UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Act of 1934
Date of Report (Date of earliest event reported): June 14, 1995
J.B. HUNT TRANSPORT SERVICES, INC.
(Exact name of registrant as specified in its charter)
ARKANSAS 0-11757 71-0335111
(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification No.)
J.B. HUNT TRANSPORT SERVICES, INC.
615 J.B. HUNT CORPORATE DRIVE
LOWELL, ARKANSAS 72745
(Address, including Zip Code, of principal executive offices)
(501) 820-0000
(Registrant's telephone number, including area code)
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Item 1. Changes in Control of Registration.
Not Applicable.
Item 2. Acquisition or Disposition of Assets.
Not Applicable.
Item 3. Bankruptcy or Receivership.
Not Applicable.
Item 4. Changes in Registrant's Certifying Accountant.
Not Applicable.
Item 5. Other Events.
On June 14, 1995, J.B. Hunt Transport Services, Inc. (the "Company") filed
a prospectus supplement to enable the Company to sell up to $150,000,000 of its
medium-term notes, due nine months or more from date of issuance as either fixed
or floating rate notes. The prospectus supplement was filed pursuant to a shelf
registration statement (No. 33-64950) on Form S-3, covering an aggregate of up
to $250,000,000 of debt securities to be sold from time to time. The medium-term
notes may be issued pursuant to the terms of a senior indenture or a
subordinated indenture dated July 1, 1993, between the Company and The First
National Bank of Chicago, as successor Trustee.
Item 6. Resignations of Registrant's Directors.
Not Applicable.
Item 7. Financial Statements and Exhibits.
Not Applicable.
Item 8. Change in Fiscal Year.
Not Applicable.
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Exhibits.
The following documents are filed as exhibits to this report:
(1) Distribution Agreement
(4c) Form of Note (fixed and floating)
(5) Opinion of Wright, Lindsey & Jennings
(12) Computation of Fixed Charges
(99) Press Release dated June 19, 1995
SIGNATURES
Pursuant to the requirements of the Securities Act of 1934, the registrant
has duly caused this report to be signed on its behalf by the undersigned hereto
duly authorized.
J.B. HUNT TRANSPORT SERVICES, INC.
JERRY W. WALTON
Jerry W. Walton
Executive Vice President, Finance
and Chief Financial Officer
DATE: July 7, 1995
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EXHIBIT 1
J. B. HUNT TRANSPORT SERVICES, INC.
Medium-Term Notes Due
9 Months or More from Date of Issue
DISTRIBUTION AGREEMENT
June 13, 1995
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260-0060
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
New York, New York 10020
Stephens Inc.
111 Center Street
Little Rock, Arkansas 72201
Dear Sirs:
J. B. Hunt Transport Services, Inc., an Arkansas corporation (the
"Company"), confirms its agreement with Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), J.P. Morgan Securities
Inc. ("J.P. Morgan"), Morgan Stanley & Co. Incorporated ("Morgan Stanley") and
Stephens Inc. ("Stephens") with respect to the issue and sale by the Company of
its Medium-Term Notes described herein (the "Notes"). Merrill Lynch, J.P.
Morgan, Morgan Stanley and Stephens herein shall each be referred to as an
"Agent" and shall collectively be referred to as the "Agents". The Notes are to
be issued pursuant to indentures (each, an "Indenture", and collectively, the
"Indentures") dated as of July 1, 1993, between the Company and The First
National Bank of Chicago, as successor trustee (the "Trustee"). As of the date
hereof, the Company has authorized the issuance and sale of up to U.S.
$150,000,000 aggregate principal amount (or its equivalent, based upon the
applicable exchange rate at the time of issuance, in such foreign or composite
currencies as the Company shall designate at the time of issuance) of Notes to
or through the Agents pursuant to the
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terms of this Agreement. It is understood, however, that the Company may from
time to time authorize the issuance of additional Notes and that such additional
Notes may be sold to or through the Agents pursuant to the terms of this
Agreement, all as though the issuance of such Notes were authorized as of the
date hereof.
This Agreement provides both for the sale of Notes by the Company to
one or more Agents as principal for resale to investors and other purchasers and
for the sale of Notes by the Company directly to investors (as may from time to
time be agreed to by the Company and the related Agent or Agents), in which case
the Agents will act as agents of the Company in soliciting Note purchases.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 33-64950) for the registration
of debt securities, including the Notes, under the Securities Act of 1933 (the
"1933 Act") and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the SEC under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been declared effective by the
SEC and the Indentures have been qualified under the Trust Indenture Act of 1939
(the "1939 Act"). Such registration statement (and any further registration
statements which may be filed by the Company for the purpose of registering
additional Notes and in connection with which this Agreement is included or
incorporated by reference as an exhibit) and the prospectus constituting a part
thereof, and any prospectus supplements relating to the Notes, including all
documents incorporated therein by reference, as from time to time amended or
supplemented by the filing of documents pursuant to the Securities Exchange Act
of 1934 (the "1934 Act") or the 1933 Act or otherwise, are referred to herein as
the "Registration Statement" and the "Prospectus", respectively, except that if
any revised prospectus shall be provided to the Agents by the Company for use in
connection with the offering of the Notes, whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b) of the
1933 Act Regulations, the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the Agents for such
use.
SECTION 1. APPOINTMENT AS AGENTS.
(a) APPOINTMENT. Subject to the terms and conditions stated herein, the
Company hereby agrees that Notes will be sold exclusively to or through the
Agents. The Agents are authorized to engage the services of any other broker or
dealer in connection with the offer or sale of the Notes purchased by the Agents
as principal for resale to others but are not authorized to appoint sub-agents.
In connection with sales by the Agents of Notes purchased by the Agents as
principal to other brokers or dealers, the Agents may allow any portion of the
discount it has received in connection with such purchase from the Company to
such brokers or dealers. The Company agrees that, during the period the Agents
are acting as the Company's agents hereunder, unless otherwise agreed, the
Company will not appoint other agents to act on its behalf, or to assist it, in
the placement of the Notes.
(b) SALE OF NOTES. The Company shall not sell or approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the principal amount
of Notes registered pursuant to
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the Registration Statement. The Agents will have no responsibility for
maintaining records with respect to the aggregate principal amount of Notes
sold, or of otherwise monitoring the availability of Notes for sale, under the
Registration Statement.
(c) PURCHASES AS PRINCIPAL. The Agents shall not have any obligation to
purchase Notes from the Company as principal, but the Agents may agree from time
to time to purchase Notes as principal. Any such purchase of Notes by the Agents
as principal shall be made in accordance with Section 3(a) hereof.
(d) SOLICITATIONS AS AGENT. If agreed upon by an Agent and the Company,
such Agent, acting solely as agent for the Company and not as principal, will
solicit purchases of the Notes. Each Agent will communicate to the Company,
orally, each offer to purchase Notes solicited by such Agent on an agency basis,
other than those offers rejected by such Agent. Each Agent shall have the right,
in its discretion reasonably exercised, to reject any proposed purchase of
Notes, as a whole or in part, and any such rejection shall not be deemed a
breach of such Agent's agreement contained herein. The Company may accept or
reject any proposed purchase of Notes, in whole or in part. Each Agent shall
make reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by such Agent and
accepted by the Company. No Agent shall have any liability to the Company in the
event any such agency purchase is not consummated for any reason. If the Company
shall default on its obligation to deliver Notes to a purchaser whose offer it
has accepted, the Company shall (i) hold the selling Agent harmless against any
loss, claim or damage arising from or as a result of such default by the Company
and (ii) notwithstanding such default, pay to the selling Agent any commission
to which it would be entitled in connection with such sale.
(e) RELIANCE. The Company and the Agents agree that any Notes purchased
by the Agents shall be purchased, and any Notes the placement of which the
Agents arrange shall be placed by the Agents, in reliance on the
representations, warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether to the Agents as principal or through the Agents as
agents), as of the date of each delivery of Notes (whether to the Agents as
principal or through the Agents as agents) (the date of each such delivery to
one or more Agents as principal being hereafter referred to as a "Settlement
Date"), and as of any time that the Registration Statement or the Prospectus
shall be amended or supplemented or there is filed with the SEC any document
incorporated by reference into the Prospectus (each of the times referenced
above being referred to herein as a "Representation Date") as follows:
(i) DUE INCORPORATION AND QUALIFICATION. The Company has been
duly incorporated and organized and is validly existing as a
corporation in good standing under the laws of the State of Arkansas
with corporate power and authority to own, lease and operate its
properties and to conduct its business as
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described in the Prospectus; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify and be in good
standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise.
(ii) SUBSIDIARIES. Each subsidiary of the Company which is a
significant subsidiary (each, a "Significant Subsidiary") as defined in
Rule 405 of Regulation C of the 1933 Act Regulations has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and
conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify and be in
good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise; and all of the issued and outstanding capital stock of
each Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and, except for directors'
qualifying shares, is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(iii) REGISTRATION STATEMENT AND PROSPECTUS. At the time the
Registration Statement became effective, the Registration Statement
complied, and as of each applicable Representation Date will comply, in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and the 1939 Act and the rules and regulations of
the SEC promulgated thereunder. The Registration Statement, at the time
it became effective, did not, and at each time thereafter at which any
amendment to the Registration Statement becomes effective or any Annual
Report on Form 10-K is filed by the Company with the SEC and as of each
Representation Date, will not, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus, as of the date hereof does not, and as of each
Representation Date will not, include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED, HOWEVER, that the representations
and warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Agent expressly for use in the Registration
Statement or Prospectus.
(iv) INCORPORATED DOCUMENTS. The documents incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the SEC,
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complied or when so filed will comply, as the case may be, in all
material respects with the requirements of the 1934 Act and the rules
and regulations promulgated thereunder (the "1934 Act Regulations")
and, when read together and with the other information in the
Prospectus, did not and will not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were or are made, not
misleading.
(v) ACCOUNTANTS. The accountants who certified the financial
statements included or incorporated by reference in the Prospectus are
independent public accountants within the meaning of the 1933 Act and
the 1933 Act Regulations.
(vi) FINANCIAL STATEMENTS. The financial statements and any
supporting schedules of the Company and its consolidated subsidiaries
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the consolidated financial position of
the Company and its consolidated subsidiaries as of the dates indicated
and the consolidated results of their operations for the periods
specified; and, except as stated therein, said financial statements
have been prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis; and the
supporting schedules included in the Registration Statement present
fairly the information required to be stated therein.
(vii) AUTHORIZATION AND VALIDITY OF THIS AGREEMENT, THE
INDENTURES AND THE NOTES. This Agreement has been duly authorized,
executed and delivered by the Company and, upon execution and delivery
by the Agents, will be a valid and legally binding agreement of the
Company; the Indentures have been duly authorized, executed and
delivered by the Company and, upon execution and delivery by the
Trustee, will be the valid and legally binding obligations of the
Company enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
enforcement of creditors' rights generally or by general equity
principles and except further as enforcement thereof may be limited by
(i) requirements that a claim with respect to any Notes denominated
other than in U.S. dollars (or a foreign currency or currency unit
judgment in respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to applicable
law or (ii) governmental authority to limit, delay or prohibit the
making of payments outside the United States; the Notes have been duly
and validly authorized for issuance, offer and sale pursuant to this
Agreement and, when issued, authenticated and delivered pursuant to the
provisions of this Agreement and the applicable Indenture against
payment of the consideration therefor specified in the Prospectus or
agreed upon pursuant to the provisions of this Agreement, the Notes
will constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting enforcement of
creditors' rights generally or by general equity principles and except
further as enforcement thereof may be limited by (i) requirements that
a claim with respect to any Notes denominated other than
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in U.S. dollars (or a foreign currency or currency unit judgment in
respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or
(ii) governmental authority to limit, delay or prohibit the making of
payments outside the United States; the Notes and the Indentures will
be substantially in the form heretofore delivered to the Agents and
conform in all material respects to all statements relating thereto
contained in the Prospectus; and each holder of Notes will be entitled
to the benefits of the applicable Indenture.
(viii) MATERIAL CHANGES OR MATERIAL TRANSACTIONS. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as may otherwise be stated therein
or contemplated thereby, (a) there has been no material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business and (b) there have been no material transactions
entered into by the Company or any of its subsidiaries other than those
in the ordinary course of business.
