such Global
Certificates shall initially be registered on the Security Register 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 3.09. The Purchase Contract Agent shall enter into an agreement with the Depositary if so
requested by the Company. Following the issuance of such Global Certificates and unless and until
definitive, and fully registered Certificates have been issued to Beneficial Owners pursuant to
Section 3.09:




          (i) the provisions of this Section 3.06 shall be in full force and effect;




          (ii) the Company shall be entitled to deal with the Depositary for all purposes of this
Agreement (including, without limitation, making Contract Adjustment Payments and receiving
approvals, votes or consents hereunder) as the Holder of the Units and the sole holder of
the Global Certificates and shall have no obligation to the Beneficial Owners; provided that
a Beneficial Owner may directly enforce against the Company, without any consent, proxy,
waiver or involvement of the Depositary of any kind, such Beneficial Owner’s right to
receive a definitive Certificate representing the Units beneficially owned by such
Beneficial Owner, as set forth in Section 3.09;




          (iii) to the extent that the provisions of this Section 3.06 conflict with any other
provisions of this Agreement, the provisions of this Section 3.06 shall control; and




          (iv) except as set forth in the proviso of clause (ii) of this Section 3.06, the rights
of the Beneficial Owners shall be exercised only through the Depositary and shall be limited
to those established by law and agreements between such Beneficial Owners and the Depositary
or the Depositary Participants. The Depositary will make book-entry transfers among
Depositary Participants and receive and transmit payments of Contract Adjustment Payments to
such Depositary Participants.



23









 




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




     Section 3.07 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 Units registered in the name of
the Depositary or the nominee of the Depositary, the Company or the Company’s agent shall, except
as set forth herein, have no obligations to the Beneficial Owners.



     Section 3.08 Appointment of Successor Depositary. If the Depositary elects to discontinue its
services as securities depositary with respect to the Units, the Company may, in its sole
discretion, appoint a successor Depositary with respect to the Units.



     Section 3.09 Definitive Certificates.



     If:




          (i) the Depositary notifies the Company that it is unwilling or unable to continue its
services as securities depositary with respect to the Units and no successor Depositary has
been appointed pursuant to Section 3.08 within 90 days after such notice;




          (ii) the Depositary ceases to be a “clearing agency” registered under Section 17A of
the Exchange Act when the Depositary is required to be so registered to act as the
Depositary and so notifies the Company, and no successor Depositary has been appointed
pursuant to Section 3.08 within 90 days after such notice;




          (iii) to the extent permitted by the Depositary, the Company determines at any time
that the Units shall no longer be represented by Global Certificates and shall inform such
Depositary of such determination and participants in such Depository elect to withdraw their
beneficial interests in the Units from such Depository, following notification by the
Depository of their right to do so; or




          (iv) a Beneficial Owner requests to exchange such Beneficial Owner’s interest in the
Global Certificates for definitive Certificates in order to exercise or enforce such
Beneficial Owner’s rights under the Units represented by such Global Certificates;


then (x) definitive Certificates shall be prepared by the Company with respect to such Units and
delivered to the Purchase Contract Agent and (y) upon surrender of the Global Certificates
representing the Units by the Depositary, accompanied by registration instructions (other than in
the case of clause (iv) above), the Company shall cause definitive Certificates to be delivered to
Beneficial Owners in accordance with instructions provided by the Depositary. The Company and the
Purchase Contract Agent shall not be liable for any delay in delivery of such instructions and may
conclusively rely on and shall be authorized and protected in relying on, such instructions. Each
definitive Certificate so delivered shall evidence Units of the same kind and tenor as the Global
Certificate so surrendered in respect thereof.




     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 Corporate Units
or Treasury Units, as the case may be, and bearing a Certificate number not contemporaneously
outstanding.



24









 





     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 protected 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 Corporate Units or Treasury 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, with respect to such lost
or mutilated Certificate a new Certificate on or after the Business Day immediately preceding the
earliest of any Early Settlement Date, any Fundamental Change Early Settlement Date, 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 (including upon any Cash Settlement) or an
Early Settlement Date or a Fundamental Change Early Settlement Date with respect to such
lost, stolen, destroyed or mutilated Certificate has occurred, deliver the shares of Common
Stock issuable in respect of the Purchase Contracts forming a part of the Units evidenced by
such Certificate; and




          (ii) if a Termination Event, Fundamental Change Early Settlement or an Early Settlement
with respect to such lost or mutilated Certificate shall have occurred prior to the Purchase
Contract Settlement Date or a Cash Settlement shall have occurred, transfer the Debentures,
the Treasury Securities or the Applicable Ownership Interests in the Treasury Portfolio, as
the case may be, underlying such Certificate, in each case subject to the applicable
conditions and in accordance with the applicable provisions of Section 3.15 and Article 5
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 fees and expenses
(including, without limitation, the fees and expenses of the Purchase Contract Agent) connected
therewith.



     Every new Certificate issued pursuant to this Section in lieu of any destroyed, lost or stolen
Certificate shall constitute an original additional contractual obligation of the Company and of
the Holder in respect of the Units evidenced thereby, whether or not the destroyed, lost or stolen
Certificate (and the Units 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.



25









 





     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 Units evidenced thereby for purposes of (subject to any applicable record date)
any payment or distribution with respect to the Applicable Ownership Interests in Debentures, or on
the Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (ii) of the
definition of such term), as applicable, payment of Contract Adjustment Payments and performance of
the Purchase Contracts and for all other purposes whatsoever in connection with such Units, whether
or not such payment, distribution, or performance 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 the Depositary (or its nominee), as a Holder, with respect to such
Global Certificate, or impair, as between such Depositary and the related Beneficial Owner, the
operation of customary practices governing the exercise of rights of the Depositary (or its
nominee) as Holder of such Global Certificate. None of the Company, the Purchase Contract Agent or
any agent of the Company or the Purchase Contract Agent will have any responsibility or liability
for any aspect of the records relating to or payments made on account of beneficial ownership
interests of a Global Certificate or maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.



     Section 3.12 Cancellation. All Certificates surrendered for delivery of shares of Common
Stock on or after the Purchase Contract Settlement Date or in connection with an Early Settlement
or a Fundamental Change Early Settlement or for delivery of the Debentures underlying the
Applicable Ownership Interests in Debentures, the Applicable Ownership Interests in the Treasury
Portfolio or Treasury Securities, as the case may be, after the occurrence of a Termination Event
or pursuant to a Cash Settlement, an Early Settlement or a Fundamental Change Early Settlement, a
Collateral Substitution, or upon the registration of transfer or exchange of a Unit, shall, if
surrendered to any Person other than the Purchase Contract Agent, be delivered to the Purchase
Contract Agent along with appropriate written instructions regarding the cancellation thereof and,
if not already cancelled, shall be promptly cancelled by it. The Company may at any time deliver
to the Purchase Contract Agent for cancellation any Certificates previously authenticated, executed
and delivered hereunder that the Company may have acquired in any manner whatsoever, and all
Certificates so delivered shall, upon an Issuer Order, be promptly cancelled by the 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
3.12, except as expressly permitted by this Agreement. All cancelled Certificates held by the
Purchase Contract Agent shall be disposed of in accordance with its customary practices.



     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 Units by Substitution of Treasury Securities. (a) Unless
the Pledged Applicable Ownership Interests in the Treasury Portfolio have replaced the Pledged
Applicable Ownership Interests in Debentures as a component of the Corporate Units as a result of a
Special Event Redemption, and subject to the conditions set forth in this Agreement, and subject to
the limitations on a Collateral Substitution in connection with an Optional Remarketing as set
forth under Section 5.02 below, a Holder of Corporate Units may, at any time from and after the
date of this Agreement and prior to 5:00 p.m. (New York City time) on the second Business Day
immediately preceding the first day of the Final



26









 







Remarketing Period, effect a Collateral Substitution and separate the Debentures underlying
the Pledged Applicable Ownership Interests in Debentures in respect of such Holder’s Corporate
Units by substituting for such Pledged Applicable Ownership Interests in Debentures, Treasury
Securities in an aggregate principal amount at maturity equal to the aggregate principal amount of
the Debentures underlying the Pledged Applicable Ownership Interests in Debentures; provided that
Holders may make Collateral Substitutions only in integral multiples of 20 Corporate Units. In no
event may a Holder of Corporate Units effect a Collateral Substitution following a Successful
Optional Remarketing. To effect such substitution, the Holder must:




          (1) Transfer to the Collateral Agent, for credit to the Collateral Account,
Treasury Securities or security entitlements with respect thereto having a Value
equal to the aggregate principal amount of the Debentures underlying the Pledged
Applicable Ownership Interests in Debentures for which such Collateral Substitution
is made; and




          (2) Transfer the related Corporate Units to the Purchase Contract Agent
accompanied by a notice to the Purchase Contract Agent, substantially in the form of
Exhibit C hereto, whereupon the Purchase Contract Agent shall promptly provide an
instruction to such effect to the Collateral Agent, substantially in the form of
Exhibit F hereto.


Upon confirmation that the Treasury Securities described in clause (1) above or security
entitlements with respect thereto have been credited to the Collateral Account and receipt of the
instruction to the Collateral Agent described in clause (2) above, the Collateral Agent shall
release such Pledged Applicable Ownership Interests in Debentures from the Pledge and instruct the
Securities Intermediary by a notice, substantially in the form of Exhibit G hereto, to Transfer the
Debentures underlying such Pledged Applicable Ownership Interests in Debentures to the Purchase
Contract Agent for distribution to such Holder, free and clear of the Pledge created hereby.




     Upon credit to the Collateral Account of Treasury Securities or security entitlements with
respect thereto delivered by a Holder of Corporate Units and receipt of the related instruction
from the Collateral Agent, the Securities Intermediary shall promptly Transfer the Debentures
underlying the appropriate Pledged Applicable Ownership Interests in Debentures to the Purchase
Contract Agent for distribution to such Holder, free and clear of the Pledge created hereby.



     Upon receipt of the Debentures underlying such Pledged Applicable Ownership Interests in
Debentures, the Purchase Contract Agent shall promptly:




          (i) cancel the related Corporate Units;




          (ii) Transfer the Debentures to the Holder; and




          (iii) deliver Treasury Units in book-entry form, or if applicable, authenticate,
execute on behalf of such Holder and deliver Treasury Units in the form of a Treasury Units
Certificate executed by the Company in accordance with Section 3.03 evidencing the same
number of Purchase Contracts as were evidenced by the cancelled Corporate Units.



     Holders who elect to separate the Debentures by substituting Treasury Securities for
Applicable Ownership Interest in Debentures shall be responsible for any fees or expenses
(including, without limitation, fees and expenses payable to the Collateral Agent) in respect of
the substitution, and neither the Company nor the Purchase Contract Agent shall be responsible for
any such fees or expenses.



27









 





          (b) If Applicable Ownership Interests in the Treasury Portfolio have replaced Applicable
Ownership Interests in Debentures as a component of the Corporate Units as a result of a Special
Event Redemption, and subject to the conditions set forth in this Agreement, a Holder of Corporate
Units may, at any time from the Special Event Redemption Date and prior to 5:00 p.m. (New York City
time) on the second Business Day immediately preceding the Purchase Contract Settlement Date,
substitute Treasury Securities for the Pledged Applicable Ownership Interests in the Treasury
Portfolio included in such Corporate Units, but only in integral multiples of [· ] Corporate
Units. In such an event, the Holder shall Transfer Treasury Securities having an aggregate
principal amount at maturity equal to the aggregate Stated Amount of the Purchase Contracts
constituting a part of the Corporate Units for which Collateral Substitution is being made to the
Securities Intermediary, for credit to the Collateral Account, and the Purchase Contract Agent,
Collateral Agent and Securities Intermediary shall effect a Collateral Substitution for the
appropriate Pledged Applicable Ownership Interests in the Treasury Portfolio in the manner set
forth in clause (a) above.




          (c) In the event a Holder making a Collateral Substitution pursuant to this Section 3.13 fails
to effect a book-entry transfer of the Corporate Units or fails to deliver Corporate Units
Certificates to the Purchase Contract Agent after depositing Treasury Securities with the
Securities Intermediary, any distributions on the Debentures underlying the Applicable Ownership
Interests in Debentures, or with respect to the Applicable Ownership Interests in the Treasury
Portfolio, in each case constituting a part of such Corporate Units, shall be held in the name of
the Purchase Contract Agent or its nominee in trust for the benefit of such Holder, until such
Corporate Units are so transferred or the Corporate Units Certificate is so delivered, as the case
may be, or such Holder provides evidence satisfactory to the Company and the Purchase Contract
Agent that such Corporate Units Certificate has been destroyed, lost or stolen, together with any
indemnity that may be required by the Purchase Contract Agent and the Company.




          (d) Except as described in Section 5.03 or in this Section 3.13 or in connection with a Cash
Settlement, an Early Settlement, a Fundamental Change Early Settlement or a Termination Event, for
so long as the Purchase Contract underlying a Corporate Unit remains in effect, such Corporate
Units shall not be separable into its constituent parts, and the rights and obligations of the
Holder in respect of the Applicable Ownership Interests in Debentures or Applicable Ownership
Interests in the Treasury Portfolio, as the case may be, and the Purchase Contract comprising such
Corporate Units may be acquired, and may be transferred and exchanged, only as a Corporate Unit.




     Section 3.14 Recreation of Corporate Units. (a) Unless the Pledged Applicable Ownership
Interests in the Treasury Portfolio have replaced the Pledged Applicable Ownership Interests in
Debentures as a component of the Corporate Units as a result of a Special Event Redemption, and
subject to the conditions set forth in this Agreement, and subject to the limitations on a
Collateral Substitution in connection with an Optional Remarketing, as set forth in Section 5.02
below, a Holder of Treasury Units may effect a Collateral Substitution and recreate Corporate Units
at any time from and after the date of this Agreement and prior to 5:00 p.m. (New York City time)
on the second Business Day immediately preceding the first day of the Final Remarketing Period;
provided that Holders of Treasury Units may only recreate Corporate Units in integral multiples of
20 Treasury Units. In no event may a Holder of Treasury Units effect a Collateral Substitution
following a Successful Optional Remarketing. To recreate Corporate Units, the Holder must:




          (1) Transfer to the Collateral Agent for credit to the Collateral Account
Debentures or security entitlements with respect thereto having an aggregate
principal amount equal to the Value of the Pledged Treasury Securities to be
released; and



28









 






          (2) Transfer the related Treasury Units to the Purchase Contract Agent
accompanied by a notice to the Purchase Contract Agent, substantially in the form of
Exhibit C hereto, whereupon the Purchase Contract Agent shall promptly provide an
instruction to such effect to the Collateral Agent, substantially in the form of
Exhibit H hereto.


Upon confirmation that the Debentures described in clause (1) above or security entitlements with
respect thereto have been credited to the Collateral Account and receipt of the instruction from
the Purchase Contract Agent described in clause (2) above, the Collateral Agent shall promptly
release such Pledged Treasury Securities from the Pledge and shall promptly instruct the Securities
Intermediary by a notice, substantially in the form of Exhibit I hereto, to Transfer such Pledged
Treasury Securities to the Purchase Contract Agent for distribution to such Holder, free and clear
of the Pledge created hereby.




     Upon credit to the Collateral Account of Debentures or security entitlements with respect
thereto delivered by a Holder of Treasury Units and receipt of the related instruction from the
Collateral Agent, the Securities Intermediary shall promptly Transfer the Pledged Treasury
Securities to the Purchase Contract Agent for distribution to such Holder, free and clear of the
Pledge created hereby.



     Upon receipt of such Treasury Securities, the Purchase Contract Agent shall promptly:




          (i) cancel the related Treasury Units;




          (ii) Transfer the Treasury Securities to the Holder; and




          (iii) deliver Corporate Units in book-entry form or, if applicable, authenticate,
execute on behalf of such Holder and deliver Corporate Units in the form of a Corporate
Units Certificate executed by the Company in accordance with Section 3.03 evidencing the
same number of Purchase Contracts as were evidenced by the cancelled Treasury Units.



     Holders who elect to recreate Corporate Units shall be responsible for any fees or expenses
(including, without limitation, fees and expenses payable to the Collateral Agent), in respect of
the recreation, and neither the Company nor the Purchase Contract Agent shall be responsible for
any such fees or expenses.



          (b) If Applicable Ownership Interests in the Treasury Portfolio have replaced Applicable
Ownership Interests in Debentures as a component of the Corporate Units as a result of a Special
Event Redemption, and subject to the conditions set forth in this Agreement, a Holder of Treasury
Units may at any time from and after the Special Event Redemption Date and prior to 5:00 p.m. (New
York City time) on the second Business Day immediately preceding the Purchase Contract Settlement
Date, substitute the Pledged Applicable Ownership Interests in the Treasury Portfolio for Treasury
Securities included in such Treasury Units, but only in multiples of [· ] Treasury Units. In
such an event, the Holder shall Transfer Applicable Ownership Interests in the Treasury Portfolio
having a Value equal to the aggregate Value of the Treasury Securities for which substitution is
being made to the Securities Intermediary, for credit to the Collateral Account, and the Purchase
Contract Agent, Collateral Agent and Securities Intermediary shall effect a Collateral Substitution
and release the Pledged Treasury Securities from the Pledge in the manner set forth in clause (a)
above.




          (c) Except as provided in Section 5.03 or in this Section 3.14 or in connection with a Cash
Settlement, an Early Settlement, a Fundamental Change Early Settlement or a Termination Event, for
so long as the Purchase Contract underlying a Treasury Unit remains in effect, such Treasury Unit
shall not be separable into its constituent parts and the rights and obligations of the Holder of
such




29









 







Treasury Unit in respect of the interest in the Treasury Security and the Purchase Contract
comprising such Treasury Unit may be acquired, and may be transferred and exchanged, only as a
Treasury Unit.




     Section 3.15 Transfer of Collateral Upon Occurrence of Termination Event. (a) Upon receipt
by the Collateral Agent of written notice pursuant to Section 5.07 hereof from the Company or the
Purchase Contract Agent that a Termination Event has occurred, the Collateral Agent shall promptly
release all Collateral from the Pledge and shall promptly instruct the Securities Intermediary to
Transfer:




          (i) any Debentures underlying Pledged Applicable Ownership Interests in Debentures or
security entitlements with respect thereto or Pledged Applicable Ownership Interests in the
Treasury Portfolio;




          (ii) any Pledged Treasury Securities;




          (iii) any payments made by Holders (or the Permitted Investments of such payments)
pursuant to Section 5.03 hereof; and




          (iv) any Proceeds and all other payments the Collateral Agent receives in respect of
the foregoing,


to the Purchase Contract Agent for the benefit of the Holders for distribution to such Holders, in
accordance with their respective interests, free and clear of the Pledge created hereby; provided,
however, if any Holder or Beneficial Owner shall be entitled to receive Debentures in an aggregate
principal amount of less than $1,000, or greater than $1,000 but not in an integral multiple of
$1,000, the Purchase Contract Agent shall request, on behalf of such Holder or Beneficial Owner,
pursuant to the Indenture that the Company issue Debentures in denominations of $50, or integral
multiples thereof, in exchange for Debentures in denominations of $1,000 or integral multiples
thereof; and provided further, if any Holder shall be entitled to receive, with respect to its
Pledged Applicable Ownership Interests in the Treasury Portfolio or its Pledged Treasury
Securities, any securities having a principal amount at maturity of less than $1,000, the Purchase
Contract Agent shall dispose of such Pledged Applicable Ownership Interests in the Treasury
Portfolio or Pledged Treasury Securities for cash and deliver to such Holder cash in lieu of
delivering the Pledged Applicable Ownership Interests in the Treasury Portfolio or Pledged Treasury
Securities, as the case may be.




          (b) Notwithstanding anything to the contrary in clause (a) of this Section 3.15, if such
Termination Event shall result from the Company’s becoming a debtor under the Bankruptcy Code, and
if the Collateral Agent shall for any reason fail promptly to effectuate the release and Transfer
of all Debentures underlying Pledged Applicable Ownership Interests in Debentures, Pledged
Applicable Ownership Interests in the Treasury Portfolio, Pledged Treasury Securities and payments
by Holders (or the Permitted Investments of such payments) pursuant to Section 5.03 and Proceeds
and all other payments received by the Collateral Agent in respect of the foregoing, as the case
may be, as provided by this Section 3.15, the Purchase Contract Agent shall use its best efforts to
obtain an opinion of a nationally recognized law firm to the effect that, notwithstanding the
Company’s being the debtor in such a bankruptcy case, the Collateral Agent will not be prohibited
from releasing or Transferring the Collateral as provided in this Section 3.15, and shall deliver
or cause to be delivered such opinion to the Collateral Agent within ten days after the occurrence
of such Termination Event, and if (A) the Purchase Contract Agent shall be unable to obtain such
opinion within ten days after the occurrence of such Termination Event or (B) the Collateral Agent
shall continue, after delivery of such opinion, to refuse to effectuate the release and Transfer of
all Debentures underlying Pledged Applicable Ownership Interests in Debentures, Pledged Applicable
Ownership Interests in the Treasury Portfolio, Pledged Treasury Securities and the payments by
Holders (or the Permitted Investments of such payments) pursuant to




30









 







Section 5.03 hereof and Proceeds and all other payments received by the Collateral Agent in
respect of the foregoing, as the case may be, as provided in this Section 3.15, then the Purchase
Contract Agent shall within fifteen days after the occurrence of such Termination Event commence an
action or proceeding in the court having jurisdiction of the Company’s case under the Bankruptcy
Code seeking an order requiring the Collateral Agent to effectuate the release and transfer of all
Debentures underlying Pledged Applicable Ownership Interests in Debentures, Pledged Applicable
Ownership Interest in the Treasury Portfolio, Pledged Treasury Securities and the payments by
Holders (or the Permitted Investments of such payments) pursuant to Section 5.03 hereof and
Proceeds and all other payments received by the Collateral Agent in respect of the foregoing, or as
the case may be, as provided by this Section 3.15.




          (c) Upon the occurrence of a Termination Event and the Transfer to the Purchase Contract Agent
of the Debentures underlying Pledged Applicable Ownership Interests in Debentures, the appropriate
Pledged Applicable Ownership Interests in the Treasury Portfolio or the Pledged Treasury
Securities, as the case may be, pursuant to Section 3.15, the Purchase Contract Agent shall request
transfer instructions with respect to such Debentures, Applicable Ownership Interests in the
Treasury Portfolio or Pledged 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 Security Register.




          (d) Upon book-entry transfer of the Corporate Units or the Treasury Units or delivery of a
Corporate Units Certificate or Treasury Units Certificate to the Purchase Contract Agent with such
transfer instructions, the Purchase Contract Agent shall transfer the Debentures underlying Pledged
Applicable Ownership Interests in Debentures, the Pledged Applicable Ownership Interests in the
Treasury Portfolio or Pledged Treasury Securities, as the case may be, underlying such Corporate
Units or Treasury Units, as the case may be, to such Holder by book-entry transfer, or other
appropriate procedures, in accordance with such instructions and, in the case of the Debentures
underlying Pledged Applicable Ownership Interests in Debentures, in accordance with the terms of
the Indenture. In the event a Holder of Corporate Units or Treasury Units fails to effect such
transfer or delivery, the Debentures underlying Pledged Applicable Ownership Interests in
Debentures, the Pledged Applicable Ownership Interests in the Treasury Portfolio or Pledged
Treasury Securities, as the case may be, underlying such Corporate Units of Treasury 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 to occur of:





          (i) the transfer of such Corporate Units or Treasury Units or surrender of the
Corporate Units Certificate or Treasury Units Certificate or the receipt by the Company and
the Purchase Contract Agent from such Holder of satisfactory evidence that such Corporate
Units Certificate or Treasury 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 by the applicable law governing
abandoned property in the state in which the Purchase Contract Agent holds such property.



     Section 3.16 No Consent to Assumption. Each Holder of a Unit, 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 a debtor
under the Bankruptcy Code or subject to other similar state or Federal law providing for
reorganization or liquidation.



31









 





     Section 3.17 Substitutions. Whenever a Holder has the right to substitute Treasury
Securities, Debentures underlying Applicable Ownership Interests in Debentures or the Applicable
Ownership Interests in the Treasury Portfolio (as defined in clause (i) of the definition of such
term), as the case may be, or security entitlements for any of them for financial assets held in
the Collateral Account, such substitution shall not constitute a novation of the security interest
created hereby.



ARTICLE 4




THE DEBENTURES




     Section 4.01 Interest Payments; Rights to Interest Payments Preserved. (a) The Collateral
Agent (if the Debentures underlying Pledged Applicable Ownership Interests in Debentures are in the
name of the Collateral Agent) shall transfer all income and distributions received by it on account
of the Debentures underlying Pledged Applicable Ownership Interests in Debentures, the Pledged
Applicable Ownership Interests in the Treasury Portfolio or Permitted Investments from time to time
held in the Collateral Account (ABA No. [•], [•], Account No. [•], Re: Archer-Daniels-Midland
Company Equity Units) to the Purchase Contract Agent for distribution to the applicable Holders as
provided in this Agreement and the Purchase Contracts.



          (b) Any payment on any Debenture underlying Applicable Ownership Interests in Debentures or
any distribution on any Applicable Ownership Interests in the Treasury Portfolio (as specified in
clause (ii) of the definition of such term), as the case may be, which is paid on any Payment Date
shall, subject to receipt thereof by the Purchase Contract Agent from the Company or from the
Collateral Agent as provided in Section 4.01(a) above, be paid to the Person in whose name the
Corporate Units Certificate (or one or more Predecessor Corporate Units Certificates) of which such
Applicable Ownership Interest in Debentures or Applicable Ownership Interests in the Treasury
Portfolio, as the case may be, forms a part is registered at the close of business on the Record
Date for such Payment Date.




          (c) Each Corporate Units Certificate evidencing Applicable Ownership Interests in Debentures
or Applicable Ownership Interests in the Treasury Portfolio delivered under this Agreement upon
registration of transfer of or in exchange for or in lieu of any other Corporate Units Certificate
shall carry the right to accrued and unpaid interest or distributions which were carried by
Applicable Ownership Interests in Debentures or Applicable Ownership Interests in the Treasury
Portfolio underlying such other Corporate Units Certificate.




          (d) In the case of any Corporate Unit with respect to which (1) Cash Settlement of the
underlying Purchase Contract is properly effected pursuant to Section 5.03(a) hereof, (2) Early
Settlement of the underlying Purchase Contract is properly effected pursuant to Section 5.08
hereof, (3) Fundamental Change Early Settlement of the underlying Purchase Contract is properly
effected pursuant to Section 5.05(b)(ii) hereof or (4) a Collateral Substitution is properly
effected pursuant to Section 3.13, in each case on a date that is after any Record Date and prior
to or on the next succeeding Payment Date, interest in respect of the Debentures underlying
Applicable Ownership Interests in Debentures or distributions on Applicable Ownership Interests in
the Treasury Portfolio, as the case may be, underlying such Corporate Unit otherwise payable on
such Payment Date shall be payable on such Payment Date notwithstanding such Cash Settlement, Early
Settlement, Fundamental Change Early Settlement or Collateral Substitution, and such payment or
distributions shall, subject to receipt thereof by the Purchase Contract Agent, be payable to the
Person in whose name the Corporate Units Certificate (or one or more Predecessor Corporate Units
Certificates) were registered at the close of business on the Record Date.




          (e) Except as otherwise expressly provided in Section 4.01(d) hereof, in the case of any
Corporate Unit with respect to which Cash Settlement, Early Settlement or Fundamental Change




32









 







Early Settlement of the component Purchase Contract is properly effected, or with respect to
which a Collateral Substitution has been effected, payments attributable to the Debentures
underlying Applicable Ownership Interests in Debentures or distributions on Applicable Ownership
Interests in the Treasury Portfolio, as the case may be, that would otherwise be payable or made
after the Purchase Contract Settlement Date, Early Settlement Date, Fundamental Change Early
Settlement Date or the date of the Collateral Substitution, as the case may be, shall not be
payable hereunder to the Holder of such Corporate Units; provided, however, that to the extent that
such Holder continues to hold Separate Debentures or Applicable Ownership Interests in the Treasury
Portfolio that formerly comprised a part of such Holder’s Corporate Units, such Holder shall be
entitled to receive interest on such Separate Debentures or distributions on such Applicable
Ownership Interests in the Treasury Portfolio.




     Section 4.02 Payments Prior to or on Purchase Contract Settlement Date. (a) Subject to the
provisions of Section 5.03(a), Section 5.05(b)(ii) and Section 5.08, and except as provided in
Section 4.02(b) below, if no Termination Event shall have occurred, all payments received by the
Securities Intermediary in respect of (1) the principal amount of the Debentures underlying Pledged
Applicable Ownership Interests in Debentures, (2) the Pledged Applicable Ownership Interests in the
Treasury Portfolio (as specified in clause (i) of the definition thereof) and (3) the Pledged
Treasury Securities, shall be credited to the Collateral Account, to be invested in Permitted
Investments until the Purchase Contract Settlement Date, and transferred to the Company on the
Purchase Contract Settlement Date as provided in Section 5.03 hereof. Any balance remaining in the
Collateral Account shall be released from the Pledge and transferred to the Purchase Contract Agent
for the benefit of the applicable Holders for distribution to such Holders in accordance with their
respective interests, free and clear of the Pledge created hereby. The Company shall instruct the
Collateral Agent in writing as to the specific Permitted Investments in which any payments made
under this Section 4.02 shall be invested, provided, however, that if the Company fails to deliver
such instructions by 10:30 a.m. (New York City time) on the day such payments are received by the
Securities Intermediary, the Collateral Agent shall instruct the Securities Intermediary to invest
such payments in the Permitted Investments of the type described in clause (6) of the definition of
Permitted Investments, which have been designated by the Company in writing from time to time in a
standing instruction to the Securities Intermediary which shall be effective until revoked or
superseded. In no event shall the Collateral Agent be liable for the selection of Permitted
Investments or for investment losses incurred thereon. The Collateral Agent shall have no
liability in respect of losses incurred as a result of the failure of the Company to provide timely
written investment direction.



