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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of
report (Date of earliest event reported): April 4, 2007
CORN PRODUCTS INTERNATIONAL, INC.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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1-13397
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22-3514823 |
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(State or Other Jurisdiction
of Incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.) |
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5 Westbrook Corporate Center, Westchester, Illinois
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60154-5749 |
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(Address of Principal Executive Offices)
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(Zip Code) |
(708) 551-2600
(Registrants Telephone Number, Including Area Code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c)) |
Item 1.01 Entry into a Material Definitive Agreement.
On April 4, 2007, Corn Products International, Inc. (the Company) entered into an Underwriting
Agreement (the Underwriting Agreement) with Citigroup Global Markets Inc. and Morgan Stanley
& Co. Incorporated, as representatives of the underwriters named therein (the Underwriters),
with respect to the offer and sale of $200,000,000 aggregate principal amount of its 6.000% Senior Notes
due April 15, 2017 (the 2017 Notes) and $100,000,000 aggregate principal amount of its 6.625% Senior
Notes due 2037 (the 2037 Notes and, together with the 2017 Notes, the Notes), pursuant to its
Registration Statement on Form S-3, File No. 333-141870, dated April 4, 2007, as supplemented by a
preliminary prospectus supplement dated April 4, 2007 and a prospectus supplement dated April 4, 2007.
The closing of the sale of the Notes occurred on April 10, 2007.
The Underwriting Agreement contains customary representations, warranties and agreements by the
Company, customary conditions to closing, indemnification rights and obligations of the Company and
the Underwriters and termination provisions.
From time to time, certain of
the Underwriters and/or their respective affiliates have provided various investment and
commercial banking services to the Company for which they have received customary fees and expenses, including
participating as lenders under the Companys credit facilities. A copy of the Underwriting
Agreement is filed as Exhibit 1.1 to this Report, and incorporated by reference herein.
The 2017 Notes are governed by and were issued pursuant to an Indenture dated as of August 18, 1999
(the Indenture) between the Company and The Bank of New York Trust Company, N.A. (as successor
trustee to The Bank of New York), as trustee (the Trustee), as amended and supplemented by the
Third Supplemental Indenture between the Company and the Trustee dated as of April 10, 2007 (the
Third Supplemental Indenture). The 2037 Notes are governed by and were issued pursuant to the
Indenture, as amended and supplemented by the Fourth Supplemental Indenture between the Company and
the Trustee dated as of April 10, 2007 (the Fourth
Supplemental Indenture and, together with the Third
Supplemental Indenture, the Supplemental Indentures).
The terms of the Notes, the Indenture and the Supplemental Indentures are further described in the
prospectus supplement of the Company dated April 4, 2007, together with the related prospectus
dated April 4, 2007, as filed with the Securities and Exchange Commission under Rule 424(b)(5) of
the Securities Act of 1933 on April 6, 2007, which descriptions are incorporated by reference
herein.
The forms of the 2017 Notes and 2037 Notes, the Third Supplemental Indenture and the Fourth
Supplemental Indenture are filed as Exhibits 4.1, 4.2, 4.3 and 4.4, respectively, to this Report,
and are incorporated by reference herein.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
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1.1 |
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Underwriting Agreement dated April
4, 2007 between the Company and Citigroup Global Markets Inc. and Morgan Stanley & Co. Incorporated |
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4.1 |
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Form of 6.000% Senior Note due April 15, 2017 of the Company |
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4.2 |
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Form of 6.625% Senior Note due April 15, 2037 of the Company |
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4.3 |
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Third Supplemental Indenture dated
as of April 10, 2007 between the Company and The Bank of New York Trust Company, N.A., as trustee |
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4.4 |
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Fourth Supplemental Indenture dated
as of April 10, 2007 between the Company and The Bank of New York Trust Company, N.A., as trustee |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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CORN PRODUCTS INTERNATIONAL, INC.
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Date: April 10, 2007 |
By: |
/s/ Cheryl K. Beebe |
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Cheryl K. Beebe |
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Vice President and Chief Financial Officer |
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EXHIBIT INDEX
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1.1 |
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Underwriting Agreement dated April
4, 2007 between the Company and Citigroup Global Markets Inc. and Morgan Stanley & Co. Incorporated |
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4.1 |
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Form of 6.000% Senior Note due April 15, 2017 of the Company |
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4.2 |
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Form of 6.625% Senior Note due April 15, 2037 of the Company |
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4.3 |
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Third Supplemental Indenture dated
as of April 10, 2007 between the Company and The Bank of New York Trust Company, N.A., as trustee |
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4.4 |
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Fourth Supplemental Indenture dated
as of April 10, 2007 between the Company and The Bank of New York Trust Company, N.A., as trustee |
exv1w1
EXHIBIT 1.1
CORN PRODUCTS INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
$200,000,000 6.000% SENIOR NOTES DUE 2017
$100,000,000 6.625% SENIOR NOTES DUE 2037
CORN PRODUCTS INTERNATIONAL, INC.
$200,000,000 6.000% Senior Notes due 2017
$100,000,000 6.625% Senior Notes due 2037
UNDERWRITING AGREEMENT
April 4, 2007
Citigroup Global Markets Inc.
Morgan Stanley & Co. Incorporated
As Representatives of the several
Underwriters named in Schedule I
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c/o
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Citigroup Global Markets Inc. |
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388 Greenwich Street |
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New York, New York 10013 |
Dear Ladies and Gentlemen:
Corn Product International Inc., a corporation organized under the laws of Delaware (the
Company), proposes to sell to the several underwriters named in Schedule I hereto (the
Underwriters), for whom you (the Representatives) are acting as representatives, $200,000,000
aggregate principal amount of its 6.000% Senior Notes due 2017 (the 2017 Securities) and
$100,000,000 aggregate principal amount of its 6.625% Senior Notes due 2037 (the 2037 Securities
and, together with the 2017 Securities, the Securities), to be issued under an indenture (the
Indenture) dated as of August 18, 1999, between the Company and The Bank of New York Trust
Company, N.A. (as successor to The Bank of New York), as trustee (the Trustee). Any reference
herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms
amend, amendment or supplement with respect to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein by reference. Certain
terms used herein are defined in Section 20 hereof.
1. Representations, Warranties and Agreements of the Company. The Company represents,
warrants and agrees that:
(a) The Company meets the requirements for use of Form S-3 under the Act and has prepared and
filed with the Commission an automatic shelf registration statement, as defined in Rule 405 (File
No. 333-141870) on Form S-3, including a related Base Prospectus, for registration under the Act of
the offering and sale of the Securities. Such Registration Statement, including any amendments
thereto filed prior to the Execution Time, became effective upon filing. The Company may have filed
with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule
424(b), one or more preliminary prospectus supplements relating to the Securities, each of which
has previously been furnished to you. The Company will file with the Commission a final prospectus
supplement relating to the Securities in accordance with Rule 424(b). As filed, such final
prospectus supplement, except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in the Base Prospectus and
any Preliminary Prospectus) as the Company has advised you, prior to the Execution Time, will be
included or made therein. The Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
(b) On each Effective Date, the Registration Statement did, and when the Final Prospectus is
first filed in accordance with Rule 424(b) and on the Closing Date (as defined herein), the Final
Prospectus (and any supplement thereto) will, comply in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules
thereunder; on each Effective Date and at the Execution Time, the Registration Statement did not
and will not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not misleading; on the
Effective Date and on the Closing Date the Indenture did or will comply in all material respects
with the applicable requirements of the Trust Indenture Act and the rules thereunder; and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together
with any supplement thereto) will not include any 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 Company makes no representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto), it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists of the information described as
such in Section 8 hereof.
(c) At the Execution Time, the Disclosure Package and each electronic road show, when taken
together as a whole with the Disclosure Package, did not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The preceding sentence does
not apply to statements in or omissions from the Disclosure Package based upon and in conformity
with written information furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being
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understood and agreed that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 8 hereof.
(d) At the time of filing the Registration Statement, (ii) at the time of the most recent
amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such
amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or
15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer
relating to the Securities in reliance on the exemption in Rule 163, and (iv) at the Execution Time
(with such date being used as the determination date for purposes of this clause (iv)), the Company
was or is (as the case may be) a well-known seasoned issuer as defined in Rule 405. The Company
agrees to pay the fees required by the Commission relating to the Securities within the time
required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r).
(e) (i) At the earliest time after the filing of the Registration Statement that the Company
or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of
the Securities and (ii) as of the Execution Time (with such date being used as the determination
date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as
defined in Rule 405), without taking account of any determination by the Commission pursuant to
Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus and the final term sheet prepared and filed pursuant
to Section 5(b) hereto as of its issue date and at all subsequent times through the completion of
the offering of the Securities did not and will not include any information that conflicts with the
information contained in the Registration Statement, including any document incorporated therein by
reference and any prospectus supplement deemed to be a part thereof that has not been superseded or
modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free
Writing Prospectus based upon and in conformity with written information furnished to the Company
by any Underwriter through the Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by or on behalf of any Underwriter consists of
the information described as such in Section 8 hereof.
(g) The documents incorporated by reference in the Disclosure Package and the Final
Prospectus, when they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder, and, when read together
with the other information included in or incorporated by reference in the Disclosure Package and
the Final Prospectus, none of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and incorporated by reference in the
Disclosure Package and the Final Prospectus, when such documents become effective or are filed with
Commission, as the case may be, will, when read together with the other information included in or
incorporated by reference in the Disclosure Package and the Final Prospectus, conform in all
material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder and will not
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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.
(h) The Company and each of its subsidiaries have been duly incorporated and are validly
existing as corporations in good standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in good standing as foreign corporations
in each jurisdiction in which their respective ownership or lease of property or the conduct of
their respective businesses requires such qualification, except where the failure to be so
incorporated existing or qualified would not, individually or in the aggregate, have a material
adverse effect on the consolidated financial position, stockholders equity, results of operations
or business of the Company and its subsidiaries, taken as a whole (a Material Adverse Effect),
and have all power and authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged; and none of the subsidiaries of the Company,
other than Canada Starch Operating Company, Inc., CPIngredientes, S.A. de C.V., Corn Products
Brasil Ingredientes Industriais Ltda, Corn Products Southern Cone S.A., Corn Products Korea, Inc.
and Rafhan Maize Products Co., Ltd., is a significant subsidiary, as such term is defined in Rule
405 of the Rules and Regulations.
(i) All of the issued and outstanding shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid and non-assessable; all of the issued and
outstanding shares of capital stock of each subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable and are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or claims; and the Companys
authorized capital stock is as set forth in the Disclosure Package and the Final Prospectus.
(j) The Indenture has been duly authorized, executed and delivered by the Company and
(assuming due authorization and execution thereof by the Trustee) constitutes a valid and binding
agreement of the Company enforceable against the Company in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) or an implied covenant of good faith and
fair dealing; and the Securities have been duly authorized, and, when duly executed, authenticated,
issued and delivered against payment therefor, will be duly and validly issued and outstanding, and
will constitute valid and binding obligations of the Company entitled to the benefits of the
Indenture and enforceable in accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) or an implied covenant of good faith and
fair dealing; and the Securities, when issued and delivered, will conform to the description
thereof contained in the Disclosure Package and the Final Prospectus.
(k) This Agreement has been duly authorized, validly executed and delivered by the Company.
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(l) The execution, delivery and performance of this Agreement and the Indenture by the Company
and the consummation of the transactions contemplated hereby, and the issuance and delivery of the
Securities in compliance with the provisions of the Indenture will not result in a breach or
violation of any of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other material agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the provisions of the charter or by-laws
of the Company or any of its subsidiaries or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets; and except for the registration of the
Securities under the Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Securities by the Underwriters, no consent,
approval, authorization or order of, or filing or registration with, any such court or governmental
agency or body is required for the execution, delivery and performance of this Agreement or the
Indenture by the Company and the consummation of the transactions contemplated hereby and thereby
and the issuance of the Securities.
(m) No holders of securities of the Company have rights to the registration of such securities
under the Registration Statement.
(n) Other than as set forth or contemplated in the Disclosure Package and the Final
Prospectus, neither the Company nor any of its subsidiaries has sustained, since the date of the
latest audited financial statements included or incorporated by reference in the Disclosure Package
and the Final Prospectus, any loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree which, individually or in the aggregate, could have a Material
Adverse Effect; and, since such date, there has not been any material change in the capital stock
or long-term debt of the Company or any of its subsidiaries (otherwise than as set forth or
contemplated in the Disclosure Package and the Final Prospectus) or any material adverse change, or
any development involving a prospective material adverse change, in or affecting the consolidated
financial position, stockholders equity, results of operations or business of the Company and its
subsidiaries, taken as a whole (a Material Adverse Change) other than as set forth or
contemplated in the Disclosure Package and the Final Prospectus.
(o) The consolidated financial statements, together with the related notes and schedules, of
the Company and its consolidated subsidiaries incorporated by reference in the Preliminary
Prospectus, the Final Prospectus and the Registration Statement present fairly the financial
condition, results of operations and cash flows of the Company as of the dates and for the periods
indicated, comply as to form with the applicable accounting requirements of the Act and have been
prepared in conformity with generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted therein). The financial data set forth
under the caption SummarySummary Financial Information in the Disclosure Package and the Final
Prospectus Statement fairly present, on the basis stated in the Disclosure Package and the Final
Prospectus, the information included therein.
