Exhibit 4(b)
XXXXXXX XXXXX & CO., INC.
TO
THE CHASE MANHATTAN BANK,
as Trustee
----------------------------------------
ELEVENTH SUPPLEMENTAL INDENTURE
Dated as of _________ __, 1998
----------------------------------------
Creating a series of Securities designated
Structured Yield Product Exchangeable for Stock -SM-
___% STRYPES -SM- Due ________ __, 2001
Supplemental to Indenture
Dated as of April 1, 1983,
as Amended
TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS
SECTION 101. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
CIBER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
CIBER Common Stock . . . . . . . . . . . . . . . . . . . . . . . . 2
CIBER Successor. . . . . . . . . . . . . . . . . . . . . . . . . . 2
Closing Price. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Debt Instrument. . . . . . . . . . . . . . . . . . . . . . . . . . 3
Downside Protection Threshold Price. . . . . . . . . . . . . . . . 3
Extraordinary Cash Dividend. . . . . . . . . . . . . . . . . . . . 3
Forward Contract . . . . . . . . . . . . . . . . . . . . . . . . . 3
Forward Purchase Contract. . . . . . . . . . . . . . . . . . . . . 3
Initial Appreciation Cap . . . . . . . . . . . . . . . . . . . . . 3
Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Initial Price. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Interest Payment Date. . . . . . . . . . . . . . . . . . . . . . . 3
Marketable Securities. . . . . . . . . . . . . . . . . . . . . . . 3
Maturity Consideration . . . . . . . . . . . . . . . . . . . . . . 3
Maturity Date. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Maturity Price . . . . . . . . . . . . . . . . . . . . . . . . . . 3
NYSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Payment Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Payment Rate Formula . . . . . . . . . . . . . . . . . . . . . . . 4
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Principal Indenture. . . . . . . . . . . . . . . . . . . . . . . . 4
Regular Record Date. . . . . . . . . . . . . . . . . . . . . . . . 4
Reorganization Event . . . . . . . . . . . . . . . . . . . . . . . 4
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Share Components . . . . . . . . . . . . . . . . . . . . . . . . . 4
STRYPES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
STRYPES Certificates . . . . . . . . . . . . . . . . . . . . . . . 4
Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . 4
Threshold Appreciation Price . . . . . . . . . . . . . . . . . . . 4
Trading Day. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Transaction Value. . . . . . . . . . . . . . . . . . . . . . . . . 4
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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Unit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE TWO
THE STRYPES
SECTION 201. Description of the STRYPES . . . . . . . . . . . . . . . 5
SECTION 202. Form of STRYPES. . . . . . . . . . . . . . . . . . . . . 6
ARTICLE THREE
PAYMENT AND DISCHARGE OF STRYPES
SECTION 301. Payment and Discharge on the Maturity Date . . . . . . . 6
SECTION 302. No Fractional Shares . . . . . . . . . . . . . . . . . . 7
SECTION 303. Adjustment of Payment Rate Formula . . . . . . . . . . . 7
SECTION 304. Payment and Discharge with Cash. . . . . . . . . . . . . 10
SECTION 305. Notice of Adjustments and Certain Other Events . . . . . 10
SECTION 306. Shares Free and Clear. . . . . . . . . . . . . . . . . . 12
SECTION 307. Cancellation of STRYPES Certificates . . . . . . . . . . 12
ARTICLE FOUR
TAXES
SECTION 401. Documentary, Stamp, Transfer or Similar Taxes. . . . . . 12
SECTION 402. Treatment of STRYPES . . . . . . . . . . . . . . . . . . 13
ARTICLE FIVE
AMENDMENT OF CERTAIN PROVISIONS
OF THE PRINCIPAL INDENTURE
SECTION 501. Amendments Relating to the STRYPES . . . . . . . . . . . 14
SECTION 502. Interpretation of Principal Indenture. . . . . . . . . . 20
ARTICLE SIX
MISCELLANEOUS
SECTION 601. Effect of Supplemental Indenture . . . . . . . . . . . . 20
SECTION 602. Conflict with Trust Indenture Act. . . . . . . . . . . . 20
SECTION 603. Successors and Assigns . . . . . . . . . . . . . . . . . 20
SECTION 604. Separability Clause. . . . . . . . . . . . . . . . . . . 20
ii
SECTION 605. Benefits of Supplemental Indenture . . . . . . . . . . . 21
SECTION 606. Governing Law. . . . . . . . . . . . . . . . . . . . . . 21
SECTION 607. Execution in Counterparts. . . . . . . . . . . . . . . . 21
SECTION 608. Responsibility for Recitals. . . . . . . . . . . . . . . 21
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Eleventh Supplemental Indenture, dated as of _________ __, 1998 (the
"Supplemental Indenture"), by and between Xxxxxxx Xxxxx & Co., Inc., a
corporation organized and existing under the laws of the State of Delaware,
having its principal office at World Financial Center, New York, New York 10281
(the "Company"), and The Chase Manhattan Bank, formerly known as Chemical Bank
(successor by merger to Manufacturers Hanover Trust Company), a corporation duly
organized and existing under the laws of the State of New York and having its
Corporate Trust Office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as
trustee (the "Trustee").
WHEREAS, the Company has heretofore executed and delivered its Indenture,
dated as of April 1, 1983 and restated as of April 1, 1987 (as amended and
supplemented to the date hereof, the "Principal Indenture"), to the Trustee to
provide for the issuance from time to time of its unsecured and unsubordinated
debentures, notes or other evidences of senior indebtedness (the "Securities"),
unlimited as to principal amount; and
WHEREAS, the Principal Indenture, as amended by the Trust Indenture Reform
Act of 1990, and this Supplemental Indenture are hereinafter collectively
referred to as the "Indenture"; and
WHEREAS, the Company proposes to create and issue a new series of
Securities designated as its Structured Yield Product Exchangeable for
Stock-SM-, ___% STRYPES-SM- Due ________ __, 2001 (each such Security being
referred to herein as a "STRYPES"), the terms of which will require the Company
to pay and discharge the STRYPES on their maturity date by delivering to the
Holders thereof shares of Common Stock, par value $.01 per share ("CIBER Common
Stock"), of CIBER, Inc., a Delaware corporation ("CIBER"), (or, in the event
there shall occur a Reorganization Event (as defined in Section 303(d) of
Article Three), cash and/or Marketable Securities) or, at the option of the
Company, cash with an equal value, as provided herein; and
WHEREAS, Section 901 of the Principal Indenture provides that, without the
consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental to the Principal Indenture, in form satisfactory to the
Trustee, (a) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301 thereof and (b) to cure any ambiguity, to
correct or supplement any provision in the Principal Indenture which may be
defective or inconsistent with any other provision of the Principal Indenture,
or to make any other provisions with respect to matters or questions arising
under the Principal Indenture which shall not adversely affect the interests of
the Holders of Securities of any series or any related coupons in any material
respect; and
------------------------------
-SM- Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
WHEREAS, the Company has duly authorized the execution and delivery of this
Supplemental Indenture, and all things necessary to make this Supplemental
Indenture a valid agreement of the Company, in accordance with its terms, have
been done;
NOW, THEREFORE, the Company and the Trustee, in consideration of the
premises and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, hereby covenant and agree, for the
equal and proportionate benefit of all Holders, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 101. DEFINITIONS. For all purposes of the Principal Indenture
and this Supplemental Indenture relating to the series of Securities (consisting
of STRYPES) created hereby, except as otherwise expressly provided or unless the
context otherwise requires, the terms defined in this Article One have the
meanings assigned to them in this Article One. Capitalized terms used in the
Principal Indenture and this Supplemental Indenture but not defined herein are
used as they are defined in the Principal Indenture.
"Business Day" means any day that is not a Saturday, a Sunday or a day
on which the NYSE or banking institutions or trust companies in The City of
New York are authorized or obligated by law or executive order to close.
