EXHIBIT 4(b)
ENRON CORP.
AND
XXXXXX TRUST AND SAVINGS BANK
TRUSTEE
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FIRST SUPPLEMENTAL INDENTURE
Dated as of , 1995
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SUPPLEMENTAL INDENTURE TO INDENTURE DATED AS OF NOVEMBER 1, 1985
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FIRST SUPPLEMENTAL INDENTURE dated as of , 1995 (this "Supplemental
Indenture"), made and entered into by and between ENRON CORP., a corporation
organized and existing under the laws of the State of Delaware having its
principal office at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000 (the "Company") and
XXXXXX TRUST AND SAVINGS BANK, a corporation duly organized and existing under
the laws of the State of Illinois, as trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS the Company entered into an Indenture dated as of November 1,
1985 with the Trustee (the "Indenture") for the purpose of issuing notes,
debentures or other evidences of indebtedness to be issued in one or more series
(the "Securities"), in such principal amount or amounts as may from time to time
be authorized by or pursuant to the authority granted in one or more resolutions
of the Board of Directors of the Company; and
WHEREAS the Company proposes to issue a series of Securities
denominated its " % Exchangeable Notes due , 1998 " representing up to of its
Exchangeable Notes (such Securities being referred to herein as the
"Exchangeable Notes"), the principal amount at Maturity of which is mandatorily
exchangeable into shares of common stock, par value $.01 per share, of Enron Oil
& Gas Company, or, at the option of the Company, cash, in either case at the
Exchange Rate as described herein; and
WHEREAS Section 901(7) and (9) of the Indenture provide that without
the consent of the Holders of outstanding Securities, the Company, when
authorized by or pursuant to the authority granted in a resolution of the Board
of Directors, may enter into one or more indentures supplemental to the
Indenture to establish the form or terms of Securities of any series as
permitted by Section 201 and 301 thereof, to cure any ambiguity, to correct or
supplement any provision in the Indenture which may be inconsistent with any
other provision of the Indenture, or to make any other provisions with respect
to matters or questions arising under the Indenture, provided such action shall
not adversely affect the interests of the Holders of Securities of any series in
any material respect, and
WHEREAS the entry into this Supplemental Indenture by the parties
hereto is in all respects authorized by the provisions of the Indenture; and
WHEREAS all things necessary to make this Supplemental Indenture a
valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and purchase of the
Securities by the Holders thereof, and for other valuable consideration, the
receipt whereof is hereby acknowledged, the Company, for itself and its
successors, does hereby covenant and agree to and with the Trustee and its
successors in said trust for the equal and proportionate benefit of all Holders
of the Securities or of series thereof, without preference, priority or
distinction of any Securities over any of the others by reason of difference in
series or priority in time of issuance, negotiation or maturity thereof, or
otherwise except as otherwise provided in the Indenture or this Supplemental
Indenture, as follows:
SECTION 1. The Indenture is hereby amended by amending Section 301 of
the Indenture by (i) adding as new subparagraph (10) the following:
"(10) the obligation, if any, of the Company to permit the
conversion or exchange of Securities of such series into other
securities (whether or not issued by, or the obligation of, the
Company), and the terms and conditions upon which such conversion or
exchange
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shall be effected (including without limitation, the initial conversion
or exchange price or rate, the conversion or exchange period and any
other provisions in addition to or in lieu of those set forth in this
Indenture relative to such obligation)";
(ii) renumbering current subparagraphs (10) and (11) of Section 301 of the
Indenture to new subparagraphs (11) and (12), respectively; and (iii) adding as
new Section 311 the following:
"Section 311 GLOBAL DEBT SECURITIES; DEPOSITARY.
For the purposes of this Indenture, the term "Agent Member"
shall mean a member of, or participant in, a Depositary; the term
"Depositary" shall mean, with respect to Securities issuable or issued
in whole or in part in the form of one or more Global Securities, the
clearing agency registered under the Securities Exchange Act of 1934
designated as Depositary in a Board Resolution, or in an indenture
supplemental hereto, pursuant to Section 301, and if at any time there
is more than one such agency, "Depositary" as used with respect to the
Debt Securities shall mean the respective Depositary with respect to a
particular series of Securities; and the term "Global Security" shall
mean a global certificate evidencing all or part of the series of
Securities, executed by the Company, authenticated by the Trustee and
issued to the Depositary for the series or such portion of the series,
and registered in the name of such Depositary or its nominee.
If a particular series of Securities are to be issued in whole
or in part in the form of one or more Global Securities, as specified
in a Board Resolution, or in an indenture supplemental hereto, pursuant
to Section 301, then the Company shall execute and the Trustee shall,
in accordance with Section 303 with respect to such series,
authenticate and deliver each such Global Security, which (i) shall
represent and shall be denominated in a principal amount equal to the
aggregate principal amount of the Securities of each such series to be
represented by such Global Security, (ii) shall be registered in the
name of the Depositary for such Global Security or its nominee, (iii)
shall be delivered by the Trustee to such Depositary or pursuant to
such Depositary's instruction and (iv) unless otherwise specified in
such Board Resolution or indenture supplemental hereto, shall bear a
legend substantially to the following effect: "THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE
OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE,
AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY."