          (b) All payments received by the Securities Intermediary in respect of (1) the Debentures, (2)
the Applicable Ownership Interests in the Treasury Portfolio and (3) the Treasury Securities or
security entitlements with respect thereto, that, in each case, have been released from the Pledge
hereunder shall be transferred to the Purchase Contract Agent for the benefit of the applicable
Holders for distribution to such Holders in accordance with their respective interests.




     Section 4.03 Notice and Voting. (a) Subject to Section 4.03(b) hereof, the Purchase Contract
Agent may exercise, or refrain from exercising, any and all voting and other consensual rights
pertaining to the Debentures underlying Pledged Applicable Ownership Interests in Debentures or any
part thereof for any purpose not inconsistent with the terms of this Agreement; provided that the
Purchase Contract Agent shall not exercise or shall not refrain from exercising such right, as the
case may be, if, in the judgment of the Purchase Contract Agent, such action would impair or
otherwise have a material adverse effect on the value of all or any of the Debentures underlying
Pledged Applicable Ownership Interests in Debentures; and provided further that the Purchase
Contract Agent shall give the Company and the Collateral Agent at least five Business Days’ prior
written notice of the manner in which it intends to exercise, or its reasons for refraining from
exercising, any such right. Upon receipt of any notices and other communications in respect of any
Debentures underlying Pledged Applicable Ownership Interests in Debentures, including either notice
of any meeting at which holders of the Debentures are entitled to



33









 







vote or the solicitation of consents, waivers or proxies of holders of the Debentures, the
Collateral Agent shall use reasonable efforts to send promptly to the Purchase Contract Agent such
notice or communication, and as soon as reasonably practicable after receipt of a written request
therefor from the Purchase Contract Agent, to execute and deliver to the Purchase Contract Agent
such proxies and other instruments in respect of such Debentures underlying Pledged Applicable
Ownership Interests in Debentures (in form and substance satisfactory to the Collateral Agent) as
are prepared by the Company and delivered to the Purchase Contract Agent with respect to the
Debentures underlying Pledged Applicable Ownership Interests in Debentures.



          (b) Upon receipt of notice of any meeting at which holders of Debentures are entitled to vote
or upon any solicitation of consents, waivers or proxies of holders of Debentures, the Purchase
Contract Agent shall, as soon as practicable thereafter, mail, first class, postage pre-paid, to
the Holders of Corporate 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 set by
the Company for determining the holders of Debentures entitled to vote) shall be entitled to
instruct the Purchase Contract Agent as to the exercise of the voting rights pertaining to
the Debentures underlying the Applicable Ownership Interests in Debentures that are a
component of their Corporate Units; and




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


Upon the written request of the Holders of Corporate 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 aggregate principal amount of Debentures (rounded down to
the nearest integral multiple of $1,000) as to which any particular voting instructions are
received. In the absence of specific instructions from the Holder of Corporate Units, the Purchase
Contract Agent shall abstain from voting the Debentures underlying Applicable Ownership Interests
in Debentures that are a component of such Corporate Units. The Company hereby agrees, if
applicable, to solicit Holders of Corporate Units to timely instruct the Purchase Contract Agent as
to the exercise of such voting rights in order to enable the Purchase Contract Agent to vote such
Debentures.




          (c) The Holders of Corporate Units and the Holders of Treasury Units shall have no voting or
other rights in respect of Common Stock.




     Section 4.04 Special Event Redemption. (a) If the Company elects to redeem the Debentures
following the occurrence of a Special Event as permitted by the Indenture, it shall notify the
Collateral Agent in writing that a Special Event has occurred and that it intends to redeem the
Debentures on the Special Event Redemption Date. Upon the occurrence of such Special Event
Redemption while Debentures are still credited to the Collateral Account, the Collateral Agent
shall, and is hereby authorized to, instruct the Securities Intermediary to present the Debentures
underlying Pledged Applicable Ownership Interests in Debentures for payment as may be required by
their respective terms and to direct the Indenture Trustee to remit the Redemption Price to the
Securities Intermediary for credit to the Collateral Account, on or prior to 12:30 p.m., New York
City time, on such Special Event Redemption Date, by wire transfer of immediately available funds.
Upon receipt of such funds by the Securities Intermediary and the credit thereof to the Collateral
Account, the Debentures underlying Pledged Applicable Ownership Interests in Debentures shall be
released from the Collateral Account and



34









 







promptly transferred to the Company. Upon the crediting of such funds to the Collateral
Account, the Collateral Agent, at the written direction of the Company, shall instruct the
Securities Intermediary to (i) apply an amount equal to the Redemption Amount of such funds to
purchase the Treasury Portfolio from the Quotation Agent, (ii) credit to the Collateral Account the
Applicable Ownership Interests in the Treasury Portfolio and (iii) promptly remit the remaining
portion of such funds to the Purchase Contract Agent for payment to the Holders of Corporate Units,
in accordance with their respective interests.



          (b) Upon the occurrence of a Special Event Redemption, (i) the Applicable Ownership Interests
in the Treasury Portfolio (as specified in clause (i) of the definition of such term) will be
substituted as Collateral for the Pledged Applicable Ownership Interests in Debentures and will be
held by the Collateral Agent in accordance with the terms hereof to secure the Obligation of each
Holder of Corporate Units, (ii) the Holders of Corporate Units and the Collateral Agent shall have
such rights and obligations, and the Collateral Agent shall have such security interest, with
respect to such Applicable Ownership Interests in the Treasury Portfolio (as specified in clause
(i) of the definition of such term) as the Holders of Corporate Units and the Collateral Agent had
in respect of the Pledged Applicable Ownership Interests in Debentures, subject to the Pledge
thereof, and (iii) any reference in this Agreement to Applicable Ownership Interests in Debentures
shall be deemed to be a reference to such Applicable Ownership Interests in the Treasury Portfolio
(as specified in clause (i) of the definition of such term). The Company may cause to be made in
any Corporate Units Certificates thereafter to be issued such change in phraseology and form (but
not in substance) as may be appropriate to reflect the substitution of the Applicable Ownership
Interests in the Treasury Portfolio (as specified in clause (i) of the definition of such term) for
Applicable Ownership Interests in Debentures as Collateral.




     Section 4.05 Payments to Purchase Contract Agent. The Securities Intermediary shall use
commercially reasonable efforts to deliver any payments required to be made by it to the Purchase
Contract Agent hereunder to the account designated by the Purchase Contract Agent for such purpose
not later than 12:00 p.m. (New York City time) on the Business Day such payment is received by the
Securities Intermediary; provided, however, that if such payment is received on a day that is not a
Business Day or after 11:00 a.m. (New York City time) on a Business Day, then the Securities
Intermediary shall use commercially reasonable efforts to deliver such payment to the Purchase
Contract Agent no later than 10:30 a.m. (New York City time) on the next succeeding Business Day.



     Section 4.06 Payments Held in Trust. If the Purchase Contract Agent or any Holder shall
receive any payments on account of financial assets credited to the Collateral Account (other than
interest on the Debentures or distributions on the Applicable Ownership Interests in the Treasury
Portfolio (as specified in clause (ii) of the definition thereof)) and not released therefrom in
accordance with this Agreement, the Purchase Contract Agent or such Holder shall hold such payments
as trustee of an express trust for the benefit of the Company and, upon receipt of an Officers’
Certificate of the Company so directing, promptly deliver such payments to the Securities
Intermediary for credit to the Collateral Account or to the Company for application to the
Obligations of the applicable Holder or Holders, and the Purchase Contract Agent and Holders shall
acquire no right, title or interest in any such payments of principal amounts so received. The
Purchase Contract Agent shall have no liability under this Section 4.06 unless and until it has
been notified in writing that such payment was delivered to it erroneously and shall have no
liability for any action taken, suffered or omitted to be taken prior to its receipt of such
notice.



ARTICLE 5




THE PURCHASE CONTRACTS




35









 





     Section 5.01 Purchase of Shares of Common Stock. (a) Each Purchase Contract shall obligate
the Holder of the related Unit 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 (subject to Section 5.09) equal to the Settlement Rate unless an Early Settlement, a
Fundamental Change Early Settlement or a Termination Event with respect to the Units of which such
Purchase Contract is a part shall have occurred. The “Settlement Rate” is equal to:




          (i)
If the Applicable Market Value is equal to or greater than
$[•] (the
“Threshold Appreciation Price”), the Settlement Rate
will be [•] shares of Common
Stock (such Settlement Rate being referred to as the “Minimum Settlement Rate”);




          (ii) if the Applicable Market Value is less than the Threshold Appreciation Price but
greater than $[•] (the “Reference Price”), the Settlement Rate will be a number of
shares of Common Stock per Purchase Contract equal to the Stated Amount divided by the
Applicable Market Value, which is not subject to adjustment pursuant to Section
5.05(a)(vii); and




          (iii) if the Applicable Market Value is less than or equal to the Reference Price, the
Settlement Rate will be [•] shares of Common Stock, which is equal to the Stated
Amount divided by the Reference Price (such Settlement Rate being referred to as the
“Maximum Settlement Rate”);


in each case subject to adjustment as provided in Section 5.05 (and in each case rounded upward or
downward to the nearest 1/10,000th of a share).




     The “Applicable Market Value” means the average of the Closing Prices per share of Common
Stock on each Trading Day during the Observation Period; provided, however, that if the Company
enters into a Reorganization Event, the Applicable Market Value will mean the value of an Exchange
Property Unit. Following the occurrence of any such event, references herein to the purchase or
issuance of shares of Common Stock shall be construed to be references to settlement into Exchange
Property Units. For purposes of calculating the value of an Exchange Property Unit, (x) the value
of any common stock included in the Exchange Property Unit shall be determined using the average of
the Closing Price per share of such common stock on each Trading Day during the Observation Period
(adjusted as set forth under Section 5.05) and (y) the value of any other property, including
securities other than common stock included in the Exchange Property Unit, shall be the value of
such property on the first Trading Day of the Observation Period (as determined in good faith by
the Board of Directors, whose determination shall be conclusive and described in a Board
Resolution).



     The “Closing Price” per share of Common Stock on any date of determination means, on any date
of determination (1) the closing sale price (or, if no closing sale price is reported, the reported
last sale price) per share of Common Stock on the New York Stock Exchange, Inc. (the “NYSE”) on
such date or, if the Common Stock is not listed for trading on the NYSE on any such date, as
reported in the composite transactions for the principal United States securities exchange on which
the Common Stock is so listed, or if the Common Stock is not so listed, on a United States national
or regional securities exchange, or (2) 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, if such bid price referred to above 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 by the Company for
purposes of determining the Closing Price.



     A “Trading Day” means a day on which the Common Stock (i) is not suspended from trading on any
national or regional securities exchange or association or over-the-counter market at the close of



36









 







business and (ii) 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.



          (b) Each Holder of a Corporate Unit or a Treasury Unit, by its acceptance of such Unit:





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




          (ii) agrees to be bound by the terms and provisions of such Unit, including but not
limited to the terms and provisions of the Purchase Contract;




          (iii) covenants and agrees to perform its obligations under this Agreement and such
Purchase Contract for so long as such Holder remains a Holder of a Corporate Unit or a
Treasury Unit;




          (iv) consents to the provisions hereof;




          (v) irrevocably authorizes the Purchase Contract Agent to enter into and perform this
Agreement on its behalf and in its name as its attorney-in-fact; and




          (vi) consents to, and agrees to be bound by, the Pledge of such Holder’s right, title
and interest in and to the Collateral, including the Applicable Ownership Interests in
Debentures and the Applicable Ownership Interests in the Treasury Portfolio (as specified in
clause (i) of the definition of such term) or the Treasury Securities pursuant to this
Agreement, and the delivery of the Debentures underlying such Applicable Ownership Interests
in Debentures by the Purchase Contract Agent to the Collateral Agent.



          (c) Each Holder of a Corporate Unit or a Treasury Unit, by its acceptance thereof, further
covenants and agrees that to the extent and in the manner provided in Section 5.03 hereof, but
subject to the terms thereof, on the Purchase Contract Settlement Date, Proceeds of the Pledged
Applicable Ownership Interests in Debentures, the Pledged Applicable Ownership Interests in the
Treasury Portfolio or the Pledged Treasury Securities, as applicable, equal to the Purchase Price
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
Proceeds.




          (d) Upon registration of transfer of a Certificate, the transferee shall be bound (without the
necessity of any other action on the part of such transferee) by the terms of this Agreement and
the Purchase Contracts underlying such Certificate and the transferor shall be released from the
obligations under this Agreement and the Purchase Contracts underlying the Certificate so
transferred.



The Company covenants and agrees, and each Holder of a Certificate, by its acceptance thereof,
likewise covenants and agrees, to be bound by the provisions of this paragraph.




          (e) Promptly after the calculation of the Settlement Rate and the Applicable Market Value, the
Company shall give the Purchase Contract Agent notice thereof. All calculations and determinations
of the Settlement Rate and the Applicable Market Value shall be made by the Company or its agent
based on their good faith calculations, and the Purchase Contract Agent shall have no
responsibility with respect thereto.




37









 








     Section 5.02 Optional Remarketing.



          (a) Optional Remarketing. (i) Unless (1) a Termination Event has occurred, or (2) a
Special Event Redemption has occurred, the Company may engage the Remarketing Agent, pursuant to
the terms of the Remarketing Agreement, to remarket the aggregate Debentures underlying the
aggregate Applicable Ownership Interests in Debentures that are components of Corporate Units,
along with any Separate Debentures, the holders of which have elected to participate in such
remarketing pursuant to the Indenture, as supplemented by the Supplemental Indenture and clause (d)
below, on any date or dates selected by the Company during an Optional Remarketing Period (each
such date, an “Optional Remarketing Date”).





          (i) If the Company elects to conduct one or more Optional Remarketings during an
Optional Remarketing Period, (1) any Holder of Corporate Units who has not satisfied the
requirements to effect an Early Settlement in accordance with Section 5.08 below prior to
the second Business Day immediately prior to the first day of such Optional Remarketing
Period shall not be permitted to effect an Early Settlement from and including such second
Business Day immediately prior to the first day of such Optional Remarketing Period to and
including the third Business Day immediately following the last day of such Optional
Remarketing Period and (2) any Holder of Corporate Units or Treasury Units that has not
otherwise satisfied the requirements to effect a Collateral Substitution in accordance with
Sections 3.13 and 3.14 above to create Treasury Units or recreate Corporate Units, as
applicable, shall not be permitted to effect a Collateral Substitution from and including
such second Business Day immediately prior to the first day of such Optional Remarketing
Period to and including the third Business Day immediately following the last day of such
Optional Remarketing Period.




          (ii) If the Company elects to conduct an Optional Remarketing on an Optional
Remarketing Date, by [11:00 a.m.] (New York City time) on the Business Day immediately
preceding the first day of the related Optional Remarketing Period, the Purchase Contract
Agent shall notify in writing the Remarketing Agent of the aggregate principal amount of
Debentures underlying the Pledged Applicable Ownership Interests in Debentures that are a
part of the Corporate Units to be remarketed, and the Custodial Agent shall notify in
writing the Remarketing Agent of the aggregate principal amount of Separate Debentures (if
any) to be remarketed pursuant to clause (c)(ii) of Section 5.03 below. Pursuant to the
Remarketing Agreement, upon receipt of such notices from the Purchase Contract Agent and the
Custodial Agent, the Remarketing Agent will on each Optional Remarketing Date use its
reasonable efforts to remarket such Debentures at the applicable Remarketing Price. If the
Remarketing Agent is able to remarket such Debentures for at least such Remarketing Price (a
“Successful Optional Remarketing”), the Collateral Agent shall cause the Securities
Intermediary to transfer to the Remarketing Agent the remarketed Debentures underlying the
Pledged Applicable Ownership Interests in Debentures upon confirmation of deposit to the
Collateral Account of proceeds of such Successful Optional Remarketing attributable to such
Debentures, and the Custodial Agent shall transfer the remarketed Separate Debentures to the
Remarketing Agent upon confirmation of receipt of proceeds of such Successful Optional
Remarketing attributable to such Separate Debentures. Settlement shall occur on the
Remarketing Settlement Date. Upon deposit in the Collateral Account of such proceeds, the
Collateral Agent shall (1) instruct the Securities Intermediary to apply an amount equal to
the Treasury Portfolio Purchase Price to purchase the Treasury Portfolio from the Quotation
Agent, (2) credit to the Collateral Account the Applicable Ownership Interests in the
Treasury Portfolio, and (3) promptly remit any remaining portion of such proceeds to the
Purchase Contract Agent for payment to the Holders of Corporate Units, whereupon the
Purchase Contract Agent shall make such payment on the Remarketing Settlement Date to the
Holders pro rata in accordance with their respective interests. With respect to any



38









 







Separate Debentures remarketed, the Custodial Agent shall remit such proceeds of the
Successful Optional Remarketing received from the Remarketing Agent to Holders of such
Separate Debentures.




          (iii) Following the occurrence of a Successful Optional Remarketing, the Applicable
Ownership Interests in the Treasury Portfolio (as specified in clause (i) of such term) will
be substituted as Collateral for the Pledged Applicable Ownership Interests in Debentures
and will be held by the Collateral Agent in accordance with the terms hereof to secure the
Obligation of each Holder of Corporate Units, and the Holders of Corporate Units and the
Collateral Agent shall have such security interests, rights and obligations with respect to
the Applicable Ownership Interests in the Treasury Portfolio (as defined in clause (i) of
such term) as the Holder of Corporate Units and the Collateral Agent had in respect of the
Pledged Applicable Ownership Interests in Debentures, subject to the Pledge thereof. Any
reference in this Agreement or the Certificates to the Pledged Applicable Ownership
Interests in Debentures shall thereupon be deemed to be a reference to such Applicable
Ownership Interests in the Treasury Portfolio (as defined in clause (i) of such term). The
Company may cause to be made in any Corporate Units Certificates thereafter to be issued
such change in phraseology and form (but not in substance) as may be appropriate to reflect
the substitution of the Applicable Ownership Interests in the Treasury Portfolio (as defined
in clause (i) of such term) for the Pledged Applicable Ownership Interests in Debentures as
Collateral.




          (iv) If, in spite of its reasonable efforts, the Remarketing Agent cannot remarket the
Debentures as set forth above in any Optional Remarketing (other than to the Company) at a
price not less than the applicable Remarketing Price or a condition precedent set forth in
the Remarketing Agreement is not fulfilled, the Optional Remarketing will be deemed to have
failed (a “Failed Optional Remarketing”). Promptly after all Failed Optional Remarketings in
any Optional Remarketing Period, the Custodial Agent will return Separate Debentures to the
appropriate Holders.



     Section 5.03 Cash Settlement; Final Remarketing; Payment of Purchase Price. (a) Cash
Settlement. (i) Unless (1) a Termination Event has occurred, (2) a Holder effects an Early
Settlement or a Fundamental Change Early Settlement of the underlying Purchase Contract (3) a
Special Event Redemption has occurred prior to the second Business Day immediately preceding the
first day of the Final Remarketing Period or (4) a Successful Optional Remarketing has occurred,
each Holder of Corporate Units shall have the right to satisfy such Holder’s Obligations on the
Purchase Contract Settlement Date in cash. Each Holder of Corporate Units who intends to pay in
cash to satisfy such Holder’s Obligations under the Purchase Contract on the Purchase Contract
Settlement Date 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 (a “Cash Settlement”) the Purchase Price
for the 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
the first day of the Final Remarketing Period, but no earlier than the Company’s notice of a Final
Remarketing as set forth under clause (c)(i) below. Corporate Units Holders may only effect such a
Cash Settlement pursuant to this Section 5.03(a) in integral multiples of 20 Corporate Units.




          (ii) A Holder of a Corporate Unit who has so notified the Purchase Contract Agent of
his intention to effect a Cash Settlement in accordance with Section 5.03(a)(i) above shall
pay the Purchase Price to the Securities Intermediary for deposit in the Collateral Account
prior to 5:00 p.m. (New York City time) on the first Business Day immediately preceding the
first day of the Final Remarketing Period, in lawful money of the United States by certified
or cashiers



39









 







check or wire transfer in immediately available funds payable to or upon the order of
the Securities Intermediary.




          (iii) If a Holder of a Corporate Unit fails to notify the Purchase Contract Agent of
its intention to make a Cash Settlement in accordance with Section 5.03(a)(i), or does
notify the Purchase Contract Agent as provided in Section 5.03(a)(i) of its intention to pay
the Purchase Price in cash, but fails to make such payment as required by Section
5.03(a)(ii), such Holder shall be deemed to have consented to the disposition of the
Debentures underlying the Pledged Applicable Ownership Interests in Debentures pursuant to
any Remarketing occurring in the Final Remarketing Period as described in Section 5.03(b)
below.




          (iv) Promptly after 5:00 p.m. (New York City time) on the Business Day preceding the
first day of the Final Remarketing Period, the Purchase Contract Agent, based on notices
received by the Purchase Contract Agent pursuant to Section 5.03(a)(i) hereof and notice
from the Securities Intermediary regarding cash received by it prior to such time, shall
notify the Collateral Agent of the aggregate number of Debentures to be remarketed in any
Remarketing occurring in the Final Remarketing Period in a notice substantially in the form
of Exhibit J hereto.




          (v) Upon (1) receipt by the Collateral Agent of a notice from the Purchase Contract
Agent promptly after the receipt by the Purchase Contract Agent of a notice from a Holder of
Corporate Units that such Holder has elected, in accordance with Section 5.03(a)(i), to
effect a Cash Settlement and (2) the payment by such Holder of the Purchase Price in
accordance with Section 5.03(a)(ii) above, then the Collateral Agent shall:




          (A) instruct the Securities Intermediary promptly to invest any such Cash in
Permitted Investments consistent with the instructions of the Company as provided
for below in this Section 5.03(a)(v);




          (B) release from the Pledge the Debentures underlying the Applicable Ownership
Interest in Debentures related to the Corporate Units as to which such Holder has
effected a Cash Settlement; and




          (C) instruct the Securities Intermediary to Transfer all such Debentures to the
Purchase Contract Agent for distribution to such Holder, in each case free and clear
of the Pledge created hereby, whereupon the Purchase Contract Agent shall Transfer
such Debentures in accordance with written instructions provided by the Holder
thereof or, if no such instructions are given to the Purchase Contract Agent by the
Holder, the Purchase Contract Agent shall hold such Debentures, 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 relevant abandoned property laws of the state where such Debentures and interest
payments thereon, if any, are held.



     The Company shall instruct the Collateral Agent in writing as to the type of Permitted
Investments in which any such Cash shall be invested; provided, however, that if the Company fails
to deliver such written instructions by 10:30 a.m. (New York City time) on the day such Cash is
received by the Collateral Agent or to be reinvested by the Securities Intermediary, the Collateral
Agent shall instruct the Securities Intermediary to invest such Cash in the Permitted Investments
of the type described in clause (6) of the definition of Permitted Investments which have been
designated by the Company in writing from time to time in a standing instruction to the Collateral
Agent which shall be effective until revoked or superseded. In no event shall the Collateral Agent
or Securities Intermediary be liable for the



40









 







selection of Permitted Investments or for investment losses incurred thereon. The Collateral
Agent and Securities Intermediary shall have no liability in respect of losses incurred as a result
of the failure of the Company to provide timely written investment direction.



     Upon maturity of the Permitted Investments on the Purchase Contract Settlement Date, the
Collateral Agent shall, and is hereby authorized to, (A) instruct the Securities Intermediary to
remit to the Company on the Purchase Contract Settlement Date such portion of the proceeds of such
Permitted Investments as is equal to the aggregate Purchase Price under all Purchase Contracts in
respect of which Cash Settlement has been affected as provided in this Section 5.03 to the Company
on the Purchase Contract Settlement Date, and (B) release any amounts in excess of such amount
earned from such Permitted Investments to the Purchase Contract Agent for distribution to the
Holders who have effected Cash Settlement, pro rata in proportion to the amount paid by such
Holders under Section 5.03(a)(ii) above, as adjusted to reflect the period of time that each such
Holder’s cash was invested in such Permitted Investments.



          (b) Final Remarketing. (i) Unless a Special Event Redemption, a Successful Optional
Remarketing or a Termination Event has occurred prior to the first day of the Final Remarketing
Period, in order to dispose of the Debentures underlying Pledged Applicable Ownership Interests in
Debentures of any Holders of Corporate Units who have not notified the Purchase Contract Agent of
their intention to effect a Cash Settlement as provided in Section 5.03(a)(i) above, or who have so
notified the Purchase Contract Agent but failed to make such payment as required by Section
5.03(a)(ii) above, in each case along with any Separate Debentures, the holders of which have
elected to participate in a Final Remarketing pursuant to clause (c) below, the Company shall
engage the Remarketing Agent pursuant to the Remarketing Agreement to remarket such Debentures on
any date or dates selected by the Company during the Final Remarketing Period (each such date, a
“Final Remarketing Date”). The Purchase Contract Agent, based on the notices specified pursuant to
Section 5.03(a)(iv), shall notify the Remarketing Agent in writing, promptly after 5:00 p.m. (New
York City time) on the Business Day immediately preceding the first day of the Final Remarketing
Period, of the aggregate principal amount of Debentures attributable to the Pledged Applicable
Ownership Interests in Debentures that are to be remarketed. Concurrently, the Custodial Agent,
based on the notices specified in clause (c) below, will notify the Remarketing Agent in writing of
the aggregate principal amount of Separate Debentures to be remarketed in any Remarketing to occur
in the Final Remarketing Period. Upon receipt of notice from the Purchase Contract Agent as set
forth in this Section 5.03(b)(i) and notice of the Separate Debentures (if any) from the Custodial
Agent as set forth in this Section 5.03(b)(i), the Remarketing Agent shall, on the Remarketing Date
or Dates in the Final Remarketing Period, use reasonable efforts to remarket, as provided in the
Remarketing Agreement, such Debentures and such Separate Debentures at the applicable Remarketing
Price.





          (ii) If the Remarketing Agent is able to remarket such Debentures and Separate
Debentures (if any) for at least the Remarketing Price in any Final Remarketing (other than
to the Company) in accordance with the Remarketing Agreement (a “Successful Final
Remarketing”), the Collateral Agent shall cause the Securities Intermediary to transfer to
the Remarketing Agent the remarketed Debentures underlying the Pledged Applicable Ownership
Interests in Debentures upon confirmation of deposit to the Collateral Account of proceeds
of such Successful Final Remarketing attributable to such Debentures, and the Custodial
Agent shall transfer the remarketed Separate Debentures to the Remarketing Agent upon
confirmation of receipt of proceeds of such Successful Final Remarketing attributable to
such Separate Debentures. Settlement shall occur on the Remarketing Settlement Date. Upon
deposit in the Collateral Account of such proceeds, the Collateral Agent shall, on the
Purchase Contract Settlement Date, in consultation with the Purchase Contract Agent,
instruct the Securities Intermediary to remit a portion of such proceeds equal to the
aggregate principal amount of such



41









 







Debentures to satisfy in full the Obligations of Holders of Corporate Units to pay the
Purchase Price for the shares of Common Stock under the related Purchase Contracts, less the
amount of any accrued and unpaid Contract Adjustment Payments payable to such Holders, and
promptly remit the balance of such proceeds to the Purchase Contract Agent for payment to
the Holders of Corporate Units, whereupon the Purchase Contract Agent shall make such
payment on the Purchase Contract Settlement Date pro rata in accordance with their
respective interests. With respect to any Separate Debentures remarketed, the Custodial
Agent shall remit such proceeds of the Successful Final Remarketing received from the
Remarketing Agent pro rata to Holders of such Separate Debentures.




          (iii) If, in spite of its reasonable efforts, the Remarketing Agent cannot remarket the
Debentures at a price not less than the Remarketing Price (other than to the Company) or a
condition precedent set forth in the Remarketing Agreement is not fulfilled, the remarketing
will be deemed to have failed (a “Failed Final Remarketing”). Following a Failed Final
Remarketing, as of the Purchase Contract Settlement Date, each Holder of any Pledged
Applicable Ownership Interests in Debentures, unless such Holder has provided written notice
to the Purchase Contract Agent in substantially the form of Exhibit M hereto of its
intention to settle the related Purchase Contract with separate cash prior to 5:00 p.m. (New
York City time) on the second Business Day immediately preceding the Purchase Contract
Settlement Date and on or prior to 5:00 p.m. (New York City time) on the Business Day
immediately preceding the Purchase Contract Settlement Date delivered the Purchase Price to
the Securities Intermediary for deposit in the Collateral Account in lawful money of the
United States by certified or cashiers check or wire transfer in immediately available funds
payable to or upon the order of the Securities Intermediary (which settlement may only be
effected in integral multiples of 20 Corporate Units), shall be deemed to have exercised
such Holder’s Put Right with respect to the Debentures underlying such Pledged Applicable
Ownership Interests in Debentures and to have elected to have a portion of the Proceeds of
the Put Right set-off against such Holder’s obligation to pay the aggregate Purchase Price
for the shares of Common Stock to be issued under the related Purchase Contracts in full
satisfaction of such Holders’ Obligations under such Purchase Contracts. Following such
set-off, each such Holder’s Obligations, including to pay the Purchase Price for the shares
of Common Stock, will be deemed to be satisfied in full, and the Collateral Agent shall
cause the Securities Intermediary to release the Debentures underlying such Pledged
Applicable Interests in Debentures from the Collateral Account and shall promptly transfer
such Debentures to the Company. Thereafter, the Collateral Agent shall promptly remit the
remaining portion of the Proceeds of the Holder’s exercise of the Put Right in excess of the
aggregate Purchase Price for the shares of Common Stock to be issued under such Purchase
Contracts to the Purchase Contract Agent for payment to the Holder of the Corporate Units to
which such Applicable Ownership Interests in Debentures relate. Upon (x) receipt by the
Collateral Agent of a notice from the Purchase Contract Agent in substantially the form of
Exhibit N hereto promptly after the receipt by the Purchase Contract Agent of a notice from
a Holder of Corporate Units that such Holder has elected, in accordance with this Section
5.03(b)(iii), to settle the related Purchase Contract with separate cash and (y) payment by
such Holder to the Securities Intermediary of the Purchase Price in accordance with the
first sentence of this Section 5.03(b)(iii), in lieu of exercise of such Holder’s Put Right,
the Securities Intermediary shall give the Purchase Contract Agent notice of the receipt of
such payment in substantially the form of Exhibit O hereto and shall (A) promptly invest the
separate cash received in Permitted Investments consistent with the instructions of the
Company as provided in Section 5.03(a)(v) with respect to Cash Settlement, (B) promptly
release from the Pledge the Debentures underlying the Applicable Ownership Interest in
Debentures related to the Corporate Units as to which such Holder has paid such separate
cash and (C) promptly Transfer all such Debentures to the Purchase Contract Agent for
distribution to such Holder, in each case free and clear of the Pledge created hereby,
whereupon



42









 







the Purchase Contract Agent shall Transfer such Debentures in accordance with written
instructions provided by the Holder thereof or, if no such instructions are given to the
Purchase Contract Agent by the Holder, the Purchase Contract Agent shall hold such
Debentures, 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 relevant abandoned property laws of the state where such Debentures and
interest payments thereon, if any, are held. Upon maturity of the Permitted Investments on
the Purchase Contract Settlement Date, the Collateral Agent shall, and is hereby authorized
to, (A) instruct the Securities Intermediary to remit to the Company on the Purchase
Contract Settlement Date such portion of the proceeds of such Permitted Investments as is
equal to the aggregate Purchase Price under all Purchase Contracts in respect of which
separate cash has been paid as provided in this Section 5.03(b)(iii) to the Company on the
Purchase Contract Settlement Date, and (B) release any amounts in excess of such amount
earned from such Permitted Investments to the Purchase Contract Agent for distribution to
the Holders who have paid such separate cash pro rata in proportion to the amount paid by
such Holders under this Section 5.03(b)(iii).