"CIBER" has the meaning specified in the third recital of the Company
in this instrument.
"CIBER Common Stock" has the meaning specified in the third recital of
the Company in this instrument.
"CIBER Successor" has the meaning specified in Section 303(b).
"Closing Price" means, with respect to any security on any date of
determination, the closing sale price (or, if no closing price is reported,
the last reported sale price) of such security on the NYSE on such date or,
if such security is not listed for trading on the NYSE on any such date, as
reported in the composite transactions for the principal United States
securities exchange on which such security is so listed, or if such
security is not so listed on a United States national or regional
securities exchange, as reported by the National Association of Securities
Dealers, Inc. Automated Quotation System, or, if such security is not so
reported, the last quoted bid price for such security in the
over-the-counter market as reported by the National Quotation Bureau or
similar organization, or, if such bid price is not available, the market
value of such security on such date as determined by a nationally
recognized independent investment banking firm retained for this purpose by
the Company.
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"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of the Principal
Indenture, and thereafter "Company" shall mean such successor corporation.
"Debt Instrument" has the meaning specified in Section 402(a).
"Downside Protection Threshold Price" has the meaning specified in
Section 301.
"Extraordinary Cash Dividend" means, with respect to any consecutive
12-month period, the amount, if any, by which the aggregate amount of all
cash dividends on the CIBER Common Stock occurring in such 12-month period
(excluding any such dividends occurring in such period for which a prior
adjustment to the Payment Rate Formula was previously made under Section
303) exceeds on a per share basis 10% of the average of the Closing Prices
per share of the CIBER Common Stock over such 12-month period; provided
that, for purposes of the foregoing definition, the amount of cash
dividends paid on a per share basis shall be appropriately adjusted to
reflect the occurrence during such period of any event described in Section
303(a).
"Forward Contract" has the meaning specified in Section 402(a).
"Forward Purchase Contract" means the Forward Purchase Contract, dated
_______, 1998, among the Company, Xxxxxxx Xxxxx Mortgage Capital Inc., The
Bank of New York, as collateral agent, and Xxxxx X. Xxxxxxxxx.
"Indenture" has the meaning specified in the second recital of the
Company in this instrument.
"Initial Appreciation Cap" has the meaning specified in Section 301.
"Initial Price" has the meaning specified in Section 301.
"Interest Payment Date" has the meaning specified in Section 201.
"Marketable Securities" means any securities listed on a U.S. national
securities exchange or reported by The NASDAQ National Market.
"Maturity Consideration" means the number of shares of CIBER Common
Stock (or, in the event there shall occur a Reorganization Event, cash
and/or Marketable Securities in lieu thereof) or, at the Company's option,
the amount of cash, in either case deliverable upon payment and discharge
of the STRYPES on the Maturity Date as provided in Article Three.
"Maturity Date" has the meaning specified in Section 201.
3
"Maturity Price" means, subject to adjustment as provided for in
Section 303(a)(v) of Article Three, the average Closing Price per share of
CIBER Common Stock on the 20 Trading Days immediately prior to, but not
including, the second Trading Day preceding the Maturity Date.
"NYSE" means the New York Stock Exchange, Inc.
"Payment Rate" has the meaning specified in Section 301.
"Payment Rate Formula" has the meaning specified in Section 301.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency or instrumentality thereof.
"Principal Indenture" has the meaning specified in the first recital
of the Company in this instrument.
"Regular Record Date" has the meaning specified in Section 201.
"Reorganization Event" has the meaning specified in Section 303(b).
"Securities" has the meaning specified in the first recital of the
Company in this instrument.
"Share Components" has the meaning specified in Section 301.
"STRYPES" has the meaning specified in the third recital of the
Company in this instrument.
"STRYPES Certificates" has the meaning specified in Section 202.
"Supplemental Indenture" has the meaning specified in the first
paragraph of this instrument.
"Threshold Appreciation Price" has the meaning specified in Section
301.
"Trading Day" means, with respect to any security the Closing Price of
which is being determined, a day on which such security (i) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (ii)
has traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of such security.
4
"Transaction Value" means, with respect to any Reorganization Event,
the sum of (x) for any cash received in such Reorganization Event, the
amount of cash received per share of CIBER Common Stock, (y) for any
property other than cash or securities received in such Reorganization
Event, an amount equal to the market value on the third Business Day
preceding the Maturity Date of such property received per share of CIBER
Common Stock as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Company and (z)
for any securities received in such Reorganization Event, an amount equal
to the average Closing Price per unit of such securities on the 20 Trading
Days immediately prior to, but not including, the second Trading Day
preceding the Maturity Date multiplied by the number of such securities
(subject to adjustment on a basis consistent with the provisions of Section
303(a) received for each share of CIBER Common Stock; PROVIDED, HOWEVER, if
one or more adjustments to the Payment Rate Formula shall have become
effective prior to the effective date for such Reorganization Event, then
the Transaction Value determined in accordance with the foregoing shall be
adjusted by multiplying such Transaction Value by the Share Component in
clause (c) of the Payment Rate Formula immediately before the effective
date for such Reorganization Event.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee with respect to the
STRYPES shall have become such pursuant to the applicable provisions of the
Principal Indenture, and thereafter "Trustee" shall mean such successor
Trustee.
"Unit" has the meaning specified in Section 402(a).
ARTICLE TWO
THE STRYPES
SECTION 201. DESCRIPTION OF THE STRYPES. The Securities shall be known
and designated as the "Structured Yield Product Exchangeable for Stock, ___%
STRYPES Due ________ __, 2001" of the Company. The aggregate number of STRYPES
which may be authenticated and delivered under this Supplemental Indenture is
limited to _________ with an issue price of $_____ per STRYPES, or $___________
in the aggregate, except for STRYPES evidenced by STRYPES Certificates
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other STRYPES Certificates evidencing such STRYPES pursuant
to Section 304, 305, 306 or 906 of the Principal Indenture.
The STRYPES shall mature on _______ __, 2001 (the "Maturity Date"). On the
Maturity Date, the STRYPES shall be paid and discharged as provided in Article
Three of this Supplemental Indenture.
The STRYPES shall bear interest at the rate of $______ per STRYPES per
annum (or $_____ per STRYPES per quarter), from _________ __, 1998, or from the
most recent Interest
5
Payment Date to which interest has been paid or duly provided for, as the case
may be, until the Maturity Date or earlier date on which the issue price of all
STRYPES is repaid in accordance with the provisions of the Indenture. Interest
shall be payable in cash quarterly in arrears on _________, _______, ______ and
_________, beginning _________, 1998, and on the Maturity Date (each, an
"Interest Payment Date"), to the Persons in whose names the STRYPES are
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day) immediately preceding such Interest Payment Date (each, a
"Regular Record Date"). Interest on the STRYPES shall be computed on the basis
of a 360-day year of twelve 30-day months.
The interest on the STRYPES shall be payable and the Maturity Consideration
shall be deliverable or payable at the office or agency of the Company in the
Borough of Manhattan, The City of New York maintained for such purpose and at
any other office or agency maintained by the Company for such purpose; PROVIDED,
HOWEVER, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
The STRYPES shall not be redeemable at the option of the Company prior to
the Maturity Date. The STRYPES are not subject to any sinking fund or other
mandatory redemption provisions. The STRYPES shall not be payable at the option
of the Holders prior to the Maturity Date.
The STRYPES shall be issuable only in registered form without coupons. The
STRYPES will be issued in any whole numbers. No fractional STRYPES or scrip
representing fractional STRYPES shall be issued.
SECTION 202. FORM OF STRYPES. The STRYPES shall be evidenced by
certificates ("STRYPES Certificates") in the form attached hereto as Exhibit A.
