EXHIBIT 99(b)
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO A NOMINEE OF DTC OR BY DTC OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
TO XXXXXXX XXXXX & CO., INC. 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 REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
REGISTERED PRINCIPAL AMOUNT:
NO. R-1 CUSIP No. 59018 SZ 23 $85,000,000
Common Code No. 9462147
ISIN No. US 59018SZ233
XXXXXXX XXXXX & CO., INC.
MEDIUM-TERM NOTE,
SERIES B
1% Callable and Exchangeable Notes due February 8, 2006
(Linked to the performance of the Common Stock of The Kroger Co.)
XXXXXXX XXXXX & CO., INC., a Delaware corporation (hereinafter referred to
as the "Company", which term includes any successor corporation under the
Indenture herein referred to), for value received, hereby promises to pay and
discharge each Note evidenced hereby on February 8, 2006 (the "Maturity Date")
by delivering to CEDE & CO., or registered assigns with respect to the principal
amount hereof, EIGHTY-FIVE MILLION DOLLARS ($85,000,000), an amount in U.S.
dollars equal to the greater of (i) the product of the Exchange Ratio multiplied
by the average Market Price of the Kroger Common Stock for the five Trading Days
ending on and including the third Trading Day prior to maturity (provided,
however, that if the payment on the Maturity Date is based on the foregoing
formula, no interest shall accrue on the Notes from and including August 8, 2005
through the Maturity Date) or (ii) $1,000 plus accrued and unpaid interest on
the Notes through but excluding the Maturity Date, as such terms are defined
below, and determined in accordance with the provisions set forth below, and to
pay interest on the principal amount hereof from February 8, 1999, or from the
most recent date in respect of which interest has been paid or duly provided
for, semiannually in arrears on February 8 and August 8, in each year (each an
"Interest Payment Date"), commencing August 8, 1999, at the rate of 1%
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per annum (the "Interest Rate"), until the principal amount is paid or duly made
available for payment. The Notes will be issued in denominations of U.S.$1,000
and integral multiples thereof. The interest so payable and punctually paid or
duly provided for on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the 15th day (whether or not a
Business Day) next preceding such Interest Payment Date. Any such interest which
is payable, but is not punctually paid or duly provided for on any Interest
Payment Date, shall forthwith cease to be payable to the registered Holder on
such Regular Record Date, and may be paid to the Person in whose name this Note
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to the Holder of this Note not
less than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner, as more fully provided in such Indenture.
Payment of interest and the amounts payable at maturity or upon exchange or
redemption (as described below) with respect to this Note shall be made at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts. The Company shall, or shall cause the Calculation Agent to,
deliver U.S. Dollars to the Trustee for delivery to the Holder of this Note in
respect of such payments.
The Company may redeem the Notes, in whole only, at any time, beginning on
February 8, 2002, upon not more than 30 or less than 15 scheduled Trading Days'
notice to the Holders of the Notes. Any date upon which the Company gives the
Holders of the Notes notice that it is redeeming the Notes is referred to herein
as the "Redemption Notice Date". If the Company redeems the Notes, for each
$1,000 principal amount of Notes owned by a Holder of the Notes, the Company
shall pay such Holder the Company Redemption Amount (as defined herein). The
"Company Redemption Amount" means, for each $1,000 principal amount of the
Notes, an amount equal to the greater of: (i) the product of the Exchange Ratio
multiplied by the average Market Price of the Kroger Common Stock for the five
Trading Days immediately following the Redemption Notice Date; provided,
however, that if the Company Redemption Amount is based upon the foregoing
formula, no interest shall accrue on the Notes from and including the
immediately preceding Interest Payment Date through the date of redemption; or
(ii) $1,000 plus accrued and unpaid interest on the Notes through but excluding
the date of redemption.
At any time beginning April 14, 1999 and ending 15 scheduled Trading Days
before the Maturity Date, upon not more than 30 or less than five scheduled
Trading Days' written notice to the Calculation Agent, the Holder of this Note
may cause the Company to redeem this Note for the Holder Exchange Amount (as
defined herein). The "Holder Exchange Amount" means an amount equal to the
product of: (i) the Exchange Ratio multiplied by (ii) the Market Price of the
Kroger Common Stock on the Business Day following the day the Calculation Agent
receives from the Holder of this Note written notice of such Xxxxxx's intention
to exchange this Note;
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provided, however, no interest will accrue on this Note from and including the
immediately preceding Interest Payment Date through the date of exchange.