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(p) KPMG LLP, who have certified certain financial statements of the Company and its
consolidated subsidiaries and delivered their report with respect to the audited consolidated
financial statements and schedules included in the Disclosure Package and the Final Prospectus, are
independent public accountants with respect to the Company within the meaning of the Act and the
applicable published rules and regulations thereunder.
(q) There are no legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property or assets of the Company or any of its
subsidiaries is the subject which, if determined adversely to the Company or any of its
subsidiaries, could be expected to, individually or in the aggregate, have a Material Adverse
Effect; and to the best of the Companys knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(r) There are no contracts or other documents which are required to be described in the
Disclosure Package and the Final Prospectus or filed as exhibits to the Registration Statement by
the Act or by the Rules and Regulations which have not been described in the Disclosure Package and
the Final Prospectus or filed as exhibits to the Registration Statement or incorporated therein by
reference as permitted by the Rules and Regulations.
(s) Neither the Company nor any of its subsidiaries (i) is in violation of its charter or
by-laws, (ii) is in default in any respect, and no event has occurred which, with notice or lapse
of time or both, would constitute such a default, in the due performance or observance of any term,
covenant or condition contained in any material indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which it is a party or by which it is bound or to which any of
its properties or assets is subject or (iii) is in violation of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets may be subject or has failed
to obtain any material license, permit, certificate, franchise or other governmental authorization
or permit necessary to the ownership of its property or to the conduct of its business except in
the case of clauses (ii) and (iii), for those defaults, violations or failures which could not,
individually or in the aggregate, have a Material Adverse Effect.
(t) Neither the Company nor any subsidiary is, and neither the Company nor any subsidiary will
be after giving effect to the offering and sale of the Securities and the application of the
proceeds thereof as described in the Disclosure Package and the Final Prospectus, an investment
company within the meaning of such term under the United States Investment Company Act of 1940 and
the rules and regulations of the Commission thereunder.
(u) The Company and each of its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance with
managements general or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to assets is permitted only in
accordance with managements general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The Company and its subsidiaries
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internal controls over financial reporting are effective and the Company and its subsidiaries
are not aware of any material weakness in their internal controls over financial reporting.
(v) The Company and its subsidiaries maintain disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) under the Exchange Act); such disclosure controls and procedures
are effective.
(w) The Company has not taken, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(x) The Company and its subsidiaries are (i) in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(Environmental Laws), (ii) have received and are in compliance with all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct their respective
businesses and (iii) have not received notice of any actual or potential liability under any
environmental law, except where such non-compliance with Environmental Laws, failure to receive
required permits, licenses or other approvals, or liability would not, individually or in the
aggregate, have a material adverse change in the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or
not arising from transactions in the ordinary course of business, except as set forth in or
contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(y) In the ordinary course of its business, the Company periodically reviews the effect of
Environmental Laws on the business, operations and properties of the Company and its subsidiaries,
in the course of which it identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws, or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third parties). On the basis
of such review, the Company has reasonably concluded that such associated costs and liabilities
would not, singly or in the aggregate, have a material adverse effect on the condition (financial
or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of
any supplement thereto).
(z) There is and has been no failure on the part of the Company and any of the Companys
directors or officers, in their capacities as such, to comply in all material respects with the
provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith (the Sarbanes-Oxley Act), including Section 402 relating to loans and
Sections 302 and 906 relating to certifications.
(aa) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or any of its
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subsidiaries is aware of or has taken any action, directly or indirectly, that would result in
a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder (the FCPA), including, without limitation, making use of the mails or
any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment,
promise to pay or authorization of the payment of any money, or other property, gift, promise to
give, or authorization of the giving of anything of value to any foreign official (as such term
is defined in the FCPA) or any foreign political party or official thereof or any candidate for
foreign political office, in contravention of the FCPA; and the Company, its subsidiaries and, to
the knowledge of the Company, its affiliates have conducted their businesses in compliance with the
FCPA and have instituted and maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance therewith.
(bb) The operations of the Company and its subsidiaries are and have been conducted at all
times in compliance with applicable financial recordkeeping and reporting requirements and the
money laundering statutes and the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any governmental agency
(collectively, the Money Laundering Laws) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the Company or any of
its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of
the Company, threatened.
(cc) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is
currently subject to any sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (OFAC); and the Company will not directly or indirectly use the proceeds of
the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by OFAC.
2. Purchase of the Securities by the Underwriters. On the basis of the representations
and warranties contained in, and subject to the terms and conditions of, this Agreement, the
Company agrees to sell to each Underwriter, severally and not jointly, and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company at a price equal to
99.118% of the principal amount of the 2017 Securities and 98.543% of the principal amount of the
2037 Securities, including, in each case, accrued interest, if any, from April 10, 2007 to the
Closing Date (as defined below) the aggregate principal amount of the Securities set forth opposite
such Underwriters name in Schedule I hereto plus any additional principal amount of Securities
which such Underwriter may become obligated to purchase pursuant to Section 9 hereof.
3. Offering of Securities by the Underwriters. Upon authorization by the
Representatives of the release of the Securities, the several Underwriters propose to offer the
Securities for sale to the public upon the terms and conditions set forth in the Disclosure Package
and the Final Prospectus.
8
4. Delivery and Payment. Delivery of and payment for the Securities shall be made on
April 10 , 2007 at 10:00 a.m., New York City time, or at such time on such later date not more than
three Business Days after the foregoing date as shall be agreed upon by the Representatives and the
Company unless postponed as provided in Section 9 hereof (such date and time of delivery and
payment for the Securities being herein called the Closing Date). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company by wire transfer payable in same-day funds to an
account specified by the Company. Delivery of the Securities shall be made through the facilities
of The Depository Trust Company unless the Representatives shall otherwise instruct.
5. Further Agreements of the Company. The Company agrees:
(a) Prior to the termination of the offering of the Securities, the Company will not file any
amendment to the Registration Statement or any supplement to the Final Prospectus or any
Preliminary Prospectus unless the Company has furnished you a copy for your review prior to filing
and will not file any such proposed amendment or supplement to which you reasonably object. The
Company will cause the Final Prospectus and any supplement thereto to be filed in a form approved
by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed. The Company will promptly advise the Representatives (i) when
the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been filed or become effective,
(iii) of any request by the Commission or its staff for any amendment of the Registration
Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus
or for any additional information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any notice objecting to its use or
the institution or threatening of any proceeding for that purpose and (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification of the Securities
for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose.
The Company will use its reasonable best efforts to prevent the issuance of any such stop order or
the occurrence of any such suspension or objection to the use of the Registration Statement and,
upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal
of such stop order or relief from such occurrence or objection, including, if necessary, by filing
an amendment to the Registration Statement or a new registration statement and using its reasonable
best efforts to have such amendment or new registration statement declared effective as soon as
practicable.
(b) To prepare a final term sheet, containing solely a description of final terms of the
Securities and the offering thereof, in the form approved by you and attached as Schedule II hereto
and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any
event occurs as a result of which the Disclosure Package would include any untrue statement of a
material fact or omit to state any material fact necessary to make the statements
9
therein in the light of the circumstances under which they were made or the circumstances then
prevailing not misleading, the Company will (i) notify promptly the Representatives so that any use
of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement
the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or
supplement to you in such quantities as you may reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered
under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule
172), any event occurs as a result of which the Final Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made at such time not
misleading, or if it shall be necessary to amend the Registration Statement, file a new
registration statement or supplement the Final Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, including in connection with use or delivery of the Final
Prospectus, the Company promptly will (i) notify the Representatives of any such event, (ii)
prepare and file with the Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement or new registration statement which will correct such
statement or omission or effect such compliance, (iii) use its reasonable best efforts to have any
amendment to the Registration Statement or new registration statement declared effective as soon as
practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any
supplemented Final Prospectus to you in such quantities as you may reasonably request.
(e) The Company will furnish to the Representatives and counsel for the Underwriters, without
charge, signed copies of the Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in
circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each
Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any
supplement thereto as the Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to the offering.
(f) As soon as practicable after the date hereof, to make generally available to the Companys
security holders and to deliver to the Representatives an earnings statement of the Company and its
subsidiaries satisfying the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(g) For a period of three years following the Effective Date, to furnish to the
Representatives copies of all materials furnished by the Company to its shareholders and all public
reports and all reports and financial statements furnished by the Company to the New York Stock
Exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the
Commission thereunder.
(h) Promptly from time to time to take such action as the Representatives may reasonably
request to qualify the Securities for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with such laws so as to permit the
10
continuance of sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Securities; provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction, or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
(i) To apply the net proceeds from the sale of the Securities being sold by the Company as set
forth in the Disclosure Package and the Final Prospectus.
(j) The Company agrees that, unless it has or shall have obtained the prior written consent of
the Representatives, and each Underwriter, severally and not jointly, agrees with the Company that,
unless it has or shall have obtained, as the case may be, the prior written consent of the Company,
it has not made and will not make any offer relating to the Securities that would constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a free writing prospectus (as
defined in Rule 405) required to be filed by the Company with the Commission or retained by the
Company under Rule 433, other than a free writing prospectus containing the information contained
in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior
written consent of the parties hereto shall be deemed to have been given in respect of the Free
Writing Prospectuses included in Schedule III hereto and any electronic road show. Any such free
writing prospectus consented to by the Representatives or the Company is hereinafter referred to as
a Permitted Free Writing Prospectus. The Company agrees that (x) it has treated and will treat,
as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and
(y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the
Commission, legending and record keeping.
(k) The Company will not, without the prior written consent of the Representatives, offer,
sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or otherwise) by the Company
or any affiliate of the Company or any person in privity with the Company or any affiliate of the
Company), directly or indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the meaning of Section 16 of
the Exchange Act, any debt securities issued or guaranteed by the Company (other than the
Securities) or publicly announce an intention to effect any such transaction, until the Business
Day following the Closing Date.
(l) The Company will not take, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
6.
Expenses. The Company agrees to pay (a) the costs incident to the authorization,
issuance, sale and delivery of the Securities and any taxes payable in that connection; (b) the
costs incident to the preparation, printing and filing under the Act of the
11
Registration Statement and any amendments and exhibits thereto; (c) the costs of distributing
the Registration Statement (including financial statements and exhibits thereto), any Preliminary
Prospectus, the Final Prospectus and each Issuer Free Writing prospectus, and each amendment or
supplement to any of them; (d) the costs of producing and distributing this Agreement and any other
related documents in connection with the offering, purchase, sale and delivery of the Securities;
(e) the filing fees incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of sale of the Securities, if necessary; (f) any applicable
listing or other fees; (g) the fees and expenses of qualifying the Securities under the securities
laws of the several jurisdictions as provided in Section 5(h) and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of counsel to the
Underwriters) (not to exceed $5,000); (h) any fees charged by securities rating services for rating
the Securities; and (i) all other reasonable costs and expenses incident to the performance of the
obligations of the Company; provided that, except as provided in this Section 6 and in Section 11,
the Underwriters shall pay their own costs and expenses, including the costs and expenses of their
counsel, any transfer taxes on the Securities which they may sell and the expenses of advertising
any offering of the Securities made by the Underwriters.
7. Conditions of Underwriters Obligations. The obligations of the Underwriters to
purchase the Securities shall be subject to the accuracy of the representations and warranties on
the part of the Company contained herein as of the Execution Time and the Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within
the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto,
and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act,
shall have been filed with the Commission within the applicable time periods prescribed for such
filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement
or any notice objecting to its use shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to the
Closing Date that the Registration Statement, the Disclosure Package or the Final Prospectus or any
amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of
Mayer, Brown, Rowe & Maw LLP, is material or omits to state a fact which, in the opinion of such
counsel, is material and is required to be stated therein or is necessary to make the statements
therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and
validity of this Agreement, the Indenture, the Securities, the Registration Statement, the
Disclosure Package and the Final Prospectus, and all other legal matters relating to this Agreement
and the transactions contemplated hereby shall be reasonably satisfactory in all material respects
to Mayer, Brown, Rowe & Maw LLP, and the Company shall have furnished to such counsel all documents
and information that they may reasonably request to enable them to pass upon such matters.
12
(d) Sidley Austin llp and Mary Ann Hynes, Esq. shall each have furnished to the
Representatives their written opinion, as counsel and General Counsel to the Company, respectively,
addressed to the Underwriters and dated the Closing Date, in the forms attached hereto as Exhibits
7(d)(A) and 7(d)(B), respectively.
(e) The Representatives shall have received from Mayer, Brown, Rowe & Maw LLP, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and
sale of the Securities, the Registration Statement, the Disclosure Package and the Final Prospectus
and other related matters as the Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request for the purpose of enabling
them to pass upon such matters.