Notwithstanding Section 305, except as otherwise specified in
a Board Resolution, or in an indenture supplemental hereto, as
contemplated by Section 301, any Global Security shall be exchangeable
only as provided in this paragraph. A Global Security shall be
exchangeable pursuant to this Section if (a)(i) the Depositary notifies
the Company that it is unwilling or unable to continue as Depositary
for such Global Security or if at any time the Depositary ceases to be
a clearing agency registered under the Securities Exchange Act
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of 1934 and (ii) the Company is unable to arrange for a qualified
successor, (b) the Company in its sole discretion determines that all
Global Securities of any series then outstanding shall be exchangeable
for definitive Securities of such series in registered form or (c) an
Event of Default, with respect to the Securities of the series
represented by such Global Security has occurred and is continuing. Any
Global Securities of such series that are exchangeable pursuant to the
preceding sentence shall be exchangeable for definitive Securities of
such series in registered form, bearing interest (if any) at the same
rate or pursuant to the same formula, having the same date of issuance,
redemption provisions, if any, currency of payment, date of maturity
and other terms and of differing denominations aggregating a like
amount. Such definitive Securities of such series shall be registered
in the names of the owners of the beneficial interests in such Global
Securities of such series as such names are from time to time provided
by the relevant participants in the Depositary holding such Global
Securities (as such participants are identified from time to time by
such Depositary).
No Global Security may be transferred except as a whole (i) by
the Depositary to a nominee of the Depositary or (ii) by a nominee of
the Depositary to the Depositary or another nominee of the Depositary
or (iii) by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary. Except as
provided above, owners solely of beneficial interests in a Global
Security shall not be entitled to receive physical delivery of
Securities of such series in definitive form and will not be considered
the Holders thereof for any purpose under this Indenture.
In the event that a Global Security is surrendered for
redemption in part pursuant to Article Eleven or Twelve, the Company
shall execute, and the Trustee shall authenticate and deliver to the
Depositary for such Global Security, without service charge, a new
Global Security in a denomination and tenor equal to and in exchange
for the unredeemed portion of the principal for the Global Security so
surrendered.
Neither the Company nor the Trustee nor any agent of the
Company or the Trustee shall have any responsibility or liability for
any aspect of the records relating to or payments made on account of
any beneficial ownership interest in any Global Security or for
maintaining, supervising or reviewing any records relating to such
beneficial ownership interest. The Agent Members shall have no rights
under this Indenture with respect to any Global Security held on their
behalf by a Depositary, and such Depositary may be treated by the
Company, the Trustee, and any agent of the Company or the Trustee as
the owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee, or any agent of the Company or the Trustee, from
giving effect to any written certification, proxy or other
authorization furnished by a Depositary or impair, as between a
Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder of a Security of any
series, including without limitation the granting of proxies or other
authorization, direction, notice, consent, waiver or other action which
a Holder is entitled to give or take under this Indenture."
SECTION 2. The Indenture is hereby amended, solely with respect to a
series of Securities that consists of Exchangeable Notes, as follows:
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(a) By amending Section 101 to add new definitions
thereto, in the appropriate alphabetical sequence, as follows:
"Business Day" for purposes of the Exchangeable Notes has the meaning
specified in Section 1401.
"Closing Price" has the meaning specified in Section 1401.
"Extraordinary Cash Dividend" has the meaning specified in Section
1403.
"EOG" has the meaning specified in Section 1401.
"EOG Common Stock" has the meaning specified in Section 1401.
"EOG Successor" has the meaning specified in Section 1403.
"Initial Price" has the meaning specified in Section 1401.
"Maturity Price" has the meaning specified in Section 1401.
"NYSE" has the meaning specified in Section 1401.
"Reorganization Event" has the meaning specified in Section 1403.
"Threshold Appreciation Price" has the meaning specified in Section
1401.
"Trading Date" has the meaning specified in Section 1401.
"Transaction Value" has the meaning specified in Section 1403.
(b) By amending Section 902 of the Indenture by adding as
new subparagraph (4) the following: "(4) change the terms under which the
Exchangeable Notes are exchangeable or payable in cash as set forth in Article
Fourteen of this Indenture."
(c) By adding the following Article Fourteen:
"ARTICLE FOURTEEN.
EXCHANGE INTO EOG COMMON STOCK
Section 1401. EXCHANGE AT MATURITY.