(ix) NO DEFAULTS; REGULATORY APPROVALS. Neither the Company
nor any of its Significant Subsidiaries is in violation of its charter
or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which it is a party or by which it or any of them or their properties
may be bound; the execution and delivery of this Agreement and the
Indentures and the consummation of the transactions contemplated herein
and therein have been duly authorized by all necessary corporate action
and will not conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any
of its subsidiaries is a party or by which it or any of them may be
bound or to which any of the property or assets of the Company or any
such subsidiary is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or
any law, administrative regulation or administrative or court order or
decree; and no consent, approval, authorization, order or decree of any
court or governmental agency or body is required for the consummation
by the Company of the transactions contemplated by this Agreement or in
connection with the sale of Notes hereunder, except such as have been
obtained or rendered, as the case may be, or as may be required under
state securities ("Blue Sky") laws.
(x) LEGAL PROCEEDINGS; CONTRACTS. Except as may be set forth
in the Registration Statement, there is no action, suit or proceeding
before or by any court or governmental agency or body, domestic or
foreign, now pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its subsidiaries, which
might, in the opinion of the Company, result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
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subsidiaries considered as one enterprise, or might materially and
adversely affect the properties or assets thereof or might materially
and adversely affect the consummation of this Agreement or the
Indentures or any transaction contemplated hereby or thereby; and there
are no contracts or documents of the Company or any of its subsidiaries
which are required to be filed as exhibits to the Registration
Statement by the 1933 Act or by the 1933 Act Regulations which have not
been so filed.
(xi) LICENSES. The Company owns or possesses or has obtained
all material governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to lease or own, as the
case may be, and to operate its properties and to carry on its business
as presently conducted where its ownership or lease of substantial
properties or the conduct of its business requires such ownership or
possession or the obtaining of such governmental licenses, permits,
consents, orders, approvals and other authorizations and where the
failure to do so would materially adversely affect the business or
financial condition of the Company and its subsidiaries considered as
one enterprise.
(xii) INVESTMENT COMPANY ACT. The Company is not required to
be registered under the Investment Company Act of 1940, as amended (the
"1940 Act").
(xiii) DOING BUSINESS WITH CUBA. The Company has complied and
will comply with the provisions of Florida H.B. 1771, codified as
Section 517.075 of the Florida Statutes, 1987, as amended, and all
regulations promulgated thereunder relating to issuers doing business
in Cuba.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any director
or officer of the Company and delivered to the Agents or to counsel for the
Agents in connection with an offering of Notes through one or more of the Agents
as agent or the sale of Notes to one or more of the Agents as principal shall be
deemed a representation and warranty by the Company to such Agents as to the
matters covered thereby on the date of such certificate and at each
Representation Date subsequent thereto.
SECTION 3. PURCHASES AS PRINCIPALS; SOLICITATIONS AS AGENTS.
(a) PURCHASES AS PRINCIPALS. Unless otherwise agreed by an Agent and
the Company, Notes shall be purchased by such Agent as principal. Such purchases
shall be made in accordance with terms agreed upon by such Agent and the Company
(which terms, unless otherwise agreed, shall be agreed upon orally, with written
confirmation prepared by such Agent and mailed to the Company). Each Agent's
commitment to purchase Notes as principal shall be deemed to have been made on
the basis of the representations and warranties of the Company herein contained
and shall be subject to the terms and conditions herein set forth. Each purchase
of Notes, unless otherwise agreed, shall be at a discount from the principal
amount of each such Note equivalent to the applicable commission set forth in
Schedule A hereto. The Agents may engage the services of any other broker or
dealer in connection with the resale of the Notes purchased as principal and may
allow any portion of the discount received in connection with such purchases
from the Company to such brokers and dealers. At the time of
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each purchase of Notes by an Agent as principal, such Agent shall specify the
requirements for the stand-off agreement, officer's certificate, opinion of
counsel and comfort letter pursuant to Sections 4(k), 7(b), 7(c) and 7(d)
hereof.
(b) SOLICITATIONS AS AGENTS. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and one or more of the Agents, such Agent or
Agents, as agents of the Company, will use its or their reasonable efforts to
solicit offers to purchase the Notes upon the terms and conditions set forth
herein and in the Prospectus. All Notes sold through the Agents as agents will
be sold at 100% of their principal amount unless otherwise agreed to by the
Company and the Agents.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agents, as agents, commencing
at any time for any period of time or permanently. Upon receipt of instructions
from the Company, the Agents will forthwith suspend solicitation of purchases
from the Company until such time as the Company has advised the Agents that such
solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent as set
forth in Schedule A hereto.
(c) ADMINISTRATIVE PROCEDURES. The purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable) specified in
Exhibit A hereto shall be agreed upon by the Company and the Agents and set
forth in a pricing supplement to the Prospectus to be prepared in connection
with each sale of Notes. Except as may be otherwise provided in such supplement
to the Prospectus, the Notes will be issued in denominations of U.S. $1,000 or
any larger amount that is an integral multiple of U.S. $1,000. Administrative
procedures with respect to the sale of Notes shall be agreed upon from time to
time by the Agents, the Company and the Trustee (the "Procedures"). Each Agent
and the Company agree to perform the respective duties and obligations
specifically provided to be performed by them in the Procedures.
SECTION 4. COVENANTS OF THE COMPANY.
The Company covenants with each Agent as follows:
(a) NOTICE OF CERTAIN EVENTS. The Company will notify the Agents
immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the SEC for filing of any supplement to
the Prospectus or any document to be filed pursuant to the 1934 Act which will
be incorporated by reference in the Prospectus, (iii) of the receipt of any
comments from the SEC with respect to the Registration Statement or the
Prospectus, (iv) of any request by the SEC for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, and (v) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose. The Company will make every reasonable effort to
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prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. The Company will give the
Agents advance notice of its intention to file or prepare any additional
registration statement with respect to the registration of additional Notes, any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus (other than an amendment or supplement providing solely for a change
in the interest rates of Notes), whether by the filing of documents pursuant to
the 1934 Act, the 1933 Act or otherwise, and will furnish the Agents with copies
of any such amendment or supplement or other documents proposed to be filed or
prepared a reasonable time in advance of such proposed filing or preparation, as
the case may be, and will not file any such amendment or supplement or other
documents in a form to which the Agents or counsel for the Agents shall
reasonably object.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The
Company will deliver to the Agents as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agents may
reasonably request. The Company will furnish to the Agents as many copies of the
Prospectus (as amended or supplemented) as the Agents shall reasonably request
so long as the Agents are required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Notes.
(d) PREPARATION OF PRICING SUPPLEMENTS. The Company will prepare, with
respect to any Notes to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agents and will file such Pricing Supplement pursuant to Rule
424(b)(3) under the 1933 Act not later than the close of business of the SEC on
the third business day after the date on which such Pricing Supplement is first
used.
(e) REVISIONS OF PROSPECTUS--MATERIAL CHANGES. Except as otherwise
provided in subsection (l) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of counsel for the Agents or counsel for
the Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, immediate notice shall be given, and confirmed
in writing, to the Agents to cease the solicitation of offers to purchase the
Notes in the Agents' capacity as agents and to cease sales of any Notes the
Agents may then own as principal, and the Company will promptly amend the
Registration Statement and the Prospectus, whether by filing documents pursuant
to the 1934 Act, the 1933 Act or otherwise, as may be necessary to correct such
untrue statement or omission or to make the Registration Statement and
Prospectus comply with such requirements.
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(f) PROSPECTUS REVISIONS--PERIODIC FINANCIAL INFORMATION. Except as
otherwise provided in subsection (l) of this Section, on or prior to the date on
which there shall be released to the general public interim financial statement
information related to the Company with respect to each of the first three
quarters of any fiscal year or preliminary financial statement information with
respect to any fiscal year, the Company shall furnish such information to the
Agents, confirmed in writing, and shall cause the Prospectus to be amended or
supplemented to include or incorporate by reference financial information with
respect thereto and corresponding information for the comparable period of the
preceding fiscal year, as well as such other information and explanations as
shall be necessary for an understanding thereof or as shall be required by the
1933 Act or the 1933 Act Regulations.
(g) PROSPECTUS REVISIONS--AUDITED FINANCIAL INFORMATION. Except as
otherwise provided in subsection (l) of this Section, on or prior to the date on
which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Company for
the preceding fiscal year, the Company shall cause the Registration Statement
and the Prospectus to be amended, whether by the filing of documents pursuant to
the 1934 Act, the 1933 Act or otherwise, to include or incorporate by reference
such audited financial statements and the report or reports, and consent or
consents to such inclusion or incorporation by reference, of the independent
accountants with respect thereto, as well as such other information and
explanations as shall be necessary for an understanding of such financial
statements or as shall be required by the 1933 Act or the 1933 Act Regulations.
(h) EARNINGS STATEMENTS. The Company will make generally available to
its security holders as soon as practicable, but not later than 90 days after
the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 under the 1933 Act) covering each
twelve month period beginning, in each case, not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in such
Rule 158) of the Registration Statement with respect to each sale of Notes.
(i) BLUE SKY QUALIFICATIONS. The Company will endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents may designate, and will maintain such qualifications in effect for as
long as may be required for the distribution of the Notes; provided, however,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Notes have been
qualified as above provided. The Company will promptly advise the Agents of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose.
(j) 1934 ACT FILINGS. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act.
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(k) STAND-OFF AGREEMENT. If specified by an Agent in connection with a
purchase by it of Notes as principal, between the date of the agreement to
purchase such Notes and the Settlement Date with respect to such purchase, the
Company will not, without such Agent's prior written consent, offer or sell, or
enter into any agreement to sell, any debt securities of the Company (other than
the Notes that are to be sold pursuant to such agreement and commercial paper in
the ordinary course of business).
(l) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not be
required to comply with the provisions of subsections (e), (f) or (g) of this
Section during any period from the time (i) the Agents shall have suspended
solicitation of purchases of the Notes in their capacity as agents pursuant to a
request from the Company and (ii) the Agents shall not then hold any Notes
purchased as principal pursuant hereto, until the time the Company shall
determine that solicitation of purchases of the Notes should be resumed or the
Agents shall subsequently purchase Notes from the Company as principal.
SECTION 5. CONDITIONS OF OBLIGATIONS.
The obligations of the Agents to purchase Notes as principal and to
solicit offers to purchase the Notes as agents of the Company, and the
obligations of any purchasers of the Notes sold through the Agents as agents,
will be subject to the accuracy of the representations and warranties on the
part of the Company herein and to the accuracy of the statements of the
Company's officers made in any certificate furnished pursuant to the provisions
hereof, to the performance and observance by the Company of all its covenants
and agreements herein contained and to the following additional conditions
precedent:
(a) LEGAL OPINIONS. On the date hereof, the Agents shall have received
the following legal opinions, dated as of the date hereof and in form and
substance satisfactory to the Agents:
(1) OPINION OF COMPANY COUNSEL. The opinion of Wright, Lindsey
& Jennings, counsel to the Company, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Arkansas.
(ii) The Company has corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Registration Statement.
(iii) Each Significant Subsidiary of the Company has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and conduct
its business as described in the Registration Statement; and
all of the issued and outstanding capital stock of each such
Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable, and,
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except for directors' qualifying shares, is owned by the
Company, free and clear of any mortgage, pledge, lien,
encumbrance, claim or equity.
(iv) This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(v) The Indentures have been duly and validly
authorized, executed and delivered by the Company and
(assuming the Indentures have been duly authorized, executed
and delivered by the Trustee) constitute legal, valid and
binding agreements of the Company, enforceable in accordance
with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement of creditors' rights
generally, or by general equity principles, and except further
as enforcement thereof may be limited by (A) requirements that
a claim with respect to any Notes denominated other than in
U.S. dollars (or a foreign currency or foreign currency unit
judgment in respect of such claim) be converted into United
States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental
authority to limit, delay or prohibit the making of payments
in foreign currency or currency units or payments outside the
United States.
(vi) The Notes, in the form(s) certified by the
Company as of the date hereof, have been duly authorized for
issuance, offer and sale pursuant to this Agreement and, when
issued, authenticated and delivered pursuant to the provisions
of this Agreement and the applicable Indenture against payment
of the consideration therefor, will constitute valid and
legally binding obligations of the Company, enforceable in
accordance with their terms except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting enforcement
of creditors' rights generally, or by general equity
principles, and except further as enforcement thereof may be
limited by (A) requirements that a claim with respect to any
Notes denominated other than in U.S. dollars (or a foreign
currency or foreign currency unit judgment in respect of such
claim) be converted into United States dollars at a rate of
exchange prevailing on a date determined pursuant to
applicable law or (B) governmental authority to limit, delay
or prohibit the making of payments in foreign currency or
currency units or payments outside the United States; and each
holder of Notes will be entitled to the benefits of the
applicable Indenture.
(vii) The statements in the Prospectus under the
captions "Description of Debt Securities" and "Description of
Notes," insofar as they purport to summarize certain
provisions of documents specifically referred to therein, are
accurate summaries of such provisions.
(viii) The Indentures are qualified under the 1939
Act.
