exhibit_10-4.htm


 

 


 



	
  

	
May 17, 2011













	
To:

	
ONEOK, Inc.








	
  

	
100 West Fifth Street








	
  

	
Tulsa, OK  74103







Attn:  Robert Martinovich


Telephone:  918-588-7941


Facsimile:  918-588-XXXX








	
From

	
Barclays Bank PLC








	
 

	

5 The North Colonnade













	
 

	
Canary Wharf, London E14 4BB





	
 

	
Facsimile: +44(20)77736461





	
 

	
Telephone: +44(20) 777 36810





	
 

	
 





	
 

	
c/o Barclays Capital Inc.





	
 

	
as Agent for Barclays Bank PLC





	
 

	
745 Seventh Ave





	
 

	
New York, NY 10019

















































	
Re:

	
Issuer Forward Repurchase Transaction












 


Ladies and Gentlemen:


 


The purpose of this communication (this “Confirmation”) is to confirm the terms and conditions of the Transaction entered into between Barclays Bank PLC (“Bank”), through its agent Barclays Capital Inc. (the “Agent”) and ONEOK, Inc. (“Counterparty”) on the Trade Date specified below (the “Transaction”).  Barclays Bank PLC is not a member of the Securities Investor Protection Corporation (“SIPC”).  Bank is regulated by the Financial Services Authority.  The terms of the Transaction shall be set forth in this Confirmation.  This Confirmation shall constitute a “Confirmation” as referred to in the ISDA Master Agreement specified below.


 


1.           This Confirmation is subject to, and incorporates, the definitions and provisions of the 2006 ISDA Definitions (including the Annex thereto) (the “2006 Definitions”) and the definitions and provisions of the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions,” and together with the 2006 Definitions, the “Definitions”), in each case as published by the International Swaps and Derivatives Association, Inc. (“ISDA”).  In the event of any inconsistency between the 2006 Definitions and the Equity Definitions, the Equity Definitions will govern.


 


This Confirmation evidences a complete and binding agreement between Bank and Counterparty as to the terms of the Transaction to which this Confirmation relates.  This Confirmation shall be subject to an agreement (the “Agreement”) in the form of the ISDA 2002 Master Agreement (the “ISDA Form”) as if Bank and Counterparty had executed an agreement in such form (without any Schedule but with the following elections:  (i) the replacement of the word “first” in the third line of Section 5(a)(i) with the word “second,” (ii) the deletion of both occurrences of the number “15” in Section 5(a)(vii) and their replacement with the number “30,” (iii) the insertion of “, absent manifest error” immediately before the period at the end of the last sentence of Section 6(d)(i)) and (iv) such other elections as may be set forth in this Confirmation).  The Transaction shall be the only Transaction under the Agreement.


 


All provisions contained in, or incorporated by reference to, the Agreement will govern this Confirmation except as expressly modified herein.  In the event of any inconsistency between this Confirmation and either the Definitions or the Agreement, this Confirmation shall govern.  The Transaction is a Share Forward Transaction within the meaning set forth in the Equity Definitions.


 


2.           The terms of the particular Transaction to which this Confirmation relates are as follows:


 




  





  











  






General Terms:


 



	
  

	
Trade Date:

	
May 17, 2011







 



	
  

	
Seller:

	
Bank







 



	
  

	
Buyer:

	
Counterparty







 



	
  

	
Shares:

	
The common stock of Counterparty, par value USD 0.01 per share (Ticker Symbol: “OKE”)







 



	
  

	
Prepayment:

	
Applicable







 



	
  

	
Prepayment Amount:

	
As provided in Annex B to this Confirmation.







 



	
  

	
Prepayment Date:

	
The first Exchange Business Day following the Trade Date







 



	
  

	
Exchange:

	
New York Stock Exchange







 



	
  

	
Related Exchange(s):

	
All Exchanges







 



	
  

	
Calculation Agent:

	
Bank; provided that, following the occurrence of an Event of Default pursuant to Section 5(a)(vii) of the Agreement with respect to which Bank is the Defaulting Party, Counterparty shall have the right to designate a nationally recognized third-party dealer in over-the-counter corporate equity derivatives to act, during the period commencing on the date such Event of Default occurred and ending on the Early Termination Date with respect to such Event of Default, as the Calculation Agent.  Following any determination or calculation by the Calculation Agent hereunder, upon a written request by Counterparty, the Calculation Agent will, as promptly as practicable (but in any event no later than five (5) Exchange Business Days following the later of (i) the date of such written request and (ii) the date of such determination or calculation), provide to Counterparty by e-mail, to the e-mail address provided by Counterparty in such written request, a report (in a commonly used file format for the storage and manipulation of financial data without disclosing any proprietary models of the Calculation Agent) displaying in reasonable detail the basis for such determination or calculation.







 


Valuation Terms:


 



	
  

	
Averaging Dates:

	
Each of the consecutive Exchange Business Days commencing on, and including, the Exchange Business Day immediately following the Trade Date and ending on, and including, the Final Averaging Date.







 



	
  

	
Final Averaging Date:

	
The Scheduled Final Averaging Date; provided that Bank shall have the right, in its absolute discretion, at any time to accelerate the Final Averaging Date to any date that is on or after the Scheduled Earliest Acceleration Date by written notice to Counterparty no later than 8:00 P.M., New York City time, on the Exchange Business Day immediately following the accelerated Final Averaging Date.







 









	 	Scheduled Final Averaging	
 





	
  

	
Date:

	
As provided in Annex B to this Confirmation.







 









	 	
Scheduled Earliest Acceleration

	
 





	
  

	
Date:

	
As provided in Annex B to this Confirmation.







 



	
  

	
Valuation Date:

	
The Final Averaging Date.







 



	
  

	
Averaging Date Disruption:

	
Modified Postponement; provided that, notwithstanding anything to the contrary in the Equity Definitions, if a Market Disruption Event 







 




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occurs on any Averaging Date, the Calculation Agent may, if appropriate in light of market conditions, regulatory considerations or otherwise, take any or all of the following actions: (i) postpone the Scheduled Final Averaging Date in accordance with Modified Postponement (as modified herein) and/or (ii) determine that such Averaging Date is a Disrupted Day only in part, in which case the Calculation Agent shall (x) determine the VWAP Price for such Disrupted Day based on Rule 10b-18 eligible transactions in the Shares on such Disrupted Day taking into account the nature and duration of such Market Disruption Event and (y) determine the Settlement Price based on an appropriately weighted average instead of the arithmetic average described under “Settlement Price” below.  Any Exchange Business Day on which, as of the date hereof, the Exchange is scheduled to close prior to its normal close of trading shall be deemed not to be an Exchange Business Day; if a closure of the Exchange prior to its normal close of trading on any Exchange Business Day is scheduled following the date hereof, then such Exchange Business Day shall be deemed to be a Disrupted Day in full.







 



	
  

	
Market Disruption Events:

	
Section 6.3(a) of the Equity Definitions is hereby amended (A) by deleting the words “during the one hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be” in clause (ii) thereof and inserting the words “on any Scheduled Trading Day during the Relevant Period,” after the word “material,” in the third line thereof and (B) by replacing the words “or (iii) an Early Closure” therein with “(iii) an Early Closure, or (iv) a Regulatory Disruption”.







 



	 	
 

	

Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.