          (c) Notices, Separate Debentures; Registration.





          (i) Not later than 15 days prior to the first day of the Applicable Remarketing Period,
the Company shall request the Depositary or its nominee to notify the Beneficial Owners or
Depositary Participants holding Units and Separate Debentures, and shall provide a copy of
such request to the Purchase Contract Agent and the Collateral Agent, of, in the case of an
Optional Remarketing, the Company’s decision to attempt or not to attempt a Remarketing in
such Optional Remarketing Period, and in all cases, any Remarketing Dates and the procedures
to be followed in each Remarketing including the procedures to be followed by holders of
Separate Debentures to participate in a Remarketing, the applicable procedures for Holders
of Corporate Units to create Treasury Units or Holders of Treasury Units to recreate
Corporate Units, the applicable procedures for Holders of Corporate Units to effect an Early
Settlement and, in the case of a Final Remarketing, applicable procedures to effect a Cash
Settlement and the applicable procedures that must be followed by a holder of Separate
Debentures if such holder wishes to exercise its Put Right or by a holder if such holder
elects not to exercise its Put Right.




          (ii) Prior to 5:00 p.m. (New York City time) on the second Business Day immediately
preceding the first day of the Applicable Remarketing Period, but no earlier than the
Payment Date immediately preceding such date, holders of Separate Debentures may elect to
have their Separate Debentures remarketed in all Remarketings to occur in the Applicable
Remarketing Period under the Remarketing Agreement by delivering their Separate Debentures,
along with a notice of such election, substantially in the form of Exhibit K attached
hereto, to the Custodial Agent. After such time, such election shall become an irrevocable
election to have such Separate Debentures remarketed in all Remarketings to occur in the
Applicable Remarketing Period. The Custodial Agent shall hold the Separate Debentures in an
account separate from the Collateral Account in which the Debentures underlying the Pledged
Applicable Ownership Interests in Debentures shall be held. Holders of Separate Debentures
electing to have their Separate Debentures remarketed will also have the right to withdraw
that election by written notice to the Custodial Agent, substantially in the form of Exhibit
L hereto, on or prior to 5:00 p.m. (New York City time) on the second Business Day
immediately preceding the first day of the Applicable Remarketing Period, and following such
notice the Custodial Agent shall return such Separate Debentures to such holder.



43









 






          (iii) The Company agrees to use its commercially reasonable efforts to ensure that, if
required by applicable law, (x) a registration statement, including a prospectus, under the
Securities Act with regard to the full amount of the Debentures to be remarketed in each
Remarketing in each case in a form that may be used by the Remarketing Agent in connection
with such Remarketing shall be effective with the Securities and Exchange Commission, unless
the Company conducts a remarketing in accordance with an exemption from registration under
the Securities Act, and (y) to make available copies of such prospectus.




          (iv) The Company shall issue a press release and cause a notice of any Failed
Remarketing to be published on its website (with a copy of such notice to be provided to the
Purchase Contract Agent) before 9:00 a.m. New York City time on the Business Day immediately
following such Failed Optional Remarketing, or in the case of the Final Remarketing, 9:00
a.m. New York City time on May 27, 2011. The press release to be issued under this
subsection shall be published by making a timely release to an appropriate news agency such
as Bloomberg Business News or the Dow Jones News Service.




          (v) In the case of a Treasury Unit or a Corporate Unit (if Applicable Ownership
Interests in the Treasury Portfolio have replaced the Applicable Ownership Interests in
Debentures as a component of such Corporate Unit), upon the maturity of the Pledged Treasury
Securities or the appropriate Pledged Applicable Ownership Interests in the Treasury
Portfolio held by the Securities Intermediary on or prior to the Business Day immediately
preceding the Purchase Contract Settlement Date, the principal amount of the Treasury
Securities or the appropriate Pledged Applicable Ownership Interests in the Treasury
Portfolio received by the Securities Intermediary shall be invested promptly in Permitted
Investments of the type described in clause (6) of the definition of Permitted Investments,
which have been designated by the Company in writing from time to time in a standing
instruction to the Securities Intermediary which shall be effective until revoked or
superseded. On the Purchase Contract Settlement Date, an amount equal to the Purchase Price
for all related Purchase Contracts shall be remitted to the Company as payment of such
Holder’s Obligations under such Purchase Contracts without receiving any instructions from
the Holder. In the event the sum of the Proceeds from either the related Pledged Treasury
Securities or the related Pledged Applicable Ownership Interests in the Treasury Portfolio
and the Proceeds from such Permitted Investments is in excess of the aggregate Purchase
Price, the Collateral Agent shall cause the Securities Intermediary to distribute such
excess, when received by the Securities Intermediary, to the Purchase Contract Agent for the
benefit of the Holder of the related Treasury Units or Corporate Units, as applicable.



          (d) The obligations of the Holders to pay the Purchase Price are non-recourse obligations and,
except to the extent satisfied by Early Settlement, Fundamental Change Early Settlement or Cash
Settlement or terminated upon a Termination Event, 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.




          (e) 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 Units unless the
Company shall have received payment for the Common Stock to be purchased thereunder in the manner
herein set forth.




     Section 5.04 Issuance of Shares of Common Stock. Unless a Termination Event, an Early
Settlement or a Fundamental Change Early Settlement shall have occurred, subject to Section
5.05(b), on the Purchase Contract Settlement Date upon receipt of the aggregate Purchase Price
payable on all



44









 







Outstanding Units in accordance with Section 5.03 above, the Company shall issue and deposit
with the Purchase Contract Agent, for the benefit of the Holders of the Outstanding Units, one or
more certificates representing newly issued shares of Common Stock registered in the name of the
Purchase Contract Agent (or its nominee) as custodian for the Holders (such certificates for shares
of Common Stock, together with any dividends or distributions for which a record date and payment
date for such dividend or distribution has occurred after the Purchase Contract Settlement Date,
being hereinafter referred to as the “Purchase Contract Settlement Fund”) to which the Holders are
entitled hereunder.



     Subject to the foregoing, upon surrender of a Certificate to the Purchase Contract Agent on or
after the Purchase Contract Settlement Date, Early Settlement Date or Fundamental Change Early
Settlement Date, as the case may be, together with settlement instructions thereon duly completed
and executed, the Holder of such Certificate shall be entitled to receive forthwith in exchange
therefor a certificate representing that number of newly issued whole shares of Common Stock which
such Holder is entitled to receive pursuant to the provisions of this Article 5 (after taking into
account all Units then held by such Holder), together with cash in lieu of fractional shares as
provided in Section 5.09 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 in the name of a Person other than the Person
in whose name the Certificate evidencing such Purchase Contract is registered (but excluding any
Depositary or nominee thereof), no such registration shall be made unless and until the Person
requesting such registration has paid any transfer and other taxes (including any applicable stamp
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 5.05 Adjustment of each Fixed Settlement Rate. (a) Each Fixed Settlement Rate shall
be subject to the following adjustments:




          (i) Stock Dividends. In case the Company shall pay or make a dividend or other
distribution on the Common Stock in Common Stock, each Fixed Settlement Rate, as in effect
at the opening of business on the day following the date fixed for the determination of
stockholders of the Company entitled to receive such dividend or other distribution shall be
increased by dividing each Fixed Settlement Rate by a fraction of which 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 the denominator shall be the sum of such number of shares
and the total number of shares constituting such dividend or other distribution, each such
increase to become effective immediately after the opening of business on the day following
the date fixed for such determination.




          (ii) Stock Purchase Rights. In case the Company shall issue to all holders of its
Common Stock rights, options, warrants or other securities, entitling them to subscribe for
or purchase shares of Common Stock for a period expiring within 45 days from the date of
issuance of such rights, options, warrants or other securities at a price per share of
Common Stock less than the Current Market Price on the date fixed for the determination of
stockholders of the Company entitled to receive such rights, options, warrants or securities
(other than pursuant to a dividend reinvestment, share purchase or similar plan), each Fixed
Settlement Rate in effect at the opening of business on the day following the date fixed for
such determination shall be increased by dividing each Fixed Settlement Rate by a fraction,
the numerator of which shall be the number of shares of Common Stock outstanding at the
close of business on the date fixed for such



45









 







determination plus the number of shares of Common Stock which the aggregate
consideration expected to be received by the Company upon the exercise, conversion or
exchange of such rights, options, warrants or securities (as determined in good faith by the
Board of Directors, whose determination shall be conclusive and described in a Board
Resolution) would purchase at such Current Market Price and the denominator of which 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, either directly or indirectly, each such increase to become
effective immediately after the opening of business on the day following the date fixed for
such determination.




          (iii) Stock Splits; Reverse Splits; and Combinations. In case outstanding shares of
Common Stock shall be subdivided, split or reclassified into a greater number of shares of
Common Stock, each Fixed Settlement Rate in effect at the opening of business on the day
following the day upon which such subdivision, split or reclassification becomes effective
shall be proportionately increased, and, conversely, in case outstanding shares of Common
Stock shall each be combined or reclassified into a smaller number of shares of Common
Stock, each Fixed Settlement Rate in effect at the opening of business on the day following
the day upon which such combination or reclassification 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, combination or reclassification becomes effective.




          (iv) Debt, Asset or Security Distributions. (1) In case the Company shall, by
dividend or otherwise, distribute to all holders of its Common Stock evidences of its
indebtedness, assets or securities (but excluding any rights, options, warrants or other
securities referred to in paragraph (a)(ii) of this Section 5.05, any dividend or
distribution paid exclusively in cash referred to in paragraph (a)(v) of this Section 5.05,
any dividend, shares of capital stock of any class or series, or similar equity interests,
of or relating to a subsidiary or other business unit in the case of a Spin-Off referred to
in the next subparagraph, and any dividend or distribution referred to in paragraph (a)(i)
of this Section 5.05), each Fixed Settlement Rate shall be increased by dividing each Fixed
Settlement Rate in effect immediately prior to the close of business on the date fixed for
the determination of stockholders of the Company entitled to receive such distribution by a
fraction, the numerator of which shall be the Current Market Price on the date fixed for
such determination less the then fair market value (as determined in good faith 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 the denominator of which shall be such Current Market Price, such
adjustment to become effective immediately after the opening of business on the day
following the date fixed for the determination of stockholders of the Company entitled to
receive such distribution. In any case in which this paragraph (a)(iv)(1) is applicable,
paragraph (a)(iv)(2) of this Section 5.05 shall not be applicable.




          (2) In the case of a Spin-Off, each Fixed Settlement Rate in effect immediately
before the close of business on the record date fixed for determination of
stockholders of the Company entitled to receive that distribution will be increased
by dividing each Fixed Settlement Rate by a fraction, the numerator of which is the
Current Market Price and the denominator of which is the Current Market Price plus
the Fair Market Value of the portion of those shares of capital stock or similar
equity interests so distributed applicable to one share of Common Stock. Any
adjustment to the Fixed Settlement Rate under this paragraph (a)(iv)(2) will occur
on the date that is the earlier of (A) the 10th Trading Day from, and including, the
effective date of the Spin-Off and (B)
the date of the securities being offered in the Initial Public Offering of the
Spin-Off, if that Initial Public Offering is effected simultaneously with the
Spin-Off.



46









 






          (v) Cash Distributions. In case the Company shall, by dividend or otherwise, make
distributions to all holders of the Common Stock exclusively in cash during any quarterly
period (excluding any cash that is distributed in a Reorganization Event to which Section
5.05(b) applies or as part of a distribution referred to in paragraph (a)(iv) of this
Section 5.05) in an amount in excess of $0.13 per share of Common Stock (the “Reference
Dividend”), immediately after the close of business on such date for determination, each
Fixed Settlement Rate shall be increased by dividing each Fixed Settlement Rate in effect
immediately prior to the close of business on the date fixed for determination of the
stockholders of the Company entitled to receive such distribution by a fraction, the
numerator of which shall be equal to the Current Market Price on the date fixed for such
determination less the per share amount of the distribution and the denominator of which
shall be equal to the Current Market Price on the date fixed for such determination minus
the Reference Dividend.




          (vi) Tender Offers and Exchange Offers. In the case that a tender or exchange offer
made by the Company or any subsidiary of the Company for all or any portion of the Common
Stock shall expire and such tender or exchange offer (as amended through the expiration
thereof) shall require the payment to stockholders of the Company (based on the acceptance
(up to any maximum specified in the terms of the tender or exchange offer) of Purchased
Shares) of an aggregate consideration having a fair market value (as determined in good
faith by the Board of Directors, whose determination shall be conclusive and described in a
Board Resolution) per share of the Common Stock that exceeds the closing price of the Common
Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be
made pursuant to such tender or exchange offer, then, immediately prior to the opening of
business on the day after the date of the last time (the “Expiration Time”) tenders could
have been made pursuant to such tender or exchange offer (as amended through the Expiration
Time), each Fixed Settlement Rate shall be increased by dividing each Fixed Settlement Rate
immediately prior to the close of business on the date of the Expiration Time by a fraction
(A) the numerator of which shall be equal to (x) the product of (I) the Current Market Price
on the date of the Expiration Time and (II) the number of shares of Common Stock outstanding
(including any tendered or exchanged shares) on the date of the Expiration Time less (y) the
amount of Cash plus the fair market value (determined as aforesaid) of the aggregate
consideration payable to stockholders of the Company pursuant to the tender or exchange
offer (assuming the acceptance, up to any maximum specified in the terms of the tender or
exchange offer, of Purchased Shares), and (B) the denominator of which shall be equal to the
product of (x) the Current Market Price on the date of the Expiration Time and (y) the
result of (I) the number of shares of Common Stock outstanding (including any tendered or
exchanged shares) on the date of the Expiration Time less (II) the number of all shares
validly tendered, not withdrawn and accepted for payment on the date of the Expiration Time
(such validly tendered shares, up to any such maximum, being referred to as the “Purchased
Shares”).




          (vii) If any adjustments are made to each Fixed Settlement Rate pursuant to this
Section 5.05(a), an adjustment shall also be made to the Applicable Market Value solely to
determine which of clauses (i), (ii) or (iii) of the definition of Settlement Rate in
Section 5.01(a) will apply on the Purchase Contract Settlement Date or any Fundamental
Change Early Settlement Date. Such adjustment shall be made by multiplying the Applicable
Market Value by the Adjustment Factor. The “Adjustment Factor” means, initially, a fraction
the numerator of which shall be the Maximum Settlement Rate immediately after the first
adjustment to each Fixed Settlement Rate pursuant to this Section 5.05(a) and the
denominator of which shall be the



47









 







Maximum Settlement Rate immediately prior to such adjustment. Each time an adjustment
is required to be made to each Fixed Settlement Rate pursuant to this Section 5.05(a), the
Adjustment Factor shall be multiplied by a fraction the numerator of which shall be the
Maximum Settlement Rate immediately after such adjustment to each Fixed Settlement Rate
pursuant to this Section 5.05(a) and the denominator of which shall be the Maximum
Settlement Rate immediately prior to such adjustment. Notwithstanding the foregoing, if any
adjustment to each Fixed Settlement Rate is required to be made pursuant to the occurrence
of any of the events contemplated by this Section 5.05(a) during the Observation Period, the
20 individual Closing Prices used to determine the Applicable Market Value shall be adjusted
rather than the Applicable Market Value and the Applicable Market Value shall be determined
by (A) multiplying the Closing Prices for Trading Days prior to such adjustment to each
Fixed Settlement Rate by the Adjustment Factor in effect prior to such adjustment, (B)
multiplying the Closing Prices for Trading Days following such adjustment by the Adjustment
Factor reflecting such adjustment, and (C) dividing the sum of all such adjusted Closing
Prices by 20.




          (viii) Calculation of Adjustments. All adjustments to the Fixed 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 Fixed Settlement Rate shall be required unless such adjustment would require an increase
or decrease of at least one percent therein; provided, 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; and provided further that effect shall be given to all
adjustments not later than the applicable Settlement Date for a Unit.




          (ix) Increase of Settlement Rate. The Company may make such increases in the
Settlement Rate, in addition to those required by this Section 5.05(a), as the Board of
Directors considers 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 reasons.




          (x) If the Company hereafter adopts any stockholder rights plan involving the issuance
of preference share purchase rights or other similar rights (the “Rights”) to all holders of
the Common Stock, a Holder shall be entitled to receive upon settlement of any Purchase
Contract, in addition to the shares of Common Stock issuable upon settlement of such
Purchase Contract, the related Rights for the Common Stock, unless such Rights under the
future stockholder rights plan have separated from the Common Stock at the time of
conversion, in which case each Settlement Rate shall be adjusted as provided in Section
5.05(a)(iv) on the date such Rights separate from the Common Stock.



          (b) Adjustment for Consolidation, Merger or Other Reorganization Event. (i) Subject to the
provisions of Section 5.05(b)(ii), upon a Reorganization Event, each Unit shall thereafter, in lieu
of a variable number of shares of Common Stock, be settled by delivery of a variable number of
Exchange Property Units. An “Exchange Property Unit” represents the right to receive the kind and
amount of securities, cash and other property receivable in such Reorganization Event (without any
interest thereon, and without any right to dividends or distributions thereon that have a record
date that is prior to the applicable Settlement Date) per share of Common Stock by a holder of
Common Stock that 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.




48









 







In the event holders of Common Stock have the opportunity to elect the form of consideration
to be received in such transaction, the Exchange Property Unit that Holders of the Corporate Units
or Treasury Units would have been entitled to receive will be deemed to be the weighted average of
the types and amounts of consideration received by the holders of Common Stock that affirmatively
make an election. The number of Exchange Property Units to be delivered upon settlement of a
Purchase Contract following the effective date of a Reorganization Event shall equal the Settlement
Rate, subject to adjustment as provided in Section 5.05, determined as if the references to “shares
of Common Stock” in Section 5.01(a)(i), (ii) and (iii) were to “Exchange Property Units.”




     In the event of such a Reorganization Event, the Person formed by such consolidation, or
merger or the Person which acquires the assets of the Company shall execute and deliver to the
Purchase Contract Agent an agreement supplemental hereto providing that the Holder of each Unit
that remains Outstanding after the Reorganization Event (if any) shall have the rights provided by
this Section 5.05(b). Such supplemental agreement shall provide for adjustments to the amount of
any securities constituting all or a portion of an Exchange Property Unit which, for events
subsequent to the effective date of such Reorganization Event, shall be as nearly equivalent as may
be practicable to the adjustments provided for in this Section 5.05. The above provisions of this
Section 5.05(b) shall similarly apply to successive Reorganization Events.




          (ii) Prior to the Purchase Contract Settlement Date, if a Fundamental Change occurs,
then following such Fundamental Change a Holder of a Unit will have the right to accelerate
and settle (“Fundamental Change Early Settlement”) its Purchase Contract, upon the
conditions set forth below, at the Settlement Rate (determined as if the Applicable Market
Value equaled the Stock Price), plus an additional make-whole amount of shares (the
“Make-Whole Share Amount”); provided that no Fundamental Change Early Settlement will be
permitted pursuant to this Section 5.05(b)(ii) unless, at the time such Fundamental Change
Early Settlement is effected, there is an effective Registration Statement with respect to
any securities to be issued and delivered in connection with such Fundamental Change Early
Settlement, if such a Registration Statement is required (in the view of counsel, which need
not be in the form of a written opinion, for the Company) under the Securities Act. If such
a Registration Statement is so required, the Company covenants and agrees to use its
commercially reasonable efforts to (x) have in effect a Registration Statement covering any
securities to be delivered in respect of the Purchase Contracts being settled and (y)
provide a Prospectus in connection therewith, in each case in a form that may be used in
connection with such Fundamental Change Early Settlement. In the event that a Holder seeks
to exercise its Fundamental Change Early Settlement right and a Registration Statement is
required to be effective in connection with the exercise of such right but no such
Registration Statement is then effective, the Holder’s exercise of such right shall be void
unless and until such a Registration Statement shall be effective and the Company shall have
no further obligation with respect to any such Registration Statement if, notwithstanding
using its commercially reasonable efforts, no Registration Statement is then effective.



     If a Holder elects a Fundamental Change Early Settlement of some or all of its Purchase
Contracts, such Holder shall be entitled to receive, on the Fundamental Change Early Settlement
Date, the aggregate amount of any accrued and unpaid Contract Adjustment Payments, with respect to
such Purchase Contracts. The Company shall pay such amount as a credit against the amount
otherwise payable by such Holder to effect such Fundamental Change Early Settlement.



     Within five Business Days of the Effective Date (as hereinafter defined) of a Fundamental
Change, the Company shall provide written notice to Holders of Units of such completion of a
Fundamental Change, which shall specify (1) the deadline for submitting the notice to settle early
in cash pursuant to this Section 5.05(b)(ii) and how and where such notice to settle early should
be delivered, (2)



49









 







the date on which such Fundamental Change Early Settlement shall occur (which date shall be at
least ten days after the date of the notice but not later than the earlier of 20 days after the
date of such notice or two Business Days prior to the first day of the Final Remarketing Period)
(the “Fundamental Change Early Settlement Date”), (3) the amount of cash payable in respect of the
exercise of such Fundamental Change Early Settlement (giving effect to the credit for any accrued
and unpaid Contract Adjustment Payments as provided in the preceding paragraph), (4) the applicable
Settlement Rate, (5) the Make-Whole Share Amount and (6) the amount (per share of Common Stock) of
cash, securities and other consideration receivable by the Holder, including any amount of Contract
Adjustment Payments receivable, upon settlement.



     Corporate Units Holders (unless Applicable Ownership Interests in the Treasury Portfolio have
replaced Applicable Ownership Interests in Debentures as a component of the Corporate Units) and
Treasury Units Holders may only effect Fundamental Change Early Settlement pursuant to this Section
5.05(b)(ii) in integral multiples of 20 Corporate Units or Treasury Units, as the case may be. If
Applicable Ownership Interests in the Treasury Portfolio have replaced Applicable Ownership
Interests in Debentures as a component of the Corporate Units, Corporate Units Holders may only
effect Fundamental Change Early Settlement pursuant to this Section 5.05(b)(ii) in multiples of [•]
Corporate Units. Other than the provisions relating to timing of notice and settlement, which
shall be as set forth above, the provisions of Section 5.01 shall apply with respect to a
Fundamental Change Early Settlement pursuant to this Section 5.05(b)(ii).



     In order to exercise the right to effect Fundamental Change Early Settlement with respect to
any Purchase Contracts, the Holder of the Certificate evidencing Units shall deliver to the
Purchase Contract Agent, no later than 4:00 p.m., New York City time, on the third Business Day
immediately preceding the Fundamental Change Early Settlement Date, such Certificate to the
Purchase Contract Agent at the Corporate Trust Office duly endorsed for transfer to the Company or
in blank with the form of Election to Settle Early on the reverse thereof duly completed and
accompanied by payment (payable to the Company in immediately available funds) in an amount equal
to the excess of:




          (A) product of (1) the Stated Amount times (2) the number of Purchase Contracts
with respect to which the Holder has elected to effect Fundamental Change Early
Settlement, over




          (B) the amount of any accrued and unpaid Contract Adjustment Payments
(excluding, if the Fundamental Change Early Settlement occurs after the Record Date
for such Contract Adjustment Payments, the amount of such payments to be made on the
Payment Date immediately succeeding such Record Date).


In the event that Units are held by or through DTC or another Depositary, the exercise of the right
to effect Fundamental Change Early Settlement shall occur in conformity with the procedures
established by DTC or such Depositary.




     Upon receipt of any such Certificate and payment of such funds, the Purchase Contract Agent
shall pay the Company from such funds the related Purchase Price pursuant to the terms of the
related Purchase Contracts, and notify the Collateral Agent that all the conditions necessary for a
Fundamental Change Early Settlement by a Holder of Units have been satisfied pursuant to which the
Purchase Contract Agent has received from such Holder, and paid to the Company as confirmed in
writing by the Company, the related Purchase Price.



     Upon receipt by the Collateral Agent of the notice from the Purchase Contract Agent set forth
in the preceding paragraph, the Collateral Agent shall release from the Pledge, (1) the Debentures



50









 







underlying the Pledged Applicable Ownership Interests in Debentures or the Pledged Applicable
Ownership Interests in the Treasury Portfolio, in the case of a Holder of Corporate Units or (2)
the Pledged Treasury Securities, in the case of a Holder of Treasury Units, in each case with a
Value equal to the product of (x) the Stated Amount times (y) the number of Purchase Contracts as
to which such Holder has elected to effect Fundamental Change Early Settlement, and shall instruct
the Securities Intermediary to Transfer all such Pledged Applicable Ownership Interests in the
Treasury Portfolio or Debentures underlying Pledged Applicable Ownership Interests in Debentures or
Pledged Treasury Securities, as the case may be, to the Purchase Contract Agent for distribution to
such Holder, in each case free and clear of the Pledge created hereby.



     If a Holder properly effects an effective Fundamental Change Early Settlement in accordance
with the provisions of this Section 5.05(b)(ii), the Company will deliver (or will cause the
Collateral Agent to deliver) to the Holder on the Fundamental Change Early Settlement Date:




          (A) the kind and amount of securities, cash and other property receivable upon
such Fundamental Change 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 Fundamental Change (based on the Settlement Rate
in effect at such time plus the Make-Whole Share Amount), assuming such Holder of
Common Stock is not a Constituent Person or an Affiliate of a Constituent Person to
the extent such Fundamental Change provides for different treatment of Common Stock
held by Affiliates of the Company and non-Affiliates. In the event holders of
Common Stock have the opportunity to elect the form of consideration to be received
in the Fundamental Change, the kind and amount of securities, cash and other
property receivable by Holders of the Corporate Units or Treasury Units exercising
their right to effect a Fundamental Change Early Settlement will be deemed to be the
weighted average of the types and amounts of consideration received by the holders
of Common Stock that affirmatively make an election. For the avoidance of doubt,
for the purposes of determining the Applicable Market Value (in connection with
determining the appropriate Settlement Rate to be applied in the foregoing
sentence), the date of the closing of the Fundamental Change shall be deemed to be
the Purchase Contract Settlement Date;




          (B) the Debentures, the Applicable Ownership Interests in the Treasury
Portfolio or Treasury Securities, as the case may be, related to the Purchase
Contracts with respect to which the Holder is effecting a Fundamental Change Early
Settlement;




          (C) any accrued and unpaid Contract Adjustment Payments (to the extent such
payments are not offset to settle the Purchase Contracts); and




          (D) if so required under the Securities Act, a Prospectus as contemplated by
this Section 5.05(b)(ii).


The Corporate Units or the Treasury Units of the Holders who do not elect Fundamental Change Early
Settlement in accordance with the foregoing will continue to remain outstanding and be subject to
settlement on the Purchase Contract Settlement Date in accordance with the terms hereof.





          (iii) The Make-Whole Share Amounts applicable to a Fundamental Change Early Settlement
will be determined by reference to the table below, based on the date on which the
Fundamental Change becomes effective (the “Effective Date”) and the price (the “Stock



51









 







Price”) paid per share for Common Stock in such Fundamental Change. If holders of
Common Stock receive only cash in such transaction, the Stock Price paid per share will be
the cash amount paid per share. Otherwise, the Stock Price paid per share will be the
average of the Closing Prices of the Common Stock on the five Trading Days prior to, but not
including, the Effective Date of such Fundamental Change.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Stock Price on Effective Date	 
	Effective Date	 	$[_]	 	$[_]	 	$[_]	 	$[_]	 	$[_]	 	$[_]	 	$[_]	 	$[_]	 	$[_]	 	$[_]	 	$[_]	 	 	 
	June [1], 2008
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	June [1], 2009
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	June [1], 2010
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	June [1], 2011
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






     The Stock Prices set forth in the second row of the table (i.e., the column headers)
will be adjusted upon the occurrence of certain events requiring adjustments to each Fixed
Settlement Rate pursuant to Section 5.05(a).



     Each of the Make-Whole Share Amounts set forth in the table will be subject to adjustment in
the same manner as the Fixed Settlement Rates as set forth in Section 5.05(a).