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(ix) The Registration Statement is effective under
the 1933 Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the SEC.
(x) At the time the Registration Statement became
effective, the Registration Statement complied as to form in
all material respects with the requirements of the 1933 Act,
the 1939 Act and the regulations under each of those Acts.
(xi) The execution and delivery of this Agreement or
of the Indentures, or the consummation by the Company of the
transactions contemplated herein and therein have been duly
authorized by all necessary corporate action and will not
conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
of its Significant Subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument known to such counsel and to which the Company or
any such subsidiary is a party or by which it or any of them
may be bound or to which any of the property or assets of the
Company or any such subsidiary is subject, or any law,
administrative regulation or administrative or court decree
known to such counsel to be applicable to the Company of any
court or governmental agency, authority or body or any
arbitrator having jurisdiction over the Company; nor will such
action result in any violation of the provisions of the
charter or by-laws of the Company.
(xii) To the best of such counsel's knowledge, there
are no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments or documents required to be
described or referred to in the Registration Statement or to
be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as
exhibits thereto.
(xiii) No consent, approval, authorization, order or
decree of any court or governmental agency or body (including
the SEC) is required for the consummation by the Company of
the transactions contemplated by this Agreement or in
connection with the sale of Notes hereunder, except such as
have been obtained or rendered, as the case may be, or as may
be required under the state securities laws.
(xiv) Each document filed pursuant to the 1934 Act
and incorporated by reference in the Prospectus complied when
filed as to form in all material respects with the 1934 Act
and the 1934 Act Regulations thereunder.
(xv) The information contained in the Prospectus
under the caption "Certain Federal Income Tax Consequences"
and under the caption "Business-Regulation" in the Company's
Annual Report on
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Form 10-K for the year ended December 31, 1994, to the extent
that it constitutes matters of law or legal conclusions, has
been reviewed by such counsel and is correct.
(2) OPINION OF COUNSEL TO THE AGENTS. The opinion of Fulbright
& Jaworski L.L.P., counsel to the Agents, covering the matters referred
to in subparagraph (1) under the subheadings (iv) to (x), inclusive,
above. In giving such opinions, such counsel may rely upon the opinion
of Wright, Lindsey & Jennings insofar as matters governed by the law of
the State of Arkansas are concerned.
(3) In giving their opinions required by subsection (a)(1) and
(a)(2) of this Section, Wright Lindsey & Jennings and Fulbright &
Jaworski L.L.P. shall each additionally state that nothing has come to
their attention that would lead them to believe that the Registration
Statement, at the time it became effective or, if an amendment to the
Registration Statement or an Annual Report on Form 10-K has been filed
by the Company with the SEC subsequent to the effectiveness of the
Registration Statement, then at the time such amendment became
effective or at the time of the most recent such filing, as the case
may be, or at the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading or that the Prospectus, as amended or
supplemented at the date hereof, or (if such opinion is being delivered
in connection with the purchase of Notes by the Agents as principal
pursuant to Section 7(c) hereof) at the date of any agreement by the
Agents to purchase Notes as principal and at the Settlement Date with
respect thereto, as the case may be, included or includes an untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(b) OFFICER'S CERTIFICATE. At the date hereof, the Agents shall have
received a certificate of the President or Vice President and the chief
financial or chief accounting officer of the Company, substantially in the form
of Appendix III hereto and dated as of the date hereof, to the effect that (i)
since the respective dates as of which information is given in the Registration
Statement and the Prospectus or since the date of any agreement by the Agents to
purchase Notes as principal, there has not been any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, (ii) the
other representations and warranties of the Company contained in Section 2
hereof are true and correct with the same force and effect as though expressly
made at and as of the date of such certificate, (iii) the Company has performed
or complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the date of such certificate, and (iv)
that no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been initiated or
threatened by the SEC.
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(c) COMFORT LETTER. On the date hereof, the Agents shall have received
a letter from KPMG Peat Marwick LLP, dated as of the date hereof and in form and
substance satisfactory to the Agents, to the effect that:
(i) They are independent public accountants with respect to
the Company and its subsidiaries within the meaning of the 1933 Act and
the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements
and supporting schedule(s) of the Company and its subsidiaries examined
by them and included or incorporated by reference in the Registration
Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations with respect to registration statements on Form S-3 and the
1934 Act and the 1934 Act Regulations.
(iii) They have performed specified procedures, not
constituting an audit, including a reading of the latest available
interim financial statements of the Company and its indicated
subsidiaries, a reading of the minute books of the Company and such
subsidiaries since the end of the most recent fiscal year with respect
to which an audit report has been issued, inquiries of and discussions
with certain officials of the Company and such subsidiaries responsible
for financial and accounting matters with respect to the unaudited
consolidated financial statements included or incorporated by reference
in the Registration Statement and Prospectus and the latest available
interim unaudited financial statements of the Company and its
subsidiaries, and such other inquiries and procedures as may be
specified in such letter, and on the basis of such inquiries and
procedures nothing came to their attention that caused them to believe
that: (A) the unaudited consolidated financial statements of the
Company and its subsidiaries included or incorporated by reference in
the Registration Statement and Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of
the 1934 Act and the 1934 Act Regulations or were not presented in
conformity with generally accepted accounting principles in the United
States applied on a basis substantially consistent with that of the
audited financial statements included or incorporated by reference
therein, or (B) at a specified date not more than five days prior to
the date of such letter, there was any change in the consolidated
capital stock or any increase in consolidated long-term debt of the
Company and its subsidiaries or any decrease in the consolidated net
assets of the Company and its subsidiaries, in each case as compared
with the amounts shown on the most recent consolidated balance sheet of
the Company and its subsidiaries included or incorporated by reference
in the Registration Statement and Prospectus or, during the period from
the date of such balance sheet to a specified date not more than five
days prior to the date of such letter, there were any decreases, as
compared with the corresponding period in the preceding year, in
consolidated revenues or net income of the Company and its
subsidiaries, except in each such case as set forth in or contemplated
by the Registration Statement and Prospectus or except for such
exceptions enumerated in such letter as shall have been agreed to by
the Agents and the Company.
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(iv) In addition to the examination referred to in their
report included or incorporated by reference in the Registration
Statement and the Prospectus, and the limited procedures referred to in
clause (iii) above, they have carried out certain other specified
procedures, not constituting an audit, with respect to certain amounts,
percentages and financial information which are included or
incorporated by reference in the Registration Statement and Prospectus
and which are specified by the Agents, and have found such amounts,
percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company and its
subsidiaries identified in such letter.
(d) OTHER DOCUMENTS. On the date hereof and on each Settlement Date,
counsel to the Agents shall have been furnished with such documents and opinions
as such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of Notes as herein contemplated shall be satisfactory in
form and substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of the Agents, any applicable agreement by the Agents to purchase Notes
as principal) may be terminated by the Agents by notice to the Company at any
time and any such termination shall be without liability of any party to any
other party, except that the covenant regarding provision of an earnings
statement set forth in Section 4(h) hereof, the provisions concerning payment of
expenses under Section 10 hereof, the indemnity and contribution agreement set
forth in Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery of Section 11 hereof, the
provisions relating to governing law set forth in Section 14 and the provisions
set forth under "Parties" of Section 15 hereof shall remain in effect.
SECTION 6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH THE AGENTS.
Delivery of Notes sold through the Agents as agents shall be made by
the Company to the Agents for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the applicable Agent shall promptly notify the Company and
deliver the Note to the Company, and, if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to such
Agent. If such failure occurred for any reason other than default by such Agent
in the performance of its obligations hereunder, the Company will reimburse such
Agent on an equitable basis for its loss of the use of the funds for the period
such funds were credited to the Company's account.
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SECTION 7. ADDITIONAL COVENANTS OF THE COMPANY.
The Company covenants and agrees with the Agents that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance by
it of an offer for the purchase of Notes (whether to the Agents as principal or
through the Agents as agents), and each delivery of Notes to one or more Agents
(whether to the Agents as principals or through the Agents as agents), shall be
deemed to be an affirmation that the representations and warranties of the
Company contained in this Agreement and in any certificate theretofore delivered
to the Agents pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of delivery
to the purchaser or its agent, or to the Agents, of the Note or Notes relating
to such acceptance or sale, as the case may be, as though made at and as of each
such time (and it is understood that such representations and warranties shall
relate to the Registration Statement and Prospectus as amended and supplemented
to each such time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rates of Notes or similar changes, and, unless the Agents shall otherwise
specify, other than by an amendment or supplement which relates exclusively to
an offering of debt securities other than the Notes), (ii) there is filed with
the SEC any document incorporated by reference into the Prospectus (other than
any Current Report on Form 8-K relating exclusively to the issuance of debt
securities under the Registration Statement, unless the Agents shall otherwise
specify), (iii) (if required in connection with the purchase of Notes by the
Agents as principal) the Company sells Notes to the Agents as principal or (iv)
the Company issues and sells Notes in a form not previously certified to the
Agents by the Company, the Company shall furnish or cause to be furnished to the
Agents forthwith a certificate dated the date of filing with the SEC of such
supplement or document, the date of effectiveness of such amendment, or the date
of such sale, as the case may be, in form satisfactory to the Agents to the
effect that the statements contained in the certificate referred to in Section
5(b) hereof which were last furnished to the Agents are true and correct at the
time of such amendment, supplement, filing or sale, as the case may be, as
though made at and as of such time (except that such statements shall be deemed
to relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in said Section 5(b), modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificate.
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rates of the Notes or similar changes or solely for the inclusion of additional
financial information, and, unless the Agents shall otherwise specify, other
than by an amendment or supplement which relates exclusively to an offering of
debt securities other than the Notes), (ii) there is filed with the SEC any
document incorporated by reference into the
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Prospectus (other than any Current Report on Form 8-K, unless the Agents shall
otherwise specify), (iii) (if required in connection with the purchase of Notes
by the Agents as principal) the Company sells Notes to the Agents as principal
or (iv) the Company issues and sells Notes in a form not previously certified to
the Agents by the Company, the Company shall furnish or cause to be furnished
forthwith to the Agents and to counsel to the Agents a written opinion of
Wright, Lindsey & Jennings, counsel to the Company, or other counsel
satisfactory to the Agents dated the date of filing with the SEC of such
supplement or document, the date of effectiveness of such amendment, or the date
of such sale, as the case may be, in form and substance satisfactory to the
Agents, of the same tenor as the opinion referred to in Section 5(a)(1) hereof,
but modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinion;
or, in lieu of such opinion, counsel last furnishing such opinion to the Agents
shall furnish the Agents with a letter to the effect that the Agents may rely on
such last opinion to the same extent as though it was dated the date of such
letter authorizing reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such letter authorizing reliance).
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information or there is filed with the SEC any
document incorporated by reference into the Prospectus which contains additional
financial information, or (ii) (if required in connection with the purchase of
Notes by the Agents as principal) the Company sells Notes to the Agents as
principal, the Company shall cause KPMG Peat Marwick LLP forthwith to furnish
the Agents a letter, dated the date of effectiveness of such amendment,
supplement or document with the SEC, or the date of such sale, as the case may
be, in form satisfactory to the Agents, of the same tenor as the portions of the
letter referred to in clauses (i) and (ii) of Section 5(c) hereof but modified
to relate to the Registration Statement and Prospectus, as amended and
supplemented to the date of such letter, and of the same general tenor as the
portions of the letter referred to in clauses (iii) and (iv) of said Section
5(c) with such changes as may be necessary to reflect changes in the financial
statements and other information derived from the accounting records of the
Company.
SECTION 8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENTS. The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls each Agent within
the meaning of Section 15 of the 1933 Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
the Prospectus (or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact necessary to make the
statements
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therein, in the light of the circumstances under which they were made,
not misleading, unless such untrue statement or omission or such
alleged untrue statement or omission was made in reliance upon and in
conformity with written information furnished to the Company by any
Agent expressly for use in the Registration Statement or the
Prospectus;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(3) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by an Agent),
reasonably incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above.
(b) INDEMNIFICATION OF COMPANY. Each Agent severally agrees to
indemnify and hold harmless the Company, its directors, each of its officers who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by any Agent expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(c) GENERAL. Each indemnified party shall give prompt written notice to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for the fees and expenses of more
than one counsel (in addition to any local counsel) for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
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SECTION 9. CONTRIBUTION.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and the Agents shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Company and the Agents, as incurred, in such
proportions that each Agent is responsible for that portion represented by the
percentage that the total commissions and underwriting discounts received by
such Agent to the date of such liability bears to the total sales price from the
sale of Notes sold to or through such Agent to the date of such liability, and
the Company is responsible for the balance; PROVIDED, HOWEVER, that no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section, each
person, if any, who controls an Agent within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as an Agent, and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Company.