 



	
  

	
Regulatory Disruption:

	
Any event that Bank, in its good faith reasonable discretion based on the advice of nationally recognized outside counsel, determines makes it appropriate with regard to any legal, regulatory or self-regulatory requirements or related policies and procedures for Bank to refrain from or decrease any market activity in connection with the Transaction. Bank shall notify Counterparty as soon as reasonably practicable that a Regulatory Disruption has occurred and the Averaging Dates affected by it.







 


Settlement Terms:


 



	
  

	
Initial Share Delivery:

	
On the Initial Share Delivery Date, Bank shall deliver to Counterparty the Initial Shares.







 



	
  

	
Initial Share Delivery Date:

	
The first Exchange Business Day following the Trade Date.







 



	
  

	
Initial Shares:

	
As provided in Annex B to this Confirmation.







 



	
  

	
Settlement Date:

	
The date that falls one Settlement Cycle following the Valuation Date.







 



	
  

	
Settlement:

	
On the Settlement Date, Bank shall deliver to Counterparty the Number of Shares to be Delivered, if a positive number. If the Number of Shares to be Delivered is a negative number, the Counterparty Settlement Provisions in Annex A shall apply.







 



	 	

Number of Shares to be Delivered:



	
A number of Shares equal to (a) the Prepayment Amount divided by (b) (i) the Settlement Price minus (ii) the Discount; provided that the 







 




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Number of Shares to be Delivered as so determined shall be reduced by the number of Shares delivered on the Initial Share Delivery Date.









 



	
  

	
Settlement Price:

	
The arithmetic average of the VWAP Prices for all Averaging Dates.







 



	
  

	
VWAP Price:

	
For any Averaging Date, the Rule 10b-18 dollar volume weighted average price per Share for such day based on transactions executed during such day, as reported on Bloomberg Page “OKE.N <Equity> AQR SEC” (or any successor thereto) or, in the event such price is not so reported on such day for any reason or is manifestly incorrect, as determined by the Calculation Agent using a volume weighted method.







 



	
  

	
Discount:

	
As provided in Annex B to this Confirmation.







 



	
  

	
Excess Dividend Amount:

	
For the avoidance of doubt, all references to the Excess Dividend Amount in Section 9.2(a)(iii) of the Equity Definitions shall be deleted.







 



	 	

Other Applicable Provisions:



	

To the extent either party is obligated to deliver Shares hereunder, the provisions of the last sentence of Section 9.2 and Sections 9.8, 9.9, 9.10, 9.11 (except that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws arising as a result of the fact that Counterparty is the Issuer of the Shares) and 9.12 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction.















 


Dividends:


 



	
  

	
Dividend:

	
Any dividend or distribution on the Shares other than any dividend or distribution of the type described in Sections 11.2(e)(i), 11.2(e)(ii)(A) or 11.2(e)(ii)(B) of the Equity Definitions.







 


Share Adjustments:


 



	
  

	
Method of Adjustment:

	
Calculation Agent Adjustment; provided that the declaration or payment of Dividends shall not be a Potential Adjustment Event.


 



It shall constitute an additional Potential Adjustment Event if the Scheduled Final Averaging Date is postponed pursuant to “Averaging Date Disruption” above, in which case the Calculation Agent may, in its good faith and commercially reasonable discretion, adjust any relevant terms of the Transaction as the Calculation Agent determines appropriate to account for the economic effect on the Transaction of such postponement, based on the volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares.









 








Extraordinary Events:


 









	 	

Consequences of Merger Events:



	
 







 



	
  

	
(a)  Share-for-Share:

	
Modified Calculation Agent Adjustment







 



	
  

	
(b)  Share-for-Other:

	
Cancellation and Payment







 



	
  

	
(c)  Share-for-Combined:

	
Component Adjustment







 



	
  

	
Tender Offer:

	
Applicable







 



	
  

	
Consequences of Tender Offers:

	
 






















 



	
  

	
(a)  Share-for-Share:

	
Modified Calculation Agent Adjustment







 




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(b)  Share-for-Other:

	
Modified Calculation Agent Adjustment







 



	
  

	
(c)  Share-for-Combined:

	
Modified Calculation Agent Adjustment







 



	 	
Composition of Combined


Consideration:

	
 


Not Applicable













 



	 	
Consequences of Announcement

	
 




















	
  

	
Events:

	
Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions; provided that references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “Announcement Date.”  An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable.







 



	
  

	
Announcement Event:

	
The occurrence of an Announcement Date in respect of a potential Acquisition Transaction (as defined in Section 9 below).







 



	
  

	
Announcement Date:

	
The date of the first public announcement in relation to an Acquisition Transaction, or any publicly announced change or amendment to the announcement giving rise to an Announcement Date.







 



	
  

	
Provisions applicable to Merger

	
 














	
 


  

	
Events and Tender Offers:

	
The consequences set forth opposite “Consequences of Merger Events” and “Consequences of Tender Offers” above shall apply regardless of whether a particular Merger Event or Tender Offer relates to an Announcement Date for which an adjustment has been made pursuant to Consequences of Announcement Events, without duplication of any such adjustment.







 



	
  

	
New Shares:

	
In the definition of New Shares in Section 12.1(i) of the Equity Definitions, the text in clause (i) thereof shall be deleted in its entirety (including the word “and” following such clause (i)) and replaced with “publicly quoted, traded or listed on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors)”.







 









	
  

	
Nationalization, Insolvency or


Delisting:

	
 


Cancellation and Payment (Calculation Agent Determination); provided that in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Market or The NASDAQ Global Select Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.







 



	 	
Additional Disruption Events:

	
 













 









	 	

Change in Law:



	

Applicable; provided that in respect of the Transaction a Change in Law shall occur only if the Hedging Party (x) was unable, after using good faith and commercially reasonable efforts, to replace its existing Hedge Positions on commercially reasonable pricing terms with alternative Hedge Positions in respect of the Transaction to avoid the Change in Law that would have otherwise occurred absent such change in the Hedge Positions and (y) in the event (x) applies, has used good faith and commercially reasonable efforts to transfer its









 




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rights and obligations under the Transaction to the extent necessary to avoid such Change in Law and failed to so effect such transfer on commercially reasonable pricing terms pursuant to Section 10(f) below.









 



	
  

	
Failure to Deliver:

	
Applicable







 



	
  

	
Insolvency Filing:

	
Applicable







 



	
  

	
Hedging Disruption:

	
Applicable







 



	
  

	
Increased Cost of Hedging:

	
Applicable







 



	
  

	
Loss of Stock Borrow:

	
Applicable







 



	 	
   Maximum Stock Loan Rate:

	
As provided in Annex B to this Confirmation.



















 



	 	
Increased Cost of Stock Borrow:

	
Applicable













 



	 	
   Initial Stock Loan Rate:

	
As provided in Annex B to this Confirmation.







 



	 	
Hedging Party:

	
For all applicable Potential Adjustment Events and Extraordinary Events, Bank.













 



	 	
Determining Party:

	

For all Extraordinary Events, Bank; provided that, upon receipt of written request from Counterparty, Determining Party shall promptly (but in no event later than within five Scheduled Trading Days from the receipt of such request) provide Counterparty with a written explanation describing in reasonable detail any determination made by Determining Party (including any quotations, market data or information from internal sources used in making such calculations, but without requiring any disclosure of Bank’s proprietary models).  Whenever the Determining Party is required to act or to exercise judgment in any way, it will do so in good faith and in a commercially reasonable manner.