(f) At the Execution Time and at the Closing Date, KPMG LLP shall have furnished to the
Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in
form and substance reasonably satisfactory to the Representatives and containing statements and
information of the type customarily included in accountants comfort letters to underwriters with
respect to the financial statements and certain financial information contained in the Disclosure
Package and the Final Prospectus.
All references in this Section 7(f) to the Disclosure Package and the Final Prospectus include
any amendment or supplement thereto at the date of the applicable letter.
(g) The Company shall have furnished to the Representatives a certificate, dated the Closing
Date, of its Chairman of the Board, its President or a Vice President and its chief financial
officer or chief accounting officer, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Disclosure Package, the Final
Prospectus and any supplements or amendments thereto, as well as each electronic road show used in
connection with the offering of the Securities, and this Agreement and that:
(i) The representations, warranties and agreements of the Company in Section 1
are true and correct as of the Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all its agreements contained herein
and satisfied all the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the respective signers of the certificate, are
contemplated under the Act; and
(iii) since the date of the most recent financial statements included in the
Disclosure Package and the Final Prospectus (exclusive of any supplement thereto),
there has been no Material Adverse Change, except as set forth in or contemplated in
the Disclosure Package and the Final Prospectus (exclusive of any supplement
thereto).
13
(h) Neither the Company nor any of its subsidiaries shall have sustained since the date of the
latest audited financial statements included or incorporated by reference in the Disclosure Package
and the Final Prospectus any loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or contemplated in the Disclosure
Package and the Final Prospectus or since such date there shall not have been any material change
in the capital stock or long-term debt of the Company or any of its subsidiaries or any Material
Adverse Change, otherwise than as set forth or contemplated in the Disclosure Package and the Final
Prospectus, the effect of which is, in the judgment of the Representatives, so material and adverse
as to make it impracticable or inadvisable to proceed with the public offering or the delivery of
the Securities being delivered on the Closing Date on the terms and in the manner contemplated in
the Disclosure Package and the Final Prospectus or in a supplement thereto.
(i) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have
occurred in the rating accorded the Companys debt securities by any nationally recognized
statistical rating organization, as that term is defined by the Commission for purposes of Rule
436(g)(2) of the Rules and Regulations and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative implications, its rating of any of
the Companys debt securities.
(j) Subsequent to the execution and delivery of this Agreement there shall not have occurred
any of the following: (i) trading in securities generally on the New York Stock Exchange or the
American Stock Exchange or in the over-the-counter market, or trading in any securities of the
Company on the New York Stock Exchange, shall have been suspended or minimum prices shall have been
established on the New York Stock Exchange, by the Commission, by the New York Stock Exchange or by
any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by Federal or state authorities, (iii) the United States shall have become
engaged in hostilities, there shall have been an escalation in hostilities affecting the United
States or there shall have been a declaration of a national emergency or war by the United States
or (iv) there shall have occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial markets in the
United States shall be such) as to make it, in the judgment of the Representatives, impracticable
or inadvisable to proceed with the public offering or delivery of the Securities being delivered on
the Closing Date on the terms and in the manner contemplated in the Disclosure Package and the
Final Prospectus or in a supplement thereto.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
If any of the conditions specified in this Section 7 shall not have been fulfilled when and as
provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
14
Representatives. Notice of such cancellation shall be given to the Company in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 7 shall be delivered at the office of
Mayer, Brown, Rowe & Maw LLP, counsel for the Underwriters, at , 71 South Wacker Drive, Chicago,
Illinois, on the Closing Date
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may become subject under the
Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Securities as originally filed
or in any amendment thereof, or in the Base Prospectus, any Preliminary Prospectus or any other
preliminary prospectus supplement relating to the Securities, the Final Prospectus, any Issuer Free
Writing Prospectus or the information contained in the final term sheet required to be prepared and
filed pursuant to Section 5(b) hereto, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to the Company by or
on behalf of any Underwriter through the Representatives specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration Statement, and each
person who controls the Company within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each Underwriter (including the
reimbursement of legal fees), but only with reference to written information relating to such
Underwriter furnished to the Company by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred to in the foregoing indemnity.
This indemnity agreement will be in addition to any liability which any Underwriter may otherwise
have. The Company acknowledges that the list of names of each Underwriter set forth under the
caption Underwriting in the Preliminary Prospectus and the Final Prospectus and the statements
set forth (i) in the fourth paragraph under the caption Underwriting in the Preliminary
Prospectus and the Final Prospectus regarding concessions and reallowances and (iv) in the sixth,
seventh and eighth paragraphs under the caption Underwriting in the Preliminary Prospectus and
the Final Prospectus related to stabilization,
15
syndicate covering transactions and penalty bids constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus,
the Final Prospectus or any Issuer Free Writing Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify the indemnifying party in writing
of the commencement thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying partys choice at the indemnifying partys expense to represent the indemnified party
in any action for which indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); provided, however, that
such counsel shall be reasonably satisfactory to the indemnified party. Upon receipt of notice
from the indemnifying party to such indemnified party of such indemnifying partys election so to
assume the defense of such action on behalf of such indemnified party, the indemnifying party will
not be liable to such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense thereof except that
the indemnified party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, (iii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the expense of the
indemnifying party. Notwithstanding anything else to the contrary contained herein, in no event
shall the Company be liable for fees and expenses of more than one counsel separate from their own
counsel (in addition to local counsel) in connection with any one action or separate but
substantially similar actions in the same jurisdiction arising out of the same general allegations
or circumstances, representing the indemnified parties who are parties to such action or actions.
An indemnifying party will not, without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless such settlement, compromise
or consent includes an unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
16
(d) In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company
and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection with investigating
or defending the same) (collectively Losses) to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and by the Underwriters on the other from the offering of
the Securities; provided, however, that in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by it, and benefits
received by the Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final Prospectus. Relative fault
shall be determined by reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information provided by the Company on the one hand or the Underwriters on the other, the intent
of the parties and their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 8, each person who controls an Underwriter within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls the Company within
the meaning of either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
9.
Defaulting Underwriters. If, on the Closing Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining non-defaulting Underwriters
shall be obligated to purchase the Securities which the defaulting Underwriter agreed but failed to
purchase on the Closing Date in the respective proportions which the principal amount of the
Securities set opposite the name of each remaining non-defaulting Underwriter in Schedule I hereto
bears to the aggregate principal amount of the Securities set opposite the names of all the
remaining non-defaulting Underwriters in Schedule I hereto; provided, however, that the remaining
non-defaulting Underwriters shall not be obligated to purchase any of the Securities on the Closing
Date if the aggregate principal amount of the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase on
17
such date exceeds 10% of the aggregate principal amount of the Securities to be purchased on
the Closing Date, and any remaining non-defaulting Underwriter shall not be obligated to purchase
more than 110% of the aggregate principal amount of the Securities which it agreed to purchase on
the Closing Date pursuant to the terms of Section 2. If the foregoing maximums are exceeded, the
remaining non-defaulting Underwriters, or those other underwriters satisfactory to the
Representatives who so agree, shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, all the Securities to be purchased on the Closing
Date. If the remaining Underwriters or other underwriters satisfactory to the Representatives do
not elect to purchase the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase on the Closing Date, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter or the Company, except that the Company will continue to be
liable for the payment of expenses to the extent set forth in Sections 6 and 11. As used in this
Agreement, the term Underwriter includes, for all purposes of this Agreement unless the context
requires otherwise, any party not listed in Schedule I hereto who, pursuant to this Section 9,
purchases Securities which a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have
to the Company for damages caused by its default. If other underwriters are obligated or agree to
purchase the Securities of a defaulting or withdrawing Underwriter, either the Representatives or
the Company may postpone the Closing Date for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statement, the Disclosure Package, the Final Prospectus or in any
other document or arrangement.
10. Termination. The obligations of the Underwriters hereunder may be terminated by
the Representatives by notice given to and received by the Company prior to delivery of and payment
for the Securities if, prior to that time, any of the events described in Sections 7(h), 7(i) or
7(j), shall have occurred or if the Underwriters shall decline to purchase the Securities for any
reason permitted under this Agreement.
11. Reimbursement of Underwriters Expenses. If the Company shall fail to tender the
Securities for delivery to the Underwriters by reason of any failure, refusal or inability on the
part of the Company to perform any agreement on its part to be performed, or because any other
condition of the Underwriters obligations hereunder required to be satisfied is not satisfied
(other than by reason of a default by any Underwriter) or if this Agreement is terminated upon the
happening of an event described in Sections 7(h) or 7(i) pursuant to Section 10, the Company will
reimburse the Underwriters for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the Underwriters in connection with this Agreement and the
proposed purchase of the Securities, and upon demand the Company shall pay the full amount thereof
to the Representatives. If this Agreement is terminated pursuant to Section 9 by reason of the
default of one or more Underwriters, the Company shall not be obligated to reimburse any defaulting
Underwriter on account of those expenses.
12. Notices, etc. All statements, requests, notices and agreements hereunder shall be
in writing, and:
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(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to Citigroup Global Markets Inc. General Counsel
(fax no.: (212) 816-7912) and confirmed to the General Counsel, Citigroup
Global Markets Inc. at 388 Greenwich Street, New York, New York 10013,
Attention: General Counsel and to Morgan Stanley & Co. Incorporated, 1585
Broadway, 29th Floor, New York, New York 10036, Attention: Investment
Banking Division Phone: 212 761 6691 Fascimile: 212 507 8999; and
(b) if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Mary Ann Hynes, Esq. Fax: (708) 563-6592
provided, however, that any notice to an Underwriter pursuant to Section 8(b) or 8(c) shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set
forth in its acceptance telex to the Representatives, which address will be supplied to any other
party hereto by the Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall be entitled to act
and rely upon any request, consent, notice or agreement given or made on behalf of the Underwriters
by the Representatives.
13. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the Underwriters, the Company and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only those persons,
except that (a) the representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the person or persons, if
any, who control any Underwriter within the meaning of Section 15 of the Act and (b) the indemnity
agreement of the Underwriters contained in Section 8(b) of this Agreement shall be deemed to be for
the benefit of directors of the Company, officers of the Company who have signed the Registration
Statement and any person controlling the Company within the meaning of Section 15 of the Act.
Nothing in this Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Section 13, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
14. Survival. The respective indemnities, representations, warranties and agreements
of the Company and the Underwriters contained in this Agreement or made by or on behalf on them,
respectively, pursuant to this Agreement, shall survive the delivery of and payment for the
Securities and shall remain in full force and effect, regardless of any investigation made by or on
behalf of any of them or any person controlling any of them.
15. No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale
of the Securities pursuant to this Agreement is an arms-length commercial transaction between the
Company, on the one hand, and the Underwriters and any affiliate through which it may be acting, on
the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the
Company and (c) the Companys engagement of the Underwriters in connection with
the
offering and the process leading up to the offering is as independent
19
contractors and not in any other capacity. Furthermore, the Company agrees that it is solely
responsible for making its own judgments in connection with the offering (irrespective of whether
any of the Underwriters has advised or is currently advising the Company on related or other
matters). The Company agrees that it will not claim that the Underwriters have rendered advisory
services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in
connection with such transaction or the process leading thereto.
16. Governing Law. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York without regard to the conflict of laws principles
thereof.
17. Waiver of Jury Trial. The Company hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby.
18. Counterparts. This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts shall each be deemed to be an
original but all such counterparts shall together constitute one and the same instrument.
19. Headings. The headings herein are inserted for convenience of reference only and
are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
20. Definitions. The terms that follow, when used in this Agreement, shall have the
meanings indicated.
Act shall mean the Securities Act of 1933, as amended and the rules and regulations
of the Commission promulgated thereunder.
Base Prospectus shall mean the base prospectus referred to in paragraph 1(a) above
contained in the Registration Statement at the Execution Time.
Business Day shall mean any day other than a Saturday, a Sunday or a legal holiday or
a day on which banking institutions or trust companies are authorized or obligated by law to
close in New York City.
Commission shall mean the Securities and Exchange Commission.
Disclosure Package shall mean (i) the Base Prospectus, (ii) the Preliminary
Prospectus used most recently prior to the Execution Time, (iii) the Issuer Free Writing
Prospectuses, if any, identified in Schedule III hereto, (iv) the final term sheet prepared
and filed pursuant to Section 5(b) hereto, if any, and (v) any other Free Writing Prospectus
that the parties hereto shall hereafter expressly agree in writing to treat as part of the
Disclosure Package.
Effective Date shall mean each date and time that the Registration Statement and any
post-effective amendment or amendments thereto became or becomes effective.
20
Exchange Act shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
Execution Time shall mean the date and time that this Agreement is executed and
delivered by the parties hereto.
Final Prospectus shall mean the prospectus supplement relating to the Securities that
was first filed pursuant to Rule 424(b) after the Execution Time, together with the Base
Prospectus.
Free Writing Prospectus shall mean a free writing prospectus, as defined in Rule 405.
Issuer Free Writing Prospectus shall mean an issuer free writing prospectus, as
defined in Rule 433.
Preliminary Prospectus shall mean any preliminary prospectus supplement to the Base
Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the
Final Prospectus, together with the Base Prospectus.