SECTION 10. PAYMENT OF EXPENSES.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and all
amendments thereto and the Prospectus and any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry notes;
(d) The fees and disbursements of the Company's accountants and
counsel, of the Trustee and its counsel, and of any Calculation Agent or
Exchange Rate Agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the program relating to the
Notes and incurred from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Agents in connection
therewith and in connection with the preparation of any Blue Sky Survey and any
Legal Investment Survey;
(g) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any amendments
thereto, and of the
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Prospectus and any amendments or supplements thereto, and the delivery by the
Agents of the Prospectus and any amendments or supplements thereto in connection
with solicitations or confirmations of sales of the Notes;
(h) The preparation, printing, reproducing and delivery to the Agents
of copies of the Indenture and all supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating of the Notes;
(j) The fees and expenses incurred in connection with the listing of
the Notes on any securities exchange;
(k) The fees and expenses, if any, incurred with respect to any filing
with the National Association of Securities Dealers, Inc.;
(l) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Company;
(m) The cost of providing any CUSIP or other identification numbers for
the Notes; and
(n) The fees and expenses of any Depositary (as defined in the
Indentures) and any nominees thereof in connection with the Notes.
SECTION 11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person of the Agents, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
SECTION 12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding any
agreement hereunder by the Agents to purchase Notes as principal) may be
terminated for any reason, at any time by either the Company or the Agents upon
the giving of 30 days' written notice of such termination to the other party
hereto; provided, however, that the termination of this Agreement by an Agent
shall terminate this Agreement only between such Agent and the Company and the
Company's notice of termination as to any one Agent shall terminate this
Agreement only between itself and such Agent.
(b) TERMINATION OF AGREEMENT TO PURCHASE NOTES AS PRINCIPAL. The Agents
may terminate any agreement hereunder by the Agents to purchase Notes as
principal, immediately upon notice to the Company, at any time prior to the
Settlement Date relating thereto (i) if there has been, since the date of such
agreement or since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered
-21-
as one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there shall have occurred any material adverse change in the financial
markets in the United States or any outbreak or escalation of hostilities or
other national or international calamity or crisis the effect of which is such
as to make it, in the judgment of the Agents, impracticable to market the Notes
or enforce contracts for the sale of the Notes, or (iii) if trading in any
securities of the Company has been suspended by the SEC or a national securities
exchange, or if trading generally on either the American Stock Exchange or the
New York Stock Exchange shall have been suspended, or minimum or maximum prices
for trading have been fixed (excluding program trading limits), or maximum
ranges for prices for securities have been required, by either of said exchanges
or by order of the SEC or any other governmental authority, or if a banking
moratorium shall have been declared by either Federal, New York or Arkansas
authorities or if a banking moratorium shall have been declared by the relevant
authorities in the country or countries of origin of any foreign currency or
currencies in which the Notes are denominated or payable, or (iv) if the rating
assigned by any nationally recognized securities rating agency to any debt
securities of the Company as of the date of any applicable principal purchase
shall have been lowered since that date or if any such rating agency shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any debt securities of the Company, or (v)
if there shall have come to the Agents' attention any facts that would cause the
Agents to believe that the Prospectus, at the time it was required to be
delivered to a purchaser of Notes, included an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at the time of such
delivery, not misleading.
(c) GENERAL. In the event of any such termination, neither party will
have any liability to the other party hereto, except that (i) the Agents shall
be entitled to any commission earned in accordance with the third paragraph of
Section 3(b) hereof, (ii) if at the time of termination (a) the Agents shall own
any Notes purchased by them as principal with the intention of reselling them or
(b) an offer to purchase any of the Notes has been accepted by the Company but
the time of delivery to the purchaser or his agent of the Note or Notes relating
thereto has not occurred, the covenants set forth in Sections 4 and 7 hereof
shall remain in effect until such Notes are so resold or delivered, as the case
may be, and (iii) the covenant set forth in Section 4(h) hereof, the provisions
of Section 10 hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, and the provisions of Sections 11, 14 and 15 hereof
shall remain in effect.
SECTION 13. NOTICES.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
-22-
If to the Company:
J. B. Hunt Transport Services, Inc.
615 J. B. Hunt Corporate Drive
Lowell, Arkansas 72745
Attention: James T. Schnoes
Fax: (501) 820-8896
If to Merrill Lynch:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower--10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Fax: (212) 449-2234
If to J.P. Morgan:
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260-0060
Attention: Medium Term Note Desk
Fax: (212) 648-5907
If to Morgan Stanley:
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas, 4th Floor
New York, New York 10020
Attention: Manager-Continuously Offered Products
Fax: (212) 764-7490
Copy to:
Morgan Stanley & Co. Incorporated
1251 Avenue of the Americas, 28th Floor
New York, New York 10020
Attention: Peter Cooper-Investment Banking Information Center
Fax: (212) 703-6476
-23-
If to Stephens:
Stephens Inc.
111 Center Street
Little Rock, Arkansas 72201
Attention: Syndicate, Michael R. Smith
Fax: (501) 377-2404
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. GOVERNING LAW; FORUM.
This Agreement and all the rights and obligations of the parties 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 in such State. Any suit,
action or proceeding brought by the Company against the Agents in connection
with or arising under this Agreement shall be brought solely in the state or
federal court of appropriate jurisdiction located in the Borough of Manhattan,
The City of New York.
SECTION 15. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors and said controlling persons and officers
and directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Notes shall be deemed to
be a successor by reason merely of such purchase.
-24-
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between the Agents and the Company in accordance with its terms.
Very truly yours,
J. B. HUNT TRANSPORT SERVICES, INC.
By /s/ JERRY W. WALTON
Name: JERRY W. WALTON
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
J. B. HUNT TRANSPORT SERVICES, INC.
By /s/ WAYNE GARRISON
Name: WAYNE GARRISON
Title: CHAIRMAN OF THE BOARD
Accepted:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By /s/ SCOTT G. PRIMROSE
Name: SCOTT G. PRIMROSE
Title: AUTHORIZED SIGNATORY
J.P. Morgan Securities Inc.
By /s/ THOMAS HAGERSTROM
Name: THOMAS HAGERSTROM
Title: VICE PRESIDENT
Morgan Stanley & Co. Incorporated
By /s WILLIAM WHITE
Name: WILLIAM WHITE
Title: PRINCIPAL
Stephens Inc.
By /d/ E. H. CLEMMONS
Name: E. H. CLEMMONS
Title: VICE PRESIDENT
-25-
EXHIBIT A
The following terms, if applicable, shall be agreed to by the Agents
and the Company in connection with each sale of Notes:
Principal Amount: $______
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Spread or Spread Multiplier, if any:
Interest Reset Date(s):
Interest Payment Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Reset Period:
Interest Payment Period:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayable:
Optional Repayment Date(s):
Date of Maturity:
Purchase Price: ___%
Settlement Date and Time:
Currency of Denomination:
Denominations (if currency is other than U.S. dollar):
Currency of Payment:
Additional Terms:
Also, in connection with the purchase of Notes by the Agents as principal,
agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(b) of the Distribution
Agreement. Legal Opinion pursuant to Section 7(c) of the Distribution
Agreement. Comfort Letter pursuant to Section 7(d) of the Distribution
Agreement. Stand-off Agreement pursuant to Section 4(k) of the
Distribution Agreement.
-1-
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company
shall pay the applicable Agent, on a discount basis, a commission for the sale
of each Note equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
PERCENT
OF
PRINCIPAL
MATURITY RANGES AMOUNT
From 9 months to less than 1 year ............................. .125%
From 1 year to less than 18 months ............................ .150
From 18 months to less than 2 years ........................... .200
From 2 years to less than 3 years ............................. .250
From 3 years to less than 4 years ............................. .350
From 4 years to less than 5 years ............................. .450
From 5 years to less than 6 years ............................. .500
From 6 years to less than 7 years ............................. .550
From 7 years to less than 10 years ............................ .600
From 10 years to less than 15 years ........................... .625
From 15 years to less than 20 years ........................... .700
From 20 years to 30 years ..................................... .750
Greater than 30 years ......................................... *
* As agreed to by the Company and the applicable Agent at the time of sale.
1
APPENDIX III
J. B. HUNT TRANSPORT SERVICES, INC.
Officers' Certificate
The undersigned, _____________________ and ___________________, the
duly elected, qualified and acting (a) [President or Vice President] and (b)
[chief financial officer or chief accounting officer], respectively, of J. B.
Hunt Transport Services, Inc., an Arkansas corporation (the "Company"), hereby
certify that:
1. Since the respective dates as of which information is given in the
Registration Statement and the Prospectus or since the date of any agreement by
the Agents to purchase Notes as principal, there has not been any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business.
2. The representations and warranties of the Company contained in
Section 2 of the Distribution Agreement dated June 13, 1995 (the "Distribution
Agreement"), by and among the Company, Merrill Lynch & Co., Merrill Lynch,
Pierce Fenner & Smith Incorporated, J.P. Morgan Securities Inc., Morgan Stanley
& Co. Incorporated and Stephens Inc. are true and correct with the same force
and effect as though expressly made at and as of the date hereof.
3. The Company has performed or complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the date hereof.
4. No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the SEC.
All capitalized terms used herein that are not otherwise defined herein
shall have the meanings given such terms in the Distribution Agreement.
IN WITNESS WHEREOF, the undersigned have hereunto signed this
Certificate this 13th day of June, 1995.
____________________________________
____________________________________
1
EXHIBIT 4(c)
FIXED RATE GLOBAL MEDIUM-TERM NOTE
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
REGISTERED FACE AMOUNT
No. FX CUSIP No. $
J. B. HUNT TRANSPORT SERVICES, INC.
MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: STATED MATURITY DATE:
INTEREST PAYMENT DATE:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT DATE(S):
DAY COUNT CONVENTION
[ ] 30/360 FOR THE PERIOD FROM TO
[ ] OTHER
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT:
[ ] Yes [ ] Yes
[ ] No [ ] No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period:
OTHER PROVISIONS:
Notwithstanding anything to the contrary contained herein, for purposes of
determining the voting rights of the Holder of this Note in respect of
amendments to the Indenture and modifications and the waiver of rights
thereunder, the principal amount of this Note shall be deemed to be equal to its
Face Amount.
J. B. HUNT TRANSPORT SERVICES, INC., an Arkansas corporation ("Issuer"
or the "Company," which terms include any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to CEDE & CO., or registered assigns, the principal (the word "principal" and
certain capitalized terms used herein are defined in this Note) on the Stated
Maturity Date specified above (except to the extent redeemed or repaid prior to
the Stated Maturity Date), and to pay interest on the Face Amount hereof at the
Interest Rate per annum specified above, until the principal hereof is paid or
duly made available for payment. Reference herein to "this Note", "hereof",
"herein" and comparable terms shall include an Addendum hereto if an Addendum is
specified above.
The Company will pay interest on each Interest Payment Date specified
above, commencing on the first Interest Payment Date next succeeding the
Original Issue Date specified above, and on the Stated Maturity Date or any
Redemption Date or Optional Repayment Date (as defined below) (the date of each
such Stated Maturity Date, Redemption Date and Optional Repayment Date and the
date on which principal or an installment of principal is due and payable by
declaration of acceleration pursuant to the Indenture being referred to
hereinafter as a "Maturity" with respect to principal payable on such date);
PROVIDED, HOWEVER, that if the Original Issue Date is between a Record Date (as
defined below) and the next succeeding Interest Payment Date, interest payments
will commence on the second Interest Payment Date succeeding the Original Issue
Date. Except as provided above, interest payments will be made on the Interest
Payment Dates shown above. Unless otherwise specified above, the "Record Date"
shall be the date 15 calendar days (whether or not a Business Day) prior to the
applicable Interest Payment Date. Interest on this Note will accrue from and
including the most recent Interest Payment Date to which interest has been paid
or duly provided for or, if no interest has been paid, from the Original Issue
Date specified above, to, but excluding such Interest Payment Date. If the
Maturity or an Interest Payment Date falls on a day which is not a Business Day
as defined below, the payment due on such Maturity or Interest Payment Date will
be paid on the next succeeding Business Day with the same force and effect as if
made on such Maturity or Interest Payment Date, as the case may be, and no
interest shall accrue with respect to such payment for the period from and after
such Maturity or Interest Payment Date. The interest so payable and punctually
paid or duly provided for on any Interest Payment Date will as provided in the
Indenture be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on the Record
Date for such Interest Payment Date. Any such interest which is payable, but not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest"), shall forthwith cease to be payable to the registered
Holder on such Record Date, and may be paid to the Person in whose name
-2-
this Note (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to the Holder of this
Note not less than 10 days prior to such Special Record Date, or may be paid at
any time in any other lawful manner, all as more fully provided in the
Indenture.