At Maturity, the principal amount payable with
respect to each Exchangeable Note shall be automatically and
mandatorily exchanged into a number of shares of common stock,
par value $.01 ("EOG Common Stock"), of Enron Oil & Gas
Company ("EOG") at the Exchange Rate (as defined below). As a
result, Holders of the Exchangeable Notes may not receive a
payment representing the principal amount of such Exchangeable
Notes. The "Exchange Rate" is equal to, subject to adjustment
as a result of certain dilution events relating to the EOG
Common Stock as provided for in Section 1403, (a) if the
Maturity
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Price (as defined below) is greater than or equal to $_______
per share of EOG Common Stock (the "Threshold Appreciation
Price"), ________ shares of EOG Common Stock per Exchangeable
Note, (b) if the Maturity Price is less than the Threshold
Appreciation Price but is greater than $_______ per share of
EOG Common Stock (the "Initial Price"), a fractional share of
EOG Common Stock per Exchangeable Note so that the value
thereof (determined at the Maturity Price) is equal to the
Initial Price (such fractional share being calculated to the
nearest 1/10,000th of a share or, if there is not a nearest
1/10,000th of a share, to the next highest 1/10,000th of a
share) and (c) if the Maturity Price is less than or equal to
the Initial Price, one share of EOG Common Stock per
Exchangeable Note. No fractional shares of EOG Common Stock
will be issued at Maturity as provided in Section 1402.
Notwithstanding the foregoing, the Company may, at its option
in lieu of delivering shares of EOG Common Stock, deliver cash
in an amount (calculated to the nearest 1/100th of a dollar
per Exchangeable Note 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 EOG Common Stock at
the Maturity Price. In determining the amount of cash
deliverable in exchange for the Exchangeable Note in lieu of
shares of EOG Common Stock pursuant to the prior sentence
hereof, if more than one Exchangeable Note shall be
surrendered for exchange at one time by the same Holder, the
amount of cash which shall be delivered upon exchange shall be
computed on the basis of the aggregate number of Exchangeable
Notes so surrendered at Maturity.
The "Maturity Price" is defined as the average
Closing Price per share of EOG Common Stock on the 20 Trading
Days immediately prior to Maturity. The "Closing Price" of any
security on any date of determination means the closing sale
price (or, if no closing price is reported, the last reported
sale price) of such security on the New York Stock Exchange
(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. A "Trading Day" is
defined as a Business Day on which the security the Closing
Price of which is being determined (A) 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 (B) 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. "Business Day" means any day that is
not a Saturday, a Sunday or a day on which the NYSE, banking
institutions or trust companies in The City of New York are
authorized or obligated by law or executive order to close.
Section 1402. NO FRACTIONAL SHARES.
No fractional shares or scrip representing fractional
shares of EOG Common Stock shall be issued or delivered upon
the exchange at Maturity of any Exchangeable Note. If more
than one Exchangeable Note shall be surrendered for exchange
at one time by the
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same Holder, the number of full shares of EOG Common Stock
which shall be delivered upon exchange, in whole or in part,
as the case may be, shall be computed on the basis of the
aggregate number of Exchangeable Notes so surrendered at
Maturity. Instead of any fractional share of EOG Common Stock
which would otherwise be deliverable upon exchange of any
Exchangeable Note at Maturity, the Company, through any
applicable Paying Agent, shall make a cash payment in respect
of such fractional interest in an amount equal to the value of
such fractional shares at the Maturity Price. The Company
shall, upon exchange of any Exchangeable Note, provide cash to
any applicable Paying Agent in an amount equal to the cash
payable with respect to any fractional shares of EOG Common
Stock deliverable upon exchange of such Exchangeable Note, and
the Company shall retain such fractional shares of EOG Common
Stock.
Section 1403. ADJUSTMENT OF EXCHANGE RATE.
(a) ADJUSTMENT FOR DISTRIBUTIONS,
RECLASSIFICATIONS, ETC. The Exchange Rate shall be subject to
adjustment from time to time as follows:
(i) If EOG shall:
(A) pay a dividend or make a
distribution with respect
to the EOG Common Stock in
shares of such stock;
(B) subdivide or split the
outstanding shares of EOG
Common Stock into a greater
number of shares;
(C) combine the outstanding
shares of EOG Common Stock
into a smaller number of
shares; or
(D) issue by reclassification
of shares of EOG Common
Stock any shares of common
stock of EOG;
then, in any such event, the Exchange Rate in effect
immediately prior to such event shall be adjusted so
that the Holder of any Exchangeable Note shall
thereafter be entitled to receive, upon mandatory
exchange of the principal amount of such Exchangeable
Note at Maturity, as set forth in Section 1401, the
number of shares of EOG Common Stock which such
Holder would have owned or been entitled to receive
immediately following any event described above had
such Exchangeable Note been exchanged 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 EOG 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) If EOG shall, after the date hereof,
issue rights or warrants to all holders of EOG Common
Stock entitling them to subscribe for or purchase
shares of EOG Common Stock (other than rights to
purchase EOG Common Stock
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pursuant to a plan for the reinvestment of dividends
or interest) at a price per share less than the
current market price of EOG Common Stock (determined
for purposes of this clause (ii) as the average
Closing Price per share of EOG Common Stock on the 20
Trading Days immediately prior to the date such
rights or warrants are issued), then in each case the
Exchange Rate shall be adjusted by multiplying the
Exchange Rate in effect immediately prior to the date
of issuance of such rights or warrants, by a
fraction, of which the numerator shall be the number
of shares of EOG 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 EOG Common Stock offered for subscription
or purchase pursuant to such rights or warrants, and
of which the denominator shall be the number of
shares of EOG 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 EOG Common Stock which the aggregate
offering price of the total number of shares of EOG
Common Stock so offered for subscription or purchase
pursuant to such rights or warrants would purchase at
such current market price (calculated as the average
Closing Price per share of EOG Common Stock for the
20 Trading Days immediately prior to the date such
rights or warrants are issued), 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 the determination of
stockholders entitled to receive such rights or
warrants. To the extent that shares of EOG Common
Stock are not delivered after the expiration of such
rights or warrants, the Exchange Rate shall be
readjusted to the Exchange Rate 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 EOG Common
Stock actually delivered. Each such adjustment shall
be made successively.