     If the Stock Price or Effective Date applicable to a Fundamental Change is not expressly set
forth on the table, then the Make-Whole Share Amount will be determined as follows:




          (1) if the Stock Price is between two Stock Price amounts on the table or the
Effective Date is between two dates on the table, the Make-Whole Share Amount will
be determined by straight-line interpolation between the Make-Whole Share Amounts
set forth for the higher and lower Stock Price amounts and the two dates, as
applicable, based on a 365-day year;




          (2) if the Stock Price is in excess of $[•] per share (subject to adjustment as
set forth in Section 5.05(a)), then the Make-Whole Share Amount shall be zero; and




          (3) if the Stock Price is less than $[•] per share (subject to adjustment as
set forth in Section 5.05(a)) (the “Minimum Stock Price”), then the Make-Whole Share
Amount shall be determined as if the Stock Price equaled the Minimum Stock Price,
using straight-line interpolation, as described in clause (1) above, if the
Effective Date is between two dates on the table.



          (c) No adjustment to the Settlement Rate need be made if Holders may participate in the
transaction that would otherwise give rise to an adjustment, so long as the distributed assets or
securities the Holders would receive upon settlement of Units, if convertible, exchangeable, or
exercisable, are convertible, exchangeable or exercisable, as applicable, without any loss of
rights or privileges for a period of at least 45 days following settlement of the Units.




          (d) The Fixed Settlement Rate shall not be adjusted:





          (1) upon the issuance of any shares of Common Stock pursuant to any present or
future plan providing for the reinvestment of dividends or interest payable on the
Company’s securities and the investment of additional optional amounts in shares of
Common Stock under any plan;



52









 






          (2) upon the issuance of any shares of Common Stock or options or rights to
purchase those shares pursuant to any present or future employee, director or
consultant benefit plan or program of or assumed by the Company or any of its
subsidiaries;




          (3) upon the issuance of any shares of Common Stock pursuant to any option,
warrant, right or exercisable, exchangeable or convertible security outstanding as
of the date the Units were first issued;




          (4) for a change in the par value or no par value of the Common Stock; or




          (5) for accumulated and unpaid dividends, other than to the extent contemplated
by Section 5.05(a) hereof.



          (e) All calculations and determinations pursuant to this Section 5.05 shall be made by the
Company or its agent and the Purchase Contract Agent shall have no responsibility with respect to
this Agreement.




     Section 5.06 Notice of Adjustments and Certain Other Events. (a) Whenever the Fixed
Settlement Rates are adjusted as herein provided, the Company shall, as soon as practicable
following the occurrence of an event that requires an adjustment pursuant to Section 5.05 (or if
the Company is not aware of such occurrence, as soon as practicable after becoming so aware):




          (i) compute each adjusted Fixed Settlement Rate in accordance with Section 5.05 and
prepare and transmit to the Purchase Contract Agent an Officers’ Certificate setting forth
each adjusted Fixed Settlement Rate, the method of calculation thereof in reasonable detail,
and the facts requiring such adjustment and upon which such adjustment is based; and




          (ii) provide a written notice to the Holders of the Units of the occurrence of such
event and a statement in reasonable detail setting forth the method by which the adjustment
to each Fixed Settlement Rate was determined and setting forth each adjusted Fixed
Settlement Rate.



          (b) The Purchase Contract Agent shall not at any time be under any duty or responsibility to
any Holder to determine whether any facts exist which may require any adjustment of each Fixed
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
be fully authorized and protected in relying on any Officers’ Certificate delivered pursuant to
Section 5.06(a)(i) and any adjustment contained therein and the Purchase Contract Agent shall not
be deemed to have knowledge of any adjustment unless and until it has received such certificate.
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 5.




     Section 5.07 Termination Event; Notice.




53











 





     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 Contract Adjustment Payments (including any accrued and unpaid Contract
Adjustment Payments), 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 Units shall thereafter represent the
right to receive the Debentures underlying the Applicable Ownership Interests in Debentures, the
Treasury Securities or the Applicable Ownership Interests in the Treasury Portfolio, as the case
may be, forming part of such Units, in accordance with the provisions of Section 3.15 hereof. 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 Security Register.



     Section 5.08 Early Settlement. (a) Subject to and upon compliance with the provisions of
this Section 5.08, at the option of the Holder thereof, Purchase Contracts underlying Units may be
settled early (“Early Settlement”) at any time prior to 5:00 p.m. (New York City time) on the
second Business Day immediately preceding the first day of the Final Remarketing Period (in the
case of Corporate Units, unless a Special Event Redemption or a Successful Optional Remarketing has
occurred) or the second Business Day immediately preceding the Purchase Contract Settlement Date
(in the case of Treasury Units or Corporate Units after the occurrence of a Special Event
Redemption or a Successful Optional Remarketing); provided that no Early Settlement will be
permitted pursuant to this Section 5.08 unless, at the time such Early Settlement is effected,
there is an effective Registration Statement with respect to any securities to be issued and
delivered in connection with such Early Settlement, if such a Registration Statement is required
(in the view of counsel, which need not be in the form of a written opinion, for the Company) under
the Securities Act. If such a Registration Statement is so required, the Company covenants and
agrees to use its commercially reasonable efforts to (i) have in effect a Registration Statement
covering any securities to be delivered in respect of the Purchase Contracts being settled and (ii)
provide a Prospectus in connection therewith, in each case in a form that may be used in connection
with such Early Settlement (it being understood that if there is a material business transaction or
development that has not yet been publicly disclosed, the Company will not be required to provide
such a Prospectus, and the right to effect Early Settlement will not be available, until the
Company has publicly disclosed such transaction or development, provided that the Company will use
its commercially reasonable efforts to make such disclosure as soon as it is commercially
reasonable to do so).



          (b) In order to exercise the right to effect Early Settlement with respect to any Purchase
Contracts, the Holder of the Certificate evidencing Units (in the case of Certificates in
definitive certificated form) shall deliver, at any time prior to 5:00 p.m. (New York City time) on
the second Business Day immediately preceding the first day of the Final Remarketing Period (in the
case of Corporate Units, unless a Special Event Redemption or a Successful Optional Remarketing has
occurred) or the second Business Day immediately preceding the Purchase Contract Settlement Date
(in the case of Treasury Units or Corporate Units after the occurrence of a Special Event
Redemption or a Successful Optional Remarketing has occurred), such Certificate to the Purchase
Contract Agent at the Corporate Trust Office duly endorsed for transfer to the Company or in blank
with the form of Election to Settle Early on the reverse thereof duly completed and accompanied by
payment (payable to the Company in immediately available funds) in an amount (the “Early Settlement
Amount”) equal to:




          (i) the product of (A) the Stated Amount and (B) the number of Purchase Contracts with
respect to which the Holder has elected to effect Early Settlement; plus



54









 






          (ii) if such delivery is made with respect to 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 Contract Adjustment Payments payable
on such Payment Date with respect to such Purchase Contracts.



     In the case of Book-Entry Interests, each Beneficial Owner electing Early Settlement must
deliver the Early Settlement Amount to the Purchase Contract Agent along with a facsimile of the
Election to Settle Early form duly completed, make book-entry transfer of such Book-Entry Interests
and comply with the applicable procedures of the Depositary.



     Except as provided above, no payment shall be made upon Early Settlement of any Purchase
Contract on account of any Contract Adjustment 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 Units at or
prior to 5:00 p.m., New York City time, on a Business Day, such day shall be the “Early Settlement
Date” with respect to such Units 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 Units shall be the next succeeding Business Day.



     Upon the receipt of such Certificate and Early Settlement Amount from the Holder, the Purchase
Contract Agent shall pay to the Company such Early Settlement Amount, the receipt of which payment
the Company shall confirm in writing. The Purchase Contract Agent shall then notify the Collateral
Agent that (A) such Holder has elected to effect an Early Settlement, which notice shall set forth
the number of such Purchase Contracts as to which such Holder has elected to effect Early
Settlement, (B) the Purchase Contract Agent has received from such Holder, and paid to the Company
as confirmed in writing by the Company, the related Early Settlement Amount and (C) all conditions
to such Early Settlement have been satisfied.



     Upon receipt by the Collateral Agent of the notice from the Purchase Contract Agent set forth
in the preceding paragraph, the Collateral Agent shall release from the Pledge, (1) in the case of
a Holder of Corporate Units, the Debentures underlying the Pledged Applicable Ownership Interest in
Debentures, or the Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case
may be, relating to the Purchase Contracts to which Early Settlement is effected, or (2) in the
case of a Holder of Treasury Units, Pledged Treasury Securities, in each case with a Value equal to
the product of (x) the Stated Amount times (y) the number of Purchase Contracts as to which such
Holder has elected to effect Early Settlement, and shall instruct the Securities Intermediary to
Transfer all such Pledged Applicable Ownership Interests in the Treasury Portfolio or Debentures
underlying such Pledged Applicable Ownership Interests in Debentures or Pledged Treasury
Securities, as the case may be, to the Purchase Contract Agent for distribution to such Holder, in
each case free and clear of the Pledge created hereby.



     Holders of Corporate Units and Treasury Units may only effect Early Settlement pursuant to
this Section 5.08 in integral multiples of 20 Treasury Units. If Applicable Ownership Interests in
the Treasury Portfolio have replaced Applicable Ownership Interests in Debentures as a component of
the Corporate Units, Corporate Units Holders may only effect Early Settlement pursuant to this
Section 5.08 in integral multiples of [•] Corporate Units.



     Upon Early Settlement of the Purchase Contracts, the rights of the Holders to receive and the
obligation of the Company to pay any Contract Adjustment Payments (including any accrued and unpaid
Contract Adjustment Payments) with respect to such Purchase Contracts shall immediately and
automatically terminate, except that the Holders will receive any accrued and unpaid Contract
Adjustment



55









 







Payments if the Early Settlement Date falls after a Record Date next preceding any Payment
Date and prior to the opening of business on such Payment Date.



          (c) Upon Early Settlement of Purchase Contracts by a Holder of the related Units, the Company
shall issue, and the Holder shall be entitled to receive, a number of shares of Common Stock (or in
the case of an Early Settlement following a Reorganization Event, a number of Exchange Property
Units) equal to the applicable Minimum Settlement Rate for each Purchase Contract as to which Early
Settlement is effected.



          (d) No later than the third Business Day after the applicable Early Settlement Date, the
Company shall cause the shares of Common Stock or Exchange Property Units issuable upon Early
Settlement of Purchase Contracts and the Debentures, the Applicable Ownership Interests in the
Treasury Portfolio or Treasury Securities, as the case may be, to be issued and delivered, together
with payment in lieu of any fraction of a share, as provided in Section 5.09.



          (e) Upon Early Settlement of any Purchase Contracts, and subject to receipt of shares of
Common Stock or Exchange Property Units from the Company and the Debentures, the Applicable
Ownership Interests in the Treasury Portfolio or Treasury Securities, as the case may be, from the
Securities Intermediary, as applicable, the Purchase Contract Agent shall, in accordance with the
instructions provided by the Holder thereof on the applicable form of Election to Settle Early on
the reverse of the Certificate evidencing the related Units:




          (i) transfer to the Holder the Debentures, the Applicable Ownership Interests in the
Treasury Portfolio or Treasury Securities, as the case may be, related to such Units,




          (ii) deliver to the Holder a certificate or certificates for the full number of shares
of Common Stock or Exchange Property Units issuable upon such Early Settlement, together
with payment in lieu of any fraction of a share, as provided in Section 5.09, and




          (iii) if so required under the Securities Act, deliver a Prospectus for the shares of
Common Stock issuable upon such Early Settlement as contemplated by Section 5.08(a).



          (f) In the event that Early Settlement is effected with respect to Purchase Contracts
underlying less than all the Units evidenced by a Certificate, upon such Early Settlement the
Company shall execute and the Purchase Contract Agent shall execute on behalf of the Holder,
authenticate and deliver to the Holder thereof, at the expense of the Company, a Certificate
evidencing the Units as to which Early Settlement was not effected.



     Section 5.09 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 or Fundamental Change Early Settlement of any Purchase
Contracts. If Certificates evidencing more than one Purchase Contract shall be surrendered for
settlement at one time by the same Holder, the number of full shares of Common Stock which shall be
delivered upon settlement shall be computed on the basis of the aggregate number of Purchase
Contracts evidenced by the Certificates so surrendered. Instead of any fractional share of Common
Stock which would otherwise be deliverable upon settlement of any Purchase Contracts on the
Purchase Contract Settlement Date, or upon Early Settlement or Fundamental Change 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 percentage of such fractional share multiplied by the
Applicable Market Value calculated as if the date of such settlement were the Purchase Contract
Settlement Date. The Company shall provide



56









 







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 5.09 in a timely manner.



     Section 5.10 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 Unit 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 Units 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.



     Section 5.11 Contract Adjustment Payments. (a) Subject to Section 5.11(d), the Company shall
pay, on each Payment Date, the Contract Adjustment 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 relating to such Payment Date. The Contract Adjustment Payments will be payable at the
office of the Purchase Contract Agent in the Borough of Manhattan, New York City maintained for
that purpose. If the book-entry system for the Units has been terminated, the Contract Adjustment
Payments will be payable, at the option of the Company, by check mailed to the address of the
Person entitled thereto at such Person’s address as it appears on the Security Register, or by wire
transfer to the account designated by such Person by a prior written notice to the Purchase
Contract Agent. If any date on which Contract Adjustment Payments are to be made is not a Business
Day, then payment of the Contract Adjustment Payments payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest in respect of any such delay).
Contract Adjustment Payments payable for any period will be computed on the basis of a 360-day year
of twelve 30-day months. The Contract Adjustment Payments will accrue from May      , 2008.



          (b) Upon the occurrence of a Termination Event, the Company’s obligation to pay future
Contract Adjustment Payments (including any accrued Contract Adjustment Payments) shall cease.



          (c) Each Certificate delivered under this Agreement upon registration of transfer of or in
exchange for or in lieu of (including as a result of a Collateral Substitution or the recreation of
Corporate Units) any other Certificate shall carry the right to accrued and unpaid Contract
Adjustment Payments that was carried by the Purchase Contracts underlying such other Certificates.



          (d) In the case of any Unit with respect to which Early Settlement or Fundamental Change Early
Settlement of the underlying Purchase Contract is effected on a date that is after any Record Date
and prior to or on the next succeeding Payment Date, Contract Adjustment Payments otherwise payable
on such Payment Date shall be payable on such Payment Date notwithstanding such Early Settlement or
Fundamental Change Early Settlement, and such Contract Adjustment Payments shall be paid to the
Person in whose name the Certificate evidencing such Unit is registered at the close of business on
such Record Date. Except as otherwise provided in the preceding sentence or in Section
5.05(b)(ii), in the case of any Unit with respect to which Early Settlement or Fundamental Change
Early Settlement of the underlying Purchase Contract is effected, accrued and unpaid Contract
Adjustment Payments otherwise payable after the Early Settlement Date or Fundamental Change Early
Settlement Date with respect to such Purchase Contract shall not be payable.



57









 





          (e) The Company’s obligations with respect to Contract Adjustment Payments will be
subordinated and junior in right of payment to the Company’s obligations under any Senior
Indebtedness.



          (f) In the event (x) of any payment by, or distribution of assets of, the Company of any kind
or character, whether in cash, property or securities, to creditors upon any dissolution,
winding-up, liquidation or reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, or (y) subject to the provisions of
Section 5.11(h) below, that (i) a default shall have occurred and be continuing with respect to the
payment of principal, interest or any other monetary amounts due and payable on any Senior
Indebtedness and such default shall have continued beyond the period of grace, if any, specified in
the instrument evidencing such Senior Indebtedness (and the Purchase Contract Agent shall have
received written notice thereof from the Company or one or more holders of Senior Indebtedness or
their representative or representatives or the trustee or trustees under any indenture pursuant to
which any such Senior Indebtedness may have been issued), or (ii) the maturity of any Senior
Indebtedness shall have been accelerated because of a default in respect of such Senior
Indebtedness (and the Purchase Contract Agent shall have received written notice thereof from the
Company or one or more holders of Senior Indebtedness or their representative or representatives or
the trustee or trustees under any indenture pursuant to which any such Senior Indebtedness may have
been issued), then:




          (i) the holders of all Senior Indebtedness shall first be entitled to receive, in the
case of clause (x) above, payment of all amounts due or to become due upon all Senior
Indebtedness and, in the case of subclauses (i) and (ii) of clause (y) above, payment of all
amounts due thereon, or provision shall be made for such payment in money or money’s worth,
before the Holders of any of the Units are entitled to receive any Contract Adjustment
Payments on the Purchase Contracts underlying the Units;




          (ii) any payment by, or distribution of assets of, the Company of any kind or
character, whether in cash, property or securities, to which the Holders of any of the Units
would be entitled except for the provisions of Section 5.11(e) through (q), including any
such payment or distribution which may be payable or deliverable by reason of the payment of
any other indebtedness of the Company being subordinated to the payment of such Contract
Adjustment Payments on the Purchase Contracts underlying the Units, shall be paid or
delivered by the Person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to the representative
or representatives of the holders of Senior Indebtedness or to the trustee or trustees under
any indenture under which any instruments evidencing any of such Senior Indebtedness may
have been issued, ratably according to the aggregate amounts remaining unpaid on account of
such Senior Indebtedness held or represented by each, to the extent necessary to make
payment in full of all Senior Indebtedness remaining unpaid after giving effect to any
concurrent payment or distribution (or provision therefor) to the holders of such Senior
Indebtedness, before any payment or distribution is made of such Contract Adjustment
Payments to the Holders of such Units; and




          (iii) in the event that, notwithstanding the foregoing, any payment by, or distribution
of assets of, the Company of any kind or character, whether in cash, property or securities,
including any such payment or distribution which may be payable or deliverable by reason of
the payment of any other indebtedness of the Company being subordinated to the payment of
Contract Adjustment Payments on the Purchase Contracts underlying the Units, shall be
received by the Purchase Contract Agent or the Holders of any of the Units when such payment
or distribution is prohibited pursuant to Section 5.11(e) through (q), such payment or
distribution shall be paid over to the representative or representatives of the holders of
Senior



58









 







Indebtedness or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any 56 such Senior Indebtedness may have been issued, ratably as
aforesaid, for application to the payment of all Senior Indebtedness remaining unpaid until
all such Senior Indebtedness shall have been paid in full, after giving effect to any
concurrent payment or distribution (or provision therefor) to the holders of such Senior
Indebtedness.



          (g) For purposes of Section 5.11(e) through (q), the words “cash, property or securities”
shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or
securities of the Company or any other Person provided for by a plan of reorganization or
readjustment, the payment of which is subordinated at least to the extent provided in Section
5.11(e) through (q) with respect to such Contract Adjustment Payments on the Units to the payment
of all Senior Indebtedness which may at the time be outstanding; provided that (i) the indebtedness
or guarantee of indebtedness, as the case may be, that constitutes Senior Indebtedness is assumed
by the Person, if any, resulting from any such reorganization or readjustment, and (ii) the rights
of the holders of the Senior Indebtedness are not, without the consent of each such holder
adversely affected thereby, altered by such reorganization or readjustment;



          (h) Any failure by the Company to make any payment on or perform any other obligation under
Senior Indebtedness, other than any indebtedness incurred by the Company or assumed or guaranteed,
directly or indirectly, by the Company for money borrowed (or any deferral, renewal, extension or
refunding thereof) or any indebtedness or obligation as to which the provisions of Section 5.11(e)
through (q) shall have been waived by the Company in the instrument or instruments by which the
Company incurred, assumed, guaranteed or otherwise created such indebtedness or obligation, shall
not be deemed a default or event of default if (i) the Company shall be disputing its obligation to
make such payment or perform such obligation and (ii) either (A) no final judgment relating to such
dispute shall have been issued against the Company which is in full force and effect and is not
subject to further review, including a judgment that has become final by reason of the expiration
of the time within which a party may seek further appeal or review, and (B) in the event a judgment
that is subject to further review or appeal has been issued, the Company shall in good faith be
prosecuting an appeal or other proceeding for review and a stay of execution shall have been
obtained pending such appeal or review.



          (i) Subject to the irrevocable payment in full of all Senior Indebtedness, the Holders of the
Units shall be subrogated (equally and ratably with the holders of all obligations of the Company
which by their express terms are subordinated to Senior Indebtedness of the Company to the same
extent as payment of the Contract Adjustment Payments in respect of the Purchase Contracts
underlying the Units is subordinated and which are entitled to like rights of subrogation) to the
rights of the holders of Senior Indebtedness to receive payments or distributions of cash, property
or securities of the Company applicable to the Senior Indebtedness until all such Contract
Adjustment Payments owing on the Units shall be paid in full, and as between the Company, its
creditors other than holders of such Senior Indebtedness and the Holders, no such payment or
distribution made to the holders of Senior Indebtedness by virtue of Section 5.11(e) through (q)
that otherwise would have been made to the Holders shall be deemed to be a payment by the Company
on account of such Senior Indebtedness, it being understood that the provisions of Section 5.11(e)
through (q) are and are intended solely for the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of Senior Indebtedness, on the other hand.



          (j) Nothing contained in Section 5.11(e) through (q) or elsewhere in this Agreement or in the
Units is intended to or shall impair, as among the Company, its creditors other than the holders of
Senior Indebtedness and the Holders, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders such Contract Adjustment Payments on the Units as and when the
same shall become due and payable in accordance with their terms, or is intended to or shall affect
the



59









 







relative rights of the Holders and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the Purchase Contract Agent or any
Holder from exercising all remedies otherwise permitted by applicable law upon default under this
Agreement, subject to the rights, if any, under Section 5.11(e) through (q), of the holders of
Senior Indebtedness in respect of cash, property or securities of the Company received upon the
exercise of any such remedy.



          (k) Upon payment or distribution of assets of the Company referred to in Section 5.11(e)
through (q), the Purchase Contract Agent and the Holders shall be entitled to rely upon any order
or decree made by any court of competent jurisdiction in which any such dissolution, winding up,
liquidation or reorganization proceeding affecting the affairs of the Company is pending or upon a
certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors,
liquidating trustee or Purchase Contract Agent or other person making any payment or distribution,
delivered to the Purchase Contract Agent or to the Holders, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent thereto or to these
Section 5.11(e) through (q).



          (l) The Purchase Contract Agent shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself to be a holder of Senior Indebtedness (or a trustee or
representative on behalf of such holder) to establish that such notice has been given by a holder
of Senior Indebtedness or a trustee or representative on behalf of any such holder or holders. In
the event that the Purchase Contract Agent determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior Indebtedness to participate
in any payment or distribution pursuant to Section 5.11(e) through (q), the Purchase Contract Agent
may request such Person to furnish evidence to the reasonable satisfaction of the Purchase Contract
Agent as to the amount of Senior Indebtedness held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other facts pertinent to the
rights of such Person under Section 5.11(e) through (q), and, if such evidence is not furnished,
the Purchase Contract Agent may defer payment to such Person pending judicial determination as to
the right of such Person to receive such payment.



          (m) Nothing contained in Section 5.11(e) through (q) shall affect the obligations of the
Company to make, or prevent the Company from making, payment of the Contract Adjustment Payments,
except as otherwise provided in these Section 5.11(e) through (q).



          (n) Each Holder of Units, by its acceptance thereof, authorizes and directs the Purchase
Contract Agent on its behalf to take such action as may be necessary or appropriate to effectuate
the subordination provided in Section 5.11(e) through (q) and appoints the Purchase Contract Agent
its attorney-in-fact, as the case may be, for any and all such purposes.



          (o) The Company shall give prompt written notice to the Purchase Contract Agent of any fact
known to the Company that would prohibit the making of any payment of moneys to or by the Purchase
Contract Agent in respect of the Units pursuant to the provisions of this Section. Notwithstanding
the provisions of Section 5.11(e) through (q) or any other provisions of this Agreement, the
Purchase Contract Agent shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment of moneys to or by the Purchase Contract Agent, or the
taking of any other action by the Purchase Contract Agent, unless and until the Purchase Contract
Agent shall have received written notice thereof mailed or delivered to the Purchase Contract Agent
at its Corporate Trust Office from the Company, any Holder, or the holder or representative of any
Senior Indebtedness; provided that if at least two Business Days prior to the date upon which by
the terms hereof any such moneys may become payable for any purpose, the Purchase Contract Agent
shall not have received with respect to such moneys the notice provided for in this Section, then,
anything herein contained to the



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contrary notwithstanding, the Purchase Contract Agent shall have full power and authority to
receive such moneys and to apply the same to the purpose for which they were received and shall not
be affected by any notice to the contrary that may be received by it within two Business Days prior
to or on or after such date.



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



          (q) No right of any present or future holder of any Senior Indebtedness to enforce the
subordination herein shall at any time or in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any noncompliance by the Company with the terms,
provisions and covenants of this Agreement, regardless of any knowledge thereof which any such
holder may have or be otherwise charged with.



          (r) Nothing in this Section 5.11 shall apply to claims of, or payments to, the Purchase
Contract Agent under or pursuant to Section 7.07.



          (s) With respect to the holders of Senior Indebtedness, (i) the duties and obligations of the
Purchase Contract Agent shall be determined solely by the express provisions of this Agreement;
(ii) the Purchase Contract Agent shall not be liable to any such holders if it shall, acting in
good faith, mistakenly pay over or distribute to the Holders or to the Company or any other Person
cash, property or securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Section 5.11 or otherwise; (iii) no implied covenants or obligations shall be read
into this Agreement against the Purchase Contract Agent; and (iv) the Purchase Contract Agent shall
not be deemed to be a fiduciary as to such holders.



ARTICLE 6




RIGHTS AND REMEDIES OF HOLDERS




     Section 6.01 Unconditional Right of Holders to Receive Contract Adjustment Payments and to
Purchase Shares of Common Stock. Each Holder of a Unit shall have the right, which is absolute and
unconditional, (i) subject to Article 5, to receive each Contract Adjustment Payment with respect
to the Purchase Contract comprising part of such Unit on the respective Payment Date for such Unit
and (ii) except upon and following a Termination Event, 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
right to receive Contract Adjustment Payments and the right to purchase shares of Common Stock, and
such rights shall not be impaired without the consent of such Holder.



     Section 6.02 Restoration of Rights and Remedies. If any Holder has instituted any proceeding
to enforce any right or remedy under this Agreement and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company and such Holder shall be
restored severally and respectively to their former positions hereunder, and thereafter all rights
and remedies of such Holder shall continue as though no such proceeding had been instituted.



     Section 6.03 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



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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 6.04 Delay or Omission Not Waiver. No delay or omission of any Holder to exercise any
right upon a default or remedy upon a default shall impair any such right or remedy or constitute a
waiver of any such right. Every right and remedy given by this Article 6 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 6.05 Undertaking for Costs. All parties to this Agreement agree, and each Holder of a
Unit, by its acceptance of such Unit shall be deemed to have agreed, that any court of competent
jurisdiction 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 and costs against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses made by such party
litigant; provided that the provisions of this Section shall not apply to any suit instituted by
the Purchase Contract Agent, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% of the Outstanding Units, or to any suit instituted by any Holder for
the enforcement of any Contract Adjustment Payment or interest on any Debentures owed pursuant to
such Holder’s Applicable Ownership Interests in Debentures on or after the respective Payment Date
therefor in respect of any Unit held by such Holder, or for enforcement of the right to purchase
shares of Common Stock under the Purchase Contracts constituting part of any Unit held by such
Holder.



     Section 6.06 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, that may affect the covenants or the performance of this Agreement;
and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Purchase Contract Agent or the Holders, but will suffer and permit
the execution of every such power as though no such law had been enacted.



ARTICLE 7




THE PURCHASE CONTRACT AGENT




     Section 7.01 Certain Duties and Responsibilities.



          (a) The Purchase Contract Agent:




          (i) undertakes to perform, with respect to the Units, such duties and only such duties
as are specifically set forth in this Agreement and the Remarketing Agreement to be
performed by the Purchase Contract Agent and no implied covenants or obligations shall be
read into this Agreement or the Remarketing Agreement against the Purchase Contract Agent;
and




          (ii) in the absence of bad faith on its part, may, with respect to the Units,
conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed



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therein, upon certificates or opinions furnished to the Purchase Contract Agent and
conforming to the requirements of this Agreement or the Remarketing Agreement, as
applicable, but in the case of any certificates or opinions which by any provision hereof
are specifically required to be furnished to the 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 Remarketing Agreement, as applicable
(but need not confirm or investigate the accuracy of the mathematical calculations or other
facts stated therein).



          (b) No provision of this Agreement or the Remarketing 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:




          (i) this Section 7.01(b) shall not be construed to limit the effect of Section 7.01(a);




          (ii) 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 conclusively determined by a court
of competent jurisdiction that the Purchase Contract Agent was negligent in ascertaining the
pertinent facts; and




          (iii) no provision of this Agreement or the Remarketing Agreement shall require the
Purchase Contract Agent to expend or risk its own funds or otherwise incur any liability in
the performance of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to it.



          (c) Whether or not therein expressly so provided, every provision of this Agreement and the
Remarketing Agreement relating to the conduct or affecting the liability of or affording protection
to the Purchase Contract Agent shall be subject to the provisions of this Section.



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



          (e) On or prior to the date that is 30 days prior to the first day of the Applicable
Remarketing Period, at the Company’s request given at least five Business Days prior to such 30th
day, the Purchase Contract Agent shall deliver to the Company and the Remarketing Agent an executed
counterpart of the Remarketing Agreement, signed by an authorized signatory of the Purchase
Contract Agent.



     Section 7.02 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, as
their names and addresses appear in the Security Register, notice of such default hereunder, unless
such default shall have been cured or waived.



     Section 7.03 Certain Rights of Purchase Contract Agent.