As used herein:
"Business Day" means any day other than a Saturday or Sunday that is
neither a legal holiday nor a day on which banking institutions are authorized
or required by law or regulation to close in The City of New York.
"Calculation Agent" means Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated. All determinations made by the Calculation Agent shall be at the
sole discretion of the Calculation Agent and, absent a manifest error, shall be
conclusive for all purposes and binding on the Company and beneficial owners of
the Notes.
"Exchange Ratio" means an amount equal to the product of 12.6232 multiplied
by the Share Multiplier.
"Kroger" means The Kroger Co., an Ohio corporation.
"Kroger Common Stock" means the common stock, par value $1.00 per share, of
The Kroger Co.
"Market Disruption Event" means
(i) a suspension, absence (including the absence of an official closing
price) or material limitation of trading of the Kroger Common Stock on the NYSE
for more than two hours of trading or during the one-half hour period preceding
or at the close of trading in such market, as determined by the Calculation
Agent in its sole discretion; and
(ii) a determination by the Calculation Agent in its sole discretion that
the event described in clause (i) above materially interfered with the ability
of the Company or any of its affiliates to unwind all or a material portion of
the hedge with respect to the Notes.
For purposes of determining whether a Market Disruption Event has occurred:
(1) a limitation on the hours or number of days of trading will not constitute a
Market Disruption Event if it results from an announced change in the regular
business hours of the relevant exchange, and (2) limitations pursuant to any
rule or regulation enacted or promulgated by the NYSE, or other regulatory
organization with jurisdiction over the NYSE, on trading during significant
market fluctuations will constitute a suspension or material limitation of
trading in the Kroger Common Stock.
"Market Price" means, for any date of determination, the official closing
price, in the afternoon session, as applicable, of one share of Kroger Common
Stock as reported by the principal exchange on which Kroger Common Stock is
traded on such date. If the official closing price is not available for any
reason, including, without limitation, the occurrence of a Market Disruption
Event, the Market Price for the security for any date shall be the mean, as
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determined by the Calculation Agent, of the bid prices for the security obtained
from as many dealers in the security, but not exceeding three, as will make the
bid prices available to the Calculation Agent after 3:00 p.m., local time in
such principal market, on such date.
"NYSE" means the New York Stock Exchange.
"Share Multiplier" initially means 1.0, but shall be subject to adjustment,
as provided herein, through and including the Maturity Date.
"Trading Day" means a day on which the NYSE, the American Stock Exchange
and the Nasdaq Stock Market are open for trading, as determined by the
Calculation Agent.
Dilution and Reorganization Adjustments
The Share Multiplier used to calculate the Exchange Ratio on any date of
determination is subject to adjustment by the Calculation Agent as a result of
the dilution and reorganization adjustments described below.
1. If Kroger Common Stock is subject to a stock split or reverse stock split,
then once such split has become effective, the Share Multiplier shall be
adjusted to equal the product of the prior Share Multiplier and the number of
shares which a holder of one share of Kroger Common Stock, prior to the
effective date of such stock split or reverse stock split, would have owned or
been entitled to receive immediately following such effective date.
2. If Kroger Common Stock is subject to a stock dividend (i.e., issuance of
additional shares of Kroger Common Stock) that is given ratably to all holders
of shares of Kroger Common Stock, then once such shares are trading ex-dividend,
the Share Multiplier will be adjusted so that the new Share Multiplier shall
equal the prior Share Multiplier plus the product of: (a) the number of shares
of Kroger Common Stock issued with respect to one share of Kroger Common Stock
and (b) the prior Share Multiplier.