(iii) If EOG shall pay a dividend or make a
distribution to all holders of EOG Common Stock of
evidence of its indebtedness or other assets
(excluding any dividends or distributions referred to
in subparagraph (i) above or any ordinary periodic
cash dividends that do no constitute Extraordinary
Cash Dividends (as defined in clause (vi) below)) or
shall issue to all holders of EOG Common Stock rights
or warrants to subscribe for or purchase any of its
securities (other than those referred to in
subparagraph (ii) above), then in each such case, the
Exchange Rate shall be adjusted by multiplying the
Exchange Rate in effect on the record date mentioned
below, by a fraction of which the numerator shall be
the current market price per share of the EOG Common
Stock on the record date for the determination of
stockholders entitled to receive such dividend or
distribution (such current market price being
determined for purposes of this clause (iii) as the
average Closing Price per share of EOG Common Stock
on the 20 Trading Days immediately prior to such
record date), and of which the denominator shall be
such current market price per share of EOG 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 so distributed or of such
subscription rights or warrants applicable to one
share of EOG Common
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Stock. Each such adjustment shall become effective on
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. Each such adjustment shall be made
successively.
(iv) Any shares of EOG 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 EOG
Common Stock under subparagraph (ii) above.
(v) All adjustments to the Exchange Rate
shall be calculated to the nearest 1/10,000th of a
share of EOG 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 Exchange
Rate 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 Exchange Rate pursuant
to subparagraph (i), (ii) or (iii) of this Section
1403(a), an adjustment shall also be made to the
Maturity Price solely to determine which of
paragraphs (a), (b) or (c) of the definition of
Exchange Rate in Section 1401 will apply at Maturity.
The required adjustment shall be determined by
multiplying the Maturity Price by the number
determined under subparagraph (i), (ii) or (iii) by
which the then existing Exchange Rate was multiplied
to adjust such rate. This subparagraph (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 subparagraphs (a), (b) and (c) of the definition
of Exchange Rate.
(vi) For purposes of the foregoing, the term
"Extraordinary Cash Dividend" shall mean, with
respect to any consecutive 365-day period, any cash
dividend with respect to EOG Common Stock the amount
of which together with the aggregate amount of all
other such cash dividends on the EOG Common Stock
occurring in such 365-day period, exceeds on a per
share basis 10% of the average of the Closing Prices
per share of the EOG Common Stock over such 365-day
period, and for purposes of applying the formula set
forth in clause (iii) above, the fair market value of
such dividends being calculated pursuant to such
clause (iii) shall be equal to (x) the aggregate
amount of such cash dividend together with the
amounts of such other cash dividends occurring in
such period minus (y) the aggregate amount of such
other cash dividends occurring in such period for
which a prior adjustment in the Exchange Rate was
previously made under this Section 1403(a). In making
the determinations required by the foregoing
sentence, 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 1403(a).
(b) ADJUSTMENT FOR CONSOLIDATION, MERGER OR
OTHER REORGANIZATION EVENT. In the event of (i) any
consolidation or merger of EOG, or any surviving entity or
subsequent surviving entity of EOG (an "EOG Successor"), with
or into another entity (other than a
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merger or consolidation in which EOG is the continuing
corporation and in which the EOG Common Stock outstanding
immediately prior to the merger or consolidation is not
exchanged for cash, securities or other property of EOG or
another Person), (ii) any sale, transfer, lease or conveyance
to another Person of the property of EOG or any EOG Successor
as an entirety or substantially as an entirety, (iii) any
statutory exchange of securities of EOG or any EOG Successor
with another Person (other than in connection with a merger or
acquisition) or (iv) any liquidation, dissolution or winding
up of EOG or any EOG Successor (any such event, a
"Reorganization Event"), the Exchange Rate used to determine
the amount payable upon exchange at Maturity for each
Exchangeable Note will be adjusted to provide that each holder
of Exchangeable Notes will receive at Maturity cash in an
amount equal to (a) if the Transaction Value (as defined
below) is greater than or equal to the Threshold Appreciation
Price, _____ multiplied by the Transaction Value, (b) if the
Transaction Value is less than the Threshold Appreciation
Price but greater than the Initial Price, the Initial Price
and (c) if the Transaction Value is less than or equal to the
Initial Price, the Transaction Value. "Transaction Value"
means (x) for any cash received in any such Reorganization
Event, the amount of cash received per share of EOG Common
Stock, (y) for any property other than cash or securities
received in any such Reorganization Event, an amount equal to
the market value at Maturity of such property received per
share of EOG 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 any such Reorganization Event, an amount equal to
the average Closing Price per share of such securities on the
20 Trading Days immediately prior to Maturity, multiplied by
the number of such securities received for each share of EOG
Common Stock. Notwithstanding, the foregoing, in lieu of
delivering cash as provided above, the Company may at its
option deliver an equivalent value of securities or other
property received in such Reorganization Event, determined in
accordance with clause (y) or (z) above, as applicable. The
kind and amount of securities into which the Exchangeable Note
shall be exchangeable after consummation of such transaction
shall be subject to adjustment as described in paragraph (a)
above following the date of consummation of such transaction.