     Subject to the provisions of Section 7.01:



          (a) the Purchase Contract Agent may, in the absence of bad faith, conclusively rely and shall
be fully protected in acting or refraining from acting upon any resolution, certificate, statement,



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instrument, opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;



          (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by an Officers’ Certificate, Issuer Order or Issuer Request, and any resolution of the Board of
Directors of the Company may be sufficiently evidenced by a Board Resolution;



          (c) whenever in the administration of this Agreement or the Remarketing Agreement the Purchase
Contract Agent shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting to take any action hereunder or thereunder, the Purchase Contract Agent
(unless other evidence be herein specifically prescribed in this Agreement) may, in the absence of
bad faith on its part, conclusively rely upon an Officers’ Certificate of the Company;



          (d) the Purchase Contract Agent may consult with counsel of its selection and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;



          (e) the Purchase Contract Agent shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Purchase Contract Agent, in its discretion, may make reasonable further
inquiry or investigation into such facts or matters related to the execution, delivery and
performance of the Purchase Contracts as it may see fit, and, if the Purchase Contract Agent shall
determine to make such further inquiry or investigation, it shall be entitled to examine the
relevant books, records and premises of the Company, personally or by agent or attorney;



          (f) the Purchase Contract Agent may execute any of the powers hereunder or perform any duties
hereunder either directly or by or through agents, attorneys, custodians or nominees or an
Affiliate of the Purchase Contract Agent and the Purchase Contract Agent shall not be responsible
for any misconduct or negligence on the part of any agent, attorney, custodian or nominee or an
Affiliate appointed with due care by it hereunder;



          (g) the Purchase Contract Agent shall be under no obligation to exercise any of the rights or
powers vested in it by this Agreement at the request or direction of any of the Holders pursuant to
this Agreement, unless such Holders shall have offered to the Purchase Contract Agent security or
indemnity satisfactory to the Purchase Contract Agent against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;



          (h) the Purchase Contract Agent shall not be liable for any action taken, suffered, or omitted
to be taken by it in the absence of bad faith or negligence by it and believed by it to be
authorized and within the discretion or rights or powers conferred upon it by this Agreement;



          (i) the Purchase Contract Agent shall not be deemed to have notice of any adjustment to the
Fixed Settlement Rate, the occurrence of a Termination Event or any default hereunder unless a
Responsible Officer of the Purchase Contract Agent has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by a Responsible Offer at the
Corporate Trust Office of the Purchase Contract Agent, and such notice references the Units or this
Agreement;



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          (j) the Purchase Contract Agent may request that the Company deliver an Officers’ Certificate
setting forth the names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Agreement, which Officers’ Certificate may be signed by any
person authorized to sign an Officers’ Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded;



          (k) the rights, privileges, protections, immunities and benefits given to the Purchase
Contract Agent, including, without limitation, its right to be indemnified, are extended to, and
shall be enforceable by, the Purchase Contract Agent in each of its capacities hereunder, and to
each officer, director, employee of the Purchase Contract Agent and each agent, custodian and other
Person employed, in any capacity whatsoever, by the Purchase Contract Agent to act hereunder and
shall survive the resignation or removal of the Purchase Contract Agent and the termination of this
Agreement; and



          (l) the Purchase Contract Agent shall not be required to initiate or conduct any litigation or
collection proceedings hereunder and shall have no responsibilities with respect to any default
hereunder except as expressly set forth herein.



     Section 7.04 Not Responsible for Recitals or Issuance of Units. The recitals contained
herein, in the Remarketing Agreement and in the Certificates shall be taken as the statements of
the Company, and the Purchase Contract Agent assumes no responsibility for their accuracy or
validity. The Purchase Contract Agent makes no representations as to the validity or sufficiency
of either this Agreement or of the Units or the Pledge or the Collateral or the Remarketing
Agreement and shall have no responsibility for perfecting or maintaining the perfection of any
security interest in the Collateral. 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 7.05 May Hold Units. Any Security 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 Units 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 Security Registrar or such other
agent, or the Purchase Contract Agent. The Company may become the owner or pledgee of Units.



     Section 7.06 Money Held in Custody. Money held by the Purchase Contract Agent in custody
hereunder need not be segregated from the Purchase Contract Agent’s 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 or agreed in writing with the Company.



     Section 7.07 Compensation and Reimbursement.



     The Company agrees:



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



          (b) 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 Remarketing
Agreement (including the reasonable compensation and the expenses and disbursements of its agents
and counsel) in connection with the negotiation, preparation, execution and delivery and



65









 







performance of this Agreement and the Remarketing Agreement and any modification, supplement
or waiver of any of the terms thereof, except any such expense, disbursement or advance as may be
attributable to its negligence, willful misconduct or bad faith; and



          (c) to indemnify the Purchase Contract Agent and any predecessor Purchase Contract Agent and
each of its directors, officers, agents and employees (collectively, with the Purchase Contract
Agent, the “Indemnitees”) for, and to hold each Indemnitee harmless against, any loss, claim,
damage, fine, penalty, liability, fee or expense (including reasonable fees and expenses of
counsel) incurred without negligence, willful misconduct or bad faith on its part, arising out of
or in connection with the acceptance or administration of its duties hereunder and the Remarketing
Agreement, including the Indemnitees’ reasonable costs and expenses of defending themselves against
any claim (whether asserted by the Company, a Holder or any other Person) or liability in
connection with the exercise or performance of any of the Purchase Contract Agent’s powers or
duties hereunder or thereunder.



     The provisions of this Section shall survive the resignation and removal of the Purchase
Contract Agent, the satisfaction or discharge of the Units and the Purchase Contracts and the
termination of this Agreement.



     Section 7.08 Corporate Purchase Contract Agent Required; Eligibility. There shall at all
times be a Purchase Contract Agent hereunder which shall be a Person organized and doing business
under the laws of the United States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having (or being a member of a bank
holding company having) a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by Federal or State authority and having a corporate trust office in the
Borough of Manhattan, New York City, if there be such a Person in the Borough of Manhattan, New
York City, qualified and eligible under this Article and willing to act on reasonable terms. If
such Person publishes or files reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published or filed. 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 7.09 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, at the expense of the Company, 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 Units delivered to the Purchase Contract Agent and the Company. 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 such Act, the Purchase
Contract Agent being removed may petition any court of competent jurisdiction for the appointment
of a successor Purchase Contract Agent.



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          (d) If at any time:




          (i) 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, and shall fail to resign after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Unit for at least six months;




          (ii) the Purchase Contract Agent shall cease to be eligible under Section 7.08 and
shall fail to resign after written request therefor by the Company or by any such Holder; or




          (iii) 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 Unit 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 Unit for at least six months, on behalf of itself
and all others similarly situated, or the Purchase Contract Agent may petition, at the expense of
the Company, 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 Security
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 duly
assign, transfer and deliver to such successor Purchase Contract Agent all property and money held
by such retiring Purchase Contract Agent hereunder.



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          (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 clause (a) of this
Section 7.10.



          (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 7.



     Section 7.11 Merger, Conversion, Consolidation or Succession to Business. Any Person into
which the Purchase Contract Agent may be merged or converted or with which it may be consolidated,
or any Person resulting from any merger, conversion or consolidation to which the Purchase Contract
Agent shall be a party, or any Person 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 that such Person shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of any of the parties
hereto. In case any Certificates shall have been authenticated and executed on behalf of the
Holders, but not delivered, by the 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 Units.



     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 Security 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 Unit 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 Units 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 Remarketing Agreement or any Purchase
Contract in respect of the obligations of the Holder of any Unit thereunder. The Company agrees,
and each Holder of a Certificate, by its acceptance thereof, shall be deemed to have agreed, that
the Purchase Contract Agent’s execution of the Certificates on behalf of the Holders shall be
solely as agent and attorney-in-fact for the Holders, and that the Purchase Contract Agent shall
have no obligation to perform such Purchase Contracts on behalf of the Holders, except to the
extent expressly provided in Article Five hereof. Anything contained in this Agreement to the
contrary notwithstanding, in no event shall the Purchase Contract Agent or its officers, directors,
employees or agents be liable under this Agreement or the Remarketing Agreement for (i) indirect,
incidental, special, punitive, or consequential loss or damage of any kind whatsoever, including
lost profits, whether or not the likelihood of such loss or damage was known to the Purchase
Contract Agent and regardless of the form of action or (ii) any failure or delay in the performance
of its obligations under this Agreement arising out of or caused directly or indirectly, by acts of
God; earthquake; fires; floods; wars; civil or military disturbances; terrorist acts; sabotage;
epidemics; riots; interruptions, loss or malfunctions of utilities; accidents; labor disputes; or
acts of civil



68









 







or military authority or governmental actions; it being understood that the Purchase Contract
Agent shall use reasonable efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under such circumstances.



     Section 7.14 Tax Compliance. (a) The Purchase Contract Agent, on its own behalf and on
behalf of the Company, will comply with all applicable certification, information reporting and
withholding (including “backup” withholding) requirements imposed by applicable tax laws,
regulations or administrative practice with respect to (i) any payments made with respect to the
Units or (ii) the issuance, delivery, holding, transfer, redemption or exercise of rights under the
Units. 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
reasonable written direction received from the Company with respect to the execution or
certification of any required documentation and the application of such requirements to particular
payments or Holders or in other particular circumstances, and may for purposes of this Agreement
conclusively rely on any such direction in accordance with the provisions of Section 7.01(a)
hereof.



          (c) The Purchase Contract Agent shall maintain all appropriate records documenting compliance
with such requirements, and shall make such records available, on written request, to the Company
or its authorized representative within a reasonable period of time after receipt of such request.



ARTICLE 8




SUPPLEMENTAL AGREEMENTS




     Section 8.01 Supplemental Agreements without Consent of Holders. Without the consent of any
Holders, the Company, when authorized by a Board Resolution, the Purchase Contract Agent, the
Collateral Agent, the Custodial Agent and the Securities Intermediary 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:



          (a) evidence the succession of another Person to the Company, and the assumption by any such
successor of the covenants of the Company herein and in the Certificates;



          (b) evidence and provide for the acceptance of appointment hereunder by a successor Purchase
Contract Agent, Collateral Agent, Securities Intermediary or Custodial Agent;



          (c) add to the covenants of the Company for the benefit of the Holders, or surrender any right
or power herein conferred upon the Company;



          (d) make provision with respect to the rights of Holders pursuant to the requirements of
Section 5.05(b); or



          (e) except as provided for in Section 5.05, cure any ambiguity, to correct or supplement any
provisions herein that may be inconsistent with any other provision herein, or to make such other
provisions in regard to matters or questions arising under this Agreement that do not adversely
affect the interests of any Holders, provided that any amendment made solely to conform the
provisions of this Agreement to the description of the Units and the Purchase Contracts contained
in the final prospectus supplement dated May [•], 2008, relating to the Units under the sections
entitled “Description



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of the Equity Units,” “Description of the Purchase Contracts” and “Certain Provisions of the
Purchase Contract and Pledge Agreement” will not be deemed to adversely affect the interests of the
Holders.



     Section 8.02 Supplemental Agreements with Consent of Holders. With the consent of the Holders
of not less than a majority of the Outstanding Units voting together as one class, including
without limitation the consent of the Holders obtained in connection with a tender or an exchange
offer, by Act of said Holders delivered to the Company, the Purchase Contract Agent, the Company,
the Collateral Agent, the Securities Intermediary and the Custodial Agent, as the case may be, when
authorized by a Board Resolution, 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 Units; provided, however, that,
except as contemplated herein, no such supplemental agreement shall, without the consent of the
Holder of each outstanding Purchase Contract affected thereby,



          (a) change any Payment Date;



          (b) impair the Holders’ right to institute suit for the enforcement of any Purchase Contract
or any Contract Adjustment Payments;



          (c) except as set forth in Section 5.05, reduce the number of shares of Common Stock or the
amount of any other property to be purchased pursuant to any Purchase Contract, increase the price
to purchase shares of Common Stock or any other property upon settlement of any Purchase Contract
or change the Purchase Contract Settlement Date or the right to Early Settlement or Fundamental
Change Early Settlement or otherwise adversely affect the Holder’s rights under the Purchase
Contract in any material respect;



          (d) change the amount or the type of Collateral required to be Pledged to secure a Holder’s
obligations under the Purchase Contract (except for the rights of holders of Corporate Units to
substitute Treasury Securities for the Pledged Applicable Ownership Interests in Debentures or the
Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may be, or the rights
of Holders of Treasury Units to substitute Debentures or the Applicable Ownership Interests in the
Treasury Portfolio (as specified in clause (i) of the definition of such term), as applicable, for
the Pledged Treasury Securities), impair the right of the Holder of any Purchase Contract to
receive distributions on the related Collateral or otherwise adversely affect the Holder’s rights
in or to such Collateral;



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



          (f) reduce the percentage of the outstanding Purchase Contracts whose Holder’s consent is
required for any modification or amendment to the provisions of this Agreement or the Purchase
Contracts;


provided that if any amendment or proposal referred to above would adversely affect only the
Corporate Units or the Treasury 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 (a) through (f) of this Section 8.02.




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     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 8.03 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, the Collateral
Agent, the Securities Intermediary and the Custodial Agent shall be protected, and (subject to
Section 7.01 with respect to the Purchase Contract Agent) shall be fully authorized and protected
in relying upon, an Officers’ Certificate and an Opinion of Counsel stating that the execution of
such supplemental agreement is authorized or permitted by this Agreement and that any and all
conditions precedent to the execution and delivery of such supplemental agreement have been
satisfied. The Purchase Contract Agent, the Collateral Agent, the Securities Intermediary and the
Custodial Agent may, but shall not be obligated to, enter into any such supplemental agreement
which affects their own rights, duties or immunities under this Agreement or otherwise.



     Section 8.04 Effect of Supplemental Agreements. Upon the execution of any supplemental
agreement under this Article, this Agreement shall be modified in accordance therewith, and such
supplemental agreement shall form a part of this Agreement for all purposes; and every Holder of
Certificates theretofore or thereafter authenticated, executed on behalf of the Holders and
delivered hereunder, shall be bound thereby.



     Section 8.05 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 9




CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE




     Section 9.01 Covenant Not To Consolidate, Merge, Convey, Transfer or Lease Property except
under Certain Conditions. The Company covenants that it will not merge or consolidate with any
other Person or sell, convey, transfer, or otherwise dispose of all or substantially all of its
assets to any other Person, unless:



          (a) either the Company shall be the continuing corporation, or the successor Person (if other
than the Company) formed by such consolidation or into which the Company or the Person which
acquires by conveyance or transfer the properties and assets of the Company substantially as an
entirety shall be a corporation, partnership or trust organized and existing under the laws of the
United States of America or any State thereof or the District of Columbia and shall expressly
assume the due and punctual performance and observance of all the obligations of the Company under
the Purchase Contracts, this Agreement (including the Pledge provided for herein), the Indenture
(including any supplement thereto) and the Remarketing 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,
partnership or trust, as the case may be; and



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          (b) the Company or such successor Person shall not, immediately after such merger or
consolidation, or such sale, conveyance, transfer or other disposition, be in default with respect
to its payment obligations under the Purchase Contracts, this Agreement, the Indenture (including
the Supplemental Indenture and any other supplement thereto) or the Remarketing Agreement. In the
event of any such merger, consolidation, sale, conveyance (other than by way of lease), transfer or
other disposition, the predecessor company may be dissolved, wound up and liquidated at any time
thereafter.



     Section 9.02 Rights and Duties of Successor Corporation. In case of any such merger,
consolidation, sale, conveyance (other than by way of lease), transfer, or other disposition and
upon any such assumption by a successor Person in accordance with Section 9.01, 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, and the Company shall be relieved of any for their obligations
under this Agreement and under the Units. Such successor corporation thereupon may cause to be
signed, and may issue either in its own name or in the name of Archer-Daniels-Midland Company any
or all of the Certificates evidencing Units 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 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 Units 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, sale, conveyance, transfer, or other disposition
such change in phraseology and form (but not in substance) may be made in the Certificates
evidencing Units thereafter to be issued as may be appropriate.



     Section 9.03 Officers’ Certificate and Opinion of Counsel Given to Purchase Contract Agent.
The Purchase Contract Agent, subject to Section 7.01 and Section 7.03, shall receive an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any such merger, consolidation,
sale, conveyance, transfer, or other disposition, and any such assumption, complies with the
provisions of this Article and that all conditions precedent to the consummation of any such
merger, consolidation, sale, conveyance, transfer or other disposition have been met.



ARTICLE 10




COVENANTS




     Section 10.01 Performance under Purchase Contracts. The Company covenants and agrees for the
benefit of the Holders from time to time of the Units 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 10.02 Maintenance of Office or Agency. The Company will maintain in the Borough of
Manhattan, City of New York, New York 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 upon Early Settlement or Fundamental Change Early
Settlement and for transfer of Collateral upon occurrence of a Termination Event, where
Certificates may be surrendered for registration of transfer or exchange, or for a Collateral
Substitution and where notices and



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demands to or upon the Company in respect of the Units 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. The Company initially designates the Corporate
Trust Office of the Purchase Contract Agent as such office of the Company. If at any time the
Company shall fail to maintain any such required office or agency or shall fail to furnish the
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, City of New York, New York 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 Units the Corporate Trust Office and appoints the Purchase Contract Agent at its
Corporate Trust Office as paying agent in such city.



     Section 10.03 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 Units evidenced
by Outstanding Certificates.



     Section 10.04 Covenants as to Common Stock; Listing. (a) 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 Units will, upon issuance, be duly authorized,
validly issued, fully paid and nonassessable.



          (b) The Company further covenants that, if at any time the Common Stock shall be listed on the
NYSE or any other national securities exchange or automated quotation system, the Company will, if
permitted by the rules of such exchange or automated quotation system, list and keep listed, so
long as the Common Stock shall be so listed on such exchange or automated quotation system, all
Common Stock issuable upon Settlement of Purchase Contracts; provided, however, that, if the rules
of such exchange or automated quotation system permit the Company to defer the listing of such
Common Stock until the date on which any Purchase Contract is first settled in accordance with the
provisions of this Agreement, the Company covenants to list such Common Stock issuable upon
settlement of the Purchase Contracts in accordance with the requirements of such exchange or
automated quotation system no later than at such time.



     Section 10.05 Statements of Officers of the Company as to Default. The Company will deliver
to the Purchase Contract Agent, within 120 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, 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 of this
Agreement, and if the Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.



     Section 10.06 ERISA. Each Holder from time to time of the Units that is a Plan or who used
assets of a Plan to purchase Units hereby represents that either (i) no portion of the assets used
by such



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Holder to acquire the Corporate Units constitutes assets of the Plan or (ii) the purchase or
holding of the Corporate Units by such purchaser or transferee will not constitute a non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or similar violation
under any applicable laws.



     Section 10.07 Tax Treatment. The Company covenants and agrees, and by acceptance of a Unit,
each Holder will be deemed to have agreed for U.S. federal income tax purposes (i) to treat each
beneficial owner of a Corporate Unit or a Treasury Unit as the owner of the applicable interests in
the Collateral, including the Debentures underlying the Applicable Ownership Interests in
Debentures, the Applicable Ownership Interests in the Treasury Portfolio or the Treasury
Securities, as applicable, (ii) not to treat the Debentures as contingent payment debt instruments
and (iii) to allocate a Holder’s purchase price for a Corporate Unit between the Applicable
Ownership Interests in Debentures and the Purchase Contract so that each Holder’s initial tax basis
in each Purchase Contract will be $0.00 and each Holder’s initial tax basis in each Applicable
Ownership Interest in Debentures will be $50.00.



     Section 10.08 Remarketing Agreement. On or prior to the date that is 30 days prior to the
first day of the Applicable Remarketing Period, the Company shall have entered into, and shall have
caused the Purchase Contract Agent and the Remarketing Agent to have entered into, the Remarketing
Agreement.



ARTICLE 11




PLEDGE




     Section 11.01 Pledge. Each Holder, acting through the Purchase Contract Agent as such
Holder’s attorney-in-fact, and the Purchase Contract Agent, acting solely as such attorney-in-fact,
hereby pledges and grants to the Collateral Agent, as agent of and for the benefit of the Company,
a continuing first priority security interest in and to, and a lien upon and right of set-off
against, all of such Person’s right, title and interest in and to the Collateral to secure the
prompt and complete payment and performance when due (whether at stated maturity, by acceleration
or otherwise) of the Obligations. The Collateral Agent shall have all of the rights, remedies and
recourses with respect to the Collateral afforded a secured party by the UCC, in addition to, and
not in limitation of, the other rights, remedies and recourses afforded to the Collateral Agent by
this Agreement.



     Section 11.02 Termination. As to each Holder, the Pledge created hereby shall terminate upon
the satisfaction of such Holder’s Obligations. Upon such termination, the Collateral Agent shall
instruct the Securities Intermediary to Transfer such portion of the Collateral attributable to
such Holder to the Purchase Contract Agent for distribution to such Holder, free and clear of the
Pledge created hereby.



ARTICLE 12




ADMINISTRATION OF COLLATERAL




     Section 12.01 Initial Deposit of Debentures. (a) Prior to or concurrently with the execution
and delivery of this Agreement, the Purchase Contract Agent, on behalf of the initial Holders of
the Corporate Units, shall Transfer to the Securities Intermediary, for credit to the Collateral
Account, the Applicable Ownership Interests in Debentures and the Debentures underlying such
Applicable Ownership Interests in Debentures or security entitlements relating thereto and the
Securities Intermediary shall indicate by book-entry that a securities entitlement with respect to
such Applicable Ownership Interests in Debentures has been credited to the Collateral Account.




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          (b) The Collateral Agent may, at any time or from time to time, in its sole discretion, cause
any or all securities or other property underlying any financial assets credited to the Collateral
Account to be registered in the name of the Securities Intermediary, the Collateral Agent or their
respective nominees; provided, however, that unless any Event of Default (as defined in the
Indenture) shall have occurred and be continuing, the Collateral Agent agrees not to cause any
Debentures to be so re-registered.




     Section 12.02 Establishment of Collateral Account. The Securities Intermediary hereby
confirms that:



          (a) the Securities Intermediary has established the Collateral Account;




          (b) the Collateral Account is a securities account;




          (c) subject to the terms of this Agreement, the Securities Intermediary shall identify in its
records the Collateral Agent as the entitlement holder entitled to exercise the rights that
comprise any financial asset credited to the Collateral Account;




          (d) all property delivered to the Securities Intermediary pursuant to this Agreement,
including any Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (i)
of the definition thereof) or Treasury Securities and the Permitted Investments, will be credited
promptly to the Collateral Account; and




          (e) all securities or other property underlying any financial assets credited to the
Collateral Account shall be (i) registered in the name of the Purchase Contract Agent and indorsed
to the Securities Intermediary or in blank, (ii) registered in the name of the Securities
Intermediary or (iii) credited to another securities account maintained in the name of the
Securities Intermediary.




     In no case will any financial asset credited to the Collateral Account be registered in the
name of the Purchase Contract Agent (in its capacity as such) or any Holder or specially indorsed
to the Purchase Contract Agent (in its capacity as such) or any Holder, unless such financial asset
has been further indorsed to the Securities Intermediary or in blank.



     Section 12.03 Treatment as Financial Assets. Each item of property (whether investment
property, financial asset, security, instrument or cash) credited to the Collateral Account shall
be treated as a financial asset.



     Section 12.04 Sole Control by Collateral Agent. Except as provided in Section 15.01, at all
times prior to the termination of the Pledge, the Collateral Agent shall have sole control of the
Collateral Account, and the Securities Intermediary shall take instructions and directions, and
comply with entitlement orders, with respect to the Collateral Account or any financial asset
credited thereto solely from the Collateral Agent. If at any time the Securities Intermediary
shall receive an entitlement order issued by the Collateral Agent and relating to the Collateral
Account, the Securities Intermediary shall comply with such entitlement order without further
consent by the Purchase Contract Agent or any Holder or any other Person. Except as otherwise
permitted under this Agreement, until termination of the Pledge, the Securities Intermediary will
not comply with any entitlement orders issued by the Purchase Contract Agent or any Holder.



     Section 12.05 Jurisdiction. The Collateral Account, and the rights and obligations of the
Securities Intermediary, the Collateral Agent, the Purchase Contract Agent and the Holders with
respect



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thereto, shall be governed by the laws of the State of New York. Regardless of any provision
in any other agreement, the Securities Intermediary’s jurisdiction is the State of New York.



     Section 12.06 No Other Claims. Except for the claims and interest of the Collateral Agent and
of the Purchase Contract Agent and the Holders in the Collateral Account, the Securities
Intermediary (without having conducted any investigation) does not know of any claim to, or
interest in, the Collateral Account or in any financial asset credited thereto. If any Person
asserts any lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant
of attachment, execution or similar process) against the Collateral Account or in any financial
asset carried therein, the Securities Intermediary will promptly notify the Collateral Agent and
the Purchase Contract Agent.



     Section 12.07 Investment and Release. All proceeds of financial assets from time to time
credited to the Collateral Account shall be invested and reinvested as provided in this Agreement.
At all times prior to termination of the Pledge, no property shall be released from the Collateral
Account except in accordance with this Agreement or upon written instructions of the Collateral
Agent.



     Section 12.08 Statements and Confirmations. The Securities Intermediary will promptly send
copies of all statements, confirmations and other correspondence concerning the Collateral Account
and any financial assets credited thereto simultaneously to each of the Purchase Contract Agent and
the Collateral Agent at their addresses for notices under this Agreement.



     Section 12.09 Tax Allocations. The Purchase Contract Agent shall report all items of income,
gain, expense and loss recognized in the Collateral Account, to the extent such reporting is
required by law, to the Internal Revenue Service authorities in the manner required by law.
Neither the Securities Intermediary nor the Collateral Agent shall have any tax reporting duties
hereunder.



     Section 12.10 No Other Agreements. The Securities Intermediary has not entered into, and
prior to the termination of the Pledge will not enter into, any agreement with any other Person
relating to the Collateral Account or any financial assets credited thereto, including, without
limitation, any agreement to comply with entitlement orders of any Person other than the Collateral
Agent.



     Section 12.11 Powers Coupled with an Interest. The rights and powers granted in this Purchase
Contract and Pledge Agreement to the Collateral Agent have been granted in order to perfect its
security interests in the Collateral Account, are powers coupled with an interest and will be
affected neither by the bankruptcy of the Purchase Contract Agent or any Holder nor by the lapse of
time. The obligations of the Securities Intermediary under this Purchase Contract and Pledge
Agreement shall continue in effect until the termination of the Pledge.



     Section 12.12 Waiver of Lien; Waiver of Set-off. The Securities Intermediary waives any
security interest, lien or right to make deductions or set-offs that it may now have or hereafter
acquire in or with respect to the Collateral Account, any financial asset credited thereto or any
security entitlement in respect thereof. Neither the financial assets credited to the Collateral
Account nor the security entitlements in respect thereof will be subject to deduction, set-off,
banker’s lien, or any other right in favor of any person other than the Company.



ARTICLE 13




RIGHTS AND REMEDIES OF THE COLLATERAL AGENT




     Section 13.01 Rights and Remedies of the Collateral Agent. (a) In addition to the rights and
remedies set forth herein or otherwise available at law or in equity, after a collateral event of
default (as



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specified in Section 13.01(b) below) hereunder, the Collateral Agent shall have all of the
rights and remedies with respect to the Collateral of a secured party under the UCC (whether or not
the UCC is in effect in the jurisdiction where the rights and remedies are asserted) and the TRADES
Regulations and such additional rights and remedies to which a secured party is entitled under the
laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted.
Without limiting the generality of the foregoing, such remedies may include, to the extent
permitted by applicable law, (1) retention of the Debentures underlying Pledged Applicable
Ownership Interests in Debentures, the Pledged Treasury Securities or the Pledged Applicable
Ownership Interests in the Treasury Portfolio in full satisfaction of the Holders’ obligations
under the Purchase Contracts and the Purchase Contract Agreement or (2) sale of the Debentures
underlying Pledged Applicable Ownership Interests in Debentures, the Pledged Treasury Securities or
the Pledged Applicable Ownership Interests in the Treasury Portfolio in one or more public or
private sales.



          (b) Without limiting any rights or powers otherwise granted by this Agreement to the
Collateral Agent, in the event the Collateral Agent is unable to make payments to the Company on
account of Proceeds of (i) the Debentures underlying Pledged Applicable Ownership Interests in
Debentures (other than any interest payments thereon), (ii) Pledged Applicable Ownership Interests
in the Treasury Portfolio, or (iii) the Pledged Treasury Securities as provided in this Agreement
in satisfaction of the Obligations of the Holder of the Units of which such applicable Pledged
Applicable Ownership Interests in the Treasury Portfolio or such Pledged Treasury Securities are a
part under the related Purchase Contracts, the inability to make such payments shall constitute a
"collateral event of default” hereunder and the Collateral Agent shall have and may exercise, with
reference to such Debentures underlying Pledged Applicable Ownership Interests in Debentures,
Pledged Treasury Securities or Pledged Applicable Ownership Interests in the Treasury Portfolio, as
applicable, any and all of the rights and remedies available to a secured party under the UCC and
the TRADES Regulations after default by a debtor, and as otherwise granted herein or under any
other law.




          (c) Without limiting any rights or powers otherwise granted by this Agreement to the
Collateral Agent, the Collateral Agent is hereby irrevocably authorized to receive, collect and
apply to the satisfaction of the Obligations all payments with respect to (i) the Debentures
underlying Pledged Applicable Ownership Interests in Debentures (other than any interest payments
thereon), (ii) the Pledged Treasury Securities and (iii) the Pledged Applicable Ownership Interests
in the Treasury Portfolio, subject, in each case, to the provisions of this Agreement, and as
otherwise provided herein.




          (d) The Purchase Contract Agent and each Holder agrees that, from time to time, upon the
written request of the Collateral Agent, the Purchase Contract Agent, on behalf of such Holder,
shall execute and deliver such further documents and do such other acts and things as the
Collateral Agent may reasonably request in order to maintain the Pledge, and the perfection and
priority thereof, and to confirm the rights of the Collateral Agent hereunder. The Purchase
Contract Agent shall have no liability to any Holder for executing any documents or taking any such
acts requested by the Collateral Agent hereunder, except for liability for its own negligent acts,
its own negligent failure to act or its own willful misconduct.




