EXHIBIT 4.5
THIS PREFERRED SECURITY IS A BOOK-ENTRY SECURITY WITHIN THE MEANING OF THE
DECLARATION HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") OR A NOMINEE OF THE DEPOSITARY.
THIS PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE DECLARATION AND NO TRANSFER OF THIS
PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED SECURITY AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE
TRUST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
PREFERRED SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OF OTHERWISE BY A PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT), OR (B) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT
WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO BREED TECHNOLOGIES, INC. OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY, THE
TRANSFEROR MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
INSTITUTIONAL TRUSTEE. THE TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE
INSTITUTIONAL TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN
VIOLATION OF THE FOREGOING RESTRICTIONS. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.
Cusip No. 05576M 20 3 No. of Preferred Securities
Certificate No. 1 5,000,000
BTI CAPITAL TRUST
6.50% CONVERTIBLE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $50 PER CONVERTIBLE PREFERRED SECURITY)
BTI Capital Trust, a statutory business trust formed under the laws of the
State of Delaware (the "Trust"), hereby certifies that Cede & Co. (the "Holder")
is the registered owner of five million (5,000,000) preferred securities of the
Trust representing preferred, undivided beneficial interests in the assets of
the Trust designated the "6.50% Convertible Trust Preferred Securities
(liquidation amount $50 per Convertible Preferred Security)" (the "Preferred
Securities"). The Preferred Securities are transferable on the books and
records of the Trust, in person or by a duly authorized attorney, upon surrender
of this certificate duly endorsed and in proper form for transfer. The
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities represented hereby are issued and shall
in all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of November 25, 1997, as the same may
be amended from time to time (the "Declaration"), including the designation of
the terms of the Preferred Securities as set forth in Annex I to the
Declaration. Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the benefits
of the Preferred Securities Guarantee to the extent provided therein. The
Sponsor will provide a copy of the Declaration, the Preferred Securities
Guarantee and the Indenture to a Holder without charge upon written request to
the Trust at its principal place of business.
Reference is hereby made to select provisions of the Preferred Securities
set forth on the reverse hereof, which select provisions shall for all purposes
have the same effect as if set forth at this place.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal income
tax purposes, the Debentures as indebtedness and the Preferred Securities as
evidence of indirect beneficial ownership in the Debentures.
Unless the Institutional Trustee's Certificate of Authentication hereon has
been properly executed, these Preferred Securities shall not be entitled to any
benefit under the Declaration or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Trust has executed this certificate this 25th day
of November, 1997.
BTI Capital Trust
By: /s/ Xxxxxxx X. Xxxxxxxxxxx, Xx.
---------------------------------
Xxxxxxx X. Xxxxxxxxxxx, Xx.
Regular Trustee
CERTIFICATE OF AUTHENTICATION
This certificate represents the Preferred Securities referred to in the
within-mentioned Declaration.
Dated: November 25, 1997
WILMINGTON TRUST COMPANY,
as Institutional Trustee
By: ^
---------------------------------
Authorized Signatory
BTI CAPITAL TRUST
6.50% CONVERTIBLE TRUST PREFERRED SECURITIES
Each Preferred Security will be entitled to receive cumulative
Distributions at a fixed rate per annum of 6.50% (the "Coupon Rate") applied to
the stated liquidation amount of $50 per Preferred Security, such rate being the
rate of interest payable on the Debentures to be held by the Institutional
Trustee. Distributions in arrears for more than one quarter will bear interest
thereon compounded quarterly at the Coupon Rate (to the extent permitted by
applicable law). The term "Distributions" as used herein includes such cash
distributions and any such interest payable including any Additional Interest
and Compounded Interest unless otherwise stated. A Distribution is payable only
to the extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Trust has funds available therefor.
The amount of Distributions payable for any period will be computed for any full
quarterly Distribution period on the basis of a 360-day year of twelve 30-day
months, and for any period shorter than a full quarterly Distribution period for
which Distributions are computed, Distributions will be computed on the basis of
the actual number of days elapsed per 90-day quarter.