Section 1404. NOTICE OF ADJUSTMENTS AND CERTAIN
OTHER EVENTS.
(a) Whenever the Exchange Rate is adjusted as herein
provided, the Company shall:
(i) forthwith compute the adjusted Exchange
Rate in accordance with Section 1403 and prepare a
certificate signed by an officer of the Company
setting forth the adjusted Exchange Rate, 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 for the
Exchangeable Notes; and
(ii) within 10 Business Days following the
occurrence of an event that permits or requires an
adjustment to the Exchange Rate pursuant to Section
1403 (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 Outstanding Exchangeable Notes of
the occurrence of such event and a statement in
reasonable detail setting forth the method by which
the adjustment to the
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Exchange Rate was determined and setting forth the
revised Exchange Rate per Exchangeable Note.
(b) In case at any time while any of the
Exchangeable Notes are outstanding the Company receives notice
that:
(i) EOG shall declare a dividend (or any
other distribution) on or in respect of the EOG
Common Stock to which Section 1403(a)(i) or (ii)
shall apply (other than any cash dividends and
distributions, if any, paid from time to time by EOG
that do not constitute Extraordinary Cash Dividends);
(ii) EOG shall authorize the issuance to all
holders of EOG Common Stock of rights or warrants to
subscribe for or purchase shares of EOG Common Stock
or of any other subscription rights or warrants;
(iii) there shall occur any conversion or
reclassification of EOG Common Stock (other than a
subdivision or combination of outstanding shares of
such EOG Common Stock) or any consolidation, merger
or reorganization to which EOG is a party and for
which approval of any stockholders of EOG is
required, or the sale or transfer of all or
substantially all of the assets of EOG; or
(iv) there shall occur the voluntary or
involuntary dissolution, liquidation or winding up of
EOG;
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 exchange of
Exchangeable Notes at Maturity in the Borough of Manhattan, in
The City of New York by the Trustee (or any applicable Paying
Agent), and shall promptly cause to be mailed to the Holders
of Exchangeable Notes at their last addresses as they shall
appear upon the registration books of the Securities
Registrar, 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 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 EOG 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
is expected to become effective.
(c) In the event that the Company elects to deliver
cash (or any other property or securities that may be
delivered pursuant to Section 1403(b)) upon the mandatory
exchange of the principal amount of the Exchangeable Notes in
accordance with Section 1401, on or prior to seven Business
Days preceding the Stated Maturity of the Exchangeable Notes,
the Company will notify the Trustee and will publish a notice
in a daily newspaper of national circulation stating that the
Company has elected to deliver cash in lieu of EOG Common
Stock.
11
Section 1405. TAXES.
(a) 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 EOG Common Stock
pursuant hereto; 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 EOG Common
Stock in a name other than that in which the Exchangeable
Notes so exchanged 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.
(b) The parties hereto hereby agree, and each Holder
of an Exchangeable Note by its purchase of an Exchangeable
Note hereby agrees:
(i) to treat, for U.S. federal income tax
purposes, each Exchangeable Note as a unit (the "unit
characterization") consisting of (A) a debt
obligation with a fixed principal amount and issue
price equal to the principal amount of the
Exchangeable Note, bearing interest at the stated
interest rate, and with the principal amount
unconditionally payable at Maturity, and (B) a
forward purchase contract (the "Purchase Contract")
pursuant to which the Holder agrees to use the
principal payment due on the Exchangeable Note to
purchase, at Maturity, the EOG Common Stock which the
Holder is entitled to receive at that time (subject
to the Company's right to deliver cash in lieu of
such EOG Common Stock);
(ii) to include in income as interest, in
accordance with its method of accounting, all
payments made with respect to the Exchangeable Note
that are denominated as interest and to include any
original issue discount in income on the basis of the
allocation described in paragraph (iii) below (in the
case of an initial purchaser) or on the basis of a
similar method (in the case of a subsequent
purchaser);
(iii) in the case of any initial purchaser,
to allocate the entire purchase price of an
Exchangeable Note to the Exchangeable Note and to
allocate no part thereof to the Purchase Contract,
unless the stated interest on the Exchangeable Notes
represents a yield that is lower than the Company's
normal cost of issuing debt with a similar term to
the Exchangeable Notes (the "Company's Mid-Term
Borrowing Rate"), in which case each Holder agrees to
allocate to the Exchangeable Note an amount, less
than the principal amount of the Exchangeable Note,
calculated by discounting the cash flows relating to
the Exchangeable Note at a rate equal to the
Company's Mid-Term Borrowing Rate, and to allocate to
the Purchase Contract the remainder of the purchase
price of the Exchangeable Note; and
(iv) to file all U.S. federal, state and
local income and franchise tax returns consistent
with the unit characterization and the foregoing
methods (unless required otherwise by an applicable
taxing authority).