 



	 	

Non-Reliance:



	
Applicable













 









	 	
Agreements and Acknowledgments

	
 





	 	

Regarding Hedging Activities:



	
Applicable













 



	 	

Additional Acknowledgments:



	
Applicable













 



	3.	

Account Details:



	
 







 



	 	
(a) Account for delivery of Shares

	
 








	 	

to Counterparty:



	
 



















 


Account Number 3405377069 


Registration and Address            


ONEOK INC TREASURY-M                


*C/O WELLS FARGO SHAREOWNER SERVICES


ATTN ACCOUNT MANAGEMENT             


161 N CONCORD EXCHANGE              


SOUTH SAINT PAUL MN 55075           








	 	
(b) Account for payments to


Counterparty:

	
 











































Account Number 3405377069 


Registration and Address            


ONEOK INC TREASURY-M                


*C/O WELLS FARGO SHAREOWNER SERVICES


ATTN ACCOUNT MANAGEMENT             


161 N CONCORD EXCHANGE              


 




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SOUTH SAINT PAUL MN 55075           














 










	
  

	
(c)  Account for payments to Bank:







 




Bank:  Barclays Bank plc NY


ABA#  026 00 2574


BIC:  BARCUS33


Acct:  50038524


Beneficiary:  BARCGB33


Ref:   Barclays Bank plc London Equity Derivatives







4.         Offices:


 



	
  

	
(a)  The Office of Counterparty for the Transaction is: Counterparty is not a Multibranch Party







 



	
  

	
(b)  The Office of Counterparty for the Transaction is: Bank is not a Multibranch Party







 


5.         Notices:  For purposes of this Confirmation:


 



	
  

	
(a)  Address for notices or communications to Counterparty:







 


ONEOK, Inc.


100 West Fifth Street


Tulsa, OK  74013


Attn:


Telephone:


Facsimile:


 



	
  

	
(b)  Address for notices or communications to Bank:







 


Barclays Bank PLC


c/o Barclays Capital Inc.


745 Seventh Ave.


New York, NY 10019


Attn:           Paul Robinson


Telephone:          (+1) 212-526-0111


Facsimile:             (+1) 917-522-0458







6.        Additional Provisions Relating to Transactions in the Shares.


 


   (a)           Counterparty acknowledges and agrees that the Initial Shares delivered on the Initial Share Delivery Date may be sold short to Counterparty. Counterparty further acknowledges and agrees that Bank may, during (i) the period from the date hereof to the Valuation Date or, if later, the Scheduled Earliest Acceleration Date without regard to any adjustment thereof pursuant to “Special Provisions regarding Transaction Announcements” below, and (ii) the period from and including the first Settlement Valuation Date to and including the last Settlement Valuation Date, if any (together, the “Relevant Period”), purchase Shares in connection with the Transaction, which Shares may be used to cover all or a portion of such short sale or may be delivered to Counterparty.  Such purchases will be conducted independently of Counterparty.  The timing of such purchases by Bank, the number of Shares purchased by Bank on any day, the price paid per Share pursuant to such purchases and the manner in which such purchases are made, including without limitation whether such purchases are made on any securities exchange or privately, shall be within the absolute discretion of Bank.  It is the intent of the parties that the Transaction comply with the requirements of Rule 10b5-1(c)(1)(i)(B) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the parties agree that this Confirmation shall be interpreted to comply with the requirements of Rule 10b5-1(c), and Counterparty shall not take any action that results in the Transaction not so complying with such requirements.  Without limiting the generality of the preceding sentence, Counterparty acknowledges and agrees that (A) Counterparty does not have, and shall not attempt to exercise, any influence over how, when or whether Bank effects any purchases of Shares in connection with the Transaction, (B) during the period beginning on (but excluding) the date of this Confirmation and ending on (and including) the last day of the Relevant Period, neither Counterparty nor its officers or employees shall, directly or indirectly, communicate (except pursuant to a public disclosure) any information regarding Counterparty or the Shares to 


 




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any employee of Bank or its Affiliates identified or known to them as being responsible for trading the Shares in connection with the transactions contemplated hereby, (C) Counterparty is entering into the Transaction in good faith and not as part of a plan or scheme to evade compliance with federal securities laws including, without limitation, Rule 10b-5 promulgated under the Exchange Act and (D) Counterparty will not alter or deviate from this Confirmation or enter into or alter a corresponding hedging transaction with respect to the Shares.  Counterparty also acknowledges and agrees that any amendment, modification, waiver or termination of this Confirmation must be effected in accordance with the requirements for the amendment or termination of a “plan” as defined in Rule 10b5-1(c) under the Exchange Act.  Without limiting the generality of the foregoing, any such amendment, modification, waiver or termination shall be made in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5 under the Exchange Act, and no such amendment, modification or waiver shall be made at any time at which Counterparty or any officer or director of Counterparty is aware of any material nonpublic information regarding Counterparty or the Shares.




 


(b)           Counterparty agrees that neither Counterparty nor any of its Affiliates or agents shall take any action that would cause Regulation M to be applicable to any purchases of Shares, or any security for which the Shares are a reference security (as defined in Regulation M), by Counterparty or any of its affiliated purchasers (as defined in Regulation M) during the Relevant Period.


 


(c)           Counterparty shall, at least one day prior to the first day of the Relevant Period, have notified Bank of the total number of Shares purchased in Rule 10b-18 purchases of blocks pursuant to the once-a-week block exception contained in Rule 10b-18(b)(4) by or for Counterparty or any of its affiliated purchasers during each of the four calendar weeks preceding the first day of the Relevant Period and during the calendar week in which the first day of the Relevant Period occurs (“Rule 10b-18 purchase,” “blocks” and “affiliated purchaser” each being used as defined in Rule 10b-18), which notice shall be substantially in the form set forth as Appendix A hereto.


 


(d)           During the Relevant Period, Counterparty shall (i) notify Bank prior to the opening of trading in the Shares on any day on which Counterparty makes, or expects to be made, any public announcement (as defined in Rule 165(f) under the Securities Act of 1933, as amended (the “Securities Act”), of any merger, acquisition or similar transaction involving a recapitalization relating to Counterparty (other than any such transaction in which the consideration consists solely of cash and there is no valuation period), (ii) promptly notify Bank following any such announcement that such announcement has been made and (iii) promptly deliver to Bank following the making of any such announcement a certificate indicating (A) Counterparty’s average daily Rule 10b-18 purchases (as defined in Rule 10b-18) during the three full calendar months preceding the date of the announcement of such transaction and (B) Counterparty’s block purchases (as defined in Rule 10b-18) effected pursuant to paragraph (b)(4) of Rule 10b-18 during the three full calendar months preceding the date of the announcement of such transaction.  In addition, Counterparty shall promptly notify Bank of the earlier to occur of the completion of such transaction and the completion of the vote by target shareholders.  Counterparty acknowledges that any such public announcement may result in a Regulatory Disruption and may cause the Relevant Period to be suspended.  Accordingly, Counterparty acknowledges that its actions in relation to any such announcement or transaction must comply with the standards set forth in Section 6(a) above.


 


(e)           Without the prior written consent of Bank, Counterparty shall not, and shall cause its Affiliates and affiliated purchasers (each as defined in Rule 10b-18) not to, directly or indirectly (including, without limitation, by means of a cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable for Shares during the Relevant Period.