Registration Statement shall mean the registration statement referred to in paragraph
1(a) above, including exhibits and financial statements and any prospectus supplement
relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and
deemed part of such registration statement pursuant to Rule 430B, as amended on each
Effective Date and, in the event any post-effective amendment thereto becomes effective
prior to the Closing Date, shall also mean such registration statement as so amended.
Rule 158, Rule 163, Rule 164, Rule 172, Rule 405, Rule 415, Rule 424,
Rule 430B and Rule 433 refer to such rules under the Act.
Trust Indenture Act shall mean the Trust Indenture Act of 1939, as amended and the
rules and regulations of the Commission promulgated thereunder.
Well-Known Seasoned Issuer shall mean a well-known seasoned issuer, as defined in
Rule 405.
21
If the foregoing correctly sets forth the agreement between the Company and the Underwriters,
please indicate your acceptance in the space provided for that purpose below.
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Very truly yours,
CORN PRODUCTS INTERNATIONAL, INC.
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By: |
/s/ Kimberly A. Hunter
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Name: |
Kimberly A. Hunter |
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Title: |
Treasurer |
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Accepted:
CITIGROUP GLOBAL MARKETS INC.
MORGAN STANLEY & CO. INCORPORATED
BY: CITIGROUP GLOBAL MARKETS INC.
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By:
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/s/ Brian D. Bednarski
Name: Brian D. Bednarski
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Title: Director |
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BY: MORGAN STANLEY & CO. INCORPORATED
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By:
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/s/ Yurij Slyz
Name: Yurij Slyz
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Title: Vice President |
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For themselves and the other several
underwriters named in Schedule I hereto
22
SCHEDULE I
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Principal Amount |
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Principal Amount |
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of 2017 Securities |
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of 2037 Securities |
Initial
Purchasers |
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to be Purchased |
|
to be Purchased |
Citigroup Global Markets Inc. |
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$ |
86,000,000 |
|
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$ |
43,000,000 |
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Morgan Stanley & Co. Incorporated |
|
|
86,000,000 |
|
|
|
43,000,000 |
|
|
|
|
|
|
|
|
|
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ABN AMRO Incorporated |
|
|
1,600,000 |
|
|
|
800,000 |
|
Bank of America Securities LLC |
|
|
1,600,000 |
|
|
|
800,000 |
|
BMO Capital Markets Corp. |
|
|
8,000,000 |
|
|
|
4,000,000 |
|
BNY Capital Markets, Inc. |
|
|
1,600,000 |
|
|
|
800,000 |
|
Piper Jaffray & Co. |
|
|
1,600,000 |
|
|
|
800,000 |
|
Rabo Securities USA, Inc. |
|
|
4,000,000 |
|
|
|
2,000,000 |
|
SunTrust Capital Markets, Inc. |
|
|
8,000,000 |
|
|
|
4,000,000 |
|
Wells Fargo Securities, LLC |
|
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1,600,000 |
|
|
|
800,000 |
|
|
|
|
|
|
|
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Total |
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$ |
200,000,000 |
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$ |
100,000,000 |
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S-I-1
SCHEDULE II
Filed Pursuant to Rule 433
Registration No. 333-141870
April 4, 2007
Corn Products International Inc.
$200,000,000 6.000% Notes due 2017
$100,000,000 6.625% Notes due 2037
PRICING TERM SHEET
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6.000% Notes due 2017
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Issuer: |
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Corn Products International Inc. |
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Security: |
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6.000% Notes due 2017 |
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Size: |
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$200,000,000 |
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Maturity Date: |
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April 15, 2017 |
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Coupon: |
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6.000% |
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Interest Payment Dates: |
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April 15 and October 15, commencing October 15, 2007 |
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Price to Public: |
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99.768% |
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Benchmark Treasury: |
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4.625% due February 2017 |
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Benchmark Treasury Yield: |
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4.656% |
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Spread to Benchmark Treasury: |
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+ 137.5 bp |
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Yield: |
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6.031% |
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Make-Whole Call: |
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T +25 bp |
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Expected Settlement Date: |
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April 10, 2007 |
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CUSIP: |
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219023 AD0 |
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Anticipated Ratings: |
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Baa3 by Moodys Investors Service, Inc. |
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BBB- by Standard & Poors Ratings Services |
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BBB by Fitch Ratings |
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Joint Book-Running Managers: |
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Citigroup Global Markets Inc. |
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Morgan Stanley & Co. Incorporated |
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Co-Managers: |
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ABN AMRO Incorporated |
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Bank of America Securities LLC |
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BMO Capital Markets Corp. |
|
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BNY Capital Markets, Inc. |
|
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Piper Jaffray & Co. |
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Rabo Securities USA, Inc. |
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SunTrust Capital Markets, Inc. |
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Wells Fargo Securities, LLC |
S-II-1
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6.625% Notes due 2037
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|
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Issuer: |
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Corn Products International Inc. |
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Security: |
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6.625% Notes due 2037 |
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Size: |
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$100,000,000 |
|
|
|
Maturity Date: |
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April 15, 2037 |
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|
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Coupon: |
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6.625% |
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|
|
Interest Payment Dates: |
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April 15 and October 15, commencing October 15, 2007 |
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|
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Price to Public: |
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99.418% |
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Benchmark Treasury: |
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4.500% due February 2036 |
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Benchmark Treasury Yield: |
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4.870% |
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Spread to Benchmark Treasury: |
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+ 180 bp |
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|
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Yield: |
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6.670% |
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|
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Make-Whole Call: |
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T +30 bp |
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|
|
Expected Settlement Date: |
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April 10, 2007 |
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CUSIP: |
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219023 AC2 |
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Anticipated Ratings: |
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Baa3 by Moodys Investors Service, Inc. |
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BBB- by Standard & Poors Ratings Services |
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BBB by Fitch Ratings |
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Joint Book-Running Managers: |
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Citigroup Global Markets Inc. |
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Morgan Stanley & Co. Incorporated |
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Co-Managers: |
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ABN AMRO Incorporated |
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Bank of America Securities LLC |
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BMO Capital Markets Corp. |
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BNY Capital Markets, Inc. |
|
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Piper Jaffray & Co. |
|
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Rabo Securities USA, Inc. |
|
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SunTrust Capital Markets, Inc. |
|
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Wells Fargo Securities, LLC |
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering.
You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov.
Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling Citigroup Global Markets Inc. toll free at
1-877-858-5407 or Morgan Stanley & Co. Incorporated toll-free at 1-866-718-1649.
S-II-2
SCHEDULE III
Issuer General Use Free Writing Prospectus
The pricing term sheet identified on Schedule II.
exv4w1
EXHIBIT 4.1
THIS NOTE MAY BE TRANSFERRED IN WHOLE BUT NOT IN PART BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY SELECTED OR APPROVED BY THE
COMPANY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS NOTE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY NOTE 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.
CORN PRODUCTS INTERNATIONAL, INC.
6.000% Senior Notes due 2017
CUSIP: 219023 AD0
Corn Products International, Inc., a Delaware corporation (herein called the Company, which
term includes any successor corporation under the Indenture referred to herein), for value
received, hereby promises to pay to:
CEDE & CO.
or registered assigns, the principal sum of
*TWO HUNDRED MILLION DOLLARS*
on April 15, 2017 and to pay interest on such principal sum at the rate of six percent (6.000%) per
annum.
The Company will pay interest from the later of April 10, 2007 or the most recent Interest
Payment Date (as defined below) to which interest has been paid or duly provided for, semiannually
on April 15 and on October 15 (each an Interest Payment Date) beginning October 15, 2007, until
the principal hereof is otherwise paid or duly provided for. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture (as defined below), be paid to the holder (the Holder) of this Note (or one or more
predecessor Notes) of record at the close of business on the regular record date (the Regular
Record Date) for such Interest Payment Date, which, except in the case of interest payable at
Maturity (as defined in the Indenture), shall be April 1 or October 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date and, in the case of interest
payable at Maturity, shall be the date such that interest payable at Maturity is payable to the
same Person to whom principal on this Note is payable. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
Any such interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date by virtue of his having been such Holder, and may
be paid to the Holder of this Note (or one or more predecessor Notes) of record at the close of
business on a special record date (the Special Record Date) fixed by the Company for the payment
of such defaulted interest, notice whereof shall be given to Holders not less than 15 days prior to
such Special Record Date, all as more fully provided in the Indenture.
Payment of the principal of this Note and the interest thereon will be made at the office or
agency of the Company in the Borough of Manhattan, City and State of New York, in such currency of
the United States of America as at the time of payment is legal tender for payment of public and
private debts.
CORN PRODUCTS INTERNATIONAL, INC.
6.000% Senior Notes due 2017
This Note is one of a duly authorized issue of debt securities of the Company (herein
called the Securities), issuable in one or more series, unlimited in aggregate principal amount
except as may be otherwise provided in respect of the Securities of a particular series, issued and
to be issued under and pursuant to an Indenture dated as of August 18, 1999, between the Company and
The Bank of New York Trust Company, N.A. (as successor trustee to The Bank of New York), as trustee
(the Trustee), as amended and supplemented by the Third Supplemental Indenture between the
Company and the Trustee dated as of April 10, 2007 (the Indenture) and is one of a series limited
in aggregate principal amount to $200,000,000 and designated as 6.000% Senior Notes due 2017 (the
Notes). Reference is hereby made to the Indenture for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the
Holders of Securities (including Holders of the Notes).
The Notes are subject to defeasance at the option of the Company as provided in the Indenture.
As long as this Note is represented in global form (the Global Security) registered in the
name of the Depositary or its nominee, except as provided in the Indenture and subject to certain
limitations therein set forth, no Global Security shall be exchangeable or transferrable.
If an Event of Default (as defined in the Indenture) with respect to the Notes shall occur and
be continuing, the principal plus any accrued interest may be declared due and payable in the
manner and with the effect and subject to the conditions provided in the Indenture.
The Indenture permits the amendment thereof and the modification of the rights and obligations
of the Company and the rights of the Holders under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in aggregate principal amount of the
Securities then outstanding of all series which are affected by such amendment or modification,
except that certain amendments which do not adversely affect the rights of any Holder of the
Securities may be made without the approval of Holders of the Securities. No amendment or
modification may, among other things, change the Stated Maturity of any Security, reduce the
principal amount thereof, reduce the rate or change the time of payment of any interest thereon, or
reduce the aforesaid majority in aggregate principal amount of Securities of any series, the
consent of the Holders of which is required for any such amendment or modification, without the
consent of each Securityholder affected.
This series of Notes is redeemable, in whole at any time or in part from time to time, at the
Companys option at a redemption price equal to the greater of: (i) 100% of the principal amount of
the Notes to be redeemed; and (ii) the sum of the present values of the remaining scheduled
payments of principal and interest thereon (not including any portion of such payments of interest
accrued as of the date of redemption), discounted to the date of redemption on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined
below), plus 25 basis points, plus, in each case, accrued interest thereon to the date of
redemption.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the
redemption date to each holder of the notes to be redeemed. Unless the Company defaults in payment
of the redemption price, on and after the redemption date, interest will cease to accrue on this
Note or portion thereof called for redemption. If less than all of the notes are to be redeemed,
the notes to be redeemed shall be selected by lot by The Depository Trust Company, in the case of
notes represented by a global security, or by the Trustee by a method the Trustee deems to be fair
and appropriate, in the case of notes that are not represented by a global security.
2
Comparable Treasury Issue means the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the remaining term of the Notes to be redeemed
that would be utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Notes.
Comparable Treasury Price means, with respect to any redemption date, (i) the average of
four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than four
such Reference Treasury Dealer Quotations, the average of all such quotations, or (iii) if only one
Reference Treasury Dealer Quotation is received, such quotation.
Quotation
Agent means the Reference Treasury Dealer appointed by the
Company.
Reference Treasury Dealer means (i) each of Citigroup Global Markets Inc. and Morgan Stanley
& Co. Incorporated (or their respective affiliates that are Primary Treasury Dealers) and their
respective successors; provided, however, that if any of the foregoing shall cease to be a primary
U.S. Government securities dealer in New York City (a Primary Treasury Dealer), the Company will
substitute therefor another Primary Treasury Dealer, and (ii) any other Primary Treasury Dealer
selected by the Company.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by the Trustee, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third business day preceding such redemption date.
Treasury Rate means, with respect to any redemption date, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
If a Change of Control Repurchase Event occurs, unless the Company has exercised its right to
redeem this series of Notes, the Company will make an offer to each holder of Notes to repurchase
all or any part (in integral multiples of $1,000) of that holders Notes at a repurchase price in
cash equal to 101% of the aggregate principal amount of Notes repurchased plus any accrued and
unpaid interest on the Notes repurchased to the date of repurchase. Within 30 days following any
Change of Control Repurchase Event or, at the Companys option, prior to any Change of Control, but
after the public announcement of an impending Change of Control, the Company will mail a notice to
each holder, with a copy to the Trustee, describing the transaction or transactions that constitute
or may constitute the Change of Control Repurchase Event and offering to repurchase Notes on the
payment date specified in the notice, which date will be no earlier than 30 days and no later than
60 days from the date such notice is mailed. The notice shall, if mailed prior to the date of
consummation of the Change of Control, state that the offer to repurchase is conditioned on the
Change of Control Repurchase Event occurring on or prior to the payment date specified in the
notice.