12
Section 1406. SHARES FREE AND CLEAR.
The Company hereby warrants that upon exchange of an
Exchangeable Note at Maturity pursuant to this Indenture, the
Holder of an Exchangeable Note shall receive all rights held
by the Company in the EOG Common Stock for which such
Exchangeable Note is at such time exchangeable pursuant to
this 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 EOG Common
Stock by the prior owner thereof, prior to the time such EOG
Common Stock was acquired by the Company. Except as provided
in Section 1405(a), the Company will pay all taxes and charges
with respect to the delivery of EOG Common Stock delivered in
exchange for Exchangeable Notes hereunder.
Section 1407. CANCELLATION OF SECURITY.
Upon receipt by the Trustee of Exchangeable Notes
delivered to it for exchange under this Article Fourteen, the
Trustee shall cancel and dispose of the same as provided in
Section 309.
Section 1408. LIMITATIONS ON TRADING DURING
CERTAIN DAYS.
The Company hereby agrees that it will not, and it
will cause each of its Majority-Owned Subsidiaries (as defined
below) not to, buy or sell shares of EOG Common Stock for its
or their own account during the 20 Trading Days prior to
Stated Maturity of the Exchangeable Notes. For purposes
hereof, "Majority-Owned Subsidiary" with respect to the
Company means a subsidiary more than 50% of whose outstanding
securities representing the right, other than as affected by
events of default, to vote for the election of directors, is
owned by the Company and/or one or more of the Company's other
Majority-Owned Subsidiaries.
Section 1409. LIMITATION ON CASH OPTION.
The Company will not redeem any of the Exchangeable
Notes for cash except with the proceeds from a sale by the
Company of shares of common stock of the Company which sale
shall have occurred not more than 540 days prior to the notice
by the Company, given in accordance with Section 1404(c)
hereof, of its election to deliver cash in lieu of EOG Common
Stock at Stated Maturity.
Section 1410. REDEMPTION AND DEFEASANCE.
The Exchangeable Notes are not subject to redemption,
defeasance or any sinking fund prior to their Stated
Maturity."
(d) By amending the table of contents of the Indenture to reflect
the additions described in Section 1 and subsections (a) and (c) of this
Section 2.
SECTION 3. The form of Exchangeable Note attached hereto as Exhibit A
is hereby adopted, pursuant to Section 901(7) of the Indenture, as a form of
Securities of a series that consists of Exchangeable Notes.
13
SECTION 4. Except as specifically supplemented and amended by this
Supplemental Indenture, the terms and provisions of the Indenture shall remain
in full force and effect. The Indenture, as supplemented and amended by this
Supplemental Indenture and all other indentures supplemental thereto, is in all
respects ratified and confirmed, and the Indenture, this Supplemental Indenture
and all indentures supplemental thereto shall be read, taken and construed as
one and the same instrument.
SECTION 5. If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Supplemental
Indenture by any of the provisions of the Trust Indenture Act, such required
provision shall control.
SECTION 6. All covenants and agreements in this Supplemental Indenture
by the Company shall bind its successors and assigns, whether so expressed or
not.
SECTION 7. In case any provision in this Supplemental Indenture or in
the Securities of any series 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 8. Nothing in this Supplemental Indenture, expressed or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, and the Holders of each series of Securities any benefit
or any legal or equitable right, remedy or claim under this Supplemental
Indenture.
SECTION 9. This Supplemental Indenture and each Security of any series
shall be deemed to be a contract made under the laws of the State of New York
and this Supplemental Indenture and each such Security for all purposes shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 10. All terms used in this Supplemental Indenture not otherwise
defined herein that are defined in the Indenture shall have the meanings set
forth therein.
SECTION 11. 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 12. The recitals contained herein and in the Securities, except
the certificate of authentication of the Trustee thereon, shall be taken as
statements of the Company, and the Trustee assumes no responsibility for their
accuracy or completeness. The Trustee makes no representations as to the
validity or sufficiency of the Indenture, this Supplemental Indenture or of the
Securities and shall not be accountable for the use or application by the
Company of the Securities or the proceeds thereof.
14
IN WITNESS WHEREOF, the parties hereto have cause 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.
ENRON CORP.
By:
Name:
Title:
[Seal]
ATTEST:
XXXXXX TRUST AND SAVINGS BANK
By:
Name:
Title:
[Seal]
ATTEST:
00
XXX XXXXX XX XXXXX ss.
ss.