ARTICLE THREE
PAYMENT AND DISCHARGE OF STRYPES
SECTION 301. PAYMENT AND DISCHARGE ON THE MATURITY DATE. On the
Maturity Date, the Company shall pay and discharge each STRYPES by delivering to
the Holder thereof a number of shares (such number of shares being hereinafter
referred to as the "Payment Rate") of CIBER Common Stock determined in
accordance with the following formula (the "Payment Rate Formula"), subject to
adjustment as a result of certain dilution events relating to CIBER Common Stock
as provided for in Section 303 of this Article Three: (a) if the Maturity Price
is greater than or equal to $_____ (the "Threshold Appreciation Price"), _____
shares of CIBER Common Stock per STRYPES, (b) if the Maturity Price is less than
the Threshold Appreciation Price but is greater than $___________ (the "Initial
Appreciation Cap"), a fractional share of CIBER Common Stock per STRYPES so that
the value thereof (determined based on the Maturity Price) equals the Initial
Appreciation Cap (such fractional share being
6
calculated to the nearest 1/10,000th of a share of CIBER Common Stock or, if
there is not a nearest 1/10,000th of a share, to the next lower 1/10,000th of a
share), (c) if the Maturity Price is less than or equal to the Initial
Appreciation Cap but is greater than or equal to the Initial Price, one share of
CIBER Common Stock per STRYPES, (d) if the Maturity Price is less than the
Initial Price but is greater than or equal to $ _____ (the "Downside Protection
Threshold Price"), a number of shares of CIBER Common Stock per STRYPES so that
the value thereof (determined based on the Maturity Price) equals the Initial
Price and (e) if the Maturity Price is less than the Downside Protection
Threshold Price, _____ shares of CIBER Common Stock per STRYPES. The numbers of
shares of CIBER Common Stock per STRYPES specified in clauses (a), (c) and (e)
of the Payment Rate Formula are hereinafter referred to as the "Share
Components." No fractional shares of CIBER Common Stock shall be delivered on
the Maturity Date as provided in Section 302 of this Article Three.
SECTION 302. NO FRACTIONAL SHARES. No fractional shares or scrip
representing fractional shares of CIBER Common Stock shall be delivered on the
Maturity Date. If more than one STRYPES shall be held at one time by the same
Holder, the number of full shares of CIBER Common Stock which shall be delivered
upon payment and discharge of such Holder's STRYPES shall be computed on the
basis of the aggregate number of STRYPES so held on the Maturity Date. In lieu
of any fractional share of CIBER Common Stock which would otherwise be
deliverable upon payment and discharge of any STRYPES on the Maturity Date, the
Company, through any applicable Paying Agent, shall make a cash payment in
respect of such fractional share in an amount equal to the value of such
fractional share based upon the Maturity Price.
SECTION 303. ADJUSTMENT OF PAYMENT RATE FORMULA.
(a) ADJUSTMENT FOR DISTRIBUTIONS, SUBDIVISIONS, SPLITS, COMBINATIONS OR
RECLASSIFICATIONS. The Payment Rate Formula shall be subject to adjustment from
time to time as follows:
(i) If CIBER shall:
(A) pay a stock dividend or make a distribution with respect to
CIBER Common Stock in shares of such stock;
(B) subdivide or split the outstanding shares of such CIBER
Common Stock into a greater number of shares;
(C) combine the outstanding shares of CIBER Common Stock into a
smaller number of shares; or
(D) issue by reclassification of shares of CIBER Common Stock
any shares of common stock of CIBER;
then, in any such event, the Payment Rate Formula shall be adjusted so that each
Holder of any STRYPES shall thereafter be entitled to receive, upon payment and
discharge of such STRYPES on the Maturity Date (as provided in Section 301 of
this Article Three), the number of shares
7
of CIBER Common Stock (or, in the case of a reclassification referred to in
clause (D) above, the number of shares of other common stock of CIBER issued
pursuant thereto) which such Holder would have owned or been entitled to receive
immediately following any event described above had such STRYPES been paid and
discharged immediately prior to such event or any record date with respect
thereto. Each such adjustment shall become effective at the opening of business
on the Business Day next following the record date for determination of holders
of CIBER Common Stock entitled to receive such dividend or distribution in the
case of a dividend or distribution and shall become effective immediately after
the effective date in the case of a subdivision, split, combination or
reclassification. Each such adjustment shall be made successively.
(ii) ADJUSTMENT FOR ISSUANCE OF CERTAIN RIGHTS OR WARRANTS. If CIBER
shall issue rights or warrants to all holders of CIBER Common Stock entitling
them to subscribe for or purchase shares of CIBER Common Stock (other than
rights to purchase CIBER Common Stock pursuant to a plan for the reinvestment of
dividends or interest) at a price per share less than the then current market
price of the CIBER Common Stock, then in each case the Payment Rate Formula
shall be adjusted by multiplying each of the Share Components in the Payment
Rate Formula in effect immediately prior to the date of issuance of such rights
or warrants by a fraction, the numerator of which shall be the number of shares
of CIBER Common Stock outstanding on the date of issuance of such rights or
warrants, immediately prior to such issuance, plus the number of additional
shares of CIBER 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 CIBER Common Stock outstanding on the date of issuance of such rights
or warrants, immediately prior to such issuance, plus the number of additional
shares of CIBER Common Stock which the aggregate offering price of the total
number of shares of CIBER Common Stock so offered for subscription or purchase
pursuant to such rights or warrants would purchase at such current market price,
which shall be determined by multiplying such total number of shares by the
exercise price of such rights or warrants and dividing the product so obtained
by such current market price. Such adjustment shall become effective at the
opening of business on the Business Day next following the record date for
determination of stockholders entitled to receive such rights or warrants. To
the extent that shares of CIBER Common Stock are not delivered after the
expiration of such rights or warrants, the Payment Rate Formula shall be
readjusted to the Payment Rate Formula which would then be in effect had such
adjustments for the issuance of such rights or warrants been made upon the basis
of delivery of only the number of shares of CIBER Common Stock actually
delivered. Each such adjustment shall be made successively. For purposes of
this subparagraph (ii), the term "current market price" shall mean the average
Closing Price per share of CIBER Common Stock on the 20 Trading Days immediately
prior to the date such rights or warrants are issued; PROVIDED, HOWEVER, if any
event that would result in another adjustment of the Payment Rate Formula
pursuant to this Section 303(a) occurs during such 20-day period, the current
market price as determined pursuant to the foregoing shall be appropriately
adjusted to reflect the occurrence of such event.
(iii) ADJUSTMENT FOR DISTRIBUTIONS. If CIBER shall pay a dividend
or make a distribution to all holders of CIBER Common Stock of evidences of its
indebtedness or other assets (excluding any stock dividends or distributions
referred to in subparagraph (i)(A) above
8
or any cash dividends that do not constitute Extraordinary Cash Dividends) or
shall issue to all holders of CIBER Common Stock rights or warrants to subscribe
for or purchase any of its securities (excluding any rights to purchase shares
of CIBER Common Stock pursuant to a plan for the reinvestment of dividends or
interest and any rights or warrants referred to in subparagraph (ii) above),
then in each such case, the Payment Rate Formula shall be adjusted by
multiplying each of the Share Components in the Payment Rate Formula in effect
on the record date referred to below by a fraction, the numerator of which shall
be the market price per share of CIBER Common Stock on the record date for the
determination of stockholders entitled to receive such dividend or distribution
or such rights or warrants, and the denominator of which shall be such market
price per share of CIBER Common Stock less the fair market value (as determined
by the Board of Directors of the Company, whose determination shall be
conclusive, and described in a resolution adopted with respect thereto) as of
such record date of the portion of the assets or evidences of indebtedness to be
distributed or of such subscription rights or warrants applicable to one share
of CIBER Common Stock. Each such adjustment shall become effective at the
opening of business on the Business Day next following the record date for the
determination of stockholders entitled to receive such dividend or distribution
or such rights or warrants. Each such adjustment shall be made successively.