 


7.             Representations and Agreements.


 


(a)           In addition to the representations and agreements in the Agreement and those contained elsewhere herein, Counterparty represents to and for the benefit of, and agrees with, Bank as follows:


 


(i)           As of the Trade Date, and as of the date of any election by Counterparty of the Share Termination Alternative under (and as defined in) Section 10(a) below, (A) none of Counterparty and its officers and directors is aware of any material nonpublic information regarding Counterparty or the Shares and (B) Counterparty’s most recent Annual Report on Form 10-K, together with all reports subsequently filed by it pursuant to the Exchange Act, taken together and as amended and supplemented to the date of this


 




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representation, do not, as of their respective filing dates, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.


 


(ii)           Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that Bank is not making any representations or taking any position or expressing any view with respect to the treatment of the Transaction under any accounting standards including ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and Hedging, or ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging – Contracts in Entity’s Own Equity (or any successor issue statements) or under FASB’s Liabilities & Equity Project.


 


(iii)           Without limiting the generality of Section 3(a)(iii) of the Agreement, the Transaction will not violate Rule 13e-1 or Rule 13e-4 under the Exchange Act.


 


(iv)           Prior to the Trade Date, Counterparty shall deliver to Bank a resolution of Counterparty’s board of directors authorizing the Transaction and such other certificate or certificates as Bank shall reasonably request.  Counterparty has publicly disclosed on October 21, 2010 its intention to institute a program for the acquisition of Shares.


 


(v)           Counterparty is not entering into this Confirmation to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares) or otherwise in violation of the Exchange Act, and will not engage in any other securities or derivative transaction to such ends.


 


(vi)           Counterparty is not, and after giving effect to the transactions contemplated hereby will not be, required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.


 


(vii)           On the Trade Date, the Prepayment Date, the Initial Share Delivery Date and the Settlement Date, Counterparty is not, or will not be, “insolvent,” as such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code), as amended (the “Bankruptcy Code”), and Counterparty would be able to purchase the Shares hereunder in compliance with the corporate laws of the jurisdiction of its incorporation.


 


(viii)           No state or local (including non-U.S. jurisdictions) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Bank or its affiliates owning or holding (however defined) Shares.


 


(ix)           Counterparty shall not declare or pay any Dividend (as defined above) to holders of record as of any date occurring prior to the Settlement Date or, if the provisions of Annex A apply, the Cash Settlement Payment Date, other than an ordinary cash dividend of USD 0.56 or less per Share to holders of record on each of July 29, 2011 and November 4, 2011 (or, in each case, any later date within the same quarterly fiscal period of Counterparty).


 


(x)           Counterparty understands no obligations of Bank to it hereunder will be entitled to the benefit of deposit insurance and that such obligations will not be guaranteed by any affiliate of Bank or any governmental agency.


 


(b)           Each of Bank and Counterparty agrees and represents that it is an “eligible contract participant” as defined in Section 1a(12) of the U.S. Commodity Exchange Act, as amended.


 


(c)           Each party acknowledges that the offer and sale of the Transaction to it is intended to be exempt from registration under the Securities Act by virtue of Section 4(2) thereof.  Accordingly, Counterparty represents to the other that (i) it has the financial ability to bear the economic risk of its investment in the Transaction and is able to bear a total 


 




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loss of its investment, (ii) it is an “accredited investor” as that term is defined in Regulation D as promulgated under the Securities Act, (iii) it is entering into the Transaction for its own account and without a view to the distribution or resale thereof, and (iv) the assignment, transfer or other disposition of the Transaction has not been and will not be registered under the Securities Act and is restricted under this Confirmation, the Securities Act and state securities laws.




 


(d)           Counterparty agrees and acknowledges that Bank is one or more of a “financial institution,”  “swap participant” and “financial participant” within the meaning of Sections 101(22), 101(53C) and 101(22A) of the Bankruptcy Code.  The parties hereto further agree and acknowledge that it is the intent of the parties that (A) this Confirmation is (i) a “securities contract,” as such term is defined in Section 741(7) of the Bankruptcy Code, with respect to which each payment and delivery hereunder or in connection herewith is a “termination value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “settlement payment,” within the meaning of Section 546 of the Bankruptcy Code and (ii) a “swap agreement,” as such term is defined in Section 101(53B) of the Bankruptcy Code, with respect to which each payment and delivery hereunder or in connection herewith is a “termination value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “transfer,” as such term is defined in Section 101(54) of the Bankruptcy Code and a “payment or other transfer of property” within the meaning of Sections 362 and 546 of the Bankruptcy Code, and (B) Bank is entitled to the protections afforded by, among other sections, Sections 362(b)(6), 362(b)(17), 362(o), 546(e), 546(g), 548(d)(2), 555, 560 and 561 of the Bankruptcy Code.


 


(e)           In addition to the representations and agreements in the Agreement and those contained elsewhere herein, Bank represents to and for the benefit of, and agrees with, Counterparty as follows:


 


(i)           Bank has implemented and will at all relevant times maintain reasonable policies and procedures, taking into consideration the nature of its business, to ensure that individuals making investment decisions on behalf of the Bank related to the Transaction do not have access to material nonpublic information regarding Counterparty that may be in possession of other individuals at Bank.


 


(ii)           Bank is not entering into this Confirmation to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares) or otherwise in violation of the Exchange Act, will not engage in any other securities or derivative transaction to such ends and will maintain such reasonable policies and procedures as are necessary to fulfill this clause during the period where such manipulation would constitute such a violation.


 


8.           Agreements and Acknowledgements Regarding Hedging.


 


      Counterparty acknowledges and agrees that:


 


(a)           During the Relevant Period, Bank and its Affiliates may buy or sell Shares or other securities or buy or sell options or futures contracts or enter into swaps or other derivative securities in order to adjust its hedge position with respect to the Transaction;


 


(b)           Bank and its Affiliates also may be active in the market for Shares other than in connection with hedging activities in relation to the Transaction;


 


(c)           Bank shall make its own determination as to whether, when or in what manner any hedging or market activities in Counterparty’s securities shall be conducted and shall do so in a manner that it deems appropriate to hedge its price and market risk with respect to the Settlement Price and/or the VWAP Price; and


 


(d)           Any market activities of Bank and its Affiliates with respect to Shares may affect the market price and volatility of Shares, as well as the Settlement Price and/or the VWAP Price, each in a manner that may be adverse to Counterparty.


 


9.           Special Provisions regarding Transaction Announcements.


 




10





  











  






(a)           If a Transaction Announcement occurs after the Trade Date but prior to the Scheduled Earliest Acceleration Date, the Scheduled Earliest Acceleration Date shall be adjusted to be the date of such Transaction Announcement.


 


(b)           “Transaction Announcement” means (i) the announcement of an Acquisition Transaction, (ii) an announcement that Counterparty or any of its subsidiaries has entered into an agreement, a letter of intent or an understanding to enter into an Acquisition Transaction, (iii) the announcement of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that may include, an Acquisition Transaction, or (iv) any other announcement that in the good faith reasonable judgment of the Calculation Agent may result in an Acquisition Transaction. For the avoidance of doubt, announcements as used in this definition of Transaction Announcement refer to any public announcement whether made by the Issuer or a third party.