ARTICLE 14




REPRESENTATIONS AND WARRANTIES TO

COLLATERAL AGENT; HOLDER COVENANTS




     Section 14.01 Representations and Warranties. Each Holder from time to time, acting through
the Purchase Contract Agent as attorney-in-fact (it being understood that the Purchase Contract
Agent shall not be liable for any representation or warranty made by or on behalf of a Holder),
hereby represents



77









 







and warrants to the Collateral Agent and the Company (with respect to such Holder’s interest
in the Collateral), which representations and warranties shall be deemed repeated on each day a
Holder effects a Transfer of Collateral, that:



          (a) such Holder has the power to grant a security interest in and lien on the Collateral;




          (b) such Holder is the sole beneficial owner of the Collateral and, in the case of Collateral
delivered in physical form, is the sole holder of such Collateral and is the sole beneficial owner
of, or has the right to Transfer, the Collateral it Transfers to the Collateral Agent for credit to
the Collateral Account, free and clear of any security interest, lien, encumbrance, call, liability
to pay money or other restriction other than the security interest and lien granted under Article
11;




          (c) upon the Transfer of the Collateral to the Securities Intermediary for credit to the
Collateral Account, the Collateral Agent, for the benefit of the Company, will have a valid and
perfected first priority security interest therein (assuming that any central clearing operation or
any securities intermediary or other entity not within the control of the Holder involved in the
Transfer of the Collateral, including the Collateral Agent and the Securities Intermediary, gives
the notices and takes the action required of it hereunder and under applicable law for perfection
of that interest and assuming the establishment and exercise of control pursuant to Article 12
hereof); and




          (d) the execution and performance by the Holder of its obligations under this Agreement will
not result in the creation of any security interest, lien or other encumbrance on the Collateral
(other than the security interest and lien granted under Article 11 hereof) or violate any
provision of any existing law or regulation applicable to it or of any mortgage, charge, pledge,
indenture, contract or undertaking to which it is a party or which is binding on it or any of its
assets.




     Section 14.02 Covenants. The Purchase Contract Agent and the Holders from time to time,
acting through the Purchase Contract Agent as their attorney-in-fact (it being understood that the
Purchase Contract Agent shall not be liable for any covenant made by or on behalf of a Holder),
hereby covenant to the Collateral Agent and the Company that for so long as the Collateral remains
subject to the Pledge:



          (a) neither the Purchase Contract Agent nor such Holders will create or purport to create or
allow to subsist any mortgage, charge, lien, pledge or any other security interest whatsoever over
the Collateral or any part of it other than pursuant to this Agreement; and




          (b) neither the Purchase Contract Agent nor such Holders will sell or otherwise dispose (or
attempt to dispose) of the Collateral or any part of it except for the beneficial interest therein,
subject to the Pledge hereunder, transferred in connection with a Transfer of the Units.




ARTICLE 15




THE COLLATERAL AGENT, THE CUSTODIAL AGENT

AND THE SECURITIES INTERMEDIARY




     Section 15.01 Appointment, Powers and Immunities. The Collateral Agent, the Custodial Agent
and the Securities Intermediary shall act as agent for the Company hereunder with such powers as
are specifically vested in the Collateral Agent, the Custodial Agent and the Securities
Intermediary, as the case may be, by the terms of this Agreement. The Collateral Agent, the
Custodial Agent and Securities Intermediary shall:



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          (a) have no duties or responsibilities except those expressly set forth in this Agreement and
no implied covenants or obligations shall be inferred from this Agreement against the Collateral
Agent, the Custodial Agent or the Securities Intermediary, nor shall the Collateral Agent, the
Custodial Agent or the Securities Intermediary be bound by the provisions of any agreement by any
party hereto beyond the specific terms hereof;




          (b) not be responsible for any recitals contained in this Agreement, or in any certificate or
other document referred to or provided for in, or received by it under, this Agreement or the
Units, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement (other than as against the Collateral Agent, the Custodial Agent or the Securities
Intermediary, as the case may be), the Units, any Collateral or any other document referred to or
provided for herein or therein or for any failure by the Company or any other Person (except the
Collateral Agent, the Custodial Agent or Securities Intermediary, as the case may be) to perform
any of its obligations hereunder or thereunder or, except as expressly required hereby, for the
perfection, priority or maintenance of any security interest created hereunder;




          (c) not be required to initiate or conduct any litigation or collection proceedings hereunder
(except pursuant to directions furnished under Section 15.02 hereof, subject to Section 15.08
hereof);




          (d) not be responsible for any action taken or omitted to be taken by it hereunder or under
any other document or instrument referred to or provided for herein or in connection herewith or
therewith, except for its own negligence or willful misconduct; and




          (e) not be required to advise any party as to selling or retaining, or taking or refraining
from taking any action with respect to, any securities or other property deposited hereunder.




     Subject to the foregoing, during the term of this Agreement, the Collateral Agent, the
Custodial Agent and the Securities Intermediary shall take all reasonable action in connection with
the safekeeping and preservation of the Collateral hereunder as determined by industry standards.



     No provision of this Agreement shall require the Collateral Agent, the Custodial Agent or the
Securities Intermediary to expend or risk its own funds or otherwise incur any liability in the
performance of any of its duties hereunder. In no event shall the Collateral Agent, the Custodial
Agent or the Securities Intermediary be liable for any amount in excess of the Value of the
Collateral.



     Section 15.02 Instructions of the Company. The Company shall have the right, by one or more
written instruments executed and delivered to the Collateral Agent, to direct the time, method and
place of conducting any proceeding for the realization of any right or remedy available to the
Collateral Agent, or of exercising any power conferred on the Collateral Agent, or to direct the
taking or refraining from taking of any action authorized by this Agreement; provided, however,
that (i) such direction shall not conflict with the provisions of any law or of this Agreement or
involve the Collateral Agent in personal liability and (ii) the Collateral Agent shall be
indemnified to its satisfaction as provided herein. Nothing contained in this Section 15.02 shall
impair the right of the Collateral Agent in its discretion to take any action or omit to take any
action which it deems proper and which is not inconsistent with such direction. None of the
Collateral Agent, the Custodial Agent or the Securities Intermediary has any obligation or
responsibility to file UCC financing statements.



     Section 15.03 Reliance by Collateral Agent, Custodial Agent and Securities Intermediary. Each
of the Securities Intermediary, the Custodial Agent and the Collateral Agent shall be entitled to
rely conclusively upon any certification, order, judgment, opinion, notice or other written
communication



79









 







(including, without limitation, any thereof by e-mail or similar electronic means, telecopy,
telex or facsimile) believed by it in good faith to be genuine and correct and to have been signed
or sent by or on behalf of the proper Person or Persons (without being required to determine the
correctness of any fact stated therein) and consult with and conclusively rely upon advice,
opinions and statements of legal counsel and other experts selected by the Collateral Agent, the
Custodial Agent or the Securities Intermediary, as the case may be. As to any matters not
expressly provided for by this Agreement, the Collateral Agent, the Custodial Agent and the
Securities Intermediary shall in all cases be fully protected in acting, or in refraining from
acting, hereunder in accordance with instructions given by the Company in accordance with this
Agreement.



     Section 15.04 Certain Rights. (a) Whenever in the administration of the provisions of this
Agreement the Collateral Agent, the Custodial Agent or the Securities Intermediary shall deem it
necessary or desirable that a matter be proved or established prior to taking or suffering any
action to be taken hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the part of the
Collateral Agent, the Custodial Agent or the Securities Intermediary, be deemed to be conclusively
proved and established by a certificate signed by one of the Company’s officers, and delivered to
the Collateral Agent, the Custodial Agent or the Securities Intermediary and such certificate, in
the absence of negligence or bad faith on the part of the Collateral Agent, the Custodial Agent or
the Securities Intermediary, shall be full warrant to the Collateral Agent, the Custodial Agent or
the Securities Intermediary for any action taken, suffered or omitted by it under the provisions of
this Agreement upon the faith thereof.



     (b) The Collateral Agent, the Custodial Agent or the Securities Intermediary shall not be
bound to make any investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or
other paper or document.



     (c) The rights, privileges, protections, immunities and benefits given to each of the
Collateral Agent, the Custodial Agent and the Securities Intermediary, including, without
limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Purchase
Contract Agent in each of its capacities hereunder, and each agent, custodian and other Person
employed to act hereunder.



     Section 15.05 Merger, Conversion, Consolidation or Succession to Business. Any corporation or
national association into which the Collateral Agent, the Custodial Agent or the Securities
Intermediary may be merged or converted or with which it may be consolidated, or any corporation or
national association resulting from any merger, conversion or consolidation to which the Collateral
Agent, the Custodial Agent or the Securities Intermediary shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the Collateral Agent, the
Custodial Agent or the Securities Intermediary shall be the successor of the Collateral Agent, the
Custodial Agent or the Securities Intermediary hereunder without the execution or filing of any
paper with any party hereto or any further act on the part of any of the parties hereto except
where an instrument of transfer or assignment is required by law to effect such succession,
anything herein to the contrary notwithstanding.



     Section 15.06 Rights in Other Capacities. The Collateral Agent, the Custodial Agent and the
Securities Intermediary and their affiliates may (without having to account therefor to the
Company) accept deposits from, lend money to, make their investments in and generally engage in any
kind of banking, trust or other business with the Purchase Contract Agent, any other Person
interested herein and any Holder (and any of their respective subsidiaries or affiliates) as if it
were not acting as the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the
case may be, and the Collateral Agent, the Custodial Agent, the Securities Intermediary and their
affiliates may accept fees and other consideration from the Purchase Contract Agent and any Holder
without having to account for the same



80









 







to the Company; provided that each of the Collateral Agent, the Custodial Agent and the
Securities Intermediary covenants and agrees with the Company that it shall not accept, receive or
permit there to be created in favor of itself and shall take no affirmative action to permit there
to be created in favor of any other Person, any security interest, lien or other encumbrance of any
kind in or upon the Collateral other than the lien created by the Pledge.



     Section 15.07 Non-reliance on the Collateral Agent, Custodial Agent and Securities
Intermediary. None of the Collateral Agent, the Custodial Agent and the Securities Intermediary
shall be required to keep itself informed as to the performance or observance by the Purchase
Contract Agent or any Holder of this Agreement, the Units or any other document referred to or
provided for herein or therein or to inspect the properties or books of the Purchase Contract Agent
or any Holder. None of the Collateral Agent, the Custodial Agent or the Securities Intermediary
shall have any duty or responsibility to provide the Company with any credit or other information
concerning the affairs, financial condition or business of the Purchase Contract Agent or any
Holder (or any of their respective affiliates) that may come into the possession of the Collateral
Agent, the Custodial Agent or the Securities Intermediary or any of their respective affiliates.



     Section 15.08 Compensation and Indemnity. The Company agrees to:



          (a) pay the Collateral Agent, the Custodial Agent and the Securities Intermediary from time to
time such compensation as shall be agreed in writing between the Company and the Collateral Agent,
the Custodial Agent or the Securities Intermediary, as the case may be, for all services rendered
by them hereunder;




          (b) indemnify and hold harmless the Collateral Agent, the Custodial Agent, the Securities
Intermediary and each of their respective directors, officers, agents and employees (collectively,
the “Pledge Indemnitees”), from and against any and all claims, liabilities, losses, damages,
fines, penalties and expenses (including reasonable fees and expenses of counsel) (collectively,
“Losses” and individually, a “Loss”) that may be imposed on, incurred by, or asserted against, the
Indemnitees or any of them for following any instructions or other directions upon which any of the
Collateral Agent, the Custodial Agent or the Securities Intermediary is entitled to rely pursuant
to the terms of this Agreement, provided that the Collateral Agent, the Custodial Agent or the
Securities Intermediary has not acted with negligence or engaged in willful misconduct or bad faith
with respect to the specific Loss against which indemnification is sought; and




          (c) in addition to and not in limitation of paragraph (b) of this Section 15.08, indemnify and
hold the Indemnitees and each of them harmless from and against any and all Losses that may be
imposed on, incurred by or asserted against, the Indemnitees or any of them in connection with or
arising out of the Collateral Agent’s, the Custodial Agent’s or the Securities Intermediary’s
acceptance or performance of its powers and duties under this Agreement, provided the Collateral
Agent, the Custodial Agent or the Securities Intermediary has not acted with negligence or engaged
in willful misconduct or bad faith with respect to the specific Loss against which indemnification
is sought.




     The provisions of this Section and Section 15.14 shall survive the resignation or removal of
the Collateral Agent, the Custodial Agent or the Securities Intermediary and the termination of
this Agreement.



     Section 15.09 Failure to Act. In the event that, in the good faith belief of the Collateral
Agent, the Custodial Agent or the Securities Intermediary, an ambiguity in the provisions of this
Agreement arises or any actual dispute between or conflicting claims by or among the parties hereto
or any other Person with respect to any funds or property deposited hereunder has been asserted in
writing, then at its



81









 







sole option, each of the Collateral Agent, the Custodial Agent and the Securities Intermediary
shall be entitled, after prompt notice to the Company and the Purchase Contract Agent, to refuse to
comply with any and all claims, demands or instructions with respect to such property or funds so
long as such dispute or conflict shall continue, and the Collateral Agent, the Custodial Agent and
the Securities Intermediary, as the case may be, shall not be or become liable in any way to any of
the parties hereto for its failure or refusal to comply with such conflicting claims, demands or
instructions. The Collateral Agent, the Custodial Agent and the Securities Intermediary shall be
entitled to refuse to act until either:



          (a) such conflicting or adverse claims or demands shall have been finally determined by a
court of competent jurisdiction or settled by agreement between the conflicting parties as
evidenced in a writing satisfactory to the Collateral Agent, the Custodial Agent or the Securities
Intermediary; or




          (b) the Collateral Agent, the Custodial Agent or the Securities Intermediary shall have
received security or an indemnity satisfactory to it sufficient to hold it harmless from and
against any and all loss, liability or reasonable out-of-pocket expense which it may incur by
reason of its acting.




     The Collateral Agent, the Custodial Agent and the Securities Intermediary may in addition
elect to commence an interpleader action or seek other judicial relief or orders as the Collateral
Agent, the Custodial Agent or the Securities Intermediary may deem necessary. Notwithstanding
anything contained herein to the contrary, none of the Collateral Agent, the Custodial Agent or the
Securities Intermediary shall be required to take any action that is in its opinion contrary to law
or to the terms of this Agreement, or which would in its opinion subject it or any of its officers,
employees or directors to liability.



     Section 15.10 Resignation of Collateral Agent, the Custodial Agent and the Securities
Intermediary. (a) Subject to the appointment and acceptance of a successor Collateral Agent,
Custodial Agent or Securities Intermediary as provided below:




          (i) the Collateral Agent, the Custodial Agent or the Securities Intermediary may resign
at any time by giving notice thereof to the Company and the Purchase Contract Agent as
attorney-in-fact for the Holders;




          (ii) the Collateral Agent, the Custodial Agent or the Securities Intermediary may be
removed at any time by the Company; and




          (iii) if the Collateral Agent, the Custodial Agent or the Securities Intermediary fails
to perform any of its material obligations hereunder in any material respect for a period of
not less than 20 days after receiving written notice of such failure by the Purchase
Contract Agent and such failure shall be continuing, the Collateral Agent, the Custodial
Agent and the Securities Intermediary may be removed by the Purchase Contract Agent, acting
at the direction of the Holders.



     The Purchase Contract Agent shall promptly notify the Company upon the transmission of notice
as contemplated by clause (iii) of Section 15.10(a) and any removal of the Collateral Agent, the
Custodial Agent or the Securities Intermediary pursuant to clause (iii) of this Section 15.10(a).
Upon any such resignation or removal, the Company shall have the right to appoint a successor
Collateral Agent, Custodial Agent or Securities Intermediary, as the case may be, which shall not
be an Affiliate of the Purchase Contract Agent. If no successor Collateral Agent, Custodial Agent
or Securities Intermediary shall have been so appointed and shall have accepted such appointment
within 45 days after the retiring Collateral Agent’s, Custodial Agent’s or Securities
Intermediary’s giving of notice of resignation or the Company’s or the Purchase Contract Agent’s
giving notice of such removal, then the retiring or removed Collateral Agent, Custodial Agent or
Securities Intermediary may petition any court of competent



82









 







jurisdiction, at the expense of the Company, for the appointment of a successor Collateral
Agent, Custodial Agent or Securities Intermediary. The Collateral Agent, the Custodial Agent and
the Securities Intermediary shall each be a bank or a national banking association which has an
office (or an agency office) in New York City with a combined capital and surplus of at least
$50,000,000. Upon the acceptance of any appointment as Collateral Agent, Custodial Agent or
Securities Intermediary hereunder by a successor Collateral Agent, Custodial Agent or Securities
Intermediary, as the case may be, such successor Collateral Agent, Custodial Agent or Securities
Intermediary, as the case may be, shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Collateral Agent, Custodial Agent or Securities
Intermediary, as the case may be, and the retiring Collateral Agent, Custodial Agent or Securities
Intermediary, as the case may be, shall take all appropriate action, subject to payment of any
amounts then due and payable to it hereunder, to transfer any money and property held by it
hereunder (including the Collateral) to such successor. The retiring Collateral Agent, Custodial
Agent or Securities Intermediary shall, upon such succession, be discharged from its duties and
obligations as Collateral Agent, Custodial Agent or Securities Intermediary hereunder. After any
retiring Collateral Agent’s, Custodial Agent’s or Securities Intermediary’s resignation hereunder
as Collateral Agent, Custodial Agent or Securities Intermediary, the provisions of this Article 15
shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as the Collateral Agent, the Custodial Agent or the Securities Intermediary.
Any resignation or removal of the Collateral Agent, the Custodial Agent or the Securities
Intermediary hereunder, at a time when such Person is also acting as the Collateral Agent, the
Custodial Agent or the Securities Intermediary, as the case may be, shall be deemed for all
purposes of this Agreement as the simultaneous resignation or removal of the Collateral Agent, the
Securities Intermediary or the Custodial Agent, as the case may be.



          (b) Because The Bank of New York is serving as the Collateral Agent hereunder and also as the
Purchase Contract Agent hereunder, if an event of default or a collateral event of default occurs
hereunder The Bank of New York will resign as the Collateral Agent, Custodial Agent and the
Securities Intermediary, but continue to act as the Purchase Contract Agent. A successor
Collateral Agent, Custodial Agent and Securities Intermediary will be appointed in accordance with
the terms of this Article 15.




     Section 15.11 Right to Appoint Agent or Advisor. The Collateral Agent shall have the right to
appoint agents or advisors in connection with any of its duties hereunder, and the Collateral Agent
shall not be liable for any action taken or omitted by, or in reliance upon the advice of, such
agents or advisors selected in good faith. The appointment of agents pursuant to this Section
15.11 shall be subject to prior written consent of the Company, which consent shall not be
unreasonably withheld.



     Section 15.12 Survival. The provisions of this Article 15 shall survive termination of this
Agreement and the resignation or removal of the Collateral Agent, the Custodial Agent or the
Securities Intermediary.



     Section 15.13 Exculpation. Anything contained in this Agreement to the contrary
notwithstanding, in no event shall the Collateral Agent, the Custodial Agent or the Securities
Intermediary or their officers, directors, employees or agents be liable under this Agreement for
indirect, special, punitive, or consequential loss or damage of any kind whatsoever, including, but
not limited to, lost profits, whether or not the likelihood of such loss or damage was known to the
Collateral Agent, the Custodial Agent or the Securities Intermediary, or any of them and regardless
of the form of action.



     Section 15.14 Expenses, Etc. The Company agrees to reimburse the Collateral Agent, the
Custodial Agent and the Securities Intermediary for:



83









 





          (a) all reasonable costs, fees and expenses of the Collateral Agent, the Custodial Agent and
the Securities Intermediary (including, without limitation, the reasonable fees and expenses of
counsel to the Collateral Agent, the Custodial Agent and the Securities Intermediary), in
connection with (i) the negotiation, preparation, execution and delivery or performance of this
Agreement and (ii) any modification, supplement or waiver of any of the terms of this Agreement;




          (b) all reasonable costs, fees and expenses of the Collateral Agent, the Custodial Agent and
the Securities Intermediary (including, without limitation, reasonable fees and expenses of
counsel) in connection with (i) any enforcement or proceedings resulting or incurred in connection
with causing any Holder to satisfy its obligations under the Purchase Contracts forming a part of
the Units and (ii) the enforcement of this Section 15.14;




          (c) all transfer, stamp, documentary or other similar taxes, assessments or charges levied by
any governmental or revenue authority in respect of this Agreement or any other document referred
to herein and all costs, expenses, taxes, assessments and other charges incurred in connection with
any filing, registration, recording or perfection of any security interest contemplated hereby;




          (d) all reasonable fees and expenses of any agent or advisor appointed by the Collateral Agent
and consented to by the Company under Section 15.11 of this Agreement; and




          (e) any other out-of-pocket costs and expenses reasonably incurred by the Collateral Agent,
the Custodial Agent and the Securities Intermediary in connection with the performance of their
duties hereunder.




     Section 15.15 Force Majeure. In no event shall any of the Collateral Agent, Custodial Agent
and Securities Intermediary be responsible or liable for any failure or delay in the performance of
its obligations under this Agreement arising out of or caused directly or indirectly, by acts of
God; earthquake; fires; floods; wars; civil or military disturbances; terrorist acts; sabotage;
epidemics; riots; interruptions, loss or malfunctions of utilities; accidents; labor disputes; or
acts of civil or military authority or governmental actions; it being understood that the
Collateral Agent, Custodial Agent and Securities Intermediary shall use reasonable efforts which
are consistent with accepted practices in the banking industry to resume performance as soon as
practicable under such circumstances.



ARTICLE 16




MISCELLANEOUS




     Section 16.01 Security Interest Absolute. All rights of the Collateral Agent and security
interests hereunder, and all obligations of the Holders from time to time hereunder pursuant to the
Pledge, shall be absolute and unconditional irrespective of:



          (a) any lack of validity or enforceability of any provision of the Purchase Contracts or the
Units or any other agreement or instrument relating thereto;




          (b) any change in the time, manner or place of payment of, or any other term of, or any
increase in the amount of, all or any of the obligations of Holders of the Units under the related
Purchase Contracts, or any other amendment or waiver of any term of, or any consent to any
departure from any requirement of, the Purchase Contract Agreement or any Purchase Contract or any
other agreement or instrument relating thereto; or




84









 








          (c) any other circumstance which might otherwise constitute a defense available to, or
discharge of, a borrower, a guarantor or a pledgor.




     Section 16.02 Notice of Special Event, Special Event Redemption and Termination Event. Upon
the occurrence of a Special Event, a Special Event Redemption or a Termination Event, the Company
shall deliver written notice to the Purchase Contract Agent, the Collateral Agent and the
Securities Intermediary. Upon the written request of the Collateral Agent or the Securities
Intermediary, the Company shall inform such party whether or not a Special Event, a Special Event
Redemption or a Termination Event has occurred.



[SIGNATURES ON THE FOLLOWING PAGE]




85









 





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



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ARCHER-DANIELS-MIDLAND COMPANY	 	 	 	THE BANK OF NEW YORK,

as Purchase Contract Agent and as
attorney-in-fact
 of the Holders from
time to time of the Units	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	 	 	 	 	 	 	Name:	 	 	 	 
	 

	 	Title:
	 	 	 	 	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Address for Notices:	 	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	4666 Faries Parkway

Decatur, Illinois 62526

Telecopier No.: [•]

Attention: [Treasurer and General Counsel]	 	 	 	THE BANK OF NEW YORK

101 Barclay Street, 8W

New York, NY 10286

Telephone No.: 212-815-5995

Telecopier No.: 212-815-5704

Attention: Corporate Finance Division	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	THE BANK OF NEW YORK,

as Collateral Agent, Custodial Agent and
Securities Intermediary	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Address for Notices:	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	The Bank of New York

101 Barclay Street, 8W 

New York, NY 10286

Telephone No.: 212-815-5995

Telecopier No.: 212-815-5704

Attention: Corporate Finance Division	 	 	 	 	 	 	 	 	 	 



















 





EXHIBIT A




(FORM OF FACE OF CORPORATE UNIT CERTIFICATE)




     [For inclusion in Global Certificates only — THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN
THE MEANING OF THE PURCHASE CONTRACT AND PLEDGE AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF CEDE & CO., AS NOMINEE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE
“DEPOSITARY”), THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS
EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AND PLEDGE 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. 1

	 	CUSIP No. [___]
	Number of Corporate Units:

	 	ISIN No. [___]






ARCHER-DANIELS-MIDLAND COMPANY

Corporate Units




     This Corporate Units Certificate certifies that            is the registered Holder of the
number of Corporate Units set forth above [For inclusion in Global Certificates only — or such
other number of Corporate Units reflected in the Schedule of Increases or Decreases in Global
Certificate attached hereto, which number shall not exceed [ ]]. Each Corporate Unit consists of
(i) either (a) an Applicable Ownership Interest in Debentures, subject to the Pledge thereof by
such Holder pursuant to the Purchase Contract and Pledge Agreement, or (b) upon the occurrence of a
Special Event Redemption or a Successful Optional Remarketing prior to the Purchase Contract
Settlement Date, the Applicable Ownership Interest in the Treasury Portfolio, subject to the pledge
of the Applicable Ownership Interest in the Treasury Portfolio (as specified in clause (i) of the
definition of such term) by such Holder pursuant to the Purchase Contract and Pledge Agreement, and
(ii) the rights and obligations of the Holder under one Purchase Contract with the Company.



     All capitalized terms used herein that are defined in the Purchase Contract and Pledge
Agreement (as defined on the reverse hereof) have the meaning set forth therein.



     Pursuant to the Purchase Contract and Pledge Agreement, the Applicable Ownership Interest in
Debentures or the Applicable Ownership Interest in the Treasury Portfolio (as specified in clause
(i) of the definition of such term), as the case may be, constituting part of each Corporate Unit
evidenced hereby



A-1









 




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 Corporate Unit.




     All payments of the principal amount with respect to the Debentures underlying the Pledged
Applicable Ownership Interests in Debentures or all payments with respect to the Applicable
Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the definition of such
term), as the case may be, or payments of interest on the Pledged Applicable Ownership Interests in
Debentures or distributions with respect to the Applicable Ownership Interests in the Treasury
Portfolio (as specified in clause (ii) of the definition of such term), as the case may be,
constituting part of the Corporate Units shall be paid on the dates and in the manner set forth in
the Purchase Contract and Pledge Agreement. Interest on the Debentures underlying the Applicable
Ownership Interests in Debentures and distributions on the Applicable Ownership Interests in the
Treasury Portfolio (as specified in clause (ii) of the definition of such term), as the case may
be, forming part of the Corporate Units evidenced hereby, which are payable on each Payment Date,
shall, subject to receipt thereof by the Purchase Contract Agent, be paid to the Person in whose
name this Corporate Units Certificate (or a Predecessor Corporate Units 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 Corporate Units
Certificate to purchase, and the Company to sell, on the Purchase Contract Settlement Date, at a
Purchase Price equal to the Stated Amount, a number of newly issued shares of Common Stock of the
Company, equal to the Settlement Rate, unless on or prior to the Purchase Contract Settlement Date
there shall have occurred a Termination Event, an Early Settlement or a Fundamental Change Early
Settlement with respect to such Purchase Contract, all as provided in the Purchase Contract and
Pledge Agreement. 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 the Remarketing of the Debentures underlying
the Pledged Applicable Ownership Interests in Debentures equal to the principal amount thereof or
the proceeds of the Pledged Applicable Ownership Interests in the Treasury Portfolio (as specified
in clause (i) of the definition of such term), as the case may be, pledged to secure the
obligations under such Purchase Contract of the Holder of the Corporate Units of which such
Purchase Contract is a part.



     Distributions on the Applicable Ownership Interests in Debentures and distributions on the
Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (ii) of the
definition of such term) will be payable at the office of the Purchase Contract Agent in New York
City, except that all payments with respect to Global Certificates will be made by wire transfer of
immediately available funds to the Depositary.



     Each Purchase Contract evidenced hereby obligates the holder to agree, for U.S. federal income
tax purposes (i) to treat each beneficial owner of a Corporate Unit as the owner of the applicable
interests in the Collateral Account, including the Debentures underlying the Applicable Ownership
Interests in Debentures, the Applicable Ownership Interests in the Treasury Portfolio or the
Treasury Securities, as applicable, (ii) not to treat the Debentures as contingent payment debt
instruments, and (iii) to allocate all of a holder’s purchase price for a Corporate Unit between
the Applicable Ownership Interests in Debentures and the Purchase Contract so that each holder’s
initial tax basis in each Purchase Contract will be $0.00 and each holder’s initial tax basis in
each Applicable Ownership Interest in Debentures will be $50.00.



     The Company shall pay, on each Payment Date, in respect of each Purchase Contract forming part
of a Corporate Unit evidenced hereby, an amount (the “Contract Adjustment Payments”) equal to [•]%
per year of the Stated Amount, computed on the basis of a 360-day year consisting of twelve 30-day
months. Such Contract Adjustment Payments shall be payable to the Person in whose name this



A-2









 




Corporate Units Certificate is registered at the close of business on the Record Date for such
Payment Date.




     Contract Adjustment Payments will be payable at the office of the Purchase Contract Agent in
New York City. If the book-entry system for the Corporate Units has been terminated, the Contract
Adjustment Payments will be payable, at the option of the Company, by check mailed to the address
of the Person entitled thereto at such Person’s address as it appears on the Security Register, or
by wire transfer to the account designated by such Person by a prior written notice to the Purchase
Contract Agent.



     Reference is hereby made to the further provisions set forth on the reverse hereof, which
further provisions shall for all purposes have the same effect as if set forth at this place.



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



A-3









 





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



	 	 	 	 	 
	 	ARCHER-DANIELS-MIDLAND COMPANY

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	HOLDER SPECIFIED ABOVE (as to obligations of

such Holder under the Purchase Contracts)

 	 
	 	By:  	THE BANK OF NEW YORK, not individually

but solely as attorney-in-fact of such Holder
 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



CERTIFICATE OF AUTHENTICATION

OF PURCHASE CONTRACT AGENT



This is one of the Corporate Units Certificates referred to in the within mentioned Purchase
Contract and Pledge Agreement.