The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder, to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a Change of Control
Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict
with the Change of Control Repurchase Event provisions of the Notes, the Company will comply with
the applicable securities laws and regulations and will not be deemed to have breached its
obligations under the Change of Control Repurchase Event provisions of the Notes by virtue of such
conflict.
3
On the Change of Control Repurchase Event payment date, the Company will, to the extent
lawful:
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accept for payment all Notes or portions of Notes (in integral multiples of
$1,000) properly tendered pursuant to the Companys offer; |
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deposit with the paying agent an amount equal to the aggregate repurchase price
in respect of all Notes or portions of Notes properly tendered; and |
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deliver or cause to be delivered to the Trustee the Notes properly accepted,
together with an officers certificate stating the aggregate principal amount of
Notes being purchased by the Company. |
The paying agent will promptly mail to each holder of Notes properly tendered the repurchase
price for the Notes, and the Trustee will promptly authenticate and mail (or cause to be
transferred by book-entry) to each holder a new Note equal in principal amount to any unpurchased
portion of any Notes surrendered; provided, that each new Note will be in a principal amount of
$1,000 or an integral multiple of $1,000.
The Company will not be required to make an offer to repurchase the Notes upon a Change of
Control Repurchase Event if a third party makes such an offer in the manner, at the times and
otherwise in compliance with the requirements for an offer made by the Company and such third party
purchases all Notes properly tendered and not withdrawn under its offer.
Below Investment Grade Rating Event means the Notes are rated below Investment Grade by each
of the Rating Agencies on any date from the date of the public notice of an arrangement that could
result in a Change of Control until the end of the 60-day period following public notice of the
occurrence of a Change of Control (which period shall be extended so long as the rating of the
Notes is under publicly announced consideration for possible downgrade by any of the Rating
Agencies); provided that a Below Investment Grade Rating Event otherwise arising by virtue of a
particular reduction in rating shall not be deemed to have occurred in respect of a particular
Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event for purposes
of the definition of Change of Control Repurchase Event hereunder) if the Rating Agencies making
the reduction in rating to which this definition would otherwise apply do not announce or publicly
confirm or inform the Trustee in writing at its request that the reduction was the result, in whole
or in part, of any event or circumstance comprised of or arising as a result of, or in respect of,
the applicable Change of Control (whether or not the applicable Change of Control shall have
occurred at the time of the Below Investment Grade Rating Event).
Change of Control means the occurrence of any of the following: (1) the direct or indirect
sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in
one or a series of related transactions, of all or substantially all of the properties or assets of
the Company and its subsidiaries taken as a whole to any person (as that term is used in Section
13(d)(3) of the Exchange Act), other than the Company or one of its subsidiaries; (2) the
consummation of any transaction (including, without limitation, any merger or consolidation) the
result of which is that any person (as that term is used in Section 13(d)(3) of the Exchange Act)
becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding
number of shares of the Companys Voting Stock; or (3) the first day on which a majority of the
members of the Companys Board of Directors are not Continuing Directors.
Change of Control Repurchase Event means the occurrence of both a Change of Control and a
Below Investment Grade Rating Event.
4
Continuing Directors means, as of any date of determination, any member of the Board of
Directors of the Company who (1) was a member of such Board of Directors on the date of the
issuance of the Notes; or (2) was nominated for election or elected to such Board of Directors with
the approval of a majority of the Continuing Directors who were members of such Board of Directors
at the time of such nomination or election (either by a specific vote or by approval of the
Companys proxy statement in which such member was named as a nominee for election as a director).
Exchange Act means the Securities Exchange Act of 1934, as amended.
Fitch means Fitch Ratings Ltd.
Investment Grade means a rating of Baa3 or better by Moodys (or its equivalent under any
successor rating categories of Moodys); a rating of BBB or better by S&P (or its equivalent under
any successor rating categories of S&P); and a rating of BBB or better by Fitch (or its equivalent
under any successor rating categories of Fitch); or the equivalent investment grade credit rating
from any additional Rating Agency or Rating Agencies selected by the Company.
Moodys means Moodys Investors Service Inc.
Rating Agency means (1) each of Fitch, Moodys and S&P; and (2) if any of Fitch, Moodys or
S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons
outside of the Companys control, a nationally recognized statistical rating organization within
the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the Company as a replacement
agency for Fitch, Moodys or S&P, as the case may be.
S&P means Standard & Poors Ratings Services, a division of McGraw-Hill, Inc.
Voting Stock means the Companys capital stock of any class or kind the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
Notwithstanding any provision in the Indenture or any provision of this Note, the Holder of
this Note shall have the right, which is absolute and unconditional, to receive payment of the
principal of (and premium, if any) and interest on this Note at the times, place and rate, and in
the coin or currency herein prescribed.
This Note shall be governed by, and construed in accordance with, the laws of the state of New
York, without regard to principles of conflicts of laws.
All terms used in this Note which are defined in the Indenture have the meanings assigned to
them in the Indenture.
Unless the certificate of authentication hereon has been executed by or on behalf of the
Trustee by manual signature, this Note shall not be entitled to any benefit under the Indenture or
be valid or obligatory for any purpose.
5
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.
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CORN PRODUCTS INTERNATIONAL, INC.
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By: |
/s/ Cheryl K. Beebe
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Name: |
Cheryl K. Beebe |
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Title: |
Vice President and
Chief Financial Officer |
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Attest:
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By: |
/s/ Mary Ann Hynes
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Name: |
Mary Ann Hynes |
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Title: |
Vice President, General Counsel and
Corporate Secretary |
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This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
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THE BANK OF NEW YORK TRUST
COMPANY, N.A., as Trustee
Dated: April 10, 2007
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By: |
/s/ M. Callahan
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6
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
Insert assignees soc. sec. or tax I.D. no.
(Print or type assignees name, address and zip code)
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and all rights thereunder and irrevocably appoint |
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agent to transfer this Note on the books of the Company. The agent may substitute another to act
for him.
Dated:
THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS IT APPEARS ON THE FIRST PAGE OF THE WITHIN NOTE.
THE SIGNATURE MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION THAT IS A MEMBER OR
PARTICIPANT IN A SIGNATURE GUARANTEE PROGRAM (E.G., THE SECURITIES TRANSFER AGENTS MEDALLION
PROGRAM, THE STOCK EXCHANGE MEDALLION PROGRAM OR THE NEW YORK STOCK EXCHANGE, INC. MEDALLION
PROGRAM).
7
exv4w2
EXHIBIT 4.2
THIS NOTE MAY BE TRANSFERRED IN WHOLE BUT NOT IN PART BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY SELECTED OR APPROVED
BY THE COMPANY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
NOTE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY NOTE
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.
CORN PRODUCTS INTERNATIONAL, INC.
6.625% Senior Notes due 2037
CUSIP: 219023 AC2
Corn Products International, Inc., a Delaware corporation (herein called the Company, which
term includes any successor corporation under the Indenture referred to herein), for value
received, hereby promises to pay to:
CEDE & CO.
or registered assigns, the principal sum of
*ONE HUNDRED MILLION DOLLARS*
on April 15, 2037 and to pay interest on such principal sum at the rate of six percent (6.625%) per
annum.
The Company will pay interest from the later of April 10, 2007 or the most recent Interest
Payment Date (as defined below) to which interest has been paid or duly provided for, semiannually
on April 15 and on October 15 (each an Interest Payment Date) beginning October 15, 2007, until
the principal hereof is otherwise paid or duly provided for. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture (as defined below), be paid to the holder (the Holder) of this Note (or one or more
predecessor Notes) of record at the close of business on the regular record date (the Regular
Record Date) for such Interest Payment Date, which, except in the case of interest payable at
Maturity (as defined in the Indenture), shall be April 1 or October 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date and, in the case of interest
payable at Maturity, shall be the date such that interest payable at Maturity is payable to the
same Person to whom principal on this Note is payable. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
Any such interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date by virtue of his having been such Holder, and may
be paid to the Holder of this Note (or one or more predecessor Notes) of record at the close of
business on a special record date (the Special Record Date) fixed by the Company for the payment
of such defaulted interest, notice whereof shall be given to Holders not less than 15 days prior to
such Special Record Date, all as more fully provided in the Indenture.
Payment of the principal of this Note and the interest thereon will be made at the office or
agency of the Company in the Borough of Manhattan, City and State of New York, in such currency of
the United States of America as at the time of payment is legal tender for payment of public and
private debts.
CORN PRODUCTS INTERNATIONAL, INC.
6.625% Senior Notes due 2037
This Note is one of a duly authorized issue of debt securities of the Company (herein
called the Securities), issuable in one or more series, unlimited in aggregate principal amount
except as may be otherwise provided in respect of the Securities of a particular series, issued and
to be issued under and pursuant to an Indenture dated as of August 18, 1999, between the Company
and The Bank of New York Trust Company, N.A. (as successor trustee to The Bank of New York), as
trustee (the Trustee), as amended and supplemented by the Fourth Supplemental Indenture between
the Company and the Trustee dated as of April 10, 2007 (the Indenture) and is one of a series
limited in aggregate principal amount to $100,000,000 and designated as 6.625% Senior Notes due
2037 (the Notes). Reference is hereby made to the Indenture for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company
and the Holders of Securities (including Holders of the Notes).
The Notes are subject to defeasance at the option of the Company as provided in the Indenture.
As long as this Note is represented in global form (the Global Security) registered in the
name of the Depositary or its nominee, except as provided in the Indenture and subject to certain
limitations therein set forth, no Global Security shall be exchangeable or transferrable.
If an Event of Default (as defined in the Indenture) with respect to the Notes shall occur and
be continuing, the principal plus any accrued interest may be declared due and payable in the
manner and with the effect and subject to the conditions provided in the Indenture.
The Indenture permits the amendment thereof and the modification of the rights and obligations
of the Company and the rights of the Holders under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in aggregate principal amount of the
Securities then outstanding of all series which are affected by such amendment or modification,
except that certain amendments which do not adversely affect the rights of any Holder of the
Securities may be made without the approval of Holders of the Securities. No amendment or
modification may, among other things, change the Stated Maturity of any Security, reduce the
principal amount thereof, reduce the rate or change the time of payment of any interest thereon, or
reduce the aforesaid majority in aggregate principal amount of Securities of any series, the
consent of the Holders of which is required for any such amendment or modification, without the
consent of each Securityholder affected.
This series of Notes is redeemable, in whole at any time or in part from time to time, at the
Companys option at a redemption price equal to the greater of: (i) 100% of the principal amount of
the Notes to be redeemed; and (ii) the sum of the present values of the remaining scheduled
payments of principal and interest thereon (not including any portion of such payments of interest
accrued as of the date of redemption), discounted to the date of redemption on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined
below), plus 30 basis points, plus, in each case, accrued interest thereon to the date of
redemption.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the
redemption date to each holder of the notes to be redeemed. Unless the Company defaults in payment
of the redemption price, on and after the redemption date, interest will cease to accrue on this
Note or portion thereof called for redemption. If less than all of the notes are to be redeemed,
the notes to be redeemed shall be selected by lot by The Depository Trust Company, in the case of
notes represented by a global security, or by the Trustee
2
by a method the Trustee deems to be fair
and appropriate, in the case of notes that are not represented by a global security.
Comparable Treasury Issue means the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the remaining term of the Notes to be redeemed
that would be utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Notes.
Comparable Treasury Price means, with respect to any redemption date, (i) the average of
four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than four
such Reference Treasury Dealer Quotations, the average of all such quotations, or (iii) if only one
Reference Treasury Dealer Quotation is received, such quotation.
Quotation Agent means the Reference Treasury Dealer appointed by the Company.
Reference Treasury Dealer means (i) each of Citigroup Global Markets Inc. and Morgan Stanley
& Co. Incorporated (or their respective affiliates that are Primary Treasury Dealers) and their
respective successors; provided, however, that if any of the foregoing shall cease to be a primary
U.S. Government securities dealer in New York City (a Primary Treasury Dealer), the Company will
substitute therefor another Primary Treasury Dealer, and (ii) any other Primary Treasury Dealer
selected by the Company.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by the Trustee, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third business day preceding such redemption date.
Treasury Rate means, with respect to any redemption date, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
If a Change of Control Repurchase Event occurs, unless the Company has exercised its right to
redeem this series of Notes, the Company will make an offer to each holder of Notes to repurchase
all or any part (in integral multiples of $1,000) of that holders Notes at a repurchase price in
cash equal to 101% of the aggregate principal amount of Notes repurchased plus any accrued and
unpaid interest on the Notes repurchased to the date of repurchase. Within 30 days following any
Change of Control Repurchase Event or, at the Companys option, prior to any Change of Control, but
after the public announcement of an impending Change of Control, the Company will mail a notice to
each holder, with a copy to the Trustee, describing the transaction or transactions that constitute
or may constitute the Change of Control Repurchase Event and offering to repurchase Notes on the
payment date specified in the notice, which date will be no earlier than 30 days and no later than
60 days from the date such notice is mailed. The notice shall, if mailed prior to the date of
consummation of the Change of Control, state that the offer to repurchase is conditioned on the
Change of Control Repurchase Event occurring on or prior to the payment date specified in the
notice.