 


“Acquisition Transaction” means (i) any Merger Event (and for purposes of this definition the definition of Merger Event shall be read with the references therein to “100%” being replaced by “50%” and to “50%” by “75%” and  as if the clause beginning immediately following the definition of Reverse Merger therein to the end of such definition were deleted) or Tender Offer, or any other transaction, in each case, involving the merger of Counterparty with or into any third party, (ii) the sale or transfer of all or substantially all of the assets of Counterparty, (iii) a recapitalization, reclassification, binding share exchange or other similar transaction, (iv) any acquisition, lease, exchange, transfer, disposition (including by way of spin-off or distribution) of assets (including any capital stock or other ownership interests in subsidiaries) or other similar event by Counterparty or any of its subsidiaries where the aggregate consideration transferable or receivable by or to Counterparty or its subsidiaries exceeds 50% of the market capitalization of Counterparty and (v) any transaction in which Counterparty or its board of directors has a legal obligation to make a recommendation to its shareholders in respect of such transaction (whether pursuant to Rule 14e-2 under the Exchange Act or otherwise).


 


10.           Other Provisions.


 


(a)           Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events.  If either party would owe the other party any amount pursuant to Sections 12.2, 12.3, 12.6, 12.7 or 12.9 of the Equity Definitions or pursuant to Section 6(d)(ii) of the Agreement (a “Payment Obligation”), Counterparty shall have the right, in its sole discretion, to satisfy or to require Bank to satisfy, as the case may be, any such Payment Obligation, in whole or in part, by the Share Termination Alternative (as defined below) by giving irrevocable telephonic notice to Bank, confirmed in writing within one Scheduled Trading Day, no later than 9:30 A.M., New York City time, on the Merger Date, Tender Offer Date, Announcement Date, Early Termination Date or date of cancellation or termination in respect of an Extraordinary Event, as applicable (“Notice of Share Termination”); provided that if Bank would owe Counterparty the Payment Obligation and Counterparty does not elect to require Bank to satisfy such Payment Obligation by the Share Termination Alternative in whole, Bank shall have the right, in its sole discretion, to elect to satisfy any portion of such Payment Obligation that Counterparty has not so elected by the Share Termination Alternative, notwithstanding Counterparty’s failure to elect or election to the contrary; and provided further that Counterparty shall not have the right to so elect (but, for the avoidance of doubt, Bank shall have the right to so elect) in the event of (i) an Insolvency, a Nationalization, a Merger Event or a Tender Offer, in each case, in which the consideration or proceeds to be paid to holders of Shares consists solely of cash or (ii) an Event of Default in which Counterparty is the Defaulting Party or a Termination Event in which Counterparty is the sole Affected Party, which Event of Default or Termination Event resulted from an event or events within Counterparty’s control.  Upon such Notice of Share Termination, the following provisions shall apply on the Scheduled Trading Day immediately following the Merger Date, Tender Offer Date, Announcement Date, Early Termination Date or date of cancellation or termination in respect of an Extraordinary Event, as applicable, with respect to the Payment Obligation or such portion of the Payment Obligation for which the Share Termination Alternative has been elected (the “Applicable Portion”):


 



	
Share Termination Alternative:

	
Applicable and means, if delivery pursuant to the Share Termination Alternative is owed by Bank, that Bank shall deliver to Counterparty the Share Termination Delivery Property on the date on which the Payment Obligation would otherwise be due pursuant to Section 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement, as applicable, or such later date as the Calculation Agent may determine (the “Share Termination Payment Date”), in satisfaction of the Payment Obligation or the Applicable Portion, as the case may be. If delivery pursuant to the Share 







 




11





  











  






 









	 	


Termination Alternative is owed by Counterparty, paragraphs 2 through 5 of Annex A shall apply as if such delivery were a settlement of the Transaction to which Net Share Settlement (as defined in Annex A) applied, the Cash Settlement Payment Date were the Early Termination Date, the Forward Cash Settlement Amount were zero (0) minus the Payment Obligation (or the Applicable Portion, as the case may be) owed by Counterparty, and “Shares” as used in Annex A were replaced by “Share Termination Delivery Units.”











 



	
Share Termination Delivery








	
Property:

	

A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation (or the Applicable Portion, as the case may be) divided by the Share Termination Unit Price.  The Calculation Agent shall adjust the Share Termination Delivery Property by replacing any fractional portion of a security therein with an amount of cash equal to the value of such fractional security based on the values used to calculate the Share Termination Unit Price.















 



	
Share Termination Unit Price:

	
The value of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be delivered as Share Termination Delivery Property, as determined by the Calculation Agent in its good faith discretion by commercially reasonable means and notified by the Calculation Agent to the parties at the time of notification of the Payment Obligation.







 



	
Share Termination Delivery Unit:

	
In the case of a Termination Event, Event of Default, Delisting or Additional Disruption Event, one Share or, in the case of an Insolvency, Nationalization, Merger Event or Tender Offer, one Share or a unit consisting of the number or amount of each type of property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Insolvency, Nationalization, Merger Event or Tender Offer.  If such Insolvency, Nationalization, Merger Event or Tender Offer involves a choice of consideration to be received by holders, such holder shall be deemed to have elected to receive the maximum possible amount of cash.







 



	
Failure to Deliver:

	
Applicable







 



	
Other applicable provisions:

	
If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9, 9.10, 9.11 (except that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws arising as a result of the fact that Counterparty is the issuer of the Shares or any portion of the Share Termination Delivery Units) and 9.12 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction, except that all references to “Shares” shall be read as references to “Share Termination Delivery Units”.







 


(b)           Equity Rights.  Bank acknowledges and agrees that this Confirmation is not intended to convey to it rights with respect to the Transaction that are senior to the claims of common stockholders in the event of Counterparty’s bankruptcy.  For the avoidance of doubt, the parties agree that the preceding sentence shall not apply at any time other than during Counterparty’s bankruptcy to any claim arising as a result of a breach by Counterparty of any of its obligations under this Confirmation or the Agreement.  For the avoidance of doubt, the parties acknowledge that this Confirmation is not secured by any collateral that would otherwise secure the obligations of Counterparty herein under or pursuant to any other agreement.


 


(c)           Indemnification.  In the event that Bank or the Calculation Agent or any of their Affiliates becomes involved in any capacity in any action, proceeding or investigation brought by or against any person in connection with any matter referred to in this Confirmation, Counterparty shall reimburse Bank or the Calculation Agent or such Affiliate for its reasonable legal and other out-of-pocket expenses (including the reasonable cost of any investigation and 


 




12





  











  