	 	 	 	 	 
	 	THE BANK OF NEW YORK,

as Purchase Contract Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Dated:




A-4









 








(REVERSE OF CORPORATE UNIT CERTIFICATE)





     Each Purchase Contract evidenced hereby is governed by a Purchase Contract and Pledge
Agreement, dated as of May [___], 2008 (as may be supplemented from time to time, the “Purchase
Contract and Pledge Agreement”), between the Company and The Bank of New York, as Collateral Agent,
as Custodial Agent, as Securities Intermediary, as Purchase Contract Agent and as attorney-in-fact
for the holders of Corporate Units and Treasury Units from time to time, to which Purchase Contract
and Pledge 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 Corporate
Units Certificates are, and are to be, executed and delivered.



     Each Purchase Contract evidenced hereby obligates the Holder of this Corporate Units
Certificate to purchase, and the Company to sell, on the Purchase Contract Settlement Date at a
price equal to the Stated Amount, a number of shares of Common Stock equal to the Settlement Rate,
unless an Early Settlement, a Fundamental Change Early Settlement or a Termination Event with
respect to the Units of which such Purchase Contract is a part shall have occurred. The Settlement
Rate is subject to adjustment as described in the Purchase Contract and Pledge Agreement.



     No fractional shares of Common Stock will be issued upon settlement of Purchase Contracts, as
provided in Section 5.09 of the Purchase Contract and Pledge Agreement.



     Each Purchase Contract evidenced hereby that is settled through Early Settlement or
Fundamental Change Early Settlement shall obligate the Holder of the related Corporate Units to
purchase at the Purchase Price, and the Company to sell, a number of newly issued shares of Common
Stock equal to the Minimum Settlement Rate (in the case of an Early Settlement) or applicable
Settlement Rate plus the Make-Whole Share Amount (in the case of a Fundamental Change Early
Settlement).



     In accordance with the terms of the Purchase Contract and Pledge Agreement, unless a
Termination Event shall have occurred, the Holder of this Corporate Units Certificate shall pay the
Purchase Price for the shares of Common Stock purchased pursuant to each Purchase Contract
evidenced hereby by effecting a Cash Settlement, an Early Settlement or, if applicable, a
Fundamental Change Early Settlement or from the proceeds of the Applicable Ownership Interests in
the Treasury Portfolio (as specified in clause (i) of the definition of such term) or a Final
Remarketing of the Debentures underlying the Pledged Applicable Ownership Interests in Debentures.
A Holder of Corporate Units who (1) does not, on or prior to 5:00 p.m. (New York City time) on the
first Business Day immediately preceding the first day of the Final Remarketing Period make an
effective Cash Settlement in the manner provided in the Purchase Contract and Pledge Agreement or
(2) on or prior to 5:00 p.m. (New York City time) on the second Business Day immediately preceding
the first day of the Final Remarketing Period (in the case of Corporate Units, unless a Special
Event Redemption or Successful Optional Remarketing has occurred) or the second Business Day
immediately preceding the Purchase Contract Settlement Date (in the case of Corporate Units after
the occurrence of a Special Event Redemption or Successful Optional Remarketing), does not make 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 Debentures
underlying the Pledged Applicable Ownership Interests in Debentures held by the Collateral Agent in
the Remarketing unless the Holder has previously made a Fundamental Change Early Settlement. If
the Treasury Portfolio has replaced the Debentures as a component of Corporate Units, a Holder of
Corporate Units shall pay the Purchase Price for the shares of Common Stock to be delivered under
the related Purchase Contract from the proceeds at maturity of the Applicable Ownership Interests
in the Treasury Portfolio (as specified in clause (i) of the definition of such term).



A-5









 





     As provided in the Purchase Contract and Pledge Agreement, upon the occurrence of a Failed
Final Remarketing, as of the Purchase Contract Settlement Date, each Holder of any Pledged
Applicable Interests in Debentures, unless such Holder has elected Cash Settlement and delivered
cash in accordance with Section 5.03(a) of the Purchase Contract and Pledge Agreement, shall be
deemed to have exercised such Holder’s Put Right with respect to the Debentures underlying such
Applicable Ownership Interests in Debentures and to have elected to have the Proceeds of the Put
Right set-off against such Holder’s obligation to pay the aggregate Purchase Price for the shares
of Common Stock to be issued under the related Purchase Contracts in full satisfaction of such
Holders’ obligations under such Purchase Contracts.



     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 set forth in the Purchase Contract and Pledge Agreement.



     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 Contract Adjustment 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 give written notice
to the Purchase Contract Agent and to the Holders, at their addresses as they appear in the
Security Register. Upon and after the occurrence of a Termination Event, the Collateral Agent
shall release the Debentures underlying the Pledged Applicable Ownership Interests in Debentures or
the Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the
definition of such term) forming a part of each Corporate Unit from the Pledge. A Corporate Unit
shall thereafter represent the right to receive the Debenture underlying the Applicable Ownership
Interest in the Debentures or the Applicable Ownership Interests in the Treasury Portfolio forming
a part of such Corporate Units in accordance with the terms of the Purchase Contract and Pledge
Agreement.



     Under the terms of the Purchase Contract and Pledge Agreement, the Purchase Contract Agent
will be entitled to exercise the voting and any other consensual rights pertaining to the
Debentures underlying the Pledged Applicable Ownership Interests in Debentures, but only to the
extent instructed in writing by the Holders. Upon receipt of notice of any meeting at which
holders of Debentures are entitled to vote or upon any solicitation of consents, waivers or proxies
of holders of Debentures, the Purchase Contract Agent shall, as soon as practicable thereafter,
mail, first class, postage pre-paid, to the Corporate Units Holders the notice required by the
Purchase Contract and Pledge Agreement.



     Upon the occurrence of a Special Event Redemption, the Collateral Agent shall surrender the
Debentures underlying the Pledged Applicable Ownership Interests in Debentures against delivery of
an amount equal to the aggregate Redemption Price of such Debentures and shall deposit the funds in
the Collateral Account in exchange for such Debentures. Thereafter, the Collateral Agent shall
cause the Securities Intermediary to apply an amount equal to the aggregate Redemption Amount of
such funds to purchase, on behalf of the Holders of Corporate Units, the Treasury Portfolio.



     Following the occurrence of a Special Event Redemption prior to the Purchase Contract
Settlement Date, the Collateral Agent shall have such security interest rights with respect to the
Applicable Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the
definition of such term) as the Collateral Agent had in respect of Applicable Ownership Interests
in Debentures and the underlying Debentures, as provided in the Purchase Contract and Pledge
Agreement and any reference herein to the Debentures or Applicable Ownership Interests in
Debentures shall be deemed to be a



A-6









 




reference to the Treasury Portfolio or the Applicable Ownership Interests in the Treasury
Portfolio, as the case may be.




     Upon the occurrence of a Successful Optional Remarketing and receipt in the Collateral Account
of the proceeds thereof, the Collateral Agent shall cause the Securities Intermediary to apply an
amount equal to the Treasury Portfolio Purchase Price to purchase, on behalf of the Holders of
Corporate Units, the Treasury Portfolio.



     Following the occurrence of a Successful Optional Remarketing, the Collateral Agent shall have
such security interest rights with respect to the Applicable Ownership Interests in the Treasury
Portfolio (as specified in clause (i) of the definition of such term) as the Collateral Agent had
in respect of Applicable Ownership Interests in Debentures and the underlying Debentures, as
provided in the Purchase Contract and Pledge Agreement and any reference herein to the Debentures
or Applicable Ownership Interests in Debentures shall be deemed to be a reference to the Treasury
Portfolio or the Applicable Ownership Interests in the Treasury Portfolio, as the case may be.



     The Corporate Units Certificates are issuable only in registered form and only in
denominations of a single Corporate Unit and any integral multiple thereof. The transfer of any
Corporate Units Certificate will be registered and Corporate Units Certificates may be exchanged as
provided in the Purchase Contract and Pledge Agreement. A Holder who elects to substitute a
Treasury Security for the Debenture underlying the Applicable Ownership Interests in Debentures or
Applicable Ownership Interests in the Treasury Portfolio, as the case may be, thereby creating
Treasury Units, shall be responsible for any fees or expenses payable in connection therewith.
Except as provided in the Purchase Contract and Pledge Agreement, such Corporate Unit shall not be
separable into its constituent parts, and the rights and obligations of the Holder of such
Corporate Unit in respect of the Applicable Ownership Interest in Debentures, or Applicable
Ownership Interest in the Treasury Portfolio, as the case may be, and Purchase Contract
constituting such Corporate Units may be transferred and exchanged only as a Corporate Unit.



     Subject to, and in compliance with, the conditions and terms set forth in the Purchase
Contract and Pledge Agreement, the Holder of Corporate Units may effect a Collateral Substitution.
From and after such Collateral Substitution, each Unit for which Pledged Treasury Securities secure
the Holder’s obligation under the Purchase Contract shall be referred to as a “Treasury Unit”. A
Holder may make such Collateral Substitution only in integral multiples of 20 Corporate Units for
20 Treasury Units. If Applicable Ownership Interests in the Treasury Portfolio have replaced the
Applicable Ownership Interests in Debentures as a component of the Corporate Units as a result of a
Special Event Redemption, a Holder may substitute Treasury Securities for the Applicable Ownership
Interests in the Treasury Portfolio only in integral multiples of [•] Corporate Units. No
Collateral Substitution is permitted following a Successful Optional Remarketing.



     Subject to and upon compliance with the provisions of the Purchase Contract and Pledge
Agreement, at the option of the Holder thereof, Purchase Contracts underlying Units may be settled
early by effecting an Early Settlement as provided in the Purchase Contract and Pledge Agreement in
integral multiples of 20 Corporate Units, or if Applicable Ownership Interests in the Treasury
Portfolio have replaced the Applicable Ownership Interests in Debentures as a component of the
Corporate Units, in integral multiples of [•] Corporate Units.



     Upon Early Settlement of Purchase Contracts by a Holder of the related Units, the Debentures
underlying the Pledged Applicable Ownership Interests in Debentures or the Applicable Ownership
Interests in the Treasury Portfolio (as specified in clause (i) of the definition of such term)
underlying such Units shall be released from the Pledge as provided in the Purchase Contract and
Pledge Agreement



A-7









 




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 Corporate Unit as to which Early Settlement is effected
equal to the Minimum Settlement Rate.




     Upon the occurrence of a Fundamental Change, a Holder of Corporate Units may effect
Fundamental Change Early Settlement of the Purchase Contracts underlying such Corporate Units
pursuant to the terms of the Purchase Contract and Pledge Agreement in integral multiples of 20
Corporate Units, or if the Applicable Ownership Interests in the Treasury Portfolio have replaced
the Applicable Ownership Interests in Debentures as a component of the Corporate Units, in integral
multiples of [•] Corporate Units. Upon Fundamental Change Early Settlement of Purchase Contracts
by a Holder of the related Corporate Units, the Debentures underlying the Pledged Applicable
Ownership Interests in Debentures or the Applicable Ownership Interests in the Treasury Portfolio
(as specified in clause (i) of the definition of such term) underlying such Corporate Units shall
be released from the Pledge as provided in the Purchase Contract and 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 Corporate Unit as to which Fundamental Change Early Settlement is
effected equal to the applicable Settlement Rate.



     Upon registration of transfer of this Corporate 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 and Pledge Agreement),
under the terms of the Purchase Contract and Pledge Agreement and the Purchase Contracts evidenced
hereby and the transferor shall be released from the obligations under the Purchase Contracts
evidenced by this Corporate 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 Corporate Units Certificate, by its acceptance hereof, authorizes the
Purchase Contract Agent to enter into and perform the related Purchase Contracts forming part of
the Corporate 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 and
Pledge Agreement, authorizes the Purchase Contract Agent to enter into and perform the Purchase
Contract and Pledge Agreement on its behalf as its attorney-in-fact, and consents to the Pledge of
the Applicable Ownership Interests in Debentures and the underlying Debentures or the Applicable
Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the definition of such
term), as the case may be, underlying this Corporate Units Certificate pursuant to the Purchase
Contract and Pledge Agreement. The Holder further covenants and agrees that, to the extent and in
the manner provided in the Purchase Contract and Pledge Agreement, but subject to the terms
thereof, any payments with respect the Debentures underlying the Pledged Applicable Ownership
Interests in Debentures (other than interest payments thereon) or the Proceeds of the Applicable
Ownership Interests in the Treasury Portfolio (as specified in clause (i) of the definition of such
term), as the case may be, on the Purchase Contract Settlement Date equal to the aggregate Purchase
Price for the related Purchase Contracts shall be paid by the Collateral Agent to the Company in
satisfaction of such Holder’s obligations under the related Purchase Contracts and such Holder
shall acquire no right, title or interest in such payments.



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



A-8









 





     The Purchase Contracts shall be governed by, and construed in accordance with, the laws of the
State of New York, applicable to agreements made and to be performed wholly within such state.



     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.



     Prior to due presentment of this Certificate for registration of transfer, 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 Corporate Units Certificate is registered as the
owner of the Corporate Units evidenced hereby for the purpose of receiving payments of interest
payable on the Debentures underlying the Applicable Ownership Interests in Debentures, receiving
payments of Contract Adjustment Payments (subject to any applicable record date), 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.



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




A-9











 





ABBREVIATIONS




     The following abbreviations, when used in the inscription on the face of this instrument,
shall be construed as though they were written out in full according to applicable laws or
regulations:



	 	 	 	 	 	 	 	 	 
	TEN COM:

	 	as tenants in common	 	 	 	 	 	 
	 
	 	 	Custodian
    	 	 	 	 
	UNIF GIFT MIN ACT:

	
 	 

(cust)
	 
	 	 

(minor)
	 	 
	 
	 	 	Under Uniform Gifts to Minors Act of	 	 
	 
	 	 	 	 	 	 	 	 
	TENANT:	 	as tenants by the entireties	 	 
	 
	 	 	 	 	 	 	 	 
	JT TEN:	 	as joint tenants with right of survivorship and not as tenants in common	 	 





Additional abbreviations may also be used though not in the above list.




FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto



(Please insert Social Security or Taxpayer I.D. or other Identifying Number of Assignee)




(Please Print or Type Name and Address Including Postal Zip Code of Assignee)



the within Corporate Units Certificates and all rights thereunder, hereby irrevocably constituting
and appointing attorney _________, to transfer said Corporate Units Certificates on the books of
Archer-Daniels-Midland Company, 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 Corporate Units Certificates in every
particular, without alteration or enlargement or any
change whatsoever.	 	 






Signature Guarantee: _______________________




A-10









 








	 	 	 	 	 	 	 
	Dated: _________

	 	 
	 	REGISTERED HOLDER
	 	 
	 
	 	 	 	 	 	 
	If shares are to be registered in the name of and delivered to
a Person other than the Holder, please 

(i) print such Person’s name and address and 

(ii) provide a guarantee of your signature:

	 	 	 	Please print name and address of Register Holder:	 	 
	
	 	 	 	 
	 	 






	 	 	 	 	 	 	 	 	 	 	 
	Name

	 	 

	 	 
	 	Name
	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Address

	 	 	 	 	 	Address	 	 	 	 
	 

	 	 

	 	 
	 	 	 	 

	 	 






	 	 	 	 	 
	Social Security or other Taxpayer 

Identification Number, if any	 	 
	 
	 	 	 	 
	Signature

	 	 

	 	 
	 
	 	 	 	 
	Signature Guarantee:
	 	 
	 	 






A-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 Corporate Units evidenced by this Corporate 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.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	(if assigned to another person)	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dated: __________________	 	 	 	REGISTERED HOLDER	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	If shares are to be registered
in the name of and delivered to
a Person other than the Holder,
please (i) print such Person’s
name and address and (ii)
provide a guarantee of your
signature:	 	 	 	Please print name and address of Register Holder:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Name:

	 	 	 	 
	 	 Name:	 	 	 	 
	 

	 	 

	 	 
	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Address

	 	 	 	 	 	Address:
	 		 	 
	 

	 	 

	 	 
	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 		 	 
	 
	 	 
	 	 	 	 

	 	 
	Social Security or other Taxpayer 

Identification Number, if any	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Signature

	 	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Signature
Guarantee:

	 	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	

	 		 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 






A-12









 






ELECTION TO SETTLE EARLY/FUNDAMENTAL CHANGE EARLY SETTLEMENT




     The undersigned Holder of this Corporate Units Certificate hereby irrevocably exercises the
option to effect [Early Settlement] [Fundamental Change Early Settlement] in accordance with the
terms of the Purchase Contract and Pledge Agreement with respect to the Purchase Contracts
underlying the number of Corporate Units evidenced by this Corporate Units Certificate specified
below. The option to effect [Early Settlement] [Fundamental Change Early Settlement] may be
exercised only with respect to Purchase Contracts underlying Corporate Units in multiples of 20
Corporate Units or an integral multiple thereof; provided that if Applicable Ownership Interests in
the Treasury Portfolio have replaced Applicable Ownership Interests in the Debentures as a
component of the Corporate Units, Corporate Units Holders may only effect [Early Settlement]
[Fundamental Change Early Settlement] in multiples of [•] Corporate Units. The undersigned Holder
directs that a certificate for shares of Common Stock or other securities deliverable upon such
[Early Settlement] [Fundamental Change Early Settlement] be registered in the name of, and
delivered, together with a check in payment for any fractional share and any Corporate Units
Certificate representing any Corporate Units evidenced hereby as to which [Early Settlement]
[Fundamental Change 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. Debentures underlying Pledged Applicable Ownership Interests in Debentures or the
Applicable Ownership Interests in the Treasury Portfolio, as the case may be, deliverable upon such
[Early Settlement] [Fundamental Change Early Settlement] will be transferred in accordance with the
transfer instructions set forth below. If shares are to be registered in the name of a Person
other than the undersigned, the undersigned will pay any transfer tax payable incident thereto.



	 	 	 	 	 	 	 	 	 	 	 
	Dated:

	 	 

	 	 
	 	Signature
	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Signature 

Guarantee:
	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 






A-13









 






     Number of Units evidenced hereby as to which [Early Settlement] [Fundamental Change Early
Settlement] of the related Purchase Contracts is being elected:



	 	 	 	 	 	 	 	 	 	 	 
	If shares are to be registered
in the name of and delivered to
a Person other than the Holder,
please (i) print such Person’s
name and address and (ii)
provide a guarantee of your
signature:	 	 	 	REGISTERED HOLDER


 Please print name and address of Register Holder:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Name:

	 	 	 	 
	 	Name:	 	 	 	 
	 

	 	 

	 	 
	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Address:

	 	 	 	 	 	Address:	 	 	 	 
	 
	 	 
	 	 	 	 	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 
	Social Security or other Taxpayer 

Identification Number, if any	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Signature:
	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Signature 

Guarantee:
	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 	 	 	 	 	 	 






A-14









 






     Transfer Instructions for Debentures underlying Pledged Applicable Ownership Interests in
Debentures or the Applicable Ownership Interests in the Treasury Portfolio, as the case may be,
transferable upon [Early Settlement] [Fundamental Change Early Settlement]:



A-15









 





[TO BE ATTACHED TO GLOBAL CERTIFICATES]




SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE




     The initial number of Corporate Units evidenced by this Global Certificate is [ ]. The
following increases or decreases in this Global Certificate have been made:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Number of Corporate	 	 
	 	 	 	 	 	 	Units evidenced by	 	 
	 	 	Amount of increase	 	Amount of decrease	 	this Global	 	Signature of
	 	 	in number of	 	in number of	 	Certificate	 	authorized
	 	 	Corporate Units	 	Corporate Unites	 	following such	 	signatory of
	 	 	evidenced by the	 	evidenced by the	 	decrease or	 	Purchase Contract
	Date	 	Global Certificate	 	Global Certificate	 	increase	 	Agent
	 
	 	 	 	 	 	 	 	 






A-16











 





EXHIBIT B




(FORM OF FACE OF TREASURY UNIT CERTIFICATE)




     [For inclusion in Global Certificate only — THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN
THE MEANING OF THE PURCHASE CONTRACT AND PLEDGE AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF CEDE & CO., AS NOMINEE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE
“DEPOSITARY”), THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS
EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AND PLEDGE 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. 1

	 	CUSIP No. [___]
	 

	 	ISIN No. [___]






Number of Treasury Units:




ARCHER-DANIELS-MIDLAND COMPANY

Treasury Units




     This Treasury Units Certificate certifies that is the registered Holder of the number of
Treasury Units set forth above [For inclusion in Global Certificates only — or such other number of
Treasury Units reflected in the Schedule of Increases or Decreases in Global Certificate attached
hereto, which number shall not exceed [ ]]. Each Treasury Unit consists of (i) a 1/20 undivided
beneficial ownership interest in 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 Purchase
Contract and Pledge Agreement, and (ii) the rights and obligations of the Holder under one Purchase
Contract with the Company.



     All capitalized terms used herein that are defined in the Purchase Contract and Pledge
Agreement (as defined on the reverse hereof) have the meaning set forth therein.



     Pursuant to the Purchase Contract and Pledge Agreement, the Treasury Securities underlying
each Treasury 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 Unit.



B-1









 





     Each Purchase Contract evidenced hereby obligates the Holder of this Treasury Units
Certificate to purchase, and the Company to sell, on the Purchase Contract Settlement Date, at a
Purchase Price equal to the Stated Amount, a number of newly issued shares of 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, an Early Settlement or a Fundamental Change Early
Settlement with respect to such Purchase Contract, all as provided in the Purchase Contract and
Pledge Agreement. 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 under such Purchase Contract of the Holder of the Treasury Units of which
such Purchase Contract is a part.



     Each Purchase Contract evidenced hereby obligates the holder to agree, for U.S. federal income
tax purposes, to treat each beneficial owner of a Treasury Unit as the owner of the applicable
interests in the Treasury Securities.



     The Company shall pay, on each Payment Date, in respect of each Purchase Contract forming part
of a Treasury Unit evidenced hereby, an amount (the “Contract Adjustment Payments”) equal to [•]%
per year of the Stated Amount, computed on the basis of a 360—day year of twelve 30—day months.
Such Contract Adjustment Payments shall be payable to the Person in whose name this Treasury Units
Certificate is registered at the close of business on the Record Date for such Payment Date.



     Contract Adjustment Payments will be payable at the office of the Purchase Contract Agent in
New York City. If the book—entry system for the Treasury Units has been terminated, the Contract
Adjustment Payments will be payable, at the option of the Company, by check mailed to the address
of the Person entitled thereto at such Person’s address as it appears on the Security Register, or
by wire transfer to the account designated by such Person by a prior written notice to the Purchase
Contract Agent.



     Reference is hereby made to the further provisions set forth on the reverse hereof, which
further provisions shall for all purposes have the same effect as if set forth at this place.



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



B-2









 





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



	 	 	 	 	 
	 	ARCHER-DANIELS-MIDLAND COMPANY

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	HOLDER SPECIFIED ABOVE (as to obligations of such
Holder under the Purchase Contracts)





By: THE BANK OF NEW YORK, not individually
       but solely as attorney-in-fact or such Holder
 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



CERTIFICATE OF AUTHENTICATION OF

PURCHASE CONTRACT AGENT



This is one of the Treasury Units referred to in the within-mentioned Purchase Contract and Pledge
Agreement.




	 	 	 	 	 
	 	THE BANK OF NEW YORK,

as Purchase Contract Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated:                                         




B-3









 








(REVERSE OF TREASURY UNIT CERTIFICATE)





     Each Purchase Contract evidenced hereby is governed by a Purchase Contract and Pledge
Agreement, dated as of May [___], 2008 (as may be supplemented from time to time, the “Purchase
Contract and Pledge Agreement”) between the Company and The Bank of New York, as Collateral Agent,
as Custodial Agent, as Securities Intermediary, as Purchase Contract Agent and as attorney-in-fact
for the holders of Corporate Units and Treasury Units from time to time, to which Purchase Contract
and Pledge 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
Units Certificates are, and are to be, executed and delivered.



     Each Purchase Contract evidenced hereby obligates the Holder of this Treasury Units
Certificate to purchase, and the Company to sell, on the Purchase Contract Settlement Date at a
price equal to the Stated Amount, a number of newly issued shares of Common Stock equal to the
Settlement Rate, unless an Early Settlement, a Fundamental Change Early Settlement or a Termination
Event with respect to the Unit of which such Purchase Contract is a part shall have occurred. The
Settlement Rate is subject to adjustment as described in the Purchase Contract and Pledge
Agreement.



     No fractional shares of Common Stock will be issued upon settlement of Purchase Contracts, as
provided in Section 5.08 of the Purchase Contract and Pledge Agreement.



     Each Purchase Contract evidenced hereby that is settled through Early Settlement or
Fundamental Change Early Settlement shall obligate the Holder of the related Treasury Units to
purchase at the Purchase Price and the Company to sell, a number of newly issued shares of Common
Stock equal to the Minimum Settlement Rate (in the case of an Early Settlement) or applicable
Settlement Rate plus the Make-Whole Share Amount (in the case of a Fundamental Change Early
Settlement).



     In accordance with the terms of the Purchase Contract and Pledge Agreement, the Holder of this
Treasury Unit shall pay the Purchase Price for the shares of the Common Stock to be purchased
pursuant to each Purchase Contract evidenced hereby either by effecting an Early Settlement or, if
applicable, a Fundamental Change Early Settlement of each such Purchase Contract or by applying the
proceeds of the Pledged Treasury Securities underlying such Holder’s Treasury Unit equal to the
Purchase Price for such Purchase Contract to the purchase of the Common Stock.



     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 set forth in the Purchase Contract and Pledge Agreement.



     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 Contract Adjustment 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 give written notice
to the Purchase Contract Agent and the Holders, at their addresses as they appear in the Security
Register. Upon and after the occurrence of a Termination Event, the Collateral Agent shall release
the Treasury Securities underlying each Treasury Unit from the Pledge. A Treasury Unit shall
thereafter represent the right to receive the Treasury Security underlying such Treasury Unit, in
accordance with the terms of the Purchase Contract and Pledge Agreement.



B-4









 





     The Treasury Units Certificates are issuable only in registered form and only in denominations
of a single Treasury Unit and any integral multiple thereof. The transfer of any Treasury Units
Certificate will be registered and Treasury Units Certificates may be exchanged as provided in the
Purchase Contract and Pledge Agreement. A Holder who elects to substitute Debentures or Applicable
Ownership Interests in the Treasury Portfolio, as the case may be, for Treasury Securities, thereby
recreating Corporate Units, shall be responsible for any fees or expenses payable in connection
therewith. Except as provided in the Purchase Contract and Pledge Agreement, such Treasury Unit
shall not be separable into its constituent parts, and the rights and obligations of the Holder of
such Treasury Unit in respect of the Treasury Security and the Purchase Contract constituting such
Treasury Unit may be transferred and exchanged only as a Treasury Unit.



     Subject to, and in compliance with, the conditions and terms set forth in the Purchase
Contract and Pledge Agreement, the Holder of Treasury Units may effect a Collateral Substitution.
From and after such substitution, each Unit for which Pledged Applicable Ownership Interests in
Debentures, or Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may
be, secure the Holder’s obligation under the Purchase Contract shall be referred to as a “Corporate
Unit”. A Holder may make such Collateral substitution only in multiples of 20 Treasury Units for
20 Corporate Units. If Applicable Ownership Interests in the Treasury Portfolio have replaced the
Applicable Ownership Interests in Debentures as a component of the Corporate Units as a result of a
Special Event Redemption, a Holder may substitute Applicable Ownership Interests in the Treasury
Portfolio for Treasury Securities only in integral multiples of [•] Treasury Units. No Collateral
Substitution is permitted following a Successful Optional Remarketing.



     Subject to and upon compliance with the provisions of the Purchase Contract and Pledge
Agreement, at the option of the Holder thereof, Purchase Contracts underlying Units may be settled
early by effecting an Early Settlement as provided in the Purchase Contract and Pledge Agreement in
integral multiples of 20 Treasury Units.



     Upon Early Settlement of Purchase Contracts by a Holder of the related Units, the Pledged
Treasury Securities underlying such Units shall be released from the Pledge as provided in the
Purchase Contract and 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 Unit as to
which Early Settlement is effected equal to the Minimum Settlement Rate.



     Upon the occurrence of a Fundamental Change, a Holder of Treasury Units may effect Fundamental
Change Early Settlement of the Purchase Contracts underlying such Treasury Units pursuant to the
terms of the Purchase Contract and Pledge Agreement in integral multiples of 20 Treasury Units.
Upon Fundamental Change Early Settlement of Purchase Contracts by a Holder of the related Treasury
Units, the Pledged Treasury Securities underlying such Treasury Units shall be released from the
Pledge as provided in the Purchase Contract and 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 Unit as to which Fundamental Change Early Settlement is effected equal to the applicable
Settlement Rate.



     Upon registration of transfer of this Treasury 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 and Pledge Agreement),
under the terms of the Purchase Contract and Pledge Agreement and the Purchase Contracts evidenced
hereby and the transferor shall be released from the obligations under the Purchase Contracts
evidenced by this Treasury 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.



B-5









 





     The Holder of this Treasury 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 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 and
Pledge Agreement, authorizes the Purchase Contract Agent to enter into and perform the Purchase
Contract and Pledge Agreement on its behalf as its attorney-in-fact, and consents to the Pledge of
the Treasury Securities underlying this Treasury Units Certificate pursuant to the Purchase
Contract and Pledge Agreement. The Holder further covenants and agrees, that, to the extent and in
the manner provided in the Purchase Contract and Pledge Agreement, but subject to the terms
thereof, payments in respect to the aggregate principal amount at maturity of the Pledged Treasury
Securities on the Purchase Contract Settlement Date equal to the aggregate Purchase Price for the
related Purchase Contracts shall be paid by the Collateral Agent to the Company in satisfaction of
such Holder’s obligations under such Purchase Contracts and such Holder shall acquire no right,
title or interest in such payments.



     Subject to certain exceptions, the provisions of the Purchase Contract and Pledge 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, applicable to agreements made and to be performed wholly within such state.



     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.