The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder, to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a Change of Control
Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict
with the Change of Control Repurchase Event provisions of the Notes, the Company will comply with
the applicable securities laws and regulations and will
3
not be deemed to have breached its
obligations under the Change of Control Repurchase Event provisions of the Notes by virtue of such
conflict.
On the Change of Control Repurchase Event payment date, the Company will, to the extent
lawful:
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accept for payment all Notes or portions of Notes (in integral multiples of
$1,000) properly tendered pursuant to the Companys offer; |
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deposit with the paying agent an amount equal to the aggregate repurchase price
in respect of all Notes or portions of Notes properly tendered; and |
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deliver or cause to be delivered to the Trustee the Notes properly accepted,
together with an officers certificate stating the aggregate principal amount of
Notes being purchased by the Company. |
The paying agent will promptly mail to each holder of Notes properly tendered the repurchase
price for the Notes, and the Trustee will promptly authenticate and mail (or cause to be
transferred by book-entry) to each holder a new Note equal in principal amount to any unpurchased
portion of any Notes surrendered; provided, that each new Note will be in a principal amount of
$1,000 or an integral multiple of $1,000.
The Company will not be required to make an offer to repurchase the Notes upon a Change of
Control Repurchase Event if a third party makes such an offer in the manner, at the times and
otherwise in compliance with the requirements for an offer made by the Company and such third party
purchases all Notes properly tendered and not withdrawn under its offer.
Below Investment Grade Rating Event means the Notes are rated below Investment Grade by each
of the Rating Agencies on any date from the date of the public notice of an arrangement that could
result in a Change of Control until the end of the 60-day period following public notice of the
occurrence of a Change of Control (which period shall be extended so long as the rating of the
Notes is under publicly announced consideration for possible downgrade by any of the Rating
Agencies); provided that a Below Investment Grade Rating Event otherwise arising by virtue of a
particular reduction in rating shall not be deemed to have occurred in respect of a particular
Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event for purposes
of the definition of Change of Control Repurchase Event hereunder) if the Rating Agencies making
the reduction in rating to which this definition would otherwise apply do not announce or publicly
confirm or inform the Trustee in writing at its request that the reduction was the result, in whole
or in part, of any event or circumstance comprised of or arising as a result of, or in respect of,
the applicable Change of Control (whether or not the applicable Change of Control shall have
occurred at the time of the Below Investment Grade Rating Event).
Change of Control means the occurrence of any of the following: (1) the direct or indirect
sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in
one or a series of related transactions, of all or substantially all of the properties or assets of
the Company and its subsidiaries taken as a whole to any person (as that term is used in Section
13(d)(3) of the Exchange Act), other than the Company or one of its subsidiaries; (2) the
consummation of any transaction (including, without limitation, any merger or consolidation) the
result of which is that any person (as that term is used in Section 13(d)(3) of the Exchange Act)
becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding
number of shares of the Companys Voting Stock; or (3) the first day on which a majority of the
members of the Companys Board of Directors are not Continuing Directors.
4
Change of Control Repurchase Event means the occurrence of both a Change of Control and a
Below Investment Grade Rating Event.
Continuing Directors means, as of any date of determination, any member of the Board of
Directors of the Company who (1) was a member of such Board of Directors on the date of the
issuance of the Notes; or (2) was nominated for election or elected to such Board of Directors with
the approval of a majority of the Continuing Directors who were members of such Board of Directors
at the time of such nomination or election (either by a specific vote or by approval of the
Companys proxy statement in which such member was named as a nominee for election as a director).
Exchange Act means the Securities Exchange Act of 1934, as amended.
Fitch means Fitch Ratings Ltd.
Investment Grade means a rating of Baa3 or better by Moodys (or its equivalent under any
successor rating categories of Moodys); a rating of BBB or better by S&P (or its equivalent under
any successor rating categories of S&P); and a rating of BBB or better by Fitch (or its equivalent
under any successor rating categories of Fitch); or the equivalent investment grade credit rating
from any additional Rating Agency or Rating Agencies selected by the Company.
Moodys means Moodys Investors Service Inc.
Rating Agency means (1) each of Fitch, Moodys and S&P; and (2) if any of Fitch, Moodys or
S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons
outside of the Companys control, a nationally recognized statistical rating organization within
the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the Company as a replacement
agency for Fitch, Moodys or S&P, as the case may be.
S&P means Standard & Poors Ratings Services, a division of McGraw-Hill, Inc.
Voting Stock means the Companys capital stock of any class or kind the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
Notwithstanding any provision in the Indenture or any provision of this Note, the Holder of
this Note shall have the right, which is absolute and unconditional, to receive payment of the
principal of (and premium, if any) and interest on this Note at the times, place and rate, and in
the coin or currency herein prescribed.
This Note shall be governed by, and construed in accordance with, the laws of the state of New
York, without regard to principles of conflicts of laws.
All terms used in this Note which are defined in the Indenture have the meanings assigned to
them in the Indenture.
Unless the certificate of authentication hereon has been executed by or on behalf of the
Trustee by manual signature, this Note shall not be entitled to any benefit under the Indenture or
be valid or obligatory for any purpose.
5
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.
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CORN PRODUCTS INTERNATIONAL, INC. |
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By:
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/s/ Cheryl K. Beebe |
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Name: Cheryl K. Beebe |
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Title: Vice President and Chief Financial Officer |
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Attest: |
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By:
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/s/ Mary Ann Hynes |
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Name: Mary Ann Hynes |
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Title: Vice President, General Counsel and
Corporate Secretary |
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This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture. |
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THE BANK OF NEW YORK TRUST
COMPANY, N.A., as Trustee |
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Dated: April 10, 2007 |
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By:
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/s/ M. Callahan |
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6
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
Insert assignees soc. sec. or tax I.D. no.
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(Print or type assignees name, address and zip code) |
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and all rights thereunder and irrevocably appoint |
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agent to transfer this Note on the books of the Company. The agent may substitute another to act
for him. |
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Dated: |
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THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS IT APPEARS ON THE FIRST PAGE OF THE WITHIN NOTE. |
THE SIGNATURE MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION THAT IS A MEMBER OR
PARTICIPANT IN A SIGNATURE GUARANTEE PROGRAM (E.G., THE SECURITIES TRANSFER AGENTS MEDALLION
PROGRAM, THE STOCK EXCHANGE MEDALLION PROGRAM OR THE NEW YORK STOCK EXCHANGE, INC. MEDALLION
PROGRAM).
7
exv4w3
EXHIBIT 4.3
THIRD SUPPLEMENTAL INDENTURE
This THIRD SUPPLEMENTAL INDENTURE, dated as of April 10, 2007 (this Supplemental Indenture),
is entered into by and between Corn Products International, Inc., a corporation incorporated under
the laws of the State of Delaware (the Company), and The Bank of New York Trust Company, N.A., as
trustee (the Trustee).
W I T N E S S E T H:
WHEREAS, the Company and the Trustee (as successor trustee to The Bank of New York) are
parties to an Indenture, dated as of August 18, 1999 (the Indenture), relating to the issuance
from time to time by the Company of its Securities on terms to be specified at the time of
issuance;
WHEREAS, the Company proposes to create under the Indenture a new series of Securities;
WHEREAS, Section 2.01 of the Indenture provides that at or prior to the issuance of any
Securities within a series, the terms of the series of Securities shall be established by a
supplemental indenture or an Officers Certificate pursuant to authority granted under resolutions
of the Board of Directors of the Company;
WHEREAS, Section 10.01 of the Indenture provides that when authorized by a Certified Board
Resolution, the Company and the Trustee may enter into a supplemental indenture to change or
eliminate any of the provisions of the Indenture without the consent of the holders of any
Securities of any series then outstanding, provided that any such change or elimination would not
adversely affect such provision as applied to any series of Securities created prior to the
execution of such supplemented indenture; and
WHEREAS, all conditions necessary to authorize the execution and delivery of this Supplemental
Indenture and to make it a valid and binding agreement of the Company have been done or performed.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and the
Trustee mutually covenant and agree as follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS; RULES OF CONSTRUCTION
SECTION 1.1 Relation to Indenture. This Supplemental Indenture constitutes an
integral part of the Indenture.
SECTION 1.2 Definitions. For all purposes of this Supplemental Indenture, the
following terms shall have the respective meanings set forth in this Section.
Below Investment Grade Rating Event means the Notes are rated below Investment Grade by each
of the Rating Agencies on any date from the date of the public notice of an arrangement that could
result in a Change of Control until the end of the 60-day period following public notice of the
occurrence of a Change of Control (which period shall be extended so long as the rating of the
Notes is under publicly announced consideration for possible downgrade by any of the Rating
Agencies); provided that a Below Investment Grade Rating Event otherwise arising by virtue of a
particular reduction in rating shall not be deemed to have occurred in respect of a particular
Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event for purposes
of the definition of Change of Control Repurchase Event hereunder) if the Rating Agencies making
the reduction in rating to which this definition would otherwise apply do not announce or publicly
confirm or inform the Trustee in writing at its request that the reduction was the result, in whole
or in part, of any event or circumstance comprised of or arising as a result of, or in respect of,
the applicable Change of Control (whether or not the applicable Change of Control shall have
occurred at the time of the Below Investment Grade Rating Event).
Change of Control means the occurrence of any of the following: (1) the direct or indirect
sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in
one or a series of related transactions, of all or substantially all of the properties or assets of
the Company and its subsidiaries taken as a whole to any person (as that term is used in Section
13(d)(3) of the Exchange Act), other than the Company or one of its subsidiaries; (2) the
consummation of any transaction (including, without limitation, any merger or consolidation) the
result of which is that any person (as that term is used in Section 13(d)(3) of the Exchange Act)
becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding
number of shares of the Companys Voting Stock; or (3) the first day on which a majority of the
members of the Companys Board of Directors are not Continuing Directors.
Change of Control Repurchase Event means the occurrence of both a Change of Control and a
Below Investment Grade Rating Event.
Comparable Treasury Issue means the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the remaining term of the Notes to be redeemed
that would be utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Notes.
Comparable Treasury Price means, with respect to any redemption date, (i) the average of
four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than four
such Reference Treasury Dealer Quotations, the average of all such quotations, or (iii) if only one
Reference Treasury Dealer Quotation is received, such quotation.
2
Continuing Directors means, as of any date of determination, any member of the Board of
Directors of the Company who (1) was a member of such Board of Directors on the date of the
issuance of the Notes; or (2) was nominated for election or elected to such Board of Directors with
the approval of a majority of the Continuing Directors who were members of such Board of Directors
at the time of such nomination or election (either by a specific vote or by approval of the
Companys proxy statement in which such member was named as a nominee for election as a director).
Exchange Act means the Securities Exchange Act of 1934, as amended.
Fitch means Fitch Ratings Ltd.
Investment Grade means a rating of Baa3 or better by Moodys (or its equivalent under any
successor rating categories of Moodys); a rating of BBB or better by S&P (or its equivalent under
any successor rating categories of S&P); and a rating of BBB or better by Fitch (or its equivalent
under any successor rating categories of Fitch); or the equivalent investment grade credit rating
from any additional Rating Agency or Rating Agencies selected by the Company.
Moodys means Moodys Investors Service Inc.
Quotation Agent means the Reference Treasury Dealer appointed by the Company.
Rating Agency means (1) each of Fitch, Moodys and S&P; and (2) if any of Fitch, Moodys or
S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons
outside of the Companys control, a nationally recognized statistical rating organization within
the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the Company as a replacement
agency for Fitch, Moodys or S&P, as the case may be.
Reference Treasury Dealer means (i) each of Citigroup Global Markets Inc. and Morgan Stanley
& Co. Incorporated (or their respective affiliates that are Primary Treasury Dealers) and their
respective successors; provided, however, that if any of the foregoing shall cease to be a primary
U.S. Government securities dealer in New York City (a Primary Treasury Dealer), the Company will
substitute therefor another Primary Treasury Dealer, and (ii) any other Primary Treasury Dealer
selected by the Company.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by the Trustee, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third business day preceding such redemption date.
Treasury Rate means, with respect to any redemption date, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
S&P means Standard & Poors Ratings Services, a division of McGraw-Hill, Inc.
3
Voting Stock means the Companys capital stock of any class or kind the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
SECTION 1.3 Rules of Construction. For all purposes of this Supplemental Indenture:
(a) capitalized terms used herein without definition shall have the meanings specified in the
Indenture;
(b) all references herein to Articles and Sections, unless otherwise specified, refer to the
corresponding Articles and Sections of this Supplemental Indenture;
(c) the terms herein, hereof, hereunder and other words of similar import refer to this
Supplemental Indenture; and
(d) in the event of a conflict with the definition of terms in the Indenture, the definitions
in this Supplemental Indenture shall control.
