Exhibit 4.4
FIRST SUPPLEMENTAL INDENTURE
Dated as of March , 2002
Supplementing and Amending the Indenture
Dated as of March , 2002
TRAVELERS PROPERTY CASUALTY CORP.
TO
THE BANK OF NEW YORK,
Trustee
% Convertible Junior Subordinated Notes Due April , 2032
FIRST SUPPLEMENTAL INDENTURE dated as of March , 2002 (the
"Supplemental Indenture"), made and entered into by and between TRAVELERS
PROPERTY CASUALTY CORP., a corporation organized and existing under the laws of
the State of Connecticut having its principal office at Xxx Xxxxx Xxxxxx,
Xxxxxxxx, XX 00000 (the "Company"), and THE BANK OF NEW YORK, a New York banking
corporation as trustee (together with its successors, the "Trustee").
WHEREAS the Company entered into an Indenture dated as of March ,
2002 (the "Basic Indenture") with The Bank of New York, as the Trustee, for the
purposes of issuing its unsecured subordinated debentures, securities, notes or
other evidences of indebtedness to be issued in one or more series (the
"Subordinated Debt 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;
WHEREAS the Company has requested the Trustee to join with it in the
execution and delivery of this First Supplemental Indenture in order to provide
for a series of Subordinated Debt Securities denominated its " % Convertible
Junior Subordinated Notes Due April , 2032" (such Subordinated Debt Securities
being referred to herein as the "Notes");
WHEREAS Section 9.1(8) of the Basic Indenture provides that without the
consent of the Holders of Subordinated Debt Securities, the Company, when
authorized by a Board Resolution, and the Trustee may enter into one or more
indentures supplemental to the Basic Indenture, in form satisfactory to the
Trustee, to establish the form or terms of Subordinated Debt Securities of any
series;
WHEREAS the entry into this Supplemental Indenture by the parties
hereto is in all respects authorized by the provisions of the Basic 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, and in consideration of the premises and purchase of
the Subordinated Debt Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders,
without preference, priority or distinction of any of the Subordinated Debt
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 Basic Indenture or this Supplemental Indenture, as
follows:
SECTION 1. The Basic Indenture is hereby amended, solely with respect
to a series of securities that consists of the Notes, as follows:
(a) Section 3.5 of the Indenture is amended to add in the first line of
the fifth paragraph, after the words "registration of transfer,", the following:
"conversion,".
(b) Section 3.6 of the Indenture is amended to add in the second line
of the third paragraph, after the words "pursuant to Section 11.4", the
following: "or is about to be converted into shares of Class A Common Stock
pursuant to Article XVI hereof".
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(c) Section 3.9 of the Indenture is amended to add in the first line,
after the words "surrendered for payment", the following: "conversion,", to
denote the words "submitted for redemption pursuant to Article XI hereof" in the
last sentence as subclause (i) and to add, after such words, the following: "or
(ii) converted pursuant to Article XVI."
(d) Section 4.1 of the Indenture is amended to add in the second line
of the first paragraph, after the words "any surviving rights of", the
following: "conversion or".
(e) Section 6.3 of the Indenture is amended to add as a new subclause
(j) the following:
(j) The Trustee shall not be responsible for the computation of any
adjustment to the Conversion Price or for any determination as to whether an
adjustment is required and shall not be deemed to have knowledge of any
adjustment unless and until it shall have received the notice from the
Company contemplated by Section 16.6(j).
(f) Section 10.2 of the Indenture is amended to add in the third line
of the first paragraph, after the words "for registration of transfer or
exchange", the following: "or presented for conversion".
(g) Section 11.3 of the Indenture is amended to add as a new fourth
paragraph the following:
If any Note selected for partial redemption is converted in part after
such selection, the converted portion of such Note shall be deemed (so far as
may be) to be the portion to be selected for redemption. The Notes (or portion
thereof) so selected shall be deemed duly selected for redemption for all
purposes hereof, notwithstanding that any such Note is converted in whole or in
part before the mailing of the notice of redemption. Upon any redemption of less
than all the Notes, the Company and the Trustee may treat as outstanding any
Note surrendered for conversion during the period of 14 days next preceding the
mailing of a notice of redemption and need not treat as outstanding any Note
authenticated and delivered during such period in exchange for the unconverted
portion of any Note converted in part during such period.
(h) Section 11.4 of the Indenture is amended to delete the word "and"
at the end of subclause (5), to delete the period and to add "; and" to the end
of subclause (6) and to add as new subclause (7) the following:
(7) that Notes called for redemption may be converted at any
time prior to the close of business on the last Business Day
immediately preceding the Redemption Date and if not converted prior to
the close of business on such date, the right of conversion will
terminate.
(i) Section 1.1 of the Indenture is amended to add the following new
definitions thereto, in the appropriate alphabetical sequence, as follows:
"Capital Stock" of any person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such person, but excluding any debt
securities convertible into such equity.
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"Common Stock" means any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company. Subject to the provisions
of Section 16.7, however, shares issuable on conversion of the Notes shall
include only shares of the class designated as class A Common Stock of the
Company at the date of this Indenture (the "Class A Common Stock") or shares of
any class or classes resulting from any reclassification or reclassifications
thereof and which have no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which are not subject to redemption by the
Company; provided that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable shall be
substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares of
all such classes resulting from all such reclassifications.
"Conversion Price" means the initial conversion price specified in
Section 16.1, as adjusted in accordance with the provisions of Article XVI.
"Daily Market Price" means the price of a share of Common Stock on the
relevant date, determined on the basis of the last reported sale price regular
way of the Common Stock as traded on the New York Stock Exchange, or as reported
on the principal national securities exchange upon which the Common Stock is
listed or, if the Common Stock is not then listed on a national securities
exchange, then as quoted on the Nasdaq National market.
"Distribution" means the