     Prior to due presentment of this Certificate for registration of transfer, 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 Units Certificate is registered as the owner
of the Treasury Units evidenced hereby for the purpose of receiving payments of Contract Adjustment
Payments (subject to any applicable record date), 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.



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



B-6









 





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 Units Certificates and all rights thereunder, hereby irrevocably constituting
and appointing attorney                     , to transfer said Treasury Units Certificates on the books of
Archer-Daniels-Midland Company, 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 Units Certificates in every
particular, without alteration or enlargement or any
change whatsoever.






Signature Guarantee:
 





B-7









 








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 Units evidenced by this Treasury 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.



	 	 	 
	 

	 	(if assigned to another person)
	 
	 	 
	Dated 


	 	REGISTERED HOLDER
	 
	 	 
	If shares are to be registered
in the name of and delivered to
a Person other than the Holder,
please (i) print such Person’s
name and address and (ii)
provide a guarantee of your
signature:

	 	Please print name and address of Register Holder:
	
	 	 
	 
	 	Name: 

	Name: 


	 	 
	 
	 	 
	Address 


	 	Address: 

	 
	Social Security or other Taxpayer 

Identification Number, if any
	 	 
	 
	 	 
	Signature: 

	 	 
	 
	 	 
	Signature Guarantee: 

	 	 






B-8









 






     ELECTION TO SETTLE EARLY/FUNDAMENTAL CHANGE EARLY SETTLEMENT



     The undersigned Holder of this Treasury Units Certificate hereby irrevocably exercises the
option to effect [Early Settlement] [Fundamental Change Early Settlement] in accordance with the
terms of the Purchase Contract and Pledge Agreement with respect to the Purchase Contracts
underlying the number of Treasury Units evidenced by this Treasury Units Certificate specified
below. The option to effect [Early Settlement] [Fundamental Change Early Settlement] may be
exercised only with respect to Purchase Contracts underlying Treasury Units in multiples of 20
Treasury Units or an integral multiple thereof. The undersigned Holder directs that a certificate
for shares of Common Stock or other securities deliverable upon such [Early Settlement]
[Fundamental Change Early Settlement] be registered in the name of, and delivered, together with a
check in payment for any fractional share and any Treasury Units Certificate representing any
Treasury Units evidenced hereby as to which [Early Settlement] [Fundamental Change 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] [Fundamental Change 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:

	 	 







     Number of Units evidenced hereby as to which [Early Settlement] [Fundamental Change Early
Settlement] of the related Purchase Contracts is being elected:



	 	 	 
	If shares are to be registered
in the name of and delivered to
a Person other than the Holder,
please (i) print such Person’s
name and address and (ii)
provide a guarantee of your
signature:

	 	REGISTERED HOLDER

Please print name and address of Register Holder:
	 
	 

Name

	 	 

Name
	 
	 	 
	 

Address

	 	 

Address






Social Security or other Taxpayer

Identification Number, if any




     Transfer Instructions for Pledged Treasury Securities transferable upon [Early Settlement]
[Fundamental Change Early Settlement]:



B-9









 





[TO BE ATTACHED TO GLOBAL CERTIFICATES]




SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE



The initial number of Treasury Units evidenced by this Global Certificate is [ ]. The following
increases or decreases in this Global Certificate have been made:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Number of Treasury	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Units evidenced by	 	 	 	 
	 	 	Amount of increase	 	 	Amount of decrease	 	 	this Global	 	 	Signature of	 
	 	 	in number of	 	 	in number of	 	 	Certificate	 	 	authorized	 
	 	 	Treasury Units	 	 	Treasury Units	 	 	following such	 	 	signatory of	 
	 	 	evidenced by the	 	 	evidenced by the	 	 	decrease or	 	 	Purchase Contract	 
	Date	 	Global Certificate	 	 	Global Certificate	 	 	increase	 	 	Agent	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






B-10











 





EXHIBIT C




INSTRUCTION TO PURCHASE CONTRACT AGENT FROM HOLDER

(To Create Treasury Units or Corporate Units)




The Bank of New York,

as Purchase Contract Agent

101 Barclay Street, 8W

New York, NY 10286

Telephone No.: 212-815-5995

Telecopier No.: 212-815-5704

Attention: Corporate Finance Division




     Re: [ Corporate Units] [ Treasury Units] of Archer-Daniels-Midland Company, a Delaware
corporation (the “Company”).



     The undersigned Holder hereby notifies you that it has delivered to The Bank of New York, as
Securities Intermediary, for credit to the Collateral Account, $      Value of [Debentures] [Applicable
Ownership Interests in the Treasury Portfolio] [Treasury Securities] in exchange for an equal Value
of [Pledged Treasury Securities] [Debentures underlying Pledged Applicable Ownership Interests in
Debentures] [Pledged Applicable Ownership Interests in the Treasury Portfolio] held in the
Collateral Account, in accordance with the Purchase Contract and Pledge Agreement, dated as of May
[___], 2008 (the “Agreement”; unless otherwise defined herein, terms defined in the Agreement are
used herein as defined therein), between the Company and The Bank of New York, as Collateral Agent,
as Custodial Agent, as Securities Intermediary, as Purchase Contract Agent and as attorney-in-fact
for the holders of Corporate Units and Treasury Units from time to time. The undersigned Holder
has paid all applicable fees and expenses relating to such exchange. The undersigned Holder hereby
instructs you to instruct the Collateral Agent to release to you on behalf of the undersigned
Holder the [Debentures underlying Pledged Applicable Ownership Interests in Debentures] [Pledged
Applicable Ownership Interests in the Treasury Portfolio] [Pledged Treasury Securities] related to
such [Corporate Units] [Treasury Units].



	 	 	 
	Dated:

	 	Signature
	 
	 	 
	 

	 	Signature Guarantee:
	 
	 	 
	 

	 	 
	 
	 	 
	Please print name and address of Registered Holder:
	 	 
	 
	 	 
	 

	 	 
	Name:

	 	Social Security or other Taxpayer
Identification Number
	 
	 	 
	 

	 	 
	Address
	 	 






C-1









 






EXHIBIT D




NOTICE FROM PURCHASE CONTRACT AGENT

TO HOLDERS UPON TERMINATION EVENT




(Transfer of Collateral upon Occurrence of a Termination Event)




[HOLDER]




Attention:

Telecopy:




     Re: [ Corporate Units] [ Treasury Units] of Archer-Daniels-Midland Company, a Delaware
corporation (the “Company”).



     Please refer to the Purchase Contract and Pledge Agreement, dated as of May [___], 2008 (the
“Purchase Contract and Pledge Agreement”; unless otherwise defined herein, terms defined in the
Purchase Contract and Pledge Agreement are used herein as defined therein), between the Company and
The Bank of New York, as Collateral Agent, as Custodial Agent, as Securities Intermediary, as
Purchase Contract Agent and as attorney-in-fact for the holders of Corporate Units and Treasury
Units from time to time.



     We hereby notify you that a Termination Event has occurred and that [the Debentures underlying
the Pledged Applicable Ownership Interests in Debentures] [the Pledged Applicable Ownership
Interests in the Treasury Portfolio] [the Treasury Securities] comprising a portion of your
ownership interest in [Corporate Units] [Treasury Units] have been released and are being held by
us for your account pending receipt of transfer instructions with respect to such [Debentures]
[Pledged Applicable Ownership Interests in the Treasury Portfolio] [Pledged Treasury Securities]
(the “Released Securities”).



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



Dated:                         
                




	 	 	 	 	 
	 	The Bank of New York,

as Purchase Contract Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: 
Authorized Signatory 	 



D-1









 






	 	 	 	 	 



EXHIBIT E




NOTICE OF CASH SETTLEMENT




The Bank of New York,

as Purchase Contract Agent

101 Barclay Street, 8W

New York, NY 10286

Telephone No.: 212-815-5995

Telecopier No.: 212-815-5704

Attention: Corporate Finance Division





     Re: Corporate Units of Archer-Daniels-Midland Company, a Delaware corporation (the
“Company”).



     The undersigned Holder hereby irrevocably notifies you in accordance with Section 5.03 of the
Purchase Contract and Pledge Agreement, dated as of May [___], 2008 (the “Purchase Contract and
Pledge Agreement”; unless otherwise defined herein, terms defined in the Purchase Contract and
Pledge Agreement are used herein as defined therein), between the Company and The Bank of New York,
as Collateral Agent, as Custodial Agent, as Securities Intermediary, as Purchase Contract Agent and
as attorney-in-fact for the Holders of the Corporate Units and Treasury Units from time to time,
that such Holder has elected to pay to the Securities Intermediary for deposit in the Collateral
Account, prior to 5:00 p.m. (New York City time) on the first Business Day immediately preceding
the first day of the Final Remarketing Period (in lawful money of the United States by certified or
cashiers’ check or wire transfer, in immediately available funds payable to or upon the order of
the Securities Intermediary), $        as the Purchase Price for the shares of Common Stock issuable to
such Holder by the Company with respect to 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 Corporate Units.



Date:                     
                    




	 	 	 	 
	 

	Signature:  	 
	 
	 	 	 
	 

	Signature Guarantee:  	 





Please print name and address of Registered Holder:





E-1









 








EXHIBIT F




INSTRUCTION

FROM PURCHASE CONTRACT AGENT

TO COLLATERAL AGENT

(Creation of Treasury Units)




The Bank of New York,

as Purchase Contract Agent

101 Barclay Street, 8W

New York, NY 10286

Telephone No.: 212-815-5995

Telecopier No.: 212-815-5704

Attention: Corporate Finance Division




     Re: Corporate Units of Archer-Daniels-Midland Company (the “Company”).



     Please refer to the Purchase Contract and Pledge Agreement, dated as of May [___], 2008 (the
“Agreement”), among the Company and The Bank of New York, as Collateral Agent, as Custodial Agent,
as Securities Intermediary, as Purchase Contract Agent and as attorney-in-fact for the holders of
Corporate Units and Treasury Units from time to time. Capitalized terms used herein but not
defined shall have the meaning set forth in the Agreement.



     We hereby notify you in accordance with Section 3.13 of the Agreement that the holder of
securities named below (the “Holder”) has elected to substitute $           Value of Treasury Securities or
security entitlements with respect thereto in exchange for an equal Value of [Debentures underlying
Pledged Applicable Ownership Interests in Debentures] [Pledged Applicable Ownership Interests in
the Treasury Portfolio] relating to Corporate Units and has delivered to the undersigned a
notice stating that the Holder has Transferred such Treasury Securities or security entitlements
with respect thereto to the Securities Intermediary, for credit to the Collateral Account.



     We hereby request that you instruct the Securities Intermediary, upon confirmation that such
Treasury Securities or security entitlements thereto have been credited to the Collateral Account,
to release to the undersigned an equal Value of [Debentures underlying Pledged Applicable Ownership
Interests in Debentures] [Pledged Applicable Ownership Interests in the Treasury Portfolio] or
security entitlements with respect thereto related to Corporate Units of such Holder in
accordance with Section 3.13 of the Agreement.



Dated:                                              




	 	 	 	 	 
	 	The Bank of New York,

as Purchase Contract Agent and as

attorney-in-fact of the Holders from

time to time of the Units

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: 
Authorized Signatory 	 



F-1









 






	 	 	 	 	 


Please print name and address of Holder electing to substitute Treasury Securities or security
entitlements with respect thereto for the [Debentures underlying Pledged Applicable Ownership
Interests in Debentures] [Pledged Applicable Ownership Interests in the Treasury Portfolio]:




	 	 	 
	 	 	 
	Name:

	 	Social Security or other Taxpayer Identification Number, if any
	 
	 	 
	 	 	 
	Address
	 	 






F-2









 






EXHIBIT G




INSTRUCTION

FROM COLLATERAL AGENT

TO SECURITIES INTERMEDIARY

(Creation of Treasury Units)




The Bank of New York,

as Securities Intermediary

101 Barclay Street, 8W

New York, NY 10286

Telephone No.: 212-815-5995

Telecopier No.: 212-815-5704

Attention: Corporate Finance Division




     Re: Corporate Units of Archer-Daniels-Midland Company (the “Company”).



     The securities account of The Bank of New York, as Collateral Agent, maintained by the
Securities Intermediary and designated “The Bank of New York, as Collateral Agent of
Archer-Daniels-Midland Company, as pledgee of The Bank of New York, as the Purchase Contract Agent
on behalf of and as attorney-in-fact for the Holders” (the “Collateral Account”).



     Please refer to the Purchase Contract and Pledge Agreement, dated as of May [___], 2008 (the
“Agreement”), between the Company and The Bank of New York, as Collateral Agent, as Custodial
Agent, as Securities Intermediary, as Purchase Contract Agent and as attorney-in-fact for the
holders of Corporate Units and Treasury Units from time to time. Capitalized terms used herein but
not defined shall have the meaning set forth in the Agreement.



     When you have confirmed that $      Value of Treasury Securities or security entitlements with
respect thereto has been credited to the Collateral Account by or for the benefit of      , as
Holder of Corporate Units (the “Holder”), you are hereby instructed to release from the Collateral
Account an equal Value of [Debentures underlying Pledged Applicable Ownership Interests in
Debentures] [Pledged Applicable Ownership Interests in the Treasury Portfolio] or security
entitlements with respect thereto relating to Corporate Units of the Holder by Transfer to the
Purchase Contract Agent.



Dated:                                         




	 	 	 	 	 
	 	The Bank of New York,

as Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: 
Authorized Signatory 	 



G-1









 






	 	 	 	 	 



EXHIBIT H




INSTRUCTION

FROM PURCHASE CONTRACT AGENT

TO COLLATERAL AGENT

(Recreation of Corporate Units)




The Bank of New York,

as Collateral Agent

101 Barclay Street, 8W

New York, NY 10286

Telephone No.: 212-815-5995

Telecopier No.: 212-815-5704

Attention: Corporate Finance Division





     Re: Treasury Units of Archer-Daniels-Midland Company (the “Company”).



     Please refer to the Purchase Contract and Pledge Agreement dated as of May [___], 2008 (the
“Agreement”), between the Company and The Bank of New York, as Collateral Agent, as Custodial
Agent, as Securities Intermediary, as Purchase Contract Agent and as attorney-in-fact for the
holders of Corporate Units and Treasury Units from time to time. Capitalized terms used herein but
not defined shall have the meaning set forth in the Agreement.



     We hereby notify you in accordance with Section 3.14 of the Agreement that the holder of
securities named below (the “Holder”) has elected to substitute $          Value of [Debentures] [Applicable
Ownership Interests in the Treasury Portfolio] or security entitlements with respect thereto in
exchange for $         Value of Pledged Treasury Securities relating to Treasury Units and has delivered to
the undersigned a notice stating that the holder has Transferred such [Debentures] [Applicable
Ownership Interests in the Treasury Portfolio] or security entitlements with respect thereto to the
Securities Intermediary, for credit to the Collateral Account.



     We hereby request that you instruct the Securities Intermediary, upon confirmation that such
[Debentures] [Applicable Ownership Interests in the Treasury Portfolio] or security entitlements
with respect thereto have been credited to the Collateral Account, to release to the undersigned $         Value of Treasury Securities or security entitlements with respect thereto related to Treasury
Units of such Holder in accordance with Section 3.14 of the Agreement.



	 	 	 	 	 
	
__________________________
	The Bank of New York,

as Purchase Contract Agent

 	 
	Dated: __________________ 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: 

Authorized Signatory 	 



H-1









 







Please print name and address of Holder electing to substitute [Debentures] [Applicable Ownership
Interests in the Treasury Portfolio] or security entitlements with respect thereto for Pledged
Treasury Securities:




	 	 	 
	Name:

	 	Social Security or other Taxpayer Identification

Number, if any
	 
	 	 
	Address
	 	 






H-2









 






EXHIBIT I




INSTRUCTION

FROM COLLATERAL AGENT

TO SECURITIES INTERMEDIARY

(Recreation of Corporate Units)




The Bank of New York,

as Securities Intermediary

101 Barclay Street, 8W

New York, NY 10286

Telephone No.: 212-815-5995

Telecopier No.: 212-815-5704

Attention: Corporate Finance Division




     Re: Treasury Units of Archer-Daniels-Midland Company (the “Company”).



     The securities account of The Bank of New York, as Collateral Agent, maintained by the
Securities Intermediary and designated “The Bank of New York, as Collateral Agent of
Archer-Daniels-Midland Company, as pledgee of The Bank of New York, as the Purchase Contract Agent
on behalf of and as attorney-in-fact for the Holders” (the “Collateral Account”).



     Please refer to the Purchase Contract and Pledge Agreement dated as of May [___], 2008 (the
“Agreement”), among the Company and The Bank of New York, as Collateral Agent, as Custodial Agent,
as Securities Intermediary, as Purchase Contract Agent and as attorney-in-fact for the holders of
Corporate Units and Treasury Units from time to time. Capitalized terms used herein but not
defined shall have the meaning set forth in the Agreement.



     When you have confirmed that $        Value of [Debentures] [Applicable Ownership Interests in the
Treasury Portfolio] or security entitlements with respect thereto has been credited to the
Collateral Account by or for the benefit of      , as Holder of Treasury Units (the “Holder”), you
are hereby instructed to release from the Collateral Account $         Value of Treasury Securities or
security entitlements thereto by Transfer to the Purchase Contract Agent.



	 	 	 	 	 
	 	The Bank of New York,

as Collateral Agent

 	 
	Dated: ________________ 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: 

Authorized Signatory 	 



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EXHIBIT J




NOTICE OF CASH SETTLEMENT FROM PURCHASE CONTRACT

AGENT TO COLLATERAL AGENT

(Cash Settlement Amounts)




The Bank of New York,

as Collateral Agent

101 Barclay Street, 8W

New York, NY 10286

Telephone No.: 212-815-5995

Telecopier No.: 212-815-5704

Attention: Corporate Finance Division





     Re: Corporate Units of Archer-Daniels-Midland Company (the “Company”).



     Please refer to the Purchase Contract and Pledge Agreement dated as of May [___], 2008 (the
“Agreement”), between the Company and The Bank of New York, as Collateral Agent, as Custodial
Agent, as Securities Intermediary, as Purchase Contract Agent and as attorney-in-fact for the
holders of Corporate Units and Treasury Units from time to time. Unless otherwise defined herein,
terms defined in the Agreement are used herein as defined therein.



     In accordance with Section 5.03(a)(iv) of the Agreement, we hereby notify you that as of 5:00
p.m. (New York City time) on the first Business Day immediately preceding the first day of the
Final Remarketing Period, we have received (i) $        in immediately available funds paid in an
aggregate amount equal to the Purchase Price due to the Company on the Purchase Contract Settlement
Date with respect to Corporate Units and (ii) based on the funds received set forth in clause (i)
above, an aggregate principal amount of $       of Debentures underlying Pledged Applicable Ownership
Interests in Debentures are to be offered for purchase in each Remarketing during the Final
Remarketing Period.



	 	 	 	 	 
	__________________________ 	The Bank of New York,

as Purchase Contract Agent

 	 
	Dated: _________________ 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: 

Authorized Signatory 	 
	 




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EXHIBIT K




INSTRUCTION TO CUSTODIAL AGENT REGARDING REMARKETING




The Bank of New York,

as Collateral Agent

101 Barclay Street, 8W

New York, NY 10286

Telephone No.: 212-815-5995

Telecopier No.: 212-815-5704

Attention: Corporate Finance Division




     Re: Debentures Due 2041 of Archer-Daniels-Midland Company (the “Company”).



     The undersigned hereby notifies you in accordance with Section 5.03(c)(ii) of the Purchase
Contract and Pledge Agreement, dated as of May [___], 2008 (the “Agreement”), between the Company
and The Bank of New York, as Collateral Agent, as Custodial Agent, as Securities Intermediary, as
Purchase Contract Agent and as attorney-in-fact for the holders of Corporate Units and Treasury
Units from time to time, that the undersigned elects to deliver $ aggregate principal amount of
Separate Debentures for delivery to the Remarketing Agent prior to 5:00 p.m. (New York City time)
on the second Business Day immediately preceding the first day of the [Optional Remarketing Period
[beginning on, and including, February 10, 2011][beginning on, and including, March 29,
2011]][Final Remarketing Period] for remarketing pursuant to Section 5.03(c)(ii) of the Agreement.
The undersigned will, upon request of the Remarketing Agent, execute and deliver any additional
documents deemed by the Remarketing Agent or by the Company to be necessary or desirable to
complete the sale, assignment and transfer of the Separate Debentures tendered hereby. Capitalized
terms used herein but not defined shall have the meaning set forth in the Agreement.



     The undersigned hereby instructs you, upon receipt of the Proceeds of a Successful Remarketing
from the Remarketing Agent, to deliver such Proceeds to the undersigned in accordance with the
instructions indicated herein under “Payment Instructions.” The undersigned hereby instructs you,
in the event of a Failed Remarketing, upon receipt of the Separate Debentures tendered herewith
from the Remarketing Agent, to deliver such Separate Debentures to the person(s) and the
address(es) indicated herein under “B. Delivery Instructions.”



     With this notice, the undersigned hereby (i) represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Separate Debentures tendered
hereby and that the undersigned is the record owner of any Separate Debentures tendered herewith in
physical form or a participant in The Depository Trust Company (“DTC”) and the beneficial owner of
any Separate Debentures tendered herewith by book-entry transfer to your account at DTC, (ii)
agrees to be bound by the terms and conditions of Sections 5.02 and 5.03, as applicable, of the
Agreement and (iii) acknowledges and agrees that after 5:00 p.m. (New York City time) on the second
Business Day immediately preceding the first day of the Applicable Remarketing Period, such
election shall become an irrevocable election to have such Separate Debentures remarketed in each
Remarketing during the Applicable Remarketing Period, and that the Separate Debentures tendered
herewith will only be returned in the event of a Failed Remarketing.



K-1









 





	 	 	 	 	 
	 	 	 
	Date:                                                              	By:  	

 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Signature Guarantee:                                                             

 	 
	 



	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

Name

	 	  
	 	  
	 	  
	 
	 	 	 	 	 	 
	 

Address

	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Social Security or other Taxpayer

Identification Number, if any	 	 







	A.	 	PAYMENT INSTRUCTIONS




Proceeds of a Successful Remarketing should be paid by check in the name of the person(s) set forth
below and mailed to the address set forth below.




	 	 	 	 	 
	Name(s)

	 	 
	 	 
	 

	 	 	 	 
	 

	 	(Please Print)	 	 
	 
	 	 	 	 
	Address

	 	 
	 	 
	 

	 	 	 	 
	 

	 	(Please Print)	 	 
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 	 	 
	(Zip Code)
	 	 
	 
	 	 	 	 
	 	 	 
	(Tax Identification or Social Security Number)
	 	 







	B.	 	DELIVERY INSTRUCTIONS




In the event of a Failed Remarketing, Debentures which are in physical form should be delivered to
the person(s) set forth below and mailed to the address set forth below.




	 	 	 	 	 
	Name(s)

	 	 
	 	 
	 

	 	 	 	 
	 

	 	(Please Print)	 	 
	 
	 	 	 	 
	Address

	 	 
	 	 
	 

	 	 	 	 
	 

	 	(Please Print)	 	 
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 	 	 
	(Zip Code)
	 	 
	 
	 	 	 	 
	 	 	 
	(Tax Identification or Social Security Number)
	 	 






K-2









 





In the event of a Failed Remarketing, Debentures which are in book-entry form should be credited to
the account at The Depository Trust Company to the person(s) set forth below.



DTC Account Number                                                             



Name of Account Party:                                                             





K-3









 








EXHIBIT L




INSTRUCTION TO CUSTODIAL AGENT REGARDING

WITHDRAWAL FROM REMARKETING




The Bank of New York,

as Custodial Agent

101 Barclay Street, 8W

New York, NY 10286

Telephone No.: 212-815-5995

Telecopier No.: 212-815-5704

Attention: Corporate Finance Division




     Re: Debentures Due 2041 of Archer-Daniels-Midland Company (the “Company”).



     The undersigned hereby notifies you in accordance with Section 5.03(c)(ii) of the Purchase
Contract and Pledge Agreement, dated as of May [___], 2008 (the “Agreement”), among the Company and
you, as Collateral Agent, Custodial Agent and Securities Intermediary, and The Bank of New York, as
Purchase Contract Agent and as attorney-in-fact for the holders of Corporate Units and Treasury
Units from time to time, that the undersigned elects to withdraw the $      aggregate principal amount
of Separate Debentures delivered to you for Remarketing pursuant to Section 5.03 of the Agreement.
The undersigned hereby instructs you to return such Separate Debentures to the undersigned in
accordance with the undersigned’s instructions. With this notice, the Undersigned hereby agrees to
be bound by the terms and conditions of Section 5.03(c)(ii) of the Agreement. Capitalized terms
used herein but not defined shall have the meaning set forth in the Agreement.



	 	 	 	 	 
	 	 	 
	Date: 	By:  	

 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Signature Guarantee:                                                             

 	 
	 	 	 
	 	 	 
	 	 	 
	 



	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

Name

	 	  
	 	  
	 	  
	 
	 	 	 	 	 	 
	 

Address

	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Social Security or other Taxpayer

Identification Number, if any	 	 






L-1









 






EXHIBIT M




NOTICE TO SETTLE WITH SEPARATE CASH




The Bank of New York,

as Purchase Contract Agent




Attention:




Fax: (___)                                        





Re: Corporate Units of Archer-Daniels-Midland Company, a Delaware corporation (the
“Company”)


The undersigned Holder hereby irrevocably notifies you in accordance with Section 5.03(b)(iii) of
the Purchase Contract and Pledge Agreement, dated as of                     , 200___(the “Purchase Contract
and Pledge Agreement”; unless otherwise defined herein, terms defined in the Purchase Contract and
Pledge Agreement are used herein as defined therein), among the Company and you, as Purchase
Contract Agent, as attorney-in-fact for the Holders of the Corporate Units, Collateral Agent,
Custodial Agent and Securities Intermediary, that such Holder has elected to pay to the Securities
Intermediary for deposit in the Collateral Account, on or prior to 5:00 p.m. (New York City time)
on the 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
payable to or upon the order of the Securities Intermediary), $           as the Purchase Price for the
shares of Common Stock issuable to such Holder by the Company with respect to                    
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
settle the Purchase Contracts related to such Holder’s Corporate Units with separate cash.



Date:



Signature



Signature Guarantee:



Please print name and address of Registered Holder:





M-1









 








EXHIBIT N




NOTICE

FROM PURCHASE CONTRACT AGENT

TO COLLATERAL AGENT

(Settlement with Separate Cash)




The Bank of New York,

as Collateral Agent




Attention:

Fax:





			
	          Re:	 	Corporate Units of Archer-Daniels-Midland Company, a Delaware
corporation (the “Company”)




Please refer to the Purchase Contract and Pledge Agreement, dated as of ___, 200___(the
“Agreement”), among the Company, you, as Collateral Agent, as Securities Intermediary and as
Custodial Agent, and the undersigned, as Purchase Contract Agent and as attorney-in-fact for the
Holders of Corporate Units from time to time. Capitalized terms used herein but not defined shall
have the meaning set forth in the Agreement.



We hereby notify you in accordance with Section 5.03(b)(iii) of the Agreement that the Holder of
Corporate Units named below (the “Holder") has elected to settle the               
Purchase Contracts related to its Pledged Applicable Ownership Interests in Debentures with $           of
separate cash prior to 5:00 p.m. (New York City time) on the second 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 payable to or upon the order of
the Securities Intermediary) and has delivered to the undersigned a notice to that effect.



We hereby request that you, upon confirmation that the Purchase Price has been paid by the Holder
to the Securities Intermediary in accordance with Section 5.03(b)(iii) of the Agreement in lieu of
exercise of such Holder’s Put Right, give us notice of the receipt of such payment and (A) promptly
invest the separate cash received in Permitted Investments consistent with the instructions of the
Company as provided in Section 5.03(a)(v) of the Agreement with respect to Cash Settlement, (B)
promptly release from the Pledge the Debentures underlying the Applicable Ownership Interest in
Debentures related to the Corporate Units as to which such Holder has paid such separate cash; and
(C) promptly Transfer all such Debentures to us for distribution to such Holder, in each case free
and clear of the Pledge created by the Agreement.




Date:                                         , as Purchase




Contract Agent and as attorney-in-fact of the

Holders from time to time of the Units




By:



 




Name:

Title:

Authorized Signatory



Please print name and address of Holder electing to settle with separate cash:




N-1









 








TABLE OF CONTENTS

(continued)




	 	 	 
	Name:

	 	Social Security or other Taxpayer Identification Number, if any
	 
	 	 
	Address
	 	 






N-2









 






EXHIBIT O




NOTICE OF SETTLEMENT WITH SEPARATE CASH FROM

SECURITIES INTERMEDIARY TO PURCHASE CONTRACT AGENT

(Settlement with Separate Cash)




The Bank of New York,

as Purchase Contract Agent




Attention:

Fax: (___)                                        





Re:
Corporate Units of Archer-Daniels-Midland (the
“Company”)




Please refer to the Purchase Contract and Pledge Agreement dated as of                     , 200___(the
“Agreement”), by and among you, the Company, and The Bank of New York, as Collateral Agent,
Custodial Agent and Securities Intermediary. Unless otherwise defined herein, terms defined in the
Agreement are used herein as defined therein.




     In accordance with Section 5.03(b)(iii) of the Agreement, we hereby notify you that as of 5:00 p.m.
(New York City time) on the Business Day immediately preceding June 1, 2011 (the “Purchase Contract
Settlement Date”), (i) we have received from          $           in immediately available funds paid
in an aggregate amount equal to the Purchase Price due to the Company on the Purchase Contract
Settlement Date with respect to                    Corporate Units and (ii) based on the funds
received set forth in clause (i) above, an aggregate principal amount of $          of Debentures underlying
related Pledged Applicable Ownership Interests in Debentures are to be released from the Pledge and
Transferred to you.



The Bank of New York,

as Securities Intermediary




Dated:




By:




N-1









 





EXHIBIT P




FORM OF REMARKETING AGREEMENT





P-1