ARTICLE TWO
THE SECURITIES
There is hereby established a series of Securities pursuant to the Indenture with the
following terms:
SECTION 2.1 Title of the Securities. The series of Securities shall be designated the
6.000% Senior Notes due 2017 (the Notes).
SECTION 2.2 Aggregate Principal Amount. The Notes will be initially issued in an
aggregate principal amount of $200,000,000 (not including the Notes authenticated and delivered
upon registration of, transfer of, or in exchange for, or in lieu of, other Securities pursuant to
Sections 2.06, 2.07, 2.08, 3.02 or 10.04 of the Indenture).
SECTION 2.3 Maturity Date. The date on which the principal of the Notes is payable is
April 15, 2017, subject to the provisions of the Indenture relating to acceleration.
SECTION 2.4 Ranking. The Notes will be unsecured senior debt of the Company and will
rank on a parity with all other unsecured and unsubordinated indebtedness of the Company.
SECTION 2.5 Interest. The Notes will bear interest from April 10, 2007, or from the
most recent interest payment date to which interest has been paid or duly provided for, at a rate
of 6.000% per annum, payable semi-annually on April 15 and October 15 of each year, commencing
October 15, 2007. The Company will pay interest to the person in whose name a Note is registered
at the close of business on the April 1 or October 1, as the case may be, preceding the interest
payment date. The Company will compute interest on the basis of a 360-day year consisting of
twelve 30-day months.
4
SECTION 2.6 Issuance Price. The purchase price to be paid to the Company for the sale
of the Notes pursuant to the terms of the Underwriting Agreement, dated as of April 4, 2007,
between the Company and Citigroup Global Markets Inc. and Morgan Stanley & Co. Incorporated., as
Representatives of the several Underwriters named in Schedule 1 thereto, shall be 99.118% of the
principal amount of the Notes and the initial offering price to the public of the Notes shall be
99.768% of the principal amount of the Notes.
SECTION 2.7 Defeasance. The Notes shall be subject to defeasance under Section 12.02
of the Indenture.
SECTION 2.8 Form and Dating.
(a) The Notes shall be substantially in the form of Exhibit A hereto. The Notes may
have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note
shall be dated the date of its authentication.
(b) The terms and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Supplemental Indenture, and the Company and the Trustee, by their execution
and delivery of this Supplemental Indenture, expressly agree to such terms and provisions and to be
bound thereby. However, to the extent any provision of any Notes conflicts with the express
provisions of this Supplemental Indenture, the provisions of this Supplemental Indenture shall
govern and be controlling.
(c) The Notes will be issued in the form of a fully-registered Global Security. The Global
Security will be deposited with, or on behalf of, the Depositary and registered in the name of the
Depositary or its nominee. Except as set forth in the Prospectus Supplement dated April 4, 2007,
the Global Security may be transferred, in whole and not in part, only by the Depositary to its
nominee or by its nominee to such Depositary or another nominee of the Depositary or by the
Depositary or its nominee to a successor of the Depositary or a nominee of such successor. If the
Depositary is at any time unwilling or unable to continue as depositary and a successor depositary
is not appointed by the Company within 90 calendar days, the Company will issue Notes in
certificated form in exchange for the Global Security. In addition, the Company may at any time
determine not to have the Notes represented by a Global Security, and, in such event, will issue
Notes in certificated form in exchange for the Global Security. In either instance, an owner of an
interest in the Global Security would be entitled to physical delivery of such Notes in
certificated form. Notes so issued in certificated form will be issued in denominations of $1,000
and integral multiples thereof and will be issued in registered form only.
SECTION 2.9 Optional Redemption.
(a) The Notes will be redeemable, in whole at any time or in part from time to time, at the
Companys option at a redemption price equal to the greater of: (i) 100% of the principal amount of
the Notes to be redeemed; and (ii) the sum of the present values of the remaining scheduled
payments of principal and interest thereon (not including any portion of such payments of interest
accrued as of the date of redemption), discounted to the date of redemption on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined
below), plus 25 basis points, plus, in each case, accrued interest
5
thereon to the date of
redemption. Notwithstanding the foregoing, installments of interest on Notes that are due and
payable on interest payment dates falling on or prior to a redemption date will be payable on the
interest payment date to the registered holders as of the close of business on the relevant record
date according to the Notes and the Indenture.
(b) Notice of any redemption will be mailed at least 30 days but not more than 60 days before
the redemption date to each holder of the Notes to be redeemed. Unless the Company defaults in
payment of the redemption price, on and after the redemption date, interest will cease to accrue on
the Notes or portions thereof called for redemption. If less than all of the Notes are to be
redeemed, the Notes to be redeemed shall be selected by lot by The Depository Trust Company, in the
case of Notes represented by a global security, or by the Trustee by a method the Trustee deems to
be fair and appropriate, in the case of Notes that are not represented by a global security.
SECTION 2.10 Repurchase Upon Change of Control.
(a) If a Change of Control Repurchase Event occurs, unless the Company has exercised its right
to redeem the Notes, the Company will make an offer to each holder of Notes to repurchase all or
any part (in integral multiples of $1,000) of that holders Notes at a repurchase price in cash
equal to 101% of the aggregate principal amount of Notes repurchased plus any accrued and unpaid
interest on the Notes repurchased to the date of repurchase. Within 30 days following any Change
of Control Repurchase Event or, at the Companys option, prior to any Change of Control, but after
the public announcement of an impending Change of Control, the Company will mail a notice to each
holder, with a copy to the Trustee, describing the transaction or transactions that constitute or
may constitute the Change of Control Repurchase Event and offering to repurchase Notes on the
payment date specified in the notice, which date will be no earlier than 30 days and no later than
60 days from the date such notice is mailed. The notice shall, if mailed prior to the date of
consummation of the Change of Control, state that the offer to repurchase is conditioned on the
Change of Control Repurchase Event occurring on or prior to the payment date specified in the
notice.
(b) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act, and
any other securities laws and regulations thereunder, to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a Change of Control
Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict
with the Change of Control Repurchase Event provisions of the Notes, the Company will comply with
the applicable securities laws and regulations and will not be deemed to have breached its
obligations under the Change of Control Repurchase Event provisions of the Notes by virtue of such
conflict.
(c) On the Change of Control Repurchase Event payment date, the Company will, to the extent
lawful:
(i) accept for payment all Notes or portions of Notes (in integral multiples of $1,000)
properly tendered pursuant to the Companys offer;
6
(ii) deposit with the paying agent an amount equal to the aggregate repurchase price in
respect of all Notes or portions of Notes properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the Notes properly accepted,
together with an officers certificate stating the aggregate principal amount of Notes being
purchased by the Company.
(d) The paying agent will promptly mail to each holder of Notes properly tendered the
repurchase price for the Notes, and the Trustee will promptly authenticate and mail (or cause to be
transferred by book-entry) to each holder a new Note equal in principal amount to any unpurchased
portion of any Notes surrendered; provided, that each new Note will be in a principal amount of
$1,000 or an integral multiple of $1,000.
(e) The Company will not be required to make an offer to repurchase the Notes upon a Change of
Control Repurchase Event if a third party makes such an offer in the manner, at the times and
otherwise in compliance with the requirements for an offer made by the Company and such third party
purchases all Notes properly tendered and not withdrawn under its offer.
ARTICLE THREE
AMENDMENTS TO THE INDENTURE
SECTION 3.1 Events of Default. For purposes of this series of Notes only, Section
6.01(5) of the Indenture is deleted in its entirety and replaced with the following:
the failure by the Company or any of its Subsidiaries to pay any principal or premium or
interest on any Indebtedness which is outstanding in a principal amount of at least
$50,000,000 (or its equivalent in another currency) in the aggregate (but excluding
Indebtedness evidenced by the Securities or otherwise arising under this Indenture), when
the same becomes due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and the continuation of such failure after the
applicable grace period, if any, specified in the agreement or instrument relating to such
Indebtedness; or the occurrence or existence of any other event or condition under any
agreement or instrument relating to any such Indebtedness that continues after the
applicable grace period, if any, specified in such agreement or instrument, if the effect of
such event or condition is to accelerate, or to permit the acceleration of, the maturity of
such Indebtedness; or any such Indebtedness shall be declared to be due and payable, or
required to be prepaid (other than by a regularly scheduled required prepayment), redeemed,
purchased or defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness
shall be required to be made, in each case prior to the stated maturity thereof.
7
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
SECTION 4.1 Ratification. The Indenture, as supplemented and amended by this
Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed.
SECTION 4.2 Governing Law. This Supplemental Indenture shall be governed by, and
construed and enforced in accordance with, the laws of the jurisdiction which govern the Indenture
and its construction.
SECTION 4.3 Counterparts and Method of Execution. This Supplemental Indenture may be
executed in several counterparts, all of which together shall constitute one agreement binding on
all parties hereto, notwithstanding that all parties have not signed the same counterpart.
SECTION 4.4 Section Titles. Section titles are for descriptive purposes only and
shall not control or alter the meaning of this Supplemental Indenture as set forth in the text.
SECTION 4.5 The Trustee. The recitals contained herein shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency of this Supplemental
Indenture.
8
IN WITNESS WHEREOF, CORN PRODUCTS INTERNATIONAL, INC. AND THE BANK OF NEW YORK TRUST
COMPANY, N.A. have caused this Supplemental Indenture to be duly executed, all as of the day and
year first above written.
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CORN PRODUCTS INTERNATIONAL, INC. |
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By:
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/s/ Cheryl K. Beebe |
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Name:
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Cheryl K. Beebe |
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Title:
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Vice President and
Chief Financial Officer |
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By:
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/s/ Kimberly A. Hunter |
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Name:
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Kimberly A. Hunter |
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Title:
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Corporate Treasurer |
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THE BANK OF NEW YORK TRUST COMPANY, N.A., as
Trustee |
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By:
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/s/ M. Callahan |
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Name:
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M. Callahan |
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Title:
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Vice President |
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exv4w4
EXHIBIT 4.4
FOURTH SUPPLEMENTAL INDENTURE
This FOURTH SUPPLEMENTAL INDENTURE, dated as of April 10, 2007 (this Supplemental
Indenture), is entered into by and between Corn Products International, Inc., a corporation
incorporated under the laws of the State of Delaware (the Company), and The Bank of New York
Trust Company, N.A., as trustee (the Trustee).
W I T N E S S E T H:
WHEREAS, the Company and the Trustee (as successor trustee to The Bank of New York) are
parties to an Indenture, dated as of August 18, 1999 (the Indenture), relating to the issuance
from time to time by the Company of its Securities on terms to be specified at the time of
issuance;
WHEREAS, the Company proposes to create under the Indenture a new series of Securities;
WHEREAS, Section 2.01 of the Indenture provides that at or prior to the issuance of any
Securities within a series, the terms of the series of Securities shall be established by a
supplemental indenture or an Officers Certificate pursuant to authority granted under resolutions
of the Board of Directors of the Company;
WHEREAS, Section 10.01 of the Indenture provides that when authorized by a Certified Board
Resolution, the Company and the Trustee may enter into a supplemental indenture to change or
eliminate any of the provisions of the Indenture without the consent of the holders of any
Securities of any series then outstanding, provided that any such change or elimination would not
adversely affect such provision as applied to any series of Securities created prior to the
execution of such supplemented indenture; and
WHEREAS, all conditions necessary to authorize the execution and delivery of this Supplemental
Indenture and to make it a valid and binding agreement of the Company have been done or performed.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and the
Trustee mutually covenant and agree as follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS; RULES OF CONSTRUCTION
SECTION 1.1 Relation to Indenture. This Supplemental Indenture constitutes an
integral part of the Indenture.
SECTION 1.2 Definitions. For all purposes of this Supplemental Indenture, the
following terms shall have the respective meanings set forth in this Section.
Below Investment Grade Rating Event means the Notes are rated below Investment Grade by each
of the Rating Agencies on any date from the date of the public notice of an arrangement that could
result in a Change of Control until the end of the 60-day period following public notice of the
occurrence of a Change of Control (which period shall be extended so long as the rating of the
Notes is under publicly announced consideration for possible downgrade by any of the Rating
Agencies); provided that a Below Investment Grade Rating Event otherwise arising by virtue of a
particular reduction in rating shall not be deemed to have occurred in respect of a particular
Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event for purposes
of the definition of Change of Control Repurchase Event hereunder) if the Rating Agencies making
the reduction in rating to which this definition would otherwise apply do not announce or publicly
confirm or inform the Trustee in writing at its request that the reduction was the result, in whole
or in part, of any event or circumstance comprised of or arising as a result of, or in respect of,
the applicable Change of Control (whether or not the applicable Change of Control shall have
occurred at the time of the Below Investment Grade Rating Event).
Change of Control means the occurrence of any of the following: (1) the direct or indirect
sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in
one or a series of related transactions, of all or substantially all of the properties or assets of
the Company and its subsidiaries taken as a whole to any person (as that term is used in Section
13(d)(3) of the Exchange Act), other than the Company or one of its subsidiaries; (2) the
consummation of any transaction (including, without limitation, any merger or consolidation) the
result of which is that any person (as that term is used in Section 13(d)(3) of the Exchange Act)
becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding
number of shares of the Companys Voting Stock; or (3) the first day on which a majority of the
members of the Companys Board of Directors are not Continuing Directors.