preparation) incurred in connection therewith within 30 days of receipt of notice of such expenses, and shall indemnify and hold Bank or the Calculation Agent or such Affiliate harmless on an after-tax basis against any losses, claims, damages or liabilities to which Bank or the Calculation Agent or such Affiliate may become subject in connection with any such action, proceeding or investigation.  If for any reason the foregoing indemnification is unavailable to Bank or the Calculation Agent or such Affiliate or insufficient to hold it harmless, then Counterparty shall contribute to the amount paid or payable by Bank or the Calculation Agent or such Affiliate as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by Counterparty on the one hand and Bank or the Calculation Agent or such Affiliate on the other hand in the matters contemplated by this Confirmation or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits received by Counterparty on the one hand and Bank or the Calculation Agent or such Affiliate on the other hand in the matters contemplated by this Confirmation but also the relative fault of Counterparty and Bank or the Calculation Agent or such Affiliate with respect to such losses, claims, damages or liabilities and any other relevant equitable considerations.  The relative benefits received by Counterparty, on the one hand, and Bank or the Calculation Agent or such Affiliate, on the other hand, shall be in the same proportion as the Prepayment Amount bears to the customary brokerage commission for share repurchases multiplied by the Initial Shares.  The reimbursement, indemnity and contribution obligations of Counterparty under this Section 10(c) shall be in addition to any liability that Counterparty may otherwise have, shall extend upon the same terms and conditions to the partners, directors, officers, agents, employees and controlling persons (if any), as the case may be, of Bank or the Calculation Agent and their Affiliates and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of Counterparty, Bank or the Calculation Agent, any such Affiliate and any such person.  Counterparty also agrees that neither Bank, the Calculation Agent nor any of such Affiliates, partners, directors, officers, agents, employees or controlling persons shall have any liability to Counterparty for or in connection with any matter referred to in this Confirmation except to the extent that any losses, claims, damages, liabilities or expenses incurred by Counterparty result from the gross negligence or bad faith of Bank or the Calculation Agent or a breach by Bank or the Calculation Agent of any of its covenants or obligations hereunder.  Notwithstanding the foregoing, in no event shall Counterparty have any obligation or liability hereunder to reimburse, indemnify or hold harmless, or so contribute to, Bank, the Calculation Agent (if Bank) or any of their respective Affiliates (including any of their respective partners, directors, officers, agents, employees and controlling persons) for any such expenses, losses, claims, damages or liabilities to the extent arising from the gross negligence, bad faith or willful misconduct on the part of Bank, the Calculation Agent (if Bank) or any of their respective Affiliates (including any of their respective partners, directors, officers, agents, employees and controlling persons) or from a breach by Bank or the Calculation Agent (if Bank) of any of its covenants or obligations hereunder.  The foregoing provisions shall survive any termination or completion of the Transaction.


 


(d)           Staggered Settlement.  If Bank would owe Counterparty any Shares pursuant to the “Settlement Terms” above, Bank may, by notice to Counterparty on or prior to the Settlement Date (a “Nominal Settlement Date”), elect to deliver the Shares deliverable on such Nominal Settlement Date on two or more dates (each, a “Staggered Settlement Date”) or at two or more times on the Nominal Settlement Date as follows: (i) in such notice, Bank will specify to Counterparty the related Staggered Settlement Dates (each of which will be on or prior to such Nominal Settlement Date) or delivery times and how it will allocate the Shares it is required to deliver under “Settlement Terms” above among the Staggered Settlement Dates or delivery times; and (ii) the aggregate number of Shares that Bank will deliver to Counterparty hereunder on all such Staggered Settlement Dates and delivery times will equal the number of Shares that Bank would otherwise be required to deliver on such Nominal Settlement Date.


 


 (e)           Adjustments.  For the avoidance of doubt, whenever the Calculation Agent is called upon to make an adjustment pursuant to the terms of this Confirmation or the Definitions to take into account the effect of an event, the Calculation Agent shall make such adjustment by reference to the effect of such event on the Hedging Party, assuming that the Hedging Party maintains a commercially reasonable hedge position.


 


 (f)           Transfer and Assignment.  Neither party may transfer or assign any of its rights or obligations under the Transaction without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed; provided, however, that Bank may transfer or assign, without any consent of Counterparty, its rights and obligations hereunder and under the Agreement, in whole or in part, to any of its affiliated entities of reasonably equivalent credit quality as Bank, but only if (i) Counterparty will not be required to pay to the assignee an amount in respect of an Indemnifiable Tax under Section 2(d)(i)(4) of the Agreement (except in respect of interest under Section 6(d)(ii), 6(e) or 9(h)(i)(1) of the Agreement) greater than the amount in respect of which Counterparty would have been required to pay to Bank in the absence of such assignment; (ii) Counterparty will not receive a payment from which an amount has been 


 




13





  











  






withheld or deducted, on account of a Tax under Section 2(d)(i) of the Agreement (except in respect of interest under Section 2(d), 6(d)(ii) or 6(e) of the Agreement), in excess of that which Bank would have been required to so withhold or deduct in the absence of such assignment, unless the assignee will be required to make additional payments pursuant to Section 2(d)(i)(4) of the Agreement in respect of such excess; (iii) immediately upon giving effect to such transfer, no Event of Default, no Potential Event of Default and no Termination Event will have occurred as a result thereof; and (iv) Bank shall have caused the transferee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Counterparty to permit Counterparty to determine that results described in clauses (i) and (ii) will not occur upon or after such transfer and assignment.


 


(g)           Additional Termination Event.  It shall constitute an Additional Termination Event with respect to which the Transaction is the sole Affected Transaction and Counterparty is the sole Affected Party and Bank shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement if and so long as, at any time during the Relevant Period, the price per Share on the Exchange, as determined by the Calculation Agent, is at or below the Threshold Price (as provided in Annex B to this Confirmation).


 


(h)           Amendments to Equity Definitions.  The following amendments shall be made to the Equity Definitions:


 


(i)           Section 11.2(a) of the Equity Definitions is hereby amended by deleting the words “a diluting or concentrative effect on the theoretical value of the relevant Shares” and replacing them with the words “an effect on the volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares”;


 


(ii)           The first sentence of Section 11.2(c) of the Equity Definitions, prior to clause (A) thereof, is hereby amended to read as follows: ‘(c) If “Calculation Agent Adjustment” is specified as the Method of Adjustment in the related Confirmation of a Share Option Transaction or Share Forward Transaction, then following the announcement or occurrence of any Potential Adjustment Event, the Calculation Agent will determine whether such Potential Adjustment Event has an effect on the volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares and, if so, will (i) make appropriate adjustment(s), if any, to any one or more of:’ and the portion of such sentence immediately preceding clause (ii) thereof is hereby amended by deleting the words “diluting or concentrative” and the words “(provided that no adjustments will be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares)” and replacing such latter phrase with the words “(and, for the avoidance of doubt, adjustments may be made to account solely for changes in volatility, stock loan rate or liquidity relative to the relevant Shares)”;


 


(iii)           Section 11.2(e)(vii) of the Equity Definitions is hereby amended by deleting the words “diluting or concentrative effect on the theoretical value of the relevant Shares” and replacing them with the words “effect on the volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares”;


 


(iv)           Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (1) deleting from the fourth line thereof the word “or” after the word “official” and inserting a comma therefor, and (2) deleting the semi-colon at the end of subsection (B) thereof and inserting the following words therefor “or (C) the occurrence of any of the events specified in Section 5(a)(vii)(1) and (3) through (8) of the ISDA Master Agreement with respect to that issuer”; and


 


(v)           Section 12.9(b)(iv) of the Equity Definitions is hereby amended by (A) deleting (1) subsection (A) in its entirety, (2) the phrase “or (B)” following subsection (A) and (3) the phrase “in each case” in subsection (B); and (B) deleting the phrase “neither the Non-Hedging Party nor the Lending Party lends Shares in the amount of the Hedging Shares or” in the penultimate sentence.


 


 (i)           No Netting and Set-off.  Each party waives any and all rights it may have to set off obligations arising under the Agreement and the Transaction against other obligations between the parties, whether arising under any other agreement, applicable law or otherwise.


 


 (j)           Disclosure.  Effective from the date of commencement of discussions concerning the Transaction, Counterparty and each of its employees, representatives, or other agents may disclose to any and all persons, without 


 




14





  











  






limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to Counterparty relating to such tax treatment and tax structure.


 


(k)           Designation by Bank.  Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Bank to purchase, sell, receive or deliver any Shares or other securities to or from Counterparty, Bank (the “Designator”) may designate any of its Affiliates (the “Designee”) to deliver or take delivery, as the case may be, and otherwise perform its obligations to deliver, if any, or take delivery of, as the case may be, any such Shares or other securities in respect of the Transaction, and the Designee may assume such obligations, if any.  Such designation shall not relieve the Designator of any of its obligations, if any, hereunder. Notwithstanding the previous sentence, if the Designee shall have performed the obligations, if any, of the Designator hereunder, then the Designator shall be discharged of its obligations, if any, to Counterparty to the extent of such performance.