For purposes of this subparagraph (iii), the term "market price" shall mean the
average Closing Price per share of CIBER Common Stock on the 20 Trading Days
immediately prior to such record date for the determination of stockholders
entitled to receive such dividend or distribution or such rights or warrants;
PROVIDED, HOWEVER, if any event that would result in another adjustment of the
Payment Rate Formula pursuant to this Section 303(a) occurs during such 20-day
period, the market price as determined pursuant to the foregoing shall be
appropriately adjusted to reflect the occurrence of such event.
(iv) ISSUANCE IN PAYMENT OF DIVIDEND. Any shares of CIBER Common
Stock issuable in payment of a dividend shall be deemed to have been issued
immediately prior to the close of business on the record date for such dividend
for purposes of calculating the number of outstanding shares of CIBER Common
Stock under subparagraph (ii) above.
(v) GENERAL; MATURITY PRICE ADJUSTMENT. All adjustments to the
Payment Rate Formula shall be calculated to the nearest 1/10,000th of a share of
CIBER Common Stock (or if there is not a nearest 1/10,000th of a share to the
next lower 1/10,000th of a share). No adjustment in the Payment Rate Formula
shall be required unless such adjustment would require an increase or decrease
of at least one percent therein; PROVIDED, HOWEVER, that any adjustments which
by reason of this subparagraph are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. If an adjustment
is made to the Payment Rate Formula pursuant to subparagraph (i), (ii) or (iii)
of this Section 303(a), an adjustment shall also be made to the Maturity Price
solely to determine which clause of the Payment Rate Formula will apply on the
Maturity Date. The required adjustment to the Maturity Price shall be made by
multiplying each of the Closing Prices used in determining the Maturity Price by
a fraction, the numerator of which shall be the Share Component in clause (c) of
the Payment Rate Formula immediately after such adjustment pursuant to
subparagraph (i), (ii) or (iii) and the denominator of which shall be the Share
Component in clause (c) of the Payment Rate Formula immediately before such
adjustment. Each such adjustment shall be made successively. This subparagraph
9
(v) shall be so used to adjust the definition of Maturity Price only as such
term is used for the first time in each of clauses (a) through (e) of the
Payment Rate Formula.
(b) ADJUSTMENT FOR CONSOLIDATION, MERGER OR OTHER REORGANIZATION EVENT.
In the event of (i) any consolidation or merger of CIBER, or any surviving
entity or subsequent surviving entity of CIBER (a "CIBER Successor"), with or
into another entity (other than a consolidation or merger in which CIBER is the
continuing corporation and in which the CIBER Common Stock outstanding
immediately prior to the consolidation or merger is not exchanged for cash,
securities or other property of CIBER or another corporation), (ii) any sale,
transfer, lease or conveyance to another entity of the property of CIBER or any
CIBER Successor as an entirety or substantially as an entirety, (iii) any
statutory exchange of securities of CIBER or any CIBER Successor with another
entity (other than in connection with a merger or acquisition) or (iv) any
liquidation, dissolution, winding up or bankruptcy of CIBER or any CIBER
Successor (any such event described in clause (i), (ii), (iii) or (iv), a
"Reorganization Event"), the Payment Rate Formula used to determine the amount
payable on the Maturity Date for each STRYPES will be adjusted to provide that
each Holder of STRYPES will receive on the Maturity Date for each STRYPES cash
in an amount equal to (a) if the Transaction Value is greater than or equal to
the Threshold Appreciation Price, _____ (subject to adjustment in the same
manner and to the same extent as the Share Components in the Payment Rate
Formula are adjusted as described in paragraph (a) above) multiplied by the
Transaction Value, (b) if the Transaction Value is less than the Threshold
Appreciation Price but greater than the Initial Appreciation Cap, the Initial
Appreciation Cap, (c) if the Transaction Value is less than or equal to the
Initial Appreciation Cap but is greater than or equal to the Initial Price, the
Transaction Value, (d) if the Transaction Value is less than the Initial Price
but is greater than or equal to the Downside Protection Threshold Price, the
Initial Price and (e) if the Maturity Price is less than the Downside Protection
Threshold Price, _____ (subject to adjustment in the same manner and to the same
extent as the Share Components in the Payment Rate Formula are adjusted as
described in paragraph (a) above) multiplied by the Transaction Value.
Notwithstanding the foregoing, if any Marketable Securities are received by
holders of CIBER Common Stock in such Reorganization Event, then in lieu of
delivering cash as provided above, the Company may at its option deliver an
equivalent amount (based on the value determined in accordance with clause (z)
of the definition of "Transaction Value") of Marketable Securities, but not
exceeding, as a percentage of the total consideration required to be delivered,
the percentage of the total Transaction Value attributable to such Marketable
Securities. If the Company elects to deliver Marketable Securities, Holders of
the STRYPES will be responsible for the payment of any and all brokerage and
other transactional costs upon the sale of such securities.
SECTION 304. PAYMENT AND DISCHARGE WITH CASH. Notwithstanding the
provisions of Sections 301, 302 and 303 of this Article Three, the Company may,
at its option, in lieu of delivering shares of CIBER Common Stock on the
Maturity Date, deliver cash in an amount (calculated to the nearest 1/100th of a
dollar per STRYPES or, if there is not a nearest 1/100th of a dollar, then to
the next higher 1/100th of a dollar) equal to the value of such number of shares
of CIBER Common Stock at the Maturity Price. Such option, if exercised by the
Company, must be exercised with respect to all shares of CIBER Common Stock
otherwise deliverable on the Maturity Date upon payment and discharge of all
Outstanding STRYPES.
10
In determining the amount of cash deliverable upon payment and discharge of the
STRYPES in lieu of shares of CIBER Common Stock pursuant to the second preceding
sentence, if more than one STRYPES shall be held at one time by the same Holder,
the amount of cash which shall be deliverable to such Holder upon payment and
discharge shall be computed on the basis of the aggregate number of STRYPES so
held on the Maturity Date.
SECTION 305. NOTICE OF ADJUSTMENTS AND CERTAIN OTHER EVENTS.
(a) Whenever the Payment Rate Formula requires adjustment as herein
provided, the Company shall:
(i) forthwith compute the adjusted Payment Rate Formula in accordance
with Section 303 of this Article Three and prepare a certificate signed by an
officer of the Company setting forth the adjusted Payment Rate Formula, the
method of calculation thereof in reasonable detail, and the facts requiring such
adjustment and upon which such adjustment is based, which certificate shall be
conclusive, final and binding evidence of the correctness of the adjustment, and
file such certificate forthwith with the Trustee; and
(ii) within 10 Business Days following the occurrence of an event
that requires an adjustment to the Payment Rate Formula pursuant to Section 303
of this Article Three (or if the Company is not aware of such occurrence, as
soon as practicable after becoming so aware), provide written notice to the
Trustee and to the Holders of the STRYPES of the occurrence of such event and a
statement in reasonable detail setting forth the adjusted Payment Rate Formula
and the method by which the adjustment to the Payment Rate Formula was
determined, provided that, in respect of any adjustment to the Maturity Price
required pursuant to Section 303(a)(v), such notice need only disclose the
factor by which each of the Closing Prices used in determining the Maturity
Price is to be multiplied in order to determine the Payment Rate on the Maturity
Date, it being understood that, until the Maturity Date, the Payment Rate itself
cannot be determined.