Change of Control Repurchase Event means the occurrence of both a Change of Control and a
Below Investment Grade Rating Event.
Comparable Treasury Issue means the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the remaining term of the Notes to be redeemed
that would be utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Notes.
Comparable Treasury Price means, with respect to any redemption date, (i) the average of
four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than four
such Reference Treasury Dealer Quotations, the average of all such quotations, or (iii) if only one
Reference Treasury Dealer Quotation is received, such quotation.
2
Continuing Directors means, as of any date of determination, any member of the Board of
Directors of the Company who (1) was a member of such Board of Directors on the date of the
issuance of the Notes; or (2) was nominated for election or elected to such Board of Directors with
the approval of a majority of the Continuing Directors who were members of such Board of Directors
at the time of such nomination or election (either by a specific vote or by approval of the
Companys proxy statement in which such member was named as a nominee for election as a director).
Exchange Act means the Securities Exchange Act of 1934, as amended.
Fitch means Fitch Ratings Ltd.
Investment Grade means a rating of Baa3 or better by Moodys (or its equivalent under any
successor rating categories of Moodys); a rating of BBB or better by S&P (or its equivalent under
any successor rating categories of S&P); and a rating of BBB or better by Fitch (or its equivalent
under any successor rating categories of Fitch); or the equivalent investment grade credit rating
from any additional Rating Agency or Rating Agencies selected by the Company.
Moodys means Moodys Investors Service Inc.
Quotation Agent means the Reference Treasury Dealer appointed by the Company.
Rating Agency means (1) each of Fitch, Moodys and S&P; and (2) if any of Fitch, Moodys or
S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons
outside of the Companys control, a nationally recognized statistical rating organization within
the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the Company as a replacement
agency for Fitch, Moodys or S&P, as the case may be.
Reference Treasury Dealer means (i) each of Citigroup Global Markets Inc. and Morgan Stanley
& Co. Incorporated (or their respective affiliates that are Primary Treasury Dealers) and their
respective successors; provided, however, that if any of the foregoing shall cease to be a primary
U.S. Government securities dealer in New York City (a Primary Treasury Dealer), the Company will
substitute therefor another Primary Treasury Dealer, and (ii) any other Primary Treasury Dealer
selected by the Company.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by the Trustee, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third business day preceding such redemption date.
Treasury Rate means, with respect to any redemption date, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
S&P means Standard & Poors Ratings Services, a division of McGraw-Hill, Inc.
3
Voting Stock means the Companys capital stock of any class or kind the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
SECTION 1.3 Rules of Construction. For all purposes of this Supplemental Indenture:
(a) capitalized terms used herein without definition shall have the meanings specified in the
Indenture;
(b) all references herein to Articles and Sections, unless otherwise specified, refer to the
corresponding Articles and Sections of this Supplemental Indenture;
(c) the terms herein, hereof, hereunder and other words of similar import refer to this
Supplemental Indenture; and
(d) in the event of a conflict with the definition of terms in the Indenture, the definitions
in this Supplemental Indenture shall control.
ARTICLE TWO
THE SECURITIES
There is hereby established a series of Securities pursuant to the Indenture with the
following terms:
SECTION 2.1 Title of the Securities. The series of Securities shall be designated the
6.625% Senior Notes due 2037 (the Notes).
SECTION 2.2 Aggregate Principal Amount. The Notes will be initially issued in an
aggregate principal amount of $100,000,000 (not including the Notes authenticated and delivered
upon registration of, transfer of, or in exchange for, or in lieu of, other Securities pursuant to
Sections 2.06, 2.07, 2.08, 3.02 or 10.04 of the Indenture).
SECTION 2.3 Maturity Date. The date on which the principal of the Notes is payable is
April 15, 2037, subject to the provisions of the Indenture relating to acceleration.
SECTION 2.4 Ranking. The Notes will be unsecured senior debt of the Company and will
rank on a parity with all other unsecured and unsubordinated indebtedness of the Company.
SECTION 2.5 Interest. The Notes will bear interest from April 10, 2007, or from the
most recent interest payment date to which interest has been paid or duly provided for, at a rate
of 6.625% per annum, payable semi-annually on April 15 and October 15 of each year, commencing
October 15, 2007. The Company will pay interest to the person in whose name a Note is registered
at the close of business on the April 1 or October 1, as the case may be, preceding the interest
payment date. The Company will compute interest on the basis of a 360-day year consisting of
twelve 30-day months.
4
SECTION 2.6 Issuance Price. The purchase price to be paid to the Company for the sale
of the Notes pursuant to the terms of the Underwriting Agreement, dated as of April 4, 2007,
between the Company and Citigroup Global Markets Inc. and Morgan Stanley & Co. Incorporated., as
Representatives of the several Underwriters named in Schedule 1 thereto, shall be 98.543% of the
principal amount of the Notes and the initial offering price to the public of the Notes shall be
99.418% of the principal amount of the Notes.
SECTION 2.7 Defeasance. The Notes shall be subject to defeasance under Section 12.02
of the Indenture.
SECTION 2.8 Form and Dating.
(a) The Notes shall be substantially in the form of Exhibit A hereto. The Notes may
have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note
shall be dated the date of its authentication.
(b) The terms and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Supplemental Indenture, and the Company and the Trustee, by their execution
and delivery of this Supplemental Indenture, expressly agree to such terms and provisions and to be
bound thereby. However, to the extent any provision of any Notes conflicts with the express
provisions of this Supplemental Indenture, the provisions of this Supplemental Indenture shall
govern and be controlling.
(c) The Notes will be issued in the form of a fully-registered Global Security. The Global
Security will be deposited with, or on behalf of, the Depositary and registered in the name of the
Depositary or its nominee. Except as set forth in the Prospectus Supplement dated April 4, 2007,
the Global Security may be transferred, in whole and not in part, only by the Depositary to its
nominee or by its nominee to such Depositary or another nominee of the Depositary or by the
Depositary or its nominee to a successor of the Depositary or a nominee of such successor. If the
Depositary is at any time unwilling or unable to continue as depositary and a successor depositary
is not appointed by the Company within 90 calendar days, the Company will issue Notes in
certificated form in exchange for the Global Security. In addition, the Company may at any time
determine not to have the Notes represented by a Global Security, and, in such event, will issue
Notes in certificated form in exchange for the Global Security. In either instance, an owner of an
interest in the Global Security would be entitled to physical delivery of such Notes in
certificated form. Notes so issued in certificated form will be issued in denominations of $1,000
and integral multiples thereof and will be issued in registered form only.
SECTION 2.9 Optional Redemption.
(a) The Notes will be redeemable, in whole at any time or in part from time to time, at the
Companys option at a redemption price equal to the greater of: (i) 100% of the principal amount of
the Notes to be redeemed; and (ii) the sum of the present values of the remaining scheduled
payments of principal and interest thereon (not including any portion of such payments of interest
accrued as of the date of redemption), discounted to the date of redemption on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined
below), plus 30 basis points, plus, in each case, accrued interest
5
thereon to the date of redemption. Notwithstanding the foregoing, installments of interest on
Notes that are due and payable on interest payment dates falling on or prior to a redemption date
will be payable on the interest payment date to the registered holders as of the close of business
on the relevant record date according to the Notes and the Indenture.
(b) Notice of any redemption will be mailed at least 30 days but not more than 60 days before
the redemption date to each holder of the Notes to be redeemed. Unless the Company defaults in
payment of the redemption price, on and after the redemption date, interest will cease to accrue on
the Notes or portions thereof called for redemption. If less than all of the Notes are to be
redeemed, the Notes to be redeemed shall be selected by lot by The Depository Trust Company, in the
case of Notes represented by a global security, or by the Trustee by a method the Trustee deems to
be fair and appropriate, in the case of Notes that are not represented by a global security.
SECTION 2.10 Repurchase Upon Change of Control.
(a) If a Change of Control Repurchase Event occurs, unless the Company has exercised its right
to redeem the Notes, the Company will make an offer to each holder of Notes to repurchase all or
any part (in integral multiples of $1,000) of that holders Notes at a repurchase price in cash
equal to 101% of the aggregate principal amount of Notes repurchased plus any accrued and unpaid
interest on the Notes repurchased to the date of repurchase. Within 30 days following any Change
of Control Repurchase Event or, at the Companys option, prior to any Change of Control, but after
the public announcement of an impending Change of Control, the Company will mail a notice to each
holder, with a copy to the Trustee, describing the transaction or transactions that constitute or
may constitute the Change of Control Repurchase Event and offering to repurchase Notes on the
payment date specified in the notice, which date will be no earlier than 30 days and no later than
60 days from the date such notice is mailed. The notice shall, if mailed prior to the date of
consummation of the Change of Control, state that the offer to repurchase is conditioned on the
Change of Control Repurchase Event occurring on or prior to the payment date specified in the
notice.
(b) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act, and
any other securities laws and regulations thereunder, to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a Change of Control
Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict
with the Change of Control Repurchase Event provisions of the Notes, the Company will comply with
the applicable securities laws and regulations and will not be deemed to have breached its
obligations under the Change of Control Repurchase Event provisions of the Notes by virtue of such
conflict.
(c) On the Change of Control Repurchase Event payment date, the Company will, to the extent
lawful:
(i) accept for payment all Notes or portions of Notes (in integral multiples of $1,000)
properly tendered pursuant to the Companys offer;
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(ii) deposit with the paying agent an amount equal to the aggregate repurchase price in
respect of all Notes or portions of Notes properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the Notes properly accepted,
together with an officers certificate stating the aggregate principal amount of Notes being
purchased by the Company.
(d) The paying agent will promptly mail to each holder of Notes properly tendered the
repurchase price for the Notes, and the Trustee will promptly authenticate and mail (or cause to be
transferred by book-entry) to each holder a new Note equal in principal amount to any unpurchased
portion of any Notes surrendered; provided, that each new Note will be in a principal amount of
$1,000 or an integral multiple of $1,000.
(e) The Company will not be required to make an offer to repurchase the Notes upon a Change of
Control Repurchase Event if a third party makes such an offer in the manner, at the times and
otherwise in compliance with the requirements for an offer made by the Company and such third party
purchases all Notes properly tendered and not withdrawn under its offer.
ARTICLE THREE
AMENDMENTS TO THE INDENTURE
SECTION 3.1 Events of Default. For purposes of this series of Notes only, Section
6.01(5) of the Indenture is deleted in its entirety and replaced with the following:
the failure by the Company or any of its Subsidiaries to pay any principal or premium or
interest on any Indebtedness which is outstanding in a principal amount of at least
$50,000,000 (or its equivalent in another currency) in the aggregate (but excluding
Indebtedness evidenced by the Securities or otherwise arising under this Indenture), when
the same becomes due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and the continuation of such failure after the
applicable grace period, if any, specified in the agreement or instrument relating to such
Indebtedness; or the occurrence or existence of any other event or condition under any
agreement or instrument relating to any such Indebtedness that continues after the
applicable grace period, if any, specified in such agreement or instrument, if the effect of
such event or condition is to accelerate, or to permit the acceleration of, the maturity of
such Indebtedness; or any such Indebtedness shall be declared to be due and payable, or
required to be prepaid (other than by a regularly scheduled required prepayment), redeemed,
purchased or defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness
shall be required to be made, in each case prior to the stated maturity thereof.
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ARTICLE FOUR
MISCELLANEOUS PROVISIONS
SECTION 4.1 Ratification. The Indenture, as supplemented and amended by this
Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed.
SECTION 4.2 Governing Law. This Supplemental Indenture shall be governed by, and
construed and enforced in accordance with, the laws of the jurisdiction which govern the Indenture
and its construction.
SECTION 4.3 Counterparts and Method of Execution. This Supplemental Indenture may be
executed in several counterparts, all of which together shall constitute one agreement binding on
all parties hereto, notwithstanding that all parties have not signed the same counterpart.
SECTION 4.4 Section Titles. Section titles are for descriptive purposes only and
shall not control or alter the meaning of this Supplemental Indenture as set forth in the text.
SECTION 4.5 The Trustee. The recitals contained herein shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency of this Supplemental
Indenture.
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IN WITNESS WHEREOF, CORN PRODUCTS INTERNATIONAL, INC. AND THE BANK OF NEW YORK TRUST COMPANY,
N.A. have caused this Supplemental Indenture to be duly executed, all as of the day and year first
above written.
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CORN PRODUCTS INTERNATIONAL, INC. |
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By:
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/s/ Cheryl K. Beebe |
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Name:
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Cheryl K. Beebe |
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Title:
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Vice President and
Chief Financial Officer |
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By:
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/s/ Kimberly A. Hunter |
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Name:
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Kimberly A. Hunter |
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Title:
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Corporate Treasurer |
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THE BANK OF NEW YORK TRUST COMPANY, N.A., as
Trustee |
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By:
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/s/ M. Callahan |
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Name:
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M. Callahan |
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Title:
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Vice President |
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