Except as otherwise described below, Distributions on the Preferred
Securities will be cumulative, will accrue from the date of initial issuance and
will be payable quarterly in arrears, on the following dates, which dates
correspond to the interest payment dates on the Debentures: February 15, May 15,
August 15 and November 15 of each year, commencing on February 15, 1998, when,
as and if available for payment by the Institutional Trustee. The Debenture
Issuer has the right at any time during the term of the Debentures to defer
interest payments thereon from time to time by extending the interest payment
period for successive periods not exceeding 20 consecutive quarters (each, an
"Extension Period"), during which no interest shall be due and payable; provided
that no such Extension Period may extend beyond the maturity date of the
Debentures. As a consequence of the Debenture Issuer's extension of the
interest payment period, quarterly Distributions on the Preferred Securities
would be deferred (though such Distributions would continue to accrue with
interest since interest would continue to accrue on the Debentures) during any
such Extension Period. In the event that the Debenture Issuer exercises its
right to extend the interest payment period, then, during such period, (a) the
Debenture Issuer shall not declare or pay dividends on, or make any distribution
or liquidation payment with respect to, or redeem, purchase or acquire any of
its capital stock (other than (i) purchases or acquisitions of shares of Common
Stock in connection with the satisfaction by the Debenture Issuer of its
obligations under any employee benefit plan or the satisfaction by the Debenture
Issuer of its obligations pursuant to any contract or security requiring the
Debenture Issuer to purchase shares of the Common Stock, (ii) as a result of a
reclassification of the Debenture Issuer's capital stock or the exchange or
conversion of one class or series of the Debenture Issuer's capital stock for
another class or series of the Debenture Issuer's capital stock, (iii) the
purchase of fractional interests in shares of the Debenture Issuer's capital
stock pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged, (iv) purchases or acquisitions of
shares of the Debenture Issuer's Common Stock to be used in connection with the
acquisition of the Debenture Issuer's Common Stock pursuant to a dividend
reinvestment plan, or (v) stock dividends paid by the Debenture Issuer where the
dividend stock is the same stock as that on which the dividend is paid), (b) the
Debenture Issuer shall not make any payment of interest on or principal of (or
premium, if any, on) or repay, repurchase or redeem any debt securities
(including guarantees) issued by the Debenture Issuer that rank pari passu with
or junior to the Debentures and (c) the Debenture Issuer shall not make any
guarantee payment with respect to the foregoing (other than pursuant to the
Preferred Securities Guarantee or Common Securities Guarantee). Prior to the
termination of any such Extension
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Period, the Debenture Issuer may further extend the interest payment period;
provided that such Extension Period, together with all such previous and further
extensions thereof, may not exceed 20 consecutive quarters; and provided
further, that no Extension Period may extend beyond the maturity date of the
Debentures. Upon the termination of any Extension Period and the payment of all
amounts then due, the Debenture Issuer may commence a new Extension Period,
subject to the above requirements.
Distributions on the Preferred Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates, which, with respect to Preferred Securities that are in book-entry
form, will be one Business Day prior to the relevant payment dates. With
respect to Preferred Securities that are not in book-entry form, the relevant
record dates shall conform to the rules of any securities exchange or other
organization on which the Preferred Securities are listed or quoted and, if
none, the Regular Trustees shall have the right to select relevant record dates,
which shall be more than one Business Day prior to the relevant payment dates.
The Preferred Securities shall be convertible into shares of Common Stock
of Breed Technologies, Inc., through (i) the exchange of Preferred Securities
for a portion of the Debentures and (ii) the immediate conversion of such
Debentures into Common Stock of Breed Technologies, Inc., in the manner and
according to the terms set forth in the Declaration.
The Preferred Securities shall be redeemable as provided in the
Declaration.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
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(Insert assignee's social security or tax identification number)
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(Insert address and zip code of assignee)
and irrevocably appoints
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----------------------------------------------- agent to transfer this Preferred
Security Certificate on the books of the Trust. The agent may substitute
another to act for him or her.
Date:
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Signature:
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(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature Guarantee:*
--------------------------------
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* Signature must be guaranteed by an "eligible guarantor institution"
that is a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include membership
or participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
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CONVERSION REQUEST
To: Wilmington Trust Company,
as Conversion Agent
The undersigned owner of these Preferred Securities hereby irrevocably
exercises the option to convert these Preferred Securities, or the portion below
designated, into Common Stock of Breed Technologies, Inc. (the "Common Stock")
in accordance with the terms of the Declaration. Pursuant to the aforementioned
exercise of the option to convert these Preferred Securities, the undersigned
hereby directs the Conversion Agent (as that term is defined in the Declaration)
to (i) exchange such Preferred Securities for a portion of the Debentures (as
that term is defined in the Declaration) held by the Trust (at the rate of
exchange specified in the terms of the Preferred Securities set forth as Annex I
to the Declaration) and (ii) immediately convert such Debentures on behalf of
the undersigned, into Common Stock (at the conversion rate specified in the
terms of the Preferred Securities set forth as Annex I to the Declaration).
The undersigned also hereby directs the Conversion Agent that the shares
issuable and deliverable upon conversion, together with any check in payment for
fractional shares, be issued in the name of and delivered to the undersigned,
unless a different name has been indicated in the assignment below. If shares
are to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect thereto.
Date: ____________________
Number of Preferred Securities to be converted: ______________
If a name or names other than the undersigned, please indicate in the spaces
below the name or names in which the shares of Common Stock are to be issued,
along with the address or addresses of such person or persons.
__________________________________
__________________________________
__________________________________
__________________________________
(Sign exactly as your name appears on the other side of this Preferred Security
certificate)
(for conversion only)
Please Print or Typewrite Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number.
__________________________________________
__________________________________________
__________________________________________
Signature Guarantee:*
_________________________________
* Signature must be guaranteed by an "eligible guarantor institution" that
is, a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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