COUNTY OF XXXXXX xx.
Before me, the undersigned authority, on this day personally appeared
______________, __________ of Enron Corp., known to me to the person whose name
is subscribed to the foregoing instrument, and acknowledged to me that he
executed the same for the purposes and consideration therein expressed, in the
capacity therein stated, and as the act and deed of said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _____ day of __________,
1995.
Notary Public in and for the
Xxxxx xx Xxxxx
00
XXXXX XX XXXXXXXX ss.
ss.
COUNTY OF XXXX xx.
Before me, the undersigned authority, on this day personally appeared
______________, a Vice President of Xxxxxx Trust and Savings Bank, known to me
to the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed, in the capacity therein stated, and as the act and deed of
said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _____ day of __________,
1995.
Notary Public in and for the
State of Illinois
EXHIBIT A
[FORM OF FACE OF EXCHANGEABLE NOTES]
ENRON CORP.
CUSIP NO.
% EXCHANGEABLE NOTES DUE , 1998
(Subject to Exchange at Maturity into Shares of Common Stock, Par Value
$.01 per Share, of Enron Oil & Gas Company)
NO. $
ENRON CORP., a corporation duly organized and existing under the laws
of the State of Delaware (hereinafter called the "Company," which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to [ ], or registered assigns, the
principal sum of [ ] DOLLARS (or $[ ] for each Exchangeable Note represented by
this note) (subject to the mandatory exchange provisions at Maturity discussed
below), and to pay interest (computed on the basis of a 360-day year of twelve
30-day months) thereon from [ ], or from the most recent Interest Payment Date
to which interest has been paid or duly provided for on [ ], [ ], [ ] and [ ] in
each year, commencing [ ], 199[ ], at the rate per annum specified in the title
of this note computed quarterly for each Holder (a) in the case of the first
quarterly interest payment payable on [ ], 199[ ], $[ ] per Exchangeable Note
multiplied by the aggregate number of Exchangeable Notes registered in such
Holder's name and (b) in the case of each quarterly interest payment thereafter,
$[ ] per Exchangeable Note multiplied by the aggregate number of Exchangeable
Notes registered in such Holder's name (in each of (a) and (b), calculated to
the nearest 1/100th of a dollar or, if there is not a nearest 1/100th of a
dollar, then to the next higher 1/100th of a dollar), until the principal hereof
is paid or made available for payment. 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 Exchangeable Note (or
one ore more Predecessor Notes) is registered at the close of business on the
Regular Record Date for such interest, which shall be [ ], [ ], or [ ] as the
case may be, next preceding such Interest Payment Date, provided that interest
payable at Maturity shall be payable to the person to whom the principal hereof
is payable. In any case where such Interest Payment Date shall not be a Business
Day, then (notwithstanding any other provisions of said Indenture or the
Exchangeable Notes) payment of such interest need not be made on such date, but
may be made on the next succeeding Business Date 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 such Regular Record Date, and may either be paid to the
Person in whose name this Exchangeable 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 for the
Exchangeable Notes, notice whereof shall be given to Holders of Notes not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Exchangeable Notes may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
At Maturity, the principal amount of this Exchangeable Note will be
mandatorily exchanged into a number of shares of Common Stock, par value $.01
per share (EOG Common Stock"), of Enron Oil & Gas Company ("EOG") at the
Exchange Rate (as defined below) and, as a result, the Holder of this Note will
not necessarily receive an amount equal to the principal amount hereof. The
"Exchange Rate" is equal to, subject to adjustment as a result of certain
dilution events relating to the EOG Common Stock as provided for in the
Indenture, (a) if the Maturity Price (as defined below) per share of EOG Common
Stock is greater than or equal to $ [ ] per share of EOG Common Stock (the
"Threshold Appreciation Price"), [ ] shares of EOG Common Stock per Note, (b) if
the Maturity Price is less than the Threshold Appreciation Price but is greater
than $ [ ] per share of EOG Common Stock (the "Initial Price"), a fractional
share of EOG Common Stock per Note so that the value thereof (determined at the
Maturity Price) is equal to the Initial Price and (c) if the Maturity Price is
less than or equal to the Initial Price, one share of EOG Common Stock per Note.
No fractional shares of EOG Common Stock will be issued at Maturity as provided
in the Indenture. Notwithstanding the foregoing, the Company may, at its option
in lieu of delivering shares of EOG Common Stock, deliver cash in an amount
equal to the value of such number of shares of EOG Common Stock at the Maturity
Price as provided in the Indenture.
The "Maturity Price" is defined as the average Closing Price per share
of EOG Common Stock on the 20 Trading Days immediately prior to, but not
including, Maturity. The "Closing Price" of any security on any date of
determination means the closing sale price (or, if no closing price is reported,
the last reported sale price) of such security on the New York Stock Exchange
(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. A "Trading Day" is defined as a
day on which the security the Closing Price of which is being determined (A) 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 (B) 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. "Business Day" means any day, other than a Saturday or
Sunday, on which the NYSE, banking institutions and trust companies in The City
of New York are open for business.