 


(l)           Termination Currency.  The Termination Currency shall be USD.


 


(m)           Waiver of Trial by Jury.  EACH OF COUNTERPARTY AND BANK HEREBY IRREVOCABLY WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TRANSACTION OR THE ACTIONS OF BANK OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF.


 


(n)           Governing Law; Jurisdiction.  THIS CONFIRMATION AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS CONFIRMATION SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.  THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY IN CONNECTION WITH ALL MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE IN, THE JUSRIDICTION OF, AND ANY CLAIM OF INCONVENIENT FORUM WITH RESPECT TO THESE COURTS.


 


(o)           No Condition of Confidentiality.  Bank and Counterparty hereby acknowledge and agree that Bank has authorized Counterparty to disclose this Agreement and the transactions contemplated hereby to any and all persons, and there are no express or implied agreements, arrangements or understandings to the contrary, and Bank hereby waives any and all claims to any proprietary rights with respect to this Agreement and the transactions contemplated hereby, and authorizes Counterparty to use any information that Counterparty receives or has received with respect to this Letter Agreement and the transactions contemplated hereby in any manner.


 


(p)           Role of Agent.  Each of Bank and Counterparty acknowledges to and agrees with the other party hereto and to and with the Agent that (i) the Agent is acting as agent for Bank under the Transaction pursuant to instructions from such party, (ii) the Agent is not a principal or party to the Transaction, and may transfer its rights and obligations with respect to the Transaction, (iii) the Agent shall have no responsibility, obligation or liability, by way of issuance, guaranty, endorsement or otherwise in any manner with respect to the performance of either party under the Transaction, (iv) Bank and the Agent have not given, and Counterparty is not relying (for purposes of making any investment decision or otherwise) upon, any statements, opinions or representations (whether written or oral) of Bank or the Agent, other than the representations expressly set forth in this Confirmation or the Agreement, and (v) each party agrees to proceed solely against the other party, and not the Agent, to collect or recover any money or securities owed to it in connection with the Transaction.  Each party hereto acknowledges and agrees that the Agent is an intended third party beneficiary hereunder.  Counterparty acknowledges that the Agent is an affiliate of Bank.


 


(q)           Regulatory Provisions. The time of dealing for the Transaction will be confirmed by Bank upon written request by Counterparty. The Agent will furnish to Counterparty upon written request a statement as to the source and amount of any remuneration received or to be received by the Agent in connection with a Transaction.


 


(r)           Method of Delivery.  Whenever delivery of funds or other assets is required hereunder by or to Counterparty, such delivery shall be effected through Agent.  In addition, all notices, demands and communications of any kind relating to the Transaction between Bank and Counterparty shall be transmitted exclusively through Agent.


 









15





  











  






 


 


 


 


 




16





  











  






Please confirm your agreement to be bound by the terms stated herein by executing the copy of this Confirmation enclosed for that purpose and returning it to us by mail or facsimile transmission to the address for Notices indicated above.


 












 



	 	Yours sincerely,
	 	BARCLAYS CAPITAL INC.,
	 	acting solely as Agent in connection with this Transaction
	 	 
	 	 
	 	By:        /s/ Paul Robinson
	 	Name:   Paul Robinson
	 	Title:     Managing Director





                                                     









 


Confirmed as of the date first above written:







ONEOK, Inc.












By:       /s/ Robert F. Martinovich


Name:  Robert F. Martinovich


Title:    Senior Vice President, 


             Chief Financial Officer and Treasurer









  





  











  






APPENDIX A


[Counterparty Letterhead]


 


















































 



	Barclays Bank PLC	 
	c/o Barclays Capital Inc	 
	745 Seventh Ave	 
	New York, NY 10019	 
	Attn:    Paul Robinson	 
	
Telephone:          (+1) 212-526-0111

	 
	Facsimile:             (+1) 917-522-0458	 





 


Re:           Issuer Forward Repurchase Transaction


 


Ladies and Gentlemen:


 


In connection with our entry into a confirmation between you and us dated as of May 17, 2011 (the “Confirmation”), we hereby represent that set forth below is the total number of shares of our common stock purchased by or for us or any of our affiliated purchasers in Rule 10b-18 purchases of blocks pursuant to the once-a-week block exception contained in Rule 10b-18(b)(4) (all defined in Rule 10b-18 under the Securities Exchange Act of 1934, as amended) during the four full calendar weeks immediately preceding the first day of the Relevant Period (as defined in the Confirmation) and the week during which the first day of the Relevant Period occurs:


 



	  	
Monday’s


Date

	
Friday’s


Date

	
Share


Number


	
Week 4:

	  	  	  
	
Week 3:

	  	  	  
	
Week 2:

	  	  	  
	
Week 1:

	  	  	  
	
Current Week:

	  	  	
 












We understand that you will use this information in calculating trading volume for purposes of Rule 10b-18.


 


 



	 	 	
Very truly yours,


	 	 	 
	 	 	
ONEOK, Inc.


	 	 	 	 	 
	 	 	By:	_____________________________	 
	 	 	 	
Name:

	 
	 	 	 	Title:	 





 




  





  











  






ANNEX A


 


COUNTERPARTY SETTLEMENT PROVISIONS


 


1.           The following Counterparty Settlement Provisions shall apply to the extent indicated under the Confirmation:


 



	
  

	
Settlement Currency:

	
USD







 



	 	

Settlement Method Election:



	

Applicable; provided that (i) Section 7.1 of the Equity Definitions is hereby amended by deleting the word “Physical” in the sixth line thereof and replacing it with the words “Net Share” and (ii) the Electing Party may make a settlement method election only if the Electing Party represents to Bank in writing on the date it notifies Bank of its election that, as of such date, (A) none of Counterparty and its officers and directors is aware of any material nonpublic information regarding Counterparty or the Shares and (B) all reports and other documents filed by Counterparty with the Securities and Exchange Commission pursuant to the Exchange Act when considered as a whole (with the more recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents), do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading.















 



	 	

Electing Party:



	
Counterparty













 









	 	
Settlement Method

	
 








	 	

Election Date:



	
The date 10 Exchange Business Days prior to the Valuation Date; provided that if Bank accelerates the Final Averaging Date pursuant to the proviso to the definition of Final Averaging Date, the Settlement Method Election Date shall be the second Exchange Business Day immediately following the Valuation Date.













 



	 	


Default Settlement Method:





	
Cash Settlement













 



	 	


Sepecial Settlement:





	

Either (i) a settlement to which this Annex A applies that follows the occurrence of a Transaction Announcement to which Section 9 of this Confirmation applies or (ii) any settlement to which paragraphs 2 through 5 of this Annex A apply that follows a termination or cancellation of the Transaction pursuant to Section 6 of the Agreement or Article 12 of the Equity Definitions to which Section 10(a) of this Confirmation applies.















 



	
  

	
Forward Cash Settlement








	
  

	
Amount:

	
The Number of Shares to be Delivered multiplied by the Settlement Valuation Price.