3. There will be no adjustments to the Share Multiplier to reflect cash
dividends or distributions paid, if any, with respect to Kroger Common Stock
other than distributions described under clause (e) of paragraph 5 below and
Extraordinary Dividends as described below. An "Extraordinary Dividend" means,
with respect to any consecutive 12-month period, all cash dividends or other
distributions with respect to Kroger Common Stock to the extent such dividends
exceed on a per share basis 10% of the average closing price per share of Kroger
Common Stock during such period, less any such dividends for which a prior
adjustment was previously made. If an Extraordinary Dividend occurs with
respect to Kroger Common Stock, the Share Multiplier will be adjusted on the
Trading Day preceding the payment of any dividend, the payment of which caused
an Extraordinary Dividend to be paid (the "ex-dividend date"), so that the new
Share Multiplier will equal the product of: (a) the then current Share
Multiplier and (b) a fraction, the numerator of which is the closing price per
share of Kroger Common Stock on the Trading Day preceding the ex-dividend date,
and the denominator of which is the amount by which the closing price on the
Trading Day preceding the ex-dividend date exceeds the Extraordinary Dividend
Amount. The "Extraordinary Dividend Amount" with respect to an
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Extraordinary Dividend for Kroger Common Stock will equal: (i) in the case of
cash dividends or other distributions that constitute quarterly dividends, the
amount per share of such Extraordinary Dividend minus the amount per share of
the immediately preceding non-Extraordinary Dividend, or (2) in the case of cash
dividends or other distributions that do not constitute quarterly dividends, the
amount per share of such Extraordinary Dividend. To the extent an Extraordinary
Dividend is not paid in cash, the value of the non-cash component will be
determined by the Calculation Agent, whose determination shall be conclusive. A
distribution on the Kroger Common Stock described in clause (e) of paragraph 5
below that also constitutes an Extraordinary Dividend shall cause an adjustment
to the Share Multiplier pursuant only to clause (3) of paragraph 5 below.
4. If Kroger issues transferable rights or warrants to all holders of Kroger
Common Stock to subscribe for or purchase Kroger Common Stock, including new or
existing rights to purchase Kroger Common Stock pursuant to a shareholders
rights plan or arrangement, once a triggering event shall have occurred
thereunder, at an exercise price per share less that the closing price of one
share of Kroger Common Stock on: (a) the date the exercise price of such rights
or warrants is determined and (b) the expiration date of such rights or
warrants, then, in each case, if the expiration date of such rights or warrants
precedes the maturity date, then the Share Multiplier will be adjusted to equal
the product of the prior Share Multiplier and a fraction, the numerator of which
shall be the number of shares of Kroger Common Stock outstanding immediately
prior to such issuance plus the number of additional shares of Kroger Common
Stock offered for subscription or purchase pursuant to such rights or warrants
and the denominator of which shall be the number of shares of Kroger Common
Stock outstanding immediately prior to such issuance plus the number of
additional shares of Kroger Common Stock which the aggregate offering price of
the total number of shares of Kroger Common Stock so offered for subscription or
purchase pursuant to such rights or warrants would purchase at the closing price
of one share of Kroger Common Stock on the expiration date of such rights or
warrants, which shall be determined by multiplying such total number of shares
offered by the exercise price of such rights or warrants and dividing the
product so obtained by such closing price.
5. If before the maturity date of the notes, (a) there occurs any
reclassification or change of Kroger Common Stock, (b) Kroger, or any surviving
entity or subsequent surviving entity of Kroger (a "Successor Entity"), has been
subject to a merger, combination or consolidation and is not the surviving
entity, (c) any statutory exchange of securities of Kroger or any Successor
Entity with another corporation occurs, other than pursuant to clause (b) above,
(d) Kroger is liquidated, (e) Kroger issues to all of its shareholders equity
securities of an issuer other than Kroger, other than in a transaction described
in clauses (b), (c) or (d) above (a "Spin-off Event"), or (f) a tender or
exchange offer is consummated for all the outstanding shares of Kroger (any such
event in clauses (a) through (f) a "Reorganization Event"), the Market Price
shall equal to the Reorganization Event Value. The "Reorganization Event Value"
shall be determined by the Calculation Agent and shall equal (i) the Transaction
Value related to the relevant Reorganization Event, plus (ii) interest on such
Transaction Value accruing from the date of the payment or delivery of the
consideration, if any, received in connection with such Reorganization Event
until the stated maturity date at a fixed interest rate determined on the date
of
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such payment or delivery equal to the interest rate that would be paid on a
standard senior non-callable debt security of the Company with a term equal to
the remaining term of the notes. "Transaction Value" means: (x) for any cash
received in any such Reorganization Event, an amount equal to the amount of cash
received per share of Kroger Common Stock multiplied by the Share Multiplier in
effect on the date all of the holders of shares of Kroger Common Stock have
agreed or have become irrevocably obligated to exchange such shares, (y) for any
property other than cash or securities received in any such Reorganization
Event, the market value, as determined by the Calculation Agent, of such
Exchange Property received for each share of Kroger Common Stock at the date of
the receipt of such Exchange Property multiplied by the then current Share
Multiplier, and (z) for any security received in any such Reorganization Event,
an amount equal to the closing price per share of such security on the fifth
Trading Day prior to the maturity date multiplied by the quantity of such
security received for each share of Kroger Common Stock multiplied by the then
current Share Multiplier. "Exchange Property" means the securities, cash or any
other assets distributed in any such Reorganization Event, including, in the
case of a Spin-off Event, the share of Kroger Common Stock with respect to which
the spun-off security was issued.
For purposes of paragraph 5 above, in the case of a consummated tender or
exchange offer for all Exchange Property of a particular type, Exchange Property
shall be deemed to include the amount of cash or other property paid by the
offeror in the tender or exchange offer with respect to such Exchange Property,
in an amount determined on the basis of the rate of exchange in such tender or
exchange offer. In the event of a tender or exchange offer with respect to
Exchange Property in which an offeree may elect to receive cash or other
property, Exchange Property shall be deemed to include the kind and amount of
cash and other property received by offerees who elect to receive cash.
No adjustments to the Share Multiplier will be required unless such Share
Multiplier adjustment would require a change of at least 0.1% in the Share
Multiplier then in effect. The Share Multiplier resulting from any of the
adjustments specified above will be rounded to the nearest one thousandth with
five ten-thousandths being rounded upward.
No adjustments to the Share Multiplier will be required other than those
specified above. However, the Company may, at its sole discretion, cause the
Calculation Agent to make additional adjustments to the Share Multiplier to
reflect changes occurring in relation to Kroger Common Stock or any other
Exchange Property in other circumstances where the Company determines that it is
appropriate to reflect such changes. The required adjustments specified above
do not cover all events that could affect the closing price of the Kroger Common
Stock, including, without limitation, a partial tender or exchange offer for
Kroger Common Stock.
The Calculation Agent shall be solely responsible for the determination and
calculation of any adjustments to the Share Multiplier and of any related
determinations and calculations with respect to any distributions of stock,
other securities or other property or assets, including cash, in connection with
any corporate event described above, and its determinations and calculations
with respect thereto shall be conclusive.
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All percentages resulting from any calculation on the Notes will be rounded
to the nearest one hundred-thousandth of a percentage point, with five one-
millionths of a percentage point rounded upwards (e.g., 9.876545% (or .09876545)
would be rounded to 9.87655% (or .0987655)) and all dollar amounts used in or
resulting from such calculation will be rounded to the nearest cent with one-
half cent being rounded upwards.
No adjustments shall be made for certain other events, such as offerings of
Kroger Common Stock by Kroger for cash or in connection with acquisitions or the
occurrence of a partial tender or exchange offer for the Kroger Common Stock by
Kroger or any third party.
The Company shall, within ten Business Days following the occurrence of an
event that requires an adjustment to the Share Ratio, or if the Company is not
aware of such occurrence, as soon as practicable after becoming so aware,
provide written notice to the Trustee, which shall provide notice to the holders
of the notes of the occurrence of such event and, if applicable, a statement in
reasonable detail setting forth the adjusted Share Multiplier.