Payment of the principal of and interest on this Note will be made at
the Office or Agency of the Company maintained by the Company for such purpose,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; PROVIDED,
HOWEVER, that at the option of the Company, payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register; and PROVIDED, FURTHER, that AT THE OPTION OF
THE COMPANY, the Holder of this Note may be entitled to receive payments of
principal of and interest on this Note by wire transfer of immediately available
funds if appropriate wire transfer instructions have been received by the
Trustee not less than 15 days prior to the applicable payment date.
Unless the certificate of authentication hereon has been executed by or
on behalf of The First National Bank of Chicago, the successor Trustee for this
Note under the Indenture, or its successor thereunder, by the manual signature
of one of its authorized officers, this Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
This Note is one of a duly authorized series of Securities (hereinafter
called the "Securities") of the Company designated as its Medium-Term Notes (the
"Notes"). The Notes are issued and to be issued under a [Senior] [Subordinated]
Indenture dated as of July 1, 1993 (herein called the "Indenture") between the
Company and The First National Bank of Chicago, as successor Trustee, to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights thereunder of the Company, the Trustee (as
defined below) and the Holders of the Notes and the terms upon which the Notes
are to be authenticated and delivered. The First National Bank of Chicago shall
act as Trustee with respect to the Notes (herein called the "Trustee", which
term includes any successor Trustee with respect to the Notes, under the
Indenture). The terms of individual Notes may vary with respect to interest
rates or interest rate formulas, issue dates, maturity, redemption, repayment,
currency of payment and otherwise.
Except as otherwise provided in the Indenture, the Notes will be issued
in global form only registered in the name of The Depository Trust Company (the
"Depositary") or its nominee. The Notes will not be issued in definitive form,
except as otherwise provided in the Indenture, and ownership of the Notes shall
be maintained in book entry form by the Depositary for the accounts of
participating organizations of the Depositary.
-3-
This Note is not subject to any sinking fund and, unless otherwise
provided above in accordance with the provisions of the following paragraphs, is
not redeemable or repayable prior to the Stated Maturity Date.
If so provided above, this Note may be redeemed by the Company on any
date on and after the Initial Redemption Date, if any, specified above. If no
Initial Redemption Date is set forth above, this Note may not be redeemed prior
to the Stated Maturity Date. On and after the Initial Redemption Date, if any,
this Note may be redeemed at any time in whole or from time to time in part in
increments of $1,000 (provided that any remaining principal hereof shall be at
least $1,000) at the option of the Company at the applicable Redemption Price
(as defined below), together with accrued interest hereon at the applicable rate
payable to the date of redemption (each such date, a "Redemption Date"), on
written notice given not more than 60 nor less than 30 days prior to the
Redemption Date. In the event of redemption of this Note in part only, a new
Note for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the surrender hereof.
Unless otherwise specified above, the "Redemption Price" shall
initially be the Initial Redemption Percentage, specified above, of the
principal amount of this Note to be redeemed and shall decline at each
anniversary of the Initial Redemption Date, shown above, by the Annual
Redemption Percentage Reduction, if any, specified on the face hereof, of the
principal amount to be redeemed until the Redemption Price is 100% of such
principal amount.
This Note may be subject to repayment at the option of the Holder on
any Optional Repayment Date(s), if any, indicated above. If no Optional
Repayment Date(s) are set forth above, this Note may not be so repaid at the
option of the Holder hereof prior to the Stated Maturity Date. On any Optional
Repayment Date, this Note shall be repayable in whole or in part in increments
of $1,000 (provided that any remaining principal hereof shall be at least
$1,000) at the option of the Holder hereof at a repayment price equal to 100% of
the principal amount to be repaid, together with interest thereon payable to the
date of repayment. For this Note to be repaid in whole or in part at the option
of the Holder hereof, this Note must be received, with the form entitled "Option
to Elect Repayment" below duly completed, by the Trustee at its Corporate Trust
Office, or such address which the Company shall from time to time notify the
Holders of the Notes, not more than 60 nor less than 30 days prior to the
related Optional Repayment Date. Exercise of such repayment option by the Holder
hereof shall be irrevocable.
Interest payments on this Note shall include interest accrued from, and
including, the Original Issue Date indicated above, or the most recent date to
which interest has been paid or duly provided for, to, but excluding, the
related Interest Payment Date or Maturity, as the case may be. Interest payments
for this Note shall be computed and paid on the basis of a 360-day year of
twelve 30-day months if the
-4-
Day Count Convention specified above is "30/360" for the period specified
thereunder, on the basis of the actual number of days in the related month and a
360-day year if the Day Count Convention specified above is "Actual/360" for the
period specified thereunder or on the basis of the actual number of days in the
related year and month if the Day Count Convention specified above is
"Actual/Actual" for the period specified thereunder.
As used herein, "Business Day" means any day other than a Saturday or
Sunday or any other day on which banks in The City of New York are generally
authorized or obligated by law or executive order to close.
Any provision contained herein with respect to the calculation of the
rate of interest applicable to this Note, its payment dates or any other matter
relating hereto may be modified as specified in an Addendum relating hereto if
so specified above.
-5-
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected thereby at any time by the Company and the Trustee with the consent of
the Holders of 66 2/3% in aggregate principal amount of the Outstanding
Securities of each series affected thereby. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all the Securities of such series, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Note shall be conclusive and binding upon such Holder and
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the time, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note may be registered on the Security Register
of the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or by its attorney duly authorized in writing, and thereupon
one or more new Notes of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
-6-
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its corporate
seal to be imprinted hereon.
[FACSIMILE OF SEAL] J. B. HUNT TRANSPORT SERVICES, INC.
By:___________________________________
Name:______________________________
Title:_____________________________
Attest:
By:___________________________________
Name:______________________________
Title:_____________________________
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated therein
referred to in the within-mentioned
Indenture.
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
-7-
By:______________________________ Dated:__________________________
Authorized Officer
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to the principal amount hereof together with interest to
the repayment date, to the undersigned, at ____________________________________
_______________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its Corporate
Trust Office, or at such other place or places of which the Company shall from
time to time notify the Holder of this Note, not more than 60 nor less than 30
days prior to an Optional Repayment Date, if any, shown on the face of this
Note, this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000) which the
Holder elects to have repaid and specify the denomination or denominations
(which shall be $1,000 or an integral multiple thereof) of the Notes to be
issued to the Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not being repaid).
$_________________________ NOTICE: The signature on this Option to Elect
Date______________________ Repayment must correspond with the name as
written upon the face of this Note in every
particular, without alteration or enlargement
or any change whatever.
-9-
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto
(insert Taxpayer Identification No.) __________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee) _____________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ____________________________________________________________________
attorney to transfer said Note on the books of the Company with full power of
substitution in the premises.
Dated:____________________ _______________________________________________
NOTICE: The signature of the registered Holder to this assignment must
correspond with the name as written upon the face of the within
instrument in every particular, without alteration or enlargement or
any change whatsoever.
Signature guaranteed:
____________________________________ _____________________________________
NOTICE: Signature(s) must be guaranteed by a member firm of the Securities
Transfer Agent Medallion Program.
-10-
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM -- as tenants in common
UNIF GIFT MIN ACT -- . . . . . . . Custodian . . . . . . .
(Cust) (Minor)
Under Uniform Gifts to Minors Act
. . . . . . . . . . . . . . . . . .
(State)
TEN ENT -- 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.
-11-
FLOATING RATE GLOBAL MEDIUM-TERM NOTE
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
REGISTERED PRINCIPAL AMOUNT
No. BFLR CUSIP No. $
J. B. HUNT TRANSPORT SERVICES, INC.
MEDIUM-TERM NOTE
(Floating Rate)
INTEREST RATE BASIS: ORIGINAL ISSUE DATE: STATED MATURITY DATE:
INDEX MATURITY: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
SPREAD: INITIAL INTEREST INTEREST PAYMENT DATES:
RESET DATE:
SPREAD MULTIPLIER: INTEREST RATE INTEREST RESET DATES:
RESET PERIOD:
MAXIMUM INTEREST MINIMUM INTEREST INITIAL REDEMPTION DATE:
RATE: RATE:
INITIAL REDEMPTION ANNUAL REDEMPTION OPTIONAL REPAYMENT
PERCENTAGE: PERCENTAGE DATE(S):
REDUCTION:
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CALCULATION AGENT: IF INTEREST RATE BASIS IS LIBOR:
INDEX CURRENCY:
DESIGNATED LIBOR PAGE:
[ ] Reuters Page:
[ ] Telerate Page:
INTEREST CALCULATION: DAY COUNT CONVENTION
[ ] Regular Floating Rate Note [ ] Actual/360 for the period
[ ] Floating Rate/Fixed Rate from to
Fixed Rate Commencement Date: [ ] Actual/Actual for the period
Fixed Interest Rate: from to
[ ] Inverse Floating Rate Note [ ] 30/360 for the period
Fixed Interest Rate: from to
[ ] Other Floating Rate Note
(See Addendum Attached)
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT
[ ] Yes [ ] Yes
[ ] No [ ] No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period:
OTHER PROVISIONS:
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J. B. HUNT TRANSPORT SERVICES, INC., an Arkansas corporation ("Issuer"
or the "Company", which terms include any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to CEDE & CO., or registered assigns, the principal sum of
DOLLARS on the Stated Maturity Date specified above (except to the extent
redeemed or repaid prior to the Stated Maturity Date), and to pay interest
thereon, at a rate per annum equal to the Initial Interest Rate specified above
until the Initial Interest Reset Date specified above and thereafter at a rate
per annum determined in accordance with the provisions hereof and any Addendum
relating hereto depending upon the Interest Rate Basis or Bases, if any, and
such other terms specified above, until the principal hereof is paid or duly
made available for payment. Reference herein to "this Note", "hereof", "herein"
and comparable terms shall include an Addendum hereto if an Addendum is
specified above.
The Company will pay interest monthly, quarterly, semi-annually,
annually or such other period as specified above under "Interest Payment
Period", on each Interest Payment Date specified above, commencing on the first
Interest Payment Date specified above next succeeding the Original Issue Date
specified above, and on the Stated Maturity Date or any Redemption Date or
Optional Repayment Date (as defined below) (the date of each such Stated
Maturity Date, Redemption Date and Optional Repayment Date and the date on which
principal or an installment of principal is due and payable by declaration of
acceleration pursuant to the Indenture being referred to hereinafter as a
"Maturity" with respect to principal payable on such date); PROVIDED, HOWEVER,
that if the Original Issue Date is between a Record Date (as defined below) and
the next succeeding Interest Payment Date, interest payments will commence on
the second Interest Payment Date succeeding the Original Issue Date; and
PROVIDED FURTHER, that if an Interest Payment Date (other than an Interest
Payment Date at Maturity) would fall on a day that is not a Business Day (as
defined below), such Interest Payment Date shall be the following day that is a
Business Day, except that in the case the Interest Rate Basis is LIBOR, as
indicated above, if such next Business Day falls in the next calendar month,
such Interest Payment Date shall be the next preceding day that is a Business
Day. Except as provided above, interest payments will be made on the Interest
Payment Dates shown above. Unless otherwise specified above, the "Record Date"
shall be the date 15 calendar days (whether or not a Business Day) prior to the
applicable Interest Payment Date. Interest on this Note will accrue from and
including the Original Issue Date specified above, at the rates determined from
time to time as specified herein, until the principal hereof has been paid or
made available for payment. If the Maturity falls on a day which is not a
Business Day as defined below, the payment due on such Maturity will be paid on
the next succeeding Business Day with the same force and effect as if made on
such Maturity and no interest shall accrue with respect to such payment for the
period from and after such Maturity. The interest so payable and punctually paid
or duly provided for on any
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Interest Payment Date will as provided in the Indenture be paid to the Person in
whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on the Record Date for such Interest Payment Date. Any
such interest which is payable, but not punctually paid or duly provided for on
any Interest Payment Date (herein called "Defaulted Interest"), shall forthwith
cease to be payable to the registered Holder on such Record Date, and may be
paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to the Holder of this Note not less than 10 days prior to
such Special Record Date, or may be paid at any time in any other lawful manner,
all as more fully provided in the Indenture.
Payment of the principal of and interest on this Note will be made at
the Office or Agency of the Company maintained by the Company for such purpose,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; PROVIDED,
HOWEVER, that at the option of the Company, payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register; and PROVIDED, FURTHER, that AT THE OPTION OF
THE COMPANY, the Holder of this Note may be entitled to receive payments of
principal of and interest on this Note by wire transfer of immediately available
funds if appropriate wire transfer instructions have been received by the
Trustee not less than 15 days prior to the applicable payment date.