(b) In case at any time while any of the STRYPES are outstanding the
Company receives notice that:
(i) CIBER shall declare a dividend (or any other distribution) on or
in respect of the CIBER Common Stock to which Section 303(a)(i) or (iii) shall
apply (other than any cash dividends and distributions, if any, paid from time
to time by CIBER that do not constitute Extraordinary Cash Dividends);
(ii) CIBER shall authorize the issuance to all holders of CIBER
Common Stock of rights or warrants to subscribe for or purchase shares of CIBER
Common Stock (other than rights to purchase shares of such CIBER Common Stock
pursuant to a plan for the reinvestment of dividends or interest) or of any
other subscription rights or warrants;
(iii) there shall occur any conversion or reclassification of CIBER
Common Stock (other than a subdivision or combination of outstanding shares of
CIBER Common Stock) or any
11
consolidation, merger or reorganization to which CIBER is a party and for which
approval of any stockholders of CIBER is required, or the sale or transfer of
all or substantially all of the assets of CIBER; or
(iv) there shall occur the voluntary or involuntary dissolution,
liquidation or winding up of CIBER or CIBER shall commence or have commenced
against it a case under title 11 of the United States Code;
then the Company shall promptly cause to be delivered to the Trustee and any
applicable Paying Agent and filed at the office or agency maintained for the
purpose of payment and discharge of STRYPES on the Maturity Date in the Borough
of Manhattan, The City of New York by the Trustee (or any applicable Paying
Agent), and shall promptly cause to be mailed to the Holders of STRYPES at their
last addresses as they shall appear in the Security Register, at least 10 days
before the date hereinafter specified (or the earlier of the dates hereinafter
specified, in the event that more than one is specified), a notice stating (x)
the date, if known by the Company, on which a record is to be taken for the
purpose of such dividend, distribution or grant of rights or warrants, or, if a
record is not to be taken, the date as of which the holders of such CIBER Common
Stock of record to be entitled to such dividend, distribution or grant of rights
or warrants are to be determined, or (y) the date, if known by the Company, on
which such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up has become, or is expected to become, effective or on
which such bankruptcy case was commenced.
(c) On or prior to the sixth Business Day preceding the Maturity Date, the
Company will notify The Depository Trust Company and the Trustee and will
publish a notice in THE WALL STREET JOURNAL or another daily newspaper of
national circulation stating whether the STRYPES will be paid and discharged
with shares of CIBER Common Stock or cash (or any Marketable Securities that may
be delivered pursuant to Section 303(b) of this Article Three) on the Maturity
Date in accordance with Section 301 of this Article Three.
SECTION 306. SHARES FREE AND CLEAR. The Company hereby warrants that upon
payment and discharge of a STRYPES on the Maturity Date pursuant to this
Supplemental Indenture, the Holder of a STRYPES shall receive all rights held by
the Company in the Maturity Consideration with which such STRYPES is at such
time payable and dischargeable pursuant to this Supplemental Indenture, free and
clear of any and all liens, claims, charges and encumbrances, other than any
liens, claims, charges and encumbrances which may have been placed on any
Maturity Consideration by the prior owner thereof prior to the time such
Maturity Consideration was acquired by the Company. Except as provided in
Section 401 of Article Four, the Company will pay all taxes and charges with
respect to the delivery of Maturity Consideration delivered upon payment and
discharge of STRYPES hereunder. In addition, the Company further warrants that
the Maturity Consideration so delivered upon payment and discharge of STRYPES
hereunder shall be free of any transfer restrictions (other than such as are
solely attributable to any Holder's status as an affiliate of CIBER or of the
issuer of any Marketable Security).
12
SECTION 307. CANCELLATION OF STRYPES CERTIFICATES. Upon receipt by the
Trustee of a STRYPES Certificate delivered to it for payment and discharge of
the STRYPES evidenced thereby under this Article Three, the Trustee shall cancel
and dispose of the same as provided in Section 309 of the Principal Indenture.
ARTICLE FOUR
TAXES
SECTION 401. DOCUMENTARY, STAMP, TRANSFER OR SIMILAR TAXES. The Company
will pay any and all documentary, stamp, transfer or similar taxes that may be
payable in respect of the transfer and delivery of CIBER Common Stock (or any
Marketable Securities that may be delivered pursuant to Section 303(b) of
Article Three) pursuant to this Supplemental Indenture; PROVIDED, HOWEVER, that
the Company shall not be required to pay any such tax which may be payable in
respect of any transfer involved in the delivery of CIBER Common Stock (or any
Marketable Securities that may be delivered pursuant to Section 303(b) of
Article Three) in a name other than that in which the STRYPES so paid and
discharged were registered, and no such transfer or delivery shall be made
unless and until the Person requesting such transfer has paid to the Company the
amount of any such tax, or has established, to the satisfaction of the Company,
that such tax has been paid.
SECTION 402. TREATMENT OF STRYPES. The parties hereto hereby agree, and
each Holder of a STRYPES by its purchase of a STRYPES hereby agrees:
(a) to treat, for all United States Federal, state and local tax purposes,
each STRYPES as a unit (a "Unit") consisting of (A) a debt instrument
(the "Debt Instrument") with a fixed principal amount unconditionally
payable on the Maturity Date equal to the issue price of the STRYPES
and bearing interest at the stated interest rate on the STRYPES and
(B) a forward purchase contract (the "Forward Contract") pursuant to
which the Holder is irrevocably committed to use the principal payment
due on the Debt Instrument to purchase on the Maturity Date the CIBER
Common Stock which the Company is obligated to deliver at that time
(subject to the Company's right to deliver cash with an equal value in
lieu of the CIBER Common Stock), which treatment will require, among
other things, each Holder that is subject to United States Federal
income tax in connection with its ownership of the STRYPES to include
currently in income payments denominated as interest that are made
with respect to the STRYPES in accordance with such Holder's regular
method of tax accounting;
(b) in the case of purchases of STRYPES in connection with the original
issuance thereof, (A) to allocate $_____ of the entire initial
purchase price of a STRYPES (i.e., the issue price of a STRYPES) to
the Debt Instrument component and to allocate the remaining $_____ of
the entire initial purchase price of a STRYPES to the Forward Contract
component and (B) to treat such acquisition of the
13
STRYPES by the Holder as a purchase of the Debt Instrument by the
Holder for $_____ and the making of an initial payment by the Holder
with respect to the Forward Contract of $_____;
(c) in the case of purchases and sales of STRYPES subsequent to the
original issuance thereof, the purchase price paid (or received) by a
Holder will be allocated by the Holder between the Debt Instrument and
the Forward Contract based upon their relative fair market values (as
determined on the date of acquisition or disposition);
(d) to file all United States Federal, state and local income, franchise
and estate tax returns consistent with the treatment of each STRYPES
as a Unit consisting of the Debt Instrument and the Forward Contract
(in the absence of any change or clarification in applicable law, by
regulation or otherwise, requiring a different characterization or
treatment of the STRYPES).
ARTICLE FIVE
AMENDMENT OF CERTAIN PROVISIONS
OF THE PRINCIPAL INDENTURE
SECTION 501. AMENDMENTS RELATING TO THE STRYPES. The Principal Indenture
is hereby amended, solely with respect to the STRYPES, as follows:
(a) By deleting Section 308 of the Principal Indenture in its entirety and
inserting in its stead the following:
"SECTION 308. PERSONS DEEMED OWNERS. Prior to due presentment of a STRYPES
Certificate for registration of transfer of STRYPES evidenced thereby, the
Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such STRYPES Certificate is registered as the
owner of the STRYPES evidenced thereby for the purpose of receiving
delivery or payment of the Maturity Consideration in respect of, and
(subject to Sections 305 and 307) interest on, such STRYPES and for all
other purposes whatsoever, whether or not such STRYPES be overdue, and
neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary."