 



	 	


Settlement Valuation Price:





	

The arithmetic average of the VWAP Prices for all Settlement Valuation Dates, subject to Averaging Date Disruption, determined as if each Settlement Valuation Date were an Averaging Date (with Averaging Date Disruption applying as if the last Settlement Valuation Date were the Final Averaging Date and the Settlement Valuation Price were the Settlement Price).















 



	 	


Settlement Valuation Dates:





	

A number of Scheduled Trading Days selected by Bank in its reasonable discretion, beginning on the Scheduled Trading Day immediately following the later of the Settlement Method Election Date and the Final Averaging Date.















 



	 	



Cash Settlement:







	

If Cash Settlement is applicable, then Counterparty shall pay to Bank the absolute value of the Forward Cash Settlement Amount on the Cash Settlement Payment Date.















 




A-1





  











  













	 	



Cash Settlement







	

 
















	 	


Payment Date:





	


The date one Settlement Cycle following the last Settlement Valuation Date.











 



	 	



Net Share Settlement







	

 







	 	



Procedures:







	


If Net Share Settlement is applicable, Net Share Settlement shall be made in accordance with paragraphs 2 through 5 below.























 


2.           Net Share Settlement shall be made by delivery on the Settlement Date of a number of Shares equal to the product of 102% and the absolute value of the Number of Shares to be Delivered; provided that in the case of a Special Settlement, Net Share Settlement shall be made (i) by delivery on the Cash Settlement Payment Date (such date, the “Net Share Settlement Date”) of a number of Shares (the “Restricted Payment Shares”) with a value equal to the absolute value of the Forward Cash Settlement Amount, with such Shares’ value based on the realizable market value thereof to Bank (which value shall take into account an illiquidity discount resulting from the fact that the Restricted Payment Shares will not be registered for resale), as determined by the Calculation Agent (the “Restricted Share Value”), and paragraph 3 of this Annex A shall apply to such Restricted Payment Shares, and (ii) by delivery of the Make-Whole Payment Shares as described in paragraph 4 below.


 


3.            (a)           All Restricted Payment Shares and Make-Whole Payment Shares shall be delivered to Bank (or any affiliate of Bank designated by Bank) pursuant to the exemption from the registration requirements of the Securities Act provided by Section 4(2) thereof.


 


(b)           As of or prior to the date of delivery, _______________Bank Name ________________, Bank and any potential purchaser of any such Shares from Bank (or any affiliate of Bank designated by Bank) identified by Bank shall be afforded a commercially reasonable opportunity to conduct a due diligence investigation with respect to Counterparty customary in scope for private placements, of similar size, of equity securities (including, without limitation, the right to have made available to them for inspection all financial and other records, pertinent corporate documents and other information reasonably requested by them).


 


(c)           As of the date of delivery, Counterparty shall enter into an agreement (a “Private Placement Agreement”) with Bank (or any affiliate of Bank designated by Bank) in connection with the private placement of such Shares by Counterparty to Bank (or any such affiliate) and the private resale of such shares by Bank (or any such affiliate), substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance commercially reasonably satisfactory to Bank, which Private Placement Agreement shall include, without limitation, provisions substantially similar to those contained in such private placement purchase agreements relating to the indemnification of, and contribution in connection with the liability of, Bank and its affiliates, and shall provide for the payment by Counterparty of all reasonable fees and out-of-pocket expenses in connection with such resale, including all such fees and expenses of counsel for Bank, and shall contain representations, warranties and agreements of Counterparty reasonably necessary or advisable to establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such resales.


 


(d)           Counterparty shall not take or cause to be taken any action that would make unavailable either (i) the exemption set forth in Section 4(2) of the Securities Act for the sale of any Restricted Payment Shares or Make-Whole Payment Shares by Counterparty to Bank or (ii) an exemption from the registration requirements of the Securities Act reasonably acceptable to Bank for resales of Restricted Payment Shares and Make-Whole Payment Shares by Bank (or an affiliate of Bank).


 


 (e)           Counterparty expressly agrees and acknowledges that the public disclosure of all material information relating to Counterparty is within Counterparty’s control.


 


4.           If Restricted Payment Shares are delivered in accordance with paragraph 3 above, on the last Settlement Valuation Date, a balance (the “Settlement Balance”) shall be established with an initial balance equal to the absolute value of the Forward Cash Settlement Amount.  Following the delivery of Restricted Payment Shares or any Make-Whole Payment Shares, Bank shall sell all such Restricted Payment Shares or Make-Whole Payment Shares in a commercially reasonable manner.  At the end of each Exchange Business Day upon which sales have been made, the Settlement Balance shall be reduced by an amount equal to the aggregate proceeds received by Bank or its affiliate upon the sale of such Restricted Payment Shares or Make-Whole Payment Shares, less a customary and commercially reasonable private 


 




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placement fee for private placements of common stock by similar issuers.  If, on any Exchange Business Day, all Restricted Payment Shares and Make-Whole Payment Shares have been sold and the Settlement Balance has not been reduced to zero, Counterparty shall (i) deliver to Bank or as directed by Bank one Settlement Cycle following such Exchange Business Day an additional number of Shares (the “Make-Whole Payment Shares” and, together with the Restricted Payment Shares, the “Payment Shares”) equal to (x) the Settlement Balance as of such Exchange Business Day divided by (y) the Restricted Share Value of the Make-Whole Payment Shares as of such Exchange Business Day or (ii) promptly deliver to Bank cash in an amount equal to the then remaining Settlement Balance.  This provision shall be applied successively until either the Settlement Balance is reduced to zero or the aggregate number of Restricted Payment Shares and Make-Whole Payment Shares equals the Maximum Deliverable Number. If on any Exchange Business Day, Restricted Payment Shares and Make-Whole Payment Shares remain unsold and the Settlement Balance has been reduced to zero, Bank shall promptly return such unsold Restricted Payment Shares or Make-Whole Payment Shares.




 


5.           Notwithstanding the foregoing, in no event shall Counterparty be required to deliver more than the Maximum Deliverable Number of Shares hereunder.  “Maximum Deliverable Number” means the number of Shares set forth as such in Annex B to this Confirmation.  Counterparty represents to Bank (which representation shall be deemed to be repeated on each day from the date hereof to the Settlement Date or, if Counterparty has elected to deliver any Payment Shares hereunder in connection with a Special Settlement, to the date on which resale of such Payment Shares is completed (the “Final Resale Date”)) that the Maximum Deliverable Number is equal to or less than the number of authorized but unissued Shares of Counterparty that are not reserved for future issuance in connection with transactions in such Shares (other than the transactions under this Confirmation) on the date of the determination of the Maximum Deliverable Number (such Shares, the “Available Shares”).  In the event Counterparty shall not have delivered the full number of Shares otherwise deliverable as a result of this paragraph 5 (the resulting deficit, the “Deficit Shares”), Counterparty shall be continually obligated to deliver, from time to time until the full number of Deficit Shares have been delivered pursuant to this paragraph, Shares when, and to the extent that, (i) Shares are repurchased, acquired or otherwise received by Counterparty or any of its subsidiaries after the date hereof (whether or not in exchange for cash, fair value or any other consideration), (ii) authorized and unissued Shares reserved for issuance in respect of other transactions prior to such date which prior to the relevant date become no longer so reserved or (iii) Counterparty additionally authorizes any unissued Shares that are not reserved for other transactions.  Counterparty shall immediately notify Bank of the occurrence of any of the foregoing events (including the number of Shares subject to clause (i), (ii) or (iii) and the corresponding number of Shares to be delivered) and promptly deliver such Shares thereafter.









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