General
Unless the certificate of authentication hereon has been executed by or on
behalf of The Chase Manhattan Bank, the Trustee for this Note under the
Indenture, or its successor thereunder, by the manual signature of one of its
authorized officers, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
This Note is one of a duly authorized issue of Securities (hereinafter
called the "Securities") of the Company designated as its Medium-Term Notes,
Series B (the "Notes"). The Securities are issued and to be issued under an
indenture (the "Indenture") dated as of October 1, 1993, between the Company and
The Chase Manhattan Bank, as trustee (herein called the "Trustee," which term
includes any successor Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights thereunder of the Company, the Trustee and the Holders of the
Notes and the terms upon which the Notes are to be authenticated and delivered.
The terms of individual Notes may vary with respect to interest rates or
interest rate formulas, issue dates, maturity, redemption, repayment, currency
of payment and otherwise as provided in the Indenture.
The Notes are issuable only in registered form without coupons in
denominations, unless otherwise specified above, of $1,000 and integral
multiples thereof. References to payment "per Note" refer to each $1,000
principal amount of this Note. As provided in the Indenture and subject to
certain limitations therein set forth, the Notes are exchangeable for a like
aggregate principal amount of Notes as requested by the Holder surrendering the
same. If (x) the Depository is at any time unwilling or unable to continue as
depository and a successor depository is not appointed by the Company within 60
days, (y) the Company executes and delivers to the Trustee a Company Order to
the effect that this Note shall be exchangeable or (z) an Event of Default has
occurred and is continuing with respect to the Notes, this Note shall be
exchangeable for Notes in definitive form of like tenor and of an equal
aggregate principal amount, in authorized denominations. Such definitive Notes
shall be registered in such name or
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names as the Depository shall instruct the Trustee. If definitive Notes are so
delivered, the Company may make such changes to the form of this Note as are
necessary or appropriate to allow for the issuance of such definitive Notes.
This Note is not subject to any sinking fund.
If an Event of Default (as defined in the Indenture) with respect to the
Notes shall occur and be continuing, the principal of all the Notes may be
declared due and payable in the manner and with the effect provided in the
Indenture; provided, however, that in case an Event of Default with respect to
any Notes shall have occurred and be continuing, the amount payable to a
beneficial owner of a Note upon any acceleration permitted by the Notes will be
determined by the Calculation Agent and will be equal to the principal amount of
the Note plus accrued but unpaid interest thereon to but excluding the date of
early repayment, if applicable, calculated as though the date of early repayment
were the stated maturity date of the Notes.
In case of default in payment of the Notes (whether at their stated
maturity or upon acceleration), from and after the maturity date the Notes shall
bear interest, payable upon demand of the beneficial owners thereof, at the rate
of 1% per annum (to the extent that payment of such interest shall be legally
enforceable) on the unpaid amount due and payable on such date in accordance
with the terms of the Notes to the date payment of such amount has been made or
duly provided for.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66-2/3% in aggregate principal amount of the
Securities at the time Outstanding, as defined in the Indenture, of each series
affected thereby. The Indenture also contains provisions permitting the Holders
of specified percentages in aggregate principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all the Securities
of each series, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof whether or not notation of such consent or waiver is
made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the interest on, and such amounts as are
payable upon redemption or exchange or at maturity (as described above) with
respect to, this Note and any interest on any overdue amount thereof at the
time, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations set forth
therein and on the face hereof, the transfer of this Note may be registered on
the Security Register of the Company, upon surrender of this Note for
registration of transfer at the office or agency of the Company in
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the Borough of Manhattan, The City of New York, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company duly
executed by, the Holder hereof or by his attorney duly authorized in writing,
and thereupon one or more new Notes of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: February 8, 1999
CERTIFICATE OF AUTHENTICATION Xxxxxxx Xxxxx & Co., Inc.
This is one of the Securities of the series [Copy of Seal]
designated therein referred to in the
within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee By:
Treasurer
By: Attest:
Authorized Officer Secretary
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ASSIGNMENT/TRANSFER FORM
------------------------
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto
(insert Taxpayer Identification No.)
(Please print or typewrite name and address including postal zip code of
assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _______________________ attorney to transfer said Note on the books
of the Company with full power of substitution in the premises.
Dated: _____________________
NOTICE: The signature of the registered Holder to this
assignment must correspond with the name as written
upon the face of the within instrument in every
particular, without alteration or enlargement or any
change whatsoever.
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