(b) By deleting Section 501 of the Principal Indenture in its entirety and
inserting in its stead the following:
"SECTION 501. EVENTS OF DEFAULT. "Event of Default", wherever used herein
with respect to STRYPES, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by
14
operation of law pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) failure to deliver or pay the Maturity Consideration on the
Maturity Date; or
(2) failure to pay any interest on any STRYPES when due, and
continuance of such failure for a period of 30 days; or
(3) failure to perform any other covenant of the Company in this
Indenture (other than a covenant a failure in whose performance is
elsewhere in this Section specifically dealt with), and the continuance of
such failure for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee, or to the
Company and the Trustee by the Holders of at least 10% of the aggregate
issue price of the Outstanding STRYPES a written notice specifying such
failure and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(4) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or for any
substantial part of its property, or ordering the winding-up or liquidation
of its affairs, and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(5) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
shall consent to the entry of an order for relief in an involuntary case
under any such law, or shall consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or similar official) of the Company or for any substantial
part of its property, or shall fail generally to pay its debts as they
become due or shall take any corporate action in furtherance of any of the
foregoing."
(c) By deleting Section 502 of the Principal Indenture in its entirety and
inserting in its stead the following:
"SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default (other than an Event of Default specified in Section
501(4) or 501(5)) occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% of the aggregate issue price of
the Outstanding STRYPES may declare an amount equal to the issue price of
all the STRYPES to be due and payable immediately, by a notice in writing
to the Company (and to the Trustee if given by the Holders), and upon any
such declaration such amount shall become immediately due and payable in
cash. If an Event of Default specified in Section 501(4) or 501(5) occurs,
an amount equal to the issue price of all the STRYPES shall automatically,
and without any declaration or
15
other action on the part of the Trustee or any Holder, become immediately
due and payable in cash.
At any time after such a declaration of acceleration has been made or an
Event of Default specified in Section 501(4) or 501(5) has occurred, and
before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter provided, the Holders of a majority of the
aggregate issue price of the Outstanding STRYPES, by written notice to the
Company and the Trustee, may rescind and annul such declaration or Event of
Default and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all STRYPES,
(B) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate borne
by the STRYPES, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel,
and
(2) all Events of Default with respect to the STRYPES, other than the
non-payment of the amount equal to the issue price of all the STRYPES
due solely by reason of such declaration of acceleration or Event of
Default specified in Section 501(4) or 501(5), have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon."
(d) By deleting the first paragraph of Section 503 of the Principal
Indenture in its entirety and inserting in its stead the following:
"The Company covenants that, if default is made in the payment of any
installment of interest on any STRYPES (other than interest due on the
Maturity Date) when such interest becomes due and payable and such default
continues for a period of 30 days, the Company will, upon demand of the
Trustee, pay to it, for the benefit of the Holders of such STRYPES, an
amount equal to the issue price of all the STRYPES, the whole amount of
interest then due and payable on such STRYPES and, to the extent that
payment of such interest shall be legally enforceable, interest on any
overdue interest, at the rate borne by the STRYPES, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
16
The Company further covenants that, if the Maturity Consideration or
any interest due on the Maturity Date is not delivered or paid in respect
of any STRYPES on the Maturity Date, the Company will, upon demand of the
Trustee, pay to it, for the benefit of the Holders of such STRYPES, the
Maturity Consideration then due and payable on such STRYPES, the whole
amount of interest then due and payable on such STRYPES and, to the extent
that payment of such interest shall be legally enforceable, interest on any
Maturity Consideration that is overdue and on any overdue interest, at the
rate borne by the STRYPES, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel."
(e) By deleting Section 506 of the Principal Indenture in its entirety and
inserting in its stead the following:
"SECTION 506. APPLICATION OF MONEY COLLECTED. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the distribution
of such money on account of the Maturity Consideration or interest, upon
presentation of the relevant STRYPES Certificate and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of any amounts then due and unpaid on the
STRYPES in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such STRYPES; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto."
(f) By deleting Section 508 of the Principal Indenture in its entirety and
inserting in its stead the following:
"SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE THE MATURITY
CONSIDERATION AND INTEREST. Notwithstanding any other provision in this
Indenture, the Holder of any STRYPES shall have the right, which is
absolute and unconditional, to receive (subject to Section 502) payment of
the Maturity Consideration and in respect of (subject to Sections 305 and
307) interest on such STRYPES and to institute suit for the enforcement of
any such payment, and such right shall not be impaired without the consent
of such Holder."
(g) By deleting the first sentence of Section 513 of the Principal
Indenture in its entirety and inserting in its stead the following:
17
"The Holders of not less than a majority of the aggregate issue price of
the Outstanding STRYPES may on behalf of the Holders of all STRYPES waive
any past default hereunder and its consequences, except a default
(1) in the delivery or payment of the Maturity Consideration or in the
payment of interest on any STRYPES, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding STRYPES affected."
(h) By deleting Section 801 of the Principal Indenture in its entirety and
inserting in its stead the following:
"SECTION 801. CONSOLIDATIONS AND MERGERS OF THE COMPANY AND SALES, LEASES
AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS. The Company may
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into any other corporation, PROVIDED that in
any such case, (i) either the Company shall be the continuing corporation,
or the successor corporation shall be a corporation organized and existing
under the laws of the United States of America or a State thereof and such
successor corporation shall expressly assume the due and punctual delivery
or payment of the Maturity Consideration in respect of and interest on all
the STRYPES, according to their tenor, and the due and punctual performance
and observance of all of the covenants and conditions of this Indenture to
be performed by the Company by supplemental indenture satisfactory to the
Trustee, executed and delivered to the Trustee by such corporation, and
(ii) the Company or such successor corporation, as the case may be, shall
not, immediately after such merger or consolidation, or such sale, lease or
conveyance, be in default in the performance of any such covenant or
condition."
(i) By deleting the first sentence of Section 902 of the Principal
Indenture in its entirety and inserting in its stead the following:
"With the consent of the Holders of not less than 66-2/3% of the aggregate
issue price of the Outstanding STRYPES, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of STRYPES under this
Indenture; PROVIDED, HOWEVER, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding STRYPES affected
thereby,
(1) change the Maturity Date or the Stated Maturity of any installment
of interest on any STRYPES, or reduce the amount of Maturity Consideration
deliverable or payable on the Maturity Date or reduce the amount of
interest payable on any STRYPES or reduce the amount of cash payable with
respect to any STRYPES upon acceleration
18
of the Maturity, or change the provisions with respect to redemption of any
STRYPES, or change any Place of Payment where, or the coin or currency in
which, any interest on or any amount of cash payable with respect to any
STRYPES is payable, or impair the right to institute suit for the
enforcement of (i) any payment on or with respect to any STRYPES or (ii)
the delivery or payment of the Maturity Consideration with respect to any
STRYPES, or
(2) reduce the percentage of the aggregate issue price of Outstanding
STRYPES, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for waiver (of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or reduce
the requirements of Section 1404 for quorum or voting, or
(3) modify any of the provisions of this Section, or Section 513, or
Section 1007, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding STRYPES affected
thereby.
(j) By deleting Section 1001 of the Principal Indenture in its entirety
and inserting in its stead the following:
"SECTION 1001. DELIVERY AND PAYMENT OF THE MATURITY CONSIDERATION AND
INTEREST. The Company covenants and agrees for the benefit of the Holders
of the STRYPES that it will duly and punctually deliver or pay the Maturity
Consideration and interest on the STRYPES in accordance with the terms of
the STRYPES and this Indenture."
(k) By deleting Section 1003 of the Principal Indenture in its entirety
and inserting in its stead the following:
"SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST. If the
Company shall at any time act as its own Paying Agent, it will, on or
before each due date of the Maturity Consideration or interest on any of
the STRYPES, segregate and hold in trust for the benefit of the Persons
entitled thereto consideration in an amount sufficient to deliver or pay
the Maturity Consideration or a sum sufficient to pay the interest so
becoming due until such consideration shall be delivered or paid to such
Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, prior
to each due date of the Maturity Consideration or interest on any STRYPES,
deposit with a Paying Agent consideration in an amount sufficient to
deliver or pay the Maturity Consideration or a sum sufficient to pay the
interest so becoming due, such consideration to be held as provided by the
Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to
act.