Unless the certificate of authentication hereon has been executed by or
on behalf of The First National Bank of Chicago, the successor Trustee with
respect to the Notes under the Indenture, or its successor thereunder, by the
manual signature of one of its authorized officers, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
This Note is one of a duly authorized series of Securities (hereinafter
called the "Securities") of the Company designated as its Medium-Term Notes (the
"Notes"). The Notes are issued and to be issued under a [Senior][Subordinated]
Indenture dated as of July 1, 1993 (herein called the "Indenture") between the
Company and The First National Bank of Chicago, as successor Trustee, to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights thereunder of the Company, the Trustee (as
defined below) and the Holders of the Notes and the terms upon which the Notes
are to be authenticated and delivered. The First National Bank of Chicago shall
act as Trustee with respect to the Notes (herein called the "Trustee", which
term includes any successor Trustee with respect to the Notes under the
Indenture). The terms of individual Notes may vary with respect to interest
rates or interest rate formulas, issue dates, maturity, redemption, repayment,
currency of payment and otherwise.
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Except as otherwise provided in the Indenture, the Notes will be issued
in global form only registered in the name of The Depository Trust Company (the
"Depositary") or its nominee. The Notes will not be issued in definitive form,
except as otherwise provided in the Indenture, and ownership of the Notes shall
be maintained in book entry form by the Depositary for the accounts of
participating organizations of the Depositary.
This Note is not subject to any sinking fund and, unless otherwise
provided above in accordance with the provisions of the following paragraphs, is
not redeemable or repayable prior to the Stated Maturity Date.
If so provided above, this Note may be redeemed by the Company on any
date on and after the Initial Redemption Date, if any, specified above. If no
Initial Redemption Date is set forth above, this Note may not be redeemed prior
to the Stated Maturity Date. On and after the Initial Redemption Date, if any,
this Note may be redeemed at any time in whole or from time to time in part in
increments of $1,000 (provided that any remaining principal hereof shall be at
least $1,000) at the option of the Company at the applicable Redemption Price
(as defined below) together with accrued interest hereon at the applicable rate
payable to the date of redemption (each such date, a "Redemption Date"), on
written notice given not more than 60 nor less than 30 days prior to the
Redemption Date. In the event of redemption of this Note in part only, a new
Note for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the surrender hereof.
Unless otherwise specified above, the "Redemption Price" shall
initially be the Initial Redemption Percentage, specified above, of the
principal amount of this Note to be redeemed and shall decline at each
anniversary of the Initial Redemption Date, shown above, by the Annual
Redemption Percentage Reduction, if any, specified on the face hereof, of the
principal amount to be redeemed until the Redemption Price is 100% of such
principal amount.
This Note may be subject to repayment at the option of the Holder on
any Optional Repayment Date(s), if any, indicated above. If no Optional
Repayment Date(s) are set forth above, this Note may not be so repaid at the
option of the Holder hereof prior to the Stated Maturity Date. On any Optional
Repayment Date, this Note shall be repayable in whole or in part in increments
of $1,000 (provided that any remaining principal hereof shall be at least
$1,000) at the option of the Holder hereof at a repayment price equal to 100% of
the principal amount to be repaid, together with interest thereon payable to the
date of repayment. For this Note to be repaid in whole or in part at the option
of the Holder hereof, this Note must be received, with the form entitled "Option
to Elect Repayment" below duly completed, by the Trustee at its Corporate Trust
Office, or such address which the Company shall from time to time notify the
Holders of the Notes, not more than 60 nor less than 30 days prior to the
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related Optional Repayment Date. Exercise of such repayment option by the Holder
hereof shall be irrevocable.
The interest rate borne by this Note shall be determined as follows:
1. If this Note is designated as a Regular Floating Rate Note
above, then, except as described below, this Note shall bear interest
at the rate determined by reference to the applicable Interest Rate
Basis shown above (i) plus or minus the applicable Spread, if any,
and/or (ii) multiplied by the applicable Spread Multiplier, if any,
specified and applied in the manner described above. Commencing on the
Initial Interest Reset Date, the rate at which interest on this Note is
payable shall be reset as of each Interest Reset Date specified above;
PROVIDED, HOWEVER, that (i) the interest rate in effect for the period
from the Original Issue Date to the Initial Interest Reset Date will be
the Initial Interest Rate, and (ii) unless otherwise specified above,
the interest rate in effect hereon for the 10 days immediately prior to
Maturity shall be that in effect on the tenth day preceding such
Maturity.
2. If this Note is designated as a Floating Rate/Fixed Rate
Note above, then, except as described below, this Note shall bear
interest at the rate determined by reference to the applicable Interest
Rate Basis shown above (i) plus or minus the applicable Spread, if any,
and/or (ii) multiplied by the applicable Spread Multiplier, if any,
specified and applied in the manner described above. Commencing on the
Initial Interest Reset Date, the rate at which interest on this Note is
payable shall be reset as of each Interest Reset Date specified above;
PROVIDED, HOWEVER, that (i) the interest rate in effect for the period
from the Original Issue Date to the Initial Interest Reset Date shall
be the Initial Interest Rate; (ii) unless otherwise specified above,
the interest rate in effect hereon for the 10 days immediately prior to
the Fixed Rate Commencement Date shall be that in effect on the tenth
day preceding the Fixed Rate Commencement Date; and (iii) the interest
rate in effect commencing on, and including, the Fixed Rate
Commencement Date to the Maturity shall be the Fixed Interest Rate, if
such a rate is specified above, or if no such Fixed Interest Rate is so
specified, the interest rate in effect hereon on the day immediately
preceding the Fixed Rate Commencement Date.
3. If this Note is designated as an Inverse Floating Rate Note
above, then, except as described below, this Note will bear interest
equal to the Fixed Interest Rate indicated above minus the rate
determined by reference to the applicable Interest Rate Basis shown
above (i) plus or minus the applicable Spread, if any, and/or (ii)
multiplied by the applicable Spread Multiplier, if any, specified and
applied in the manner described above; PROVIDED, HOWEVER, that the
interest rate hereon will not be less than zero percent. Commencing on
the Initial Interest Reset Date, the rate at which interest on this
Note is payable
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shall be reset as of each Interest Rate Reset Date specified above;
PROVIDED, HOWEVER, that (i) the interest rate in effect for the period
from the Original Issue Date to the Initial Interest Reset Date shall
be the Initial Interest Rate, and (ii) unless otherwise specified
above, the interest rate in effect hereon for the 10 days immediately
prior to Maturity shall be that in effect on the tenth day preceding
such Maturity.
4. Notwithstanding the foregoing, if this Note is designated
above as having an Addendum attached, the Note shall bear interest in
accordance with the terms described in such Addendum.
Except as provided above, the interest rate in effect on each day shall
be (a) if such day is an Interest Reset Date, the interest rate determined on
the Interest Determination Date (as defined below) immediately preceding such
Interest Reset Date or (b) if such day is not an Interest Reset Date, the
interest rate determined on the Interest Determination Date immediately
preceding the next preceding Interest Reset Date. Each Interest Rate Basis shall
be the rate determined in accordance with the applicable provision below. If any
Interest Reset Date (which term includes the term Initial Interest Reset Date
unless the context otherwise requires) would otherwise be a day that is not a
Business Day, such Interest Reset Date shall be postponed to the next succeeding
day that is a Business Day, except that if an Interest Rate Basis specified on
the face hereof is LIBOR and such next Business Day falls in the next succeeding
calendar month, such Interest Reset Date shall be the next preceding Business
Day.
Unless otherwise specified above, interest payable on this Note on any
Interest Payment Date shall be the amount of interest accrued from and including
the next preceding Interest Payment Date in respect of which interest has been
paid (or from and including the Original Issue Date specified above, if no
interest has been paid), to but excluding the related Interest Payment Date;
PROVIDED, HOWEVER, that if the Interest Rate Reset Period with respect to this
Note is daily or weekly, interest payable on any Interest Payment Date will
include interest accrued from and including the Original Issue Date, if no
interest has been paid, or from but excluding the last Record Date to which
interest has been paid, as the case may be, through and including the Record
Date next preceding such Interest Payment Date; and PROVIDED FURTHER that the
interest payments on Maturity will include interest accrued to but excluding
such Maturity. Unless otherwise specified above, accrued interest hereon shall
be an amount calculated by multiplying the face amount hereof by an accrued
interest factor. Such accrued interest factor shall be computed by adding the
interest factor calculated for each day from the date of issue or from the last
date to which interest shall have been paid or duly provided for, to the date
for which accrued interest is being calculated. Unless otherwise specified
above, the interest factor for each such day shall be computed by dividing the
interest rate applicable to such day by 360 if the Day Count Convention
specified above is "Actual/360" for the period specified thereunder
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or by the actual number of days in the year if the Day Count Convention
specified above is "Actual/Actual" for the period specified thereunder. The
interest factor for Notes for which the interest rate is calculated with
reference to two or more Interest Rate Bases will be calculated in each period
in the same manner as if only one of the applicable Interest Rate Bases applied.
Unless otherwise specified above, the "Interest Determination Date"
with respect to the CD Rate, the Commercial Paper Rate, the Federal Funds Rate
and the Prime Rate will be the second Business Day preceding each Interest Reset
Date; the "Interest Determination Date" with respect to LIBOR shall be the
second London Business Day (as defined below) preceding each Interest Reset
Date; the "Interest Determination Date" with respect to the Eleventh District
Cost of Funds Rate shall be the last working day of the month immediately
preceding each Interest Reset Date on which the Federal Home Loan Bank of San
Francisco (the "FHLB of San Francisco") publishes the Index (as defined below);
the "Interest Determination Date" with respect to the Treasury Rate will be the
day in the week in which the related Interest Reset Date falls on which day
Treasury bills (as defined below) normally would be auctioned (Treasury bills
are normally sold at auction on Monday of each week, unless that day is a legal
holiday, in which case the auction is normally held on the following Tuesday,
except that such auction may be held on the preceding Friday); PROVIDED,
HOWEVER, that if, as a result of a legal holiday, an auction is held on the
Friday of the week preceding the related Interest Reset Date, the related
Interest Determination Date shall be such preceding Friday; and PROVIDED,
FURTHER, that if an auction shall fall on any Interest Reset Date, then the
Interest Reset Date shall instead be the first Business Day following such
auction. If the interest rate of this Note is determined with reference to two
or more Interest Rate Bases, the Interest Determination Date pertaining to this
Note will be the first Business Day which is at least two Business Days prior to
such Interest Reset Date on which each Interest Rate Basis shall be
determinable. Each Interest Rate Basis shall be determined and compared on such
date, and the applicable interest rate shall take effect on the related Interest
Reset Date.
Unless otherwise specified above, the "Calculation Date" pertaining to
any Interest Determination Date will be the earlier of (i) the tenth calendar
day after such Interest Determination Date or, if such day is not a Business
Day, the next succeeding Business Day, or (ii) the Business Day preceding the
applicable Interest Payment Date or date of Maturity, as the case may be. All
calculations on this Note shall be made by the Calculation Agent specified above
or such successor thereto as is duly appointed by the Company.
All percentages resulting from any calculation on this Note will be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one millionths of a percentage point rounded upwards (e.g., 9.876545% (or
.09876545) would be rounded to 9.87655% (or .0987655)), and all dollar amounts
used in or resulting from such
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calculation will be rounded to the nearest cent (with one-half cent being
rounded upward).
As used herein, "Business Day" means any day other than a Saturday or
Sunday or any other day on which banks in The City of New York are generally
authorized or obligated by law or executive order to close and, if the
applicable Interest Rate Basis shown above is LIBOR, is also a London Business
Day.
As used herein, "London Business Day" means any day (a) if the Index
Currency specified above is other than the European Currency Unit ("ECU"), on
which dealings in deposits in such Index Currency are transacted in the London
interbank market or (b) if the Index Currency specified above is the ECU, that
is not designated as an ECU Non-Settlement Day by the ECU Banking Association in
Paris or otherwise generally regarded in the ECU interbank market as a day on
which payments on ECUs shall not be made.
DETERMINATION OF CD RATE. If an Interest Rate Basis for this Note is
the CD Rate, as indicated above, the CD Rate shall be determined on the
applicable Interest Determination Date (a "CD Rate Interest Determination
Date"), as the rate on such date for negotiable certificates of deposit having
the Index Maturity specified above as published by the Board of Governors of the
Federal Reserve System in "Statistical Release H.15(519), Selected Interest
Rates" or any successor publication ("H.15(519)"), under the heading "CDs
(Secondary Market)", or, if not so published by 3:00 P.M., New York City time,
on the related Calculation Date, the rate on such CD Rate Interest Determination
Date for negotiable certificates of deposit of the Index Maturity specified
above as published by the Federal Reserve Bank of New York in its statistical
release "Composite 3:30 P.M. Quotations for U.S. Government Securities" or any
successor publication ("Composite Quotations") under the heading "Certificates
of Deposit". If such rate is not yet published in either H.15(519) or the
Composite Quotations by 3:00 P.M., New York City time, on the Calculation Date,
then the CD Rate on such CD Rate Interest Determination Date will be calculated
by the Calculation Agent and will be the arithmetic mean (rounded to the nearest
one hundred-thousandth of a percentage point, with five one millionths of a
percentage point rounded upwards) of the secondary market offered rates as of
10:00 A.M., New York City time, on such CD Rate Interest Determination Date of
three leading non-bank dealers in negotiable U.S. dollar certificates of deposit
in The City of New York selected by the Calculation Agent for negotiable
certificates of deposit of major United States money market banks in the market
for negotiable certificates of deposit with a remaining maturity closest to the
Index Maturity designated above in an amount that is representative for a single
transaction in that market at that time; PROVIDED, HOWEVER, that if the dealers
selected as aforesaid by the Calculation Agent are not quoting as set forth
above, the CD Rate determined on such CD Rate Interest Determination Date shall
be the CD Rate in effect on such CD Rate Interest Determination Date.
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DETERMINATION OF CMT RATE. If an Interest Rate Basis for this Note is
the CMT Rate, as indicated above, the CMT Rate shall be determined on the
applicable Interest Determination Date (a "CMT Rate Interest Determination
Date"), as the rate displayed on the Designated CMT Telerate Page (as defined
below) under the caption "...Treasury Constant Maturities...Federal Reserve
Board Release H.15...Mondays Approximately 3:45 P.M.," under the column for the
Designated CMT Maturity Index (as defined below) for (i) if the Designated CMT
Telerate Page is 7055, the rate on such CMT Rate Interest Determination Date and
(ii) if the Designated CMT Telerate Page is 7052, the week, or the month, as
applicable, ended immediately preceding the week in which the related CMT Rate
Interest Determination Date occurs. If such rate is no longer displayed on the
relevant page, or if not displayed by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate for such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519). If such
rate is no longer published, or if not published by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate for such CMT Rate
Interest Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 P.M., New York
City time, on the related Calculation Date, then the CMT Rate for the CMT Rate
Interest Determination Date will be calculated by the Calculation Agent and will
be a yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 P.M., New York City time, on
the CMT Rate Interest Determination Date reported, according to their written
records, by three leading primary United States government securities dealers
(each, a "Reference Dealer") in The City of New York (which may include the
Agent or its affiliates) selected by the Calculation Agent (from five such
Reference Dealers selected by the Calculation Agent and eliminating the highest
quotation (or, in the event of equality, one of the highest) and the lowest
quotation (or, in the event of equality, one of the lowest)), for the most
recently issued direct noncallable fixed rate obligations of the United States
("Treasury Notes") with an original maturity of approximately the Designated CMT
Maturity Index and a remaining term to maturity of not less than such Designated
CMT Maturity Index minus one year. If the Calculation Agent cannot obtain three
such Treasury Note quotations, the CMT Rate for such CMT Rate Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity based on the arithmetic mean of the secondary market offer
side prices as of approximately 3:30 P.M., New York City time, on the CMT Rate
Interest Determination Date of three Reference Dealers in The City of New York
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and
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the lowest quotation (or, in the event of equality, one of the lowest)), for
Treasury Notes with an original maturity of the number of years that is the next
highest to the Designated CMT Maturity Index and a remaining term to maturity
closest to the Designated CMT Maturity Index and in an amount of at least $100
million. If three or four (and not five) of such Reference Dealers are quoting
as described above, then the CMT Rate will be based on the arithmetic mean of
the offer prices obtained and neither the highest nor the lowest of such quotes
will be eliminated; provided however, that if fewer than three Reference Dealers
selected by the Calculation Agent are quoting as described herein, the CMT Rate
will be the CMT Rate in effect on such CMT Rate Interest Determination Date. If
two Treasury Notes with an original maturity as described in the third preceding
sentence have remaining terms to maturity equally close to the Designated CMT
Maturity Index, the quotes for the Treasury Note with the shorter remaining term
to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page designated in the applicable Pricing Supplement (or
any other page as may replace such page on that service for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519)), for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519). If
no such page is specified in the applicable Pricing Supplement, the Designated
CMT Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20, or 30 years)
specified in the applicable Pricing Supplement with respect to which the CMT
Rate will be calculated. If no such maturity is specified in the applicable
Pricing Supplement, the Designated CMT Maturity Index shall be 2 years.
DETERMINATION OF COMMERCIAL PAPER RATE. If an Interest Rate Basis for
this Note is the Commercial Paper Rate, as indicated above, the Commercial Paper
Rate shall be determined on the applicable Interest Determination Date (a
"Commercial Paper Rate Interest Determination Date"), as the Money Market Yield
(as defined below) on such date of the rate for commercial paper having the
Index Maturity specified above as published in H.15(519), under the heading
"Commercial Paper". In the event such rate is not published by 3:00 P.M., New
York City time, on the related Calculation Date, then the Commercial Paper Rate
shall be the Money Market Yield on such Commercial Paper Rate Interest
Determination Date of the rate for commercial paper having the Index Maturity
shown above as published in Composite Quotations under the heading "Commercial
Paper" (with an Index Maturity of one month or three months being deemed to be
equivalent to an Index Maturity of 30 days or 90 days, respectively). If by 3:00
P.M., New York City time, on the related Calculation Date such rate is not yet
published in either H.15(519) or Composite Quotations, then the Commercial Paper
Rate for such Commercial Paper Rate Interest Determination Date shall be as
calculated by the Calculation Agent and shall be the
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Money Market Yield of the arithmetic mean (rounded to the nearest one
hundred-thousandth of a percentage point, with five one millionths of a
percentage point rounded upwards) of the offered rates at approximately 11:00
A.M., New York City time, on such Commercial Paper Rate Interest Determination
Date of three leading dealers of commercial paper in The City of New York
selected by the Calculation Agent for commercial paper having the Index Maturity
specified above placed for an industrial issuer whose bond rating is "AA," or
the equivalent, from a nationally recognized securities rating agency; PROVIDED,
HOWEVER, that if the dealers selected as aforesaid by the Calculation Agent are
not quoting as mentioned in this sentence, the Commercial Paper Rate determined
on such Commercial Paper Rate Interest Determination Date shall be the rate in
effect on such Commercial Paper Rate Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage
rounded upwards to the nearest one hundred-thousandth of a percentage point)
calculated in accordance with the following formula:
Money Market Yield = D X 360 x 100
---------------
360- (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
ELEVENTH DISTRICT COST OF FUNDS RATE. If an Interest Rate Basis for
this Note is the Eleventh District Cost of Funds Rate, as indicated above, the
Eleventh District Cost of Funds Rate shall be determined on the applicable
Interest Determination Date (an "Eleventh District Cost of Funds Rate Interest
Determination Date"), and shall be the rate equal to the monthly weighted
average cost of funds for the calendar month preceding such Eleventh District
Cost of Funds Rate Interest Determination Date as set forth under the caption
"11th District" on Telerate Page 7175 as of 11:00 A.M., San Francisco time, on
such Eleventh District Cost of Funds Rate Interest Determination Date. If such
rate does not appear on Telerate Page 7175 on any related Eleventh District Cost
of Funds Rate Interest Determination Date, the Eleventh District Cost of Funds
Rate for such Eleventh District Cost of Funds Rate Interest Determination Date
shall be the monthly weighted average cost of funds paid by member institutions
of the Eleventh Federal Home Loan Bank District that was most recently announced
(the "Index") by the FHLB of San Francisco as such cost of funds for the
calendar month preceding the date of such announcement. If the FHLB of San
Francisco fails to announce such rate for the calendar month next preceding such
Eleventh District Cost of Funds Rate Interest Determination Date, then the
Eleventh District Cost of Funds Rate for such Eleventh District Cost of Funds
Rate Interest Determination Date shall be the Eleventh District Cost of Funds
Rate in effect on such Eleventh District Cost of Funds Rate Interest
Determination Date.
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DETERMINATION OF FEDERAL FUNDS RATE. If an Interest Rate Basis for this
Note is the Federal Funds Rate, as indicated above, the Federal Funds Rate shall
be determined on the applicable Interest Determination Date (a "Federal Funds
Rate Interest Determination Date"), as the rate on that date for Federal Funds
as published in H.15(519) under the heading "Federal Funds (Effective)" or, if
not so published by 3:00 P.M., New York City time, on the related Calculation
Date, the rate on such Federal Funds Rate Interest Determination Date, as
published in Composite Quotations under the heading "Federal Funds/Effective
Rate." If such rate is not yet published in either H.15(519) or Composite
Quotations by 3:00 P.M., New York City time, on the related Calculation Date,
the Federal Funds Rate for such Federal Funds Rate Interest Determination Date
shall be calculated by the Calculation Agent and shall be the arithmetic mean
(rounded to the nearest one hundred-thousandth of a percentage point, with five
one millionths of a percentage point rounded upwards) of the rates for the last
transaction in overnight United States dollar Federal funds arranged by three
leading brokers of Federal funds transactions in The City of New York selected
by the Calculation Agent prior to 9:00 A.M., New York City time on such Federal
Funds Rate Interest Determination Date; PROVIDED, HOWEVER, that if the brokers
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, the Federal Funds Rate determined on such Federal Funds Rate
Interest Determination Date shall be the Federal Funds Rate in effect on such
Federal Funds Rate Interest Determination Date.
DETERMINATION OF LIBOR. If an Interest Rate Basis for this Note is
LIBOR, as indicated above, LIBOR will be determined on the applicable Interest
Determination Date (a "LIBOR Interest Determination Date"), and will be, either:
(a) if "LIBOR Reuters" is specified above, the arithmetic mean (rounded to the
nearest one hundred- thousandth of a percentage point, with five one millionths
of a percentage point rounded upwards) of the offered rates (unless the
specified Designated LIBOR Page by its terms provides only for a single rate, in
which case such single rate shall be used) for deposits in the Index Currency
having the Index Maturity designated above, commencing on the second London
Business Day immediately following that LIBOR Interest Determination Date, that
appear on the Designated LIBOR Page specified above as of 11:00 A.M. London
time, on that LIBOR Interest Determination Date, if at least two such offered
rates appear (unless, as aforesaid, only a single rate is required) on such
Designated LIBOR Page, or (b) if "LIBOR Telerate" is specified above, the rate
for deposits in the Index Currency having the Index Maturity designated above
commencing on the second London Business Day immediately following that LIBOR
Interest Determination Date, that appears on the Designated LIBOR Page specified
above as of 11:00 A.M. London time, on that LIBOR Interest Determination Date.
If, as described in the immediately preceding sentence, fewer than two offered
rates appear, or no rate appears, LIBOR in respect of the related LIBOR Interest
Determination Date will be determined as if the parties had specified the rate
described in the immediately succeeding paragraph.
-14-
With respect to a LIBOR Interest Determination Date on which fewer than
two offered rates appear, or no rate appears, as the case may be, the
Calculation Agent shall request the principal London offices of each of four
major reference banks in the London interbank market, as selected by the
Calculation Agent, to provide the Calculation Agent with its offered quotation
for deposits in the Index Currency for the period of the Index Maturity shown
above, commencing on the second London Business Day immediately following such
LIBOR Interest Determination Date, to prime banks in the London interbank market
at approximately 11:00 A.M., London time, on such LIBOR Interest Determination
Date and in a principal amount that is representative for a single transaction
in the Index Currency in such market at such time. If at least two such
quotations are provided, LIBOR determined on such LIBOR Interest Determination
Date shall be the arithmetic mean (rounded to the nearest one hundred-
thousandth of a percentage point, with five one millionths of a percentage point
rounded upwards) of such quotations as determined by the Calculation Agent. If
fewer than two quotations are provided, LIBOR determined on such LIBOR Interest
Determination Date shall be calculated by the Calculation Agent as the
arithmetic mean (rounded to the nearest one hundred-thousandth of a percentage
point, with five one millionths of a percentage point rounded upwards) of the
rates quoted at approximately 11:00 A.M. (or such other time specified above
under "OTHER PROVISIONS") in the applicable Principal Financial Center(s), on
such LIBOR Interest Determination Date by three major banks in such Principal
Financial Center(s) selected by the Calculation Agent for loans in the Index
Currency to leading European banks having the Index Maturity specified above and
in a principal amount that is representative for a single transaction in the
Index Currency in such market at such time; PROVIDED, HOWEVER, that if the banks
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, LIBOR determined on such LIBOR Interest Determination Date shall
be LIBOR in effect on such LIBOR Interest Determination Date.
"Index Currency" means the currency (including composite currencies)
specified above as the currency for which LIBOR shall be calculated. If no such
currency is specified above, the Index Currency shall be U.S. dollars.
"Designated LIBOR Page" means either (a) if "LIBOR Reuters" is
designated above, the display on the Reuters Monitor Money Rates Service for the
purpose of displaying the London interbank rates of major banks for the
applicable Index Currency, or (b) if "LIBOR Telerate" is designated above, the
display on the Dow Jones Telerate Service for the purpose of displaying the
London interbank rates of major banks for the applicable Index Currency. If
neither LIBOR Reuters nor LIBOR Telerate is specified above, LIBOR for the
applicable Index Currency will be determined as if LIBOR Reuters (and, in the
case U.S. dollars is the Index Currency, LIBO Page) had been specified.
-15-
"Principal Financial Center" will be, unless otherwise specified above,
the following city or cities for the related Index Currency:
Principal
Financial
INDEX CURRENCY CENTER(S)
Australian Dollar Sydney
Belgian Franc Brussels
Canadian Dollar Toronto
Danish Krone Copenhagen
Deutsche Mark Frankfurt
Dutch Guilder Amsterdam
Finnish Markka Helsinki
French Franc Paris
Hong Kong Dollar Hong Kong
Italian Lira Milan
Luxembourg Franc Brussels and
Luxembourg
New Zealand Dollar Wellington and
Auckland
Norwegian Krone Oslo
Spanish Peseta Madrid
Sterling London
Swedish Krona Stockholm
Swiss Franc Zurich
U.S. Dollar New York
Yen Tokyo
DETERMINATION OF PRIME RATE. If an Interest Rate Basis for this Note is
the Prime Rate, as indicated above, the Prime Rate shall be determined on the
applicable Interest Determination Date (a "Prime Rate Interest Determination
Date") as the arithmetic mean (rounded to the nearest one hundred-thousandth of
a percentage point, with five one millionths of a percentage point rounded
upwards) determined by the Calculation Agent of the prime rates of interest
publicly announced by three major banks in The City of New York, as selected by
the Calculation Agent, as its United States dollar prime rate or base lending
rate as in effect for that day. Each change in the prime rate or base lending
rate of any bank so announced by such bank will be effective as of the effective
date of the announcement or, if no effective date is specified, as of the date
of the announcement. If fewer than three such quotations are provided, the Prime
Rate shall be calculated by the Calculation Agent and shall be determined as the
arithmetic mean (rounded to the nearest one hundred-thousandth of a percentage
point, with five one millionths of a percentage point rounded upwards)
determined by the Calculation Agent on the basis of the prime rates quoted in
The City of New York by three substitute banks or trust companies organized and
doing
-16-
business under the laws of the United States, or any state thereof, each having
total equity capital of at least $500 million and being subject to supervision
or examination by a Federal or state authority, selected by the Calculation
Agent to quote such rate or rates; PROVIDED, HOWEVER, that if the banks or trust
companies selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the Prime Rate determined on such Prime Rate
Interest Determination Date shall be the Prime Rate in effect on such Prime Rate
Interest Determination Date.
DETERMINATION OF TREASURY RATE. If an Interest Rate Basis for this Note
is the Treasury Rate, as specified above, the Treasury Rate shall be determined
on the applicable Interest Determination Date (a "Treasury Rate Interest
Determination Date") as the rate applicable to the most recent auction of direct
obligations of the United States ("Treasury bills") having the Index Maturity
specified above, as such rate is published in H.15(519) under the heading
"Treasury Bills--auction average (investment)" or, if not so published by 3:00
P.M., New York City time, on the related Calculation Date, the auction average
rate (expressed as a bond equivalent on the basis of a year of 365 or 366 days,
as applicable, and applied on a daily basis) as otherwise announced by the
United States Department of the Treasury. In the event that the results of the
auction of Treasury bills having the Index Maturity specified above are not
reported as provided by 3:00 P.M., New York City time, on such Calculation Date,
or if no such auction is held in a particular week, then the Treasury Rate
hereon shall be calculated by the Calculation Agent and shall be a yield to
maturity (expressed as a bond equivalent on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) of the arithmetic mean
(rounded to the nearest one hundred-thousandth of a percentage point, with five
one millionths of a percentage point rounded upwards) of the secondary market
bid rates, as of approximately 3:30 P.M., New York City time, on such Treasury
Rate Interest Determination Date of three leading primary United States
government securities dealers as selected by the Calculation Agent for the issue
of Treasury bills with a remaining Maturity closest to the Index Maturity
specified above; PROVIDED, HOWEVER, that if the dealers selected as aforesaid by
the Calculation Agent are not quoting as mentioned in this sentence, the
Treasury Rate will be the Treasury Rate in effect on such Treasury Rate Interest
Determination Date.
Any provision contained herein with respect to the determination of an
Interest Rate Basis, the specification of Interest Rate Basis, calculation of
the Interest Rate applicable to this Note, its payment dates or any other matter
relating hereto may be modified as specified in an Addendum relating hereto if
so specified above.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified above. The Calculation Agent shall calculate
the interest rate hereon in accordance with the foregoing on or before each
Calculation Date. The interest rate
-17-
on this Note will in no event be higher than the maximum rate permitted by New
York law, as the same may be modified by United States law of general
application.
At the request of the Holder hereof, the Calculation Agent shall
provide to the Holder hereof the interest rate hereon then in effect and, if
determined, the interest rate which shall become effective as of the next
Interest Reset Date.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected thereby at any time by the Company and the Trustee with the consent of
the Holders of 66 2/3% in aggregate principal amount of the Outstanding
Securities of each series affected thereby. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all the Securities of such series, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Note shall be conclusive and binding upon such Holder and
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the time, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note may be registered on the Security Register
of the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or by its attorney duly authorized in writing, and thereupon
one or more new Notes of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a
-18-
like aggregate principal amount of Notes as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
-19-
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its corporate
seal to be imprinted hereon.
[FACSIMILE OF SEAL] J. B. HUNT TRANSPORT SERVICES, INC.
By:_____________________________________
Name:________________________________
Title:_______________________________
Attest:
By:_________________________________
Name:____________________________
Title:___________________________
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated therein
referred to in the within-mentioned
Indenture.
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
By: ________________________________ Dated: ____________________________
Authorized Officer
-20-
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to the principal amount hereof together with interest to
the repayment date, to the undersigned, at ____________________________________
_______________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its Corporate
Trust Office, or at such other place or places of which the Company shall from
time to time notify the Holder of this Note, not more than 60 nor less than 30
days prior to an Optional Repayment Date, if any, shown on the face of this
Note, this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000) which the
Holder elects to have repaid and specify the denomination or denominations
(which shall be $1,000 or an integral multiple thereof) of the Notes to be
issued to the Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not being repaid).
$_____________________________ ________________________________________
NOTICE: The signature on this Option to
Date__________________________ Elect Repayment must correspond with the
name as written upon the face of this Note in
every particular, without alteration or
enlargement or any change whatever.
-21-
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto (insert Taxpayer Identification No.) ___________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)______________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _____________________________________ attorney to transfer said Note
on the books of the Company with full power of substitution in the premises.
Dated: ____________________ ____________________________________________
NOTICE: The signature of the registered Holder to this assignment must
correspond with the name as written upon the face of the within
instrument in every particular, without alteration or enlargement or
any change whatsoever.
Signature guaranteed:
____________________________________ _____________________________________
NOTICE: Signature(s) must be guaranteed by a member firm of the
Securities Transfer Agent Medallion Program.
-22-
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
. . . . . . . . . . . . . . . . . . . . . . . . . . . .
(State)
TEN ENT -- 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.
-23-
EXHIBIT 5
July 7, 1995
J.B. Hunt Transport Services, Inc.
615 J.B. Hunt Corporate Drive
Lowell, Arkansas 72745
Re: FORM S-3 REGISTRATION STATEMENT NO. 33-64950
_________________________________________________
Gentlemen:
We have acted as counsel to J.B. Hunt Transport Services, Inc.
("Company") in connection with the issuance of up to $150,000,000 aggregate
principal amount of its medium-term notes ("Notes") under that certain Indenture
dated as of July 1, 1993, between the Company and The First National Bank of
Chicago, as successor trustee (the "Indenture"). In our opinion, the Notes, in
the forms certified by the Company as of the date hereof, have been duly
authorized for issuance, offer and sale pursuant to this Agreement and, when
issued, authenticated and delivered pursuant to the provisions of this Agreement
and the applicable Indenture against payment of the consideration therefor, will
constitute valid and legally binding obligations of the Company, enforceable in
accordance with their terms except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating to or
affecting enforcement of creditors' rights generally, or by general equity
principles, and except further as enforcement thereof may be limited by (A)
requirements that a claim with respect to any Notes denominated other than in
U.S. dollars (or a foreign currency or foreign currency unit judgment in respect
of such claim) be converted into United States dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or (B) governmental
authority to limit, delay or prohibit the making of payments in foreign currency
or currency units or payments outside the United States; and each holder of
Notes will be entitled to the benefits of the applicable Indenture.
We hereby consent to the use of this opinion as an exhibit to the
above-referenced Registration Statement and to the reference to our firm in the
related Prospectus under the caption "Legal Matters."
Very truly yours,
WRIGHT, LINDSEY & JENNINGS
Exhibit 12
J. B. Hunt Transport Services, Inc.
Computation of Ratio of Earnings to Fixed Charges
(in thousands, except ratio)
For The Years
Ended December 31
----------------- Three Months
1993 1994 Ended March 31, 1995
------- ------- --------------------
Earnings
Earnings before income taxes
and cumulative effect of
change in accounting method ...... $64,826 $65,148 $ 7,762
Add:
Interest expense ................... 13,800 19,748 5,976
------- ------- -------
Earnings as adjusted ................. $78,626 $84,896 $13,738
======= ======= =======
Ratio of earnings
to fixed charges ................... 5.70 4.30 2.30
======= ======= =======
EXHIBIT 99
J.B. Hunt Transport Services, Inc. Contact: Kirk Thompson
615 J.B. Hunt Corporate Drive President and
Lowell, Arkansas 72745 Chief Executive Officer
(NASDAQ: JBHT) (501) 820-8110
DATE: JUNE 19, 1995 FOR IMMEDIATE RELEASE
- -------------------------------------------------------------------------------
J.B. Hunt Transport Services, Inc. announced today that earnings for the second
quarter ending June 30, 1995 will be significantly below expectations. Assuming
freight volume does not increase dramatically during the last half of June, the
Company could report near break even results for the second quarter.
A series of economic and industry dynamics has negatively impacted truck and
intermodal transportation since early in the first quarter of 1995. As
previously announced, the Company's freight volume slowed in February and March.
Demand slipped further in April and May remained weak, and has continued to be
unseasonably sluggish during early June. While domestic demand softened, the
Mexican economic situation created significant imbalances of freight crossing
the border and aggressive rate discounting of southbound business. Industry
capacity that had been serving Mexico was shifted to domestic markets as well,
further compounding supply vs. demand issues.
While widespread rate decreases have not occurred, demand has softened
substantially and the quality of the freight mix has deteriorated thus
preventing improvement in rates that had been anticipated at the beginning of
the year. Higher fuel costs in May and a driver pay increase implemented in
mid-April for the company's least experienced drivers added to margin pressure.
In addition, fixed cost investments put in place to fuel planned growth for 1995
have not been optimized and have been inefficient up to now. Though the cost to
recruit and retain drivers remains high, the company has been able to secure an
adequate supply of drivers.
Kirk Thompson, President and Chief Executive Officer, stated "We are concerned
that overall economic conditions are significantly softer than many people
realize. In light of the soft demand, we are intensely reviewing all of our
operations in order to reduce expenses, improve efficiency, and clarify the
focus of the company. While cash flow remains strong, net capital expenditures
are being reduced approximately 10% from our original plan."
Mr. Thompson added "A concentrated, in-depth evaluation of the company's lines
of business has been conducted in the past month and improvements are being
implemented. Particular attention is being directed at the execution of the
basic fundamentals of our business. However, we have concluded that our
long-term strategies are correct and working. We are re-committed to being the
dominant provider of low cost, high quality transportation and logistics
services to our customers. We strongly believe that once volume levels return to
normal we will resume, and in fact accelerate the improvement in operating
earnings we witnessed in the third and fourth quarters of 1994. We remain
excited about the future, our position in the industry, and our ability to
produce profitable growth."