Interest on this Exchangeable Note will be payable, and delivery of EOG
Common Stock (or, at the Company's option, cash in an amount equal to the value
of such EOG Common Stock) in exchange for the principal amount of this
Exchangeable Note at Maturity will be made upon surrender of this Exchangeable
Note, at the office or agency of the Company maintained for that purpose in The
City of New York, New York, and payment of interest on (and, if the Company
elects not to deliver EOG Common Stock upon exchange at Maturity, the cash
equivalent thereof payable upon exchange for the principal amount of) this
Exchangeable Note 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 at the close of
business on the Regular Record Date.
ADDITIONAL PROVISIONS OF THIS EXCHANGEABLE NOTE ARE CONTAINED ON THE
REVERSE HEREOF AND SUCH PROVISIONS SHALL HAVE THE SAME EFFECT AS THOUGH FULLY
SET FORTH IN THIS PLACE.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee for this Exchangeable Note by manual signature, this
Exchangeable Note shall not be entitled to any benefit under the Indenture, or
be valid or obligatory for any purpose.
IN WITNESS WHEREOF, Enron Corp., has caused this instrument to be duly
executed under its corporate seal.
Dated:
ENRON CORP.
By:
Name:
Title:
Attest:
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein and
referred to in the within-mentioned Indenture.
XXXXXX TRUST AND SAVINGS BANK,
as Trustee,
By:
Authorized Signatory
[FORM OF REVERSE OF EXCHANGEABLE NOTES]
ENRON CORP.
Exchangeable Note due ,1998
(Subject to Exchange at Maturity into Shares of
Common Stock, Par Value $.01 Per Share,
of Enron Oil & Gas Company)
This Exchangeable Note is one of a duly authorized issue of debentures,
notes or other evidences of indebtedness (hereinafter called the "Securities")
of the Company of the series hereinafter specified, which series is limited to
Exchangeable Notes, all such Securities issued and to be issued under an
indenture dated as of November 1, 1985, between the Company and Xxxxxx Trust and
Savings Bank, as Trustee, as supplemented by a First Supplemental Indenture
dated as of [ ], 1995, between the Company and Xxxxxx Trust and Savings Bank, as
Trustee (herein collectively, the "Indenture"), pursuant to which the Company
has designated Xxxxxx Trust and Savings Bank, as Trustee for the Exchangeable
Notes, 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 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 or 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 Exchangeable Note is one of a
series of the Securities designated as [ ]% Exchangeable Notes Due [ ], 1998.
The Exchangeable Notes may not be redeemed, defeased or entitled to any
sinking fund prior to Maturity Date.
The provisions contained in the Indenture for legal defeasance and
discharge of the entire principal of all the Securities of any series (or of
certain covenants in the Indenture) upon compliance by the Company with certain
conditions set forth therein will not be applicable to the Exchangeable Notes.
If an Event of Default with respect to the Exchangeable Notes, as
defined in the Indenture, shall occur and be continuing, the principal of all
Exchangeable Notes may be declared due and payable and therefore will result in
the mandatory exchange of the principal amount thereof for EOG Common Stock (or,
at the Company's option, cash), all in the manner and with the effect provided
in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities at the time Outstanding
of each series to be affected thereby. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities of any series at the time Outstanding, on behalf of the Holders
of all the Securities of such series, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences with respect to such series. Any such consent
or waiver by the Holder of this Exchangeable Note shall be conclusive and
binding upon such Holder and upon all
future Holders of this Exchangeable Note and of any Exchangeable Notes issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent of waiver is made upon this Exchangeable Note.
No reference herein to the Indenture and no provision of this
Exchangeable Note or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of and
interest on this Exchangeable Note 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, this Exchangeable Note is transferable on the Security Register of
the Company, upon surrender of this Exchangeable Note 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 Exchangeable Note, 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 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.
All terms used in this Security which are defined in the Indenture have
the meanings set forth therein.
This Security shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
Prior to due presentment of the Security for registration of transfer,
the Company, the Trustee for the Exchangeable Notes and any agent of the Company
or such Trustee may treat the Person in whose name this Exchangeable Note is
registered as the owner hereof for the purpose of receiving payment as herein
provided and for all other purposes, whether or not this Exchangeable Note be
overdue, and neither the Company, such Trustee nor any such agent shall be
affected by notice to the contrary.
------------------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM as tenants in common
TEN ENT as tenants by the entireties
JT TEN as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT
MIN ACT _____________ Custodian _____________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
--------------------
(State)
Additional abbreviations may also be used though not in the above list.
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 size code
of assignee) ___________________________________________________________________
the within the Exchangeable Note and all rights thereunder, hereby irrevocably
constituting and appointing ____________________________________________________
attorney to transfer said Exchangeable Note on the books of the Company, with
full power or substitution in the premises.
Dated:
NOTICE: The signature to
this assignment must
correspond with the name as
written up on the face of
the within Exchangeable
Note in every particular,
without alteration or
enlargement or any change
whatever.