19
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall
agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (i) comply with the provisions of the Trust
Indenture Act applicable to it as Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
STRYPES) in the making of any payment in respect of the STRYPES, upon the
written request of the Trustee, forthwith pay to the Trustee all sums held
in trust by such Paying Agent as such.
The Company may at any time, for any purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability
with respect to such money.
Any consideration deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the interest on or
delivery upon discharge of any STRYPES and remaining unclaimed for two
years after such consideration has become due and payable shall be paid to
the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such STRYPES shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust consideration, and all liability of the Company as
trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee
or such Paying Agent, before being required to make any such repayment, may
at the expense of the Company cause to be published once, in an Authorized
Newspaper in each Place of Payment or to be mailed to Holders of the
STRYPES, or both, notice that such consideration remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days
from the date of such publication or mailing, any unclaimed balance of such
consideration then remaining will be repaid to the Company."
SECTION 502. INTERPRETATION OF PRINCIPAL INDENTURE. Except as otherwise
specifically provided in this Supplemental Indenture, whenever in the Principal
Indenture there is mentioned, in any context, the principal of or principal
amount of any Security of any series or a percentage in principal amount of the
Outstanding Securities of any series, such mention shall be deemed to be, solely
with respect to the STRYPES, the issue price of the STRYPES or a percentage of
the aggregate issue price of the Outstanding STRYPES.
ARTICLE SIX
MISCELLANEOUS
SECTION 601. EFFECT OF SUPPLEMENTAL INDENTURE. The Principal Indenture,
as supplemented and amended by this Supplemental Indenture and all other
indentures supplemental
20
thereto, is in all respects ratified and confirmed, and the Principal Indenture,
this Supplemental Indenture and all indentures supplemental thereto shall be
read, taken and construed as one and the same instrument.
SECTION 602. CONFLICT WITH TRUST INDENTURE ACT. If any provision hereof
limits, qualifies or conflicts with another provision hereof which is required
or deemed to be included in this Supplemental Indenture by any of the provisions
of the Trust Indenture Act, such required or deemed included provision shall
control.
SECTION 603. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 604. SEPARABILITY CLAUSE. In case any provision in this
Supplemental Indenture or in the STRYPES shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions (or of the other series of Securities) shall not in any way be
affected or impaired thereby.
SECTION 605. BENEFITS OF SUPPLEMENTAL INDENTURE. Nothing in this
Supplemental Indenture, express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder and the Holders of the
STRYPES, any benefit or any legal or equitable right, remedy or claim under this
Supplemental Indenture.
SECTION 606. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE AND EACH STRYPES
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK
AND THIS SUPPLEMENTAL INDENTURE AND EACH SUCH STRYPES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 607. EXECUTION IN COUNTERPARTS. This Supplemental Indenture may
be executed in any number of counterparts, each of which shall be an original;
but such counterparts shall together constitute but one and the same instrument.
SECTION 608. RESPONSIBILITY FOR RECITALS. The recitals contained herein
shall be taken as statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of the Principal Indenture or this Supplemental
Indenture.
21
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
XXXXXXX XXXXX & CO., INC.
By:
----------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee
By:
----------------------------
Name:
Title:
22
EXHIBIT A
[Form of Face of STRYPES Certificate]
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS
A WHOLE BY THE DEPOSITORY TRUST COMPANY (THE "DEPOSITORY") TO A NOMINEE OF THE
DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY), 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.]
No. ____________ ___________ STRYPES
CUSIP NO.
XXXXXXX XXXXX & CO., INC.
Structured Yield Product Exchangeable for Stock-SM-
___% STRYPES-SM- Due ________ __, 2001
(Payable with Shares of Common Stock,
par value $.01 per share, of CIBER, Inc.)
Issue Price Per STRYPES: $
Xxxxxxx Xxxxx & Co., Inc., a Delaware corporation (hereinafter called the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay and
discharge each STRYPES evidenced hereby on _________________ __, 2001 (the
"Maturity Date") by delivering to _____________________________________, or
registered assigns, a number of shares (such number of shares, the "Payment
Rate") of common stock, par value $.01 per share ("CIBER Common Stock"), of
CIBER, Inc. ("CIBER") (or, in the event there shall occur a
A-1
Reorganization Event, cash and/or Marketable Securities in lieu thereof)
determined in accordance with the Payment Rate Formula (as defined below), and
to pay interest (computed on the basis of a 360-day year of twelve 30-day
months) on such STRYPES from _________ __, 1998, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for, on
_________, _______, ______ and _________ in each year, commencing _________,
1998, and on the Maturity Date, at the rate of $_____ per STRYPES per annum (or
$_____ per STRYPES per quarter), until the Maturity Date or such earlier date on
which the Issue Price of such STRYPES is repaid in accordance with the
provisions described below. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in said
Indenture, be paid to the Person in whose name this STRYPES Certificate (or one
or more Predecessor STRYPES Certificates) is registered at the close of business
on the fifteenth calendar day (whether or not a Business Day) immediately
preceding such Interest Payment Date (each a "Regular Record Date"). In any
case where such Interest Payment Date shall not be a Business Day, then
(notwithstanding any other provision of said Indenture or this STRYPES
Certificate) payment of such interest need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect as if
made on such date, and, if such payment is so made, no interest shall accrue for
the period from and after such date. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the registered
Holder on the relevant Regular Record Date, and may be paid to the Person in
whose name this STRYPES Certificate (or one or more Predecessor STRYPES
Certificates) is registered at the close of business on a Special Record Date
for the payment of such interest to be fixed by the Trustee hereinafter referred
to, notice whereof shall be given to Holders of STRYPES not less than 10 days
prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the STRYPES may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in said Indenture.
The Payment Rate shall be determined in accordance with the following
formula (the "Payment Rate Formula"), subject to adjustment as a result of
certain dilution events relating to the CIBER Common Stock as provided for in
the Indenture: (a) if the Maturity Price (as defined below) is greater than or
equal to $____ (the "Threshold Appreciation Price"), _____ shares of CIBER
Common Stock per STRYPES, (b) if the Maturity Price is less than the Threshold
Appreciation Price but is greater than $ _____ (the "Initial Appreciation Cap"),
a fractional share of CIBER Common Stock per STRYPES so that the value thereof
(determined based on the Maturity Price) equals the Initial Appreciation Cap
(such fractional share being calculated to the nearest 1/10,000th of a share of
CIBER Common Stock or, if there is not a nearest 1/10,000th of a share, to the
next lower 1/10,000th of a share), (c) if the Maturity Price is less than or
equal to the Initial Appreciation Cap but is greater than or equal to the
Initial Price, one share of CIBER Common Stock per STRYPES, (d) if the Maturity
Price is less than the Initial Price but is greater than or equal to $ _____
(the "Downside Protection Threshold Price"), a number of shares of CIBER Common
Stock per STRYPES so that the value thereof (determined based on the Maturity
Price) equals the Initial Price and (e) if the Maturity Price is less than the
Downside Protection Threshold Price, _____ shares of CIBER Common Stock per
STRYPES. No fractional share of CIBER Common Stock shall be delivered on the
Maturity Date.
A-2
Notwithstanding the foregoing, the Company may, at its option, in lieu of
delivering shares of CIBER Common Stock on the Maturity Date, deliver cash in an
amount (calculated to the nearest 1/100th of a dollar per STRYPES or, if there
is not a nearest 1/100th of a dollar, then to the next higher 1/100th of a
dollar) equal to the value of such number of shares of CIBER Common Stock at the
Maturity Price, all as provided in the Indenture. Such number of shares of
CIBER Common Stock (or, in the event there shall occur a Reorganization Event as
provided in the Indenture, cash and/or Marketable Securities in lieu thereof)
or, at the Company's option, the amount of cash, in either case deliverable upon
payment and discharge hereof is hereinafter referred to as the "Maturity
Consideration." The term "Maturity Price" means, except as otherwise provided
in the Indenture, the average Closing Price per share of CIBER Common Stock on
the 20 Trading Days immediately prior to, but not including, the second Trading
Day preceding the Maturity Date. The term "Closing Price" means, with respect
to any security on any date of determination, the closing sale price (or, if no
closing price is reported, the last reported sale price) of such security on the
NYSE on such date or, if such security is not listed for trading on the NYSE on
any such date, as reported in the composite transactions for the principal
United States securities exchange on which such security is so listed, or if
such security is not so listed on a United States national or regional
securities exchange, as reported by the National Association of Securities
Dealers, Inc. Automated Quotation System, or, if such security is not so
reported, the last quoted bid price for such security in the over-the-counter
market as reported by the National Quotation Bureau or similar organization, or,
if such bid price is not available, the market value of such security on such
date as determined by a nationally recognized independent investment banking
firm retained for this purpose by the Company. The term "Trading Day" means,
with respect to any security, the Closing Price of which is being determined, a
day on which such security (i) is not suspended from trading on any national or
regional securities exchange or association or over-the-counter market at the
close of business and (ii) has traded at least once on the national or regional
securities exchange or association or over-the-counter market that is the
primary market for the trading of such security. The term "Business Day" means
any day that is not a Saturday, a Sunday or a day on which the NYSE or banking
institutions or trust companies in The City of New York are authorized or
obligated by law or executive order to close.
Interest on the STRYPES evidenced hereby will be payable, and delivery of
the Maturity Consideration in payment of the STRYPES evidenced hereby on the
Maturity Date will be made, upon surrender of this STRYPES Certificate, at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, and payment of interest on the STRYPES
evidenced by this STRYPES Certificate (and, if the Company elects to deliver
cash in lieu of the CIBER Common Stock on the Maturity Date, the amount of cash
payable on the Maturity Date) will be made in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; PROVIDED, HOWEVER, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear on the Securities Register.
ADDITIONAL PROVISIONS OF THIS STRYPES CERTIFICATE ARE CONTAINED ON THE
REVERSE HEREOF AND SUCH PROVISIONS SHALL HAVE THE SAME EFFECT AS THOUGH FULLY
SET FORTH IN THIS PLACE.
A-3
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee by manual signature, this STRYPES Certificate shall not be
entitled to any benefit under the Indenture, or be valid or obligatory for any
purpose. "Structured Yield Product Exchangeable for Stock" and "STRYPES" are
service marks of Xxxxxxx Xxxxx & Co., Inc.
IN WITNESS WHEREOF, Xxxxxxx Xxxxx & Co., Inc. has caused this instrument to
be duly executed under its corporate seal.
Dated:
XXXXXXX XXXXX & CO., INC.
By: ________________________
Name:
Title:
Attest: ______________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This certificate evidences Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By: _____________________________
Authorized Officer
A-4
[Form of Reverse of STRYPES Certificate]
XXXXXXX XXXXX & CO., INC.
Structured Yield Product Exchangeable for Stock
___% STRYPES Due _________ __, 2001
(Payable with Shares of Common Stock,
par value $.01 per share, of CIBER, Inc.)
This STRYPES Certificate evidences part of a duly authorized issue of
unsecured and unsubordinated debentures, notes or other evidences of senior
indebtedness (hereinafter called the "Securities") of the Company of the series
hereinafter specified, all such Securities issued and to be issued under an
indenture dated as of April 1, 1983 and restated as of April 1, 1987, between
the Company and The Chase Manhattan Bank, formerly known as Chemical Bank
(successor by merger to Manufacturers Hanover Trust Company), as Trustee, as
amended and supplemented by that certain Eleventh Supplemental Indenture dated
as of _________ __, 1998 (the "Supplemental Indenture") (the indenture dated as
of April 1, 1983 and restated as of April 1, 1987, as amended, restated and
supplemented from time to time, the "Indenture"), to which Indenture and all
other indentures supplemental thereto reference is hereby made for a statement
of the rights and limitation of rights thereunder of the Holders of the
Securities and of the rights, obligations, duties and immunities of the Trustee
for each series of Securities and of the Company, and the terms upon which the
Securities are and are to be authenticated and delivered. As provided in the
Indenture, the Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may be denominated
in currencies other than U.S. Dollars (including composite currencies), may
mature at different times, may bear interest, if any, at different rates, may be
subject to different redemption provisions, if any, may be subject to different
sinking, purchase and analogous funds, if any, may be subject to different
covenants and Events of Default and may otherwise vary as in the Indenture
provided or permitted. This STRYPES Certificate evidences Securities of the
series designated as Structured Yield Product Exchangeable for Stock, ___%
STRYPES Due ______ __, 2001 (each, a "STRYPES").
The STRYPES are not redeemable at the option of the Company prior to the
Maturity Date. The STRYPES are not subject to any sinking fund or other
mandatory redemption provisions. The STRYPES are not payable at the option of
the Holders prior to the Maturity Date.
If an Event of Default with respect to the STRYPES, as defined in the
Indenture, shall occur and be continuing, then an amount equal to the issue
price of all the STRYPES may be declared immediately due and payable in cash in
the manner and with the effect provided in the Indenture.
A-5
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 STRYPES under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of 66-2/3%
of the aggregate issue price of the Outstanding STRYPES. The Indenture also
contains provisions permitting the Holders of a majority of the aggregate issue
price of the Outstanding STRYPES, on behalf of the Holders of all STRYPES, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences with respect to
the STRYPES. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of the
STRYPES evidenced by this STRYPES Certificate and of any STRYPES evidenced by a
STRYPES Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent of waiver is made upon this
STRYPES Certificate.
No reference herein to the Indenture and no provision of this STRYPES
Certificate or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to deliver or pay the interest on,
and Maturity Consideration in respect of, the STRYPES evidenced by this STRYPES
Certificate at the times, place and rate, and in the manner, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the STRYPES evidenced by this STRYPES Certificate are transferable on the
Security Register of the Company, upon surrender of this STRYPES Certificate for
registration of transfer at the office or agency of the Company to be maintained
for that purpose in The City of New York, New York, or at any other office or
agency of the Company maintained for that purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new STRYPES
Certificates, evidencing the same aggregate number of STRYPES, will be issued to
the designated transferee or transferees.
No service charge shall be made for any such transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection with the registration of such transfer
or exchange, other than certain exchanges not involving any transfer.
This STRYPES Certificate shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York. The Company,
the Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this STRYPES Certificate is registered as the owner of the STRYPES
evidenced hereby for the purpose of receiving payment as herein provided and for
all other purposes, whether or not the STRYPES be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
Capitalized words and phrases used in this STRYPES Certificate and not
otherwise defined shall have the meanings ascribed to them in the Indenture.
A-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
UNIF GIFT MIN ACT--______Custodian_______
TEN COM--as tenants in common (Cust) (Minor)
TEN ENT--as tenants by the entireties under Uniform Gifts to
JT TEN--as joint tenants with right Minors Act ___________
of survivorship and not as (State)
tenants in common
Additional abbreviations also may be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY
OR TAXPAYER I.D. OR OTHER
IDENTIFYING NUMBER OF
ASSIGNEE
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal
zip code of assignee)
___________________________ STRYPES and all rights thereunder, hereby
irrevocably constituting and appointing______________________________
attorney to transfer said STRYPES on the books of the Company, with full power
of substitution in the premises.
Dated:
------------------------------------------------------------
NOTICE: The signature to this assignment must correspond
with the name as written on the face of the within
Security in every particular, without alteration or
enlargement or any change whatever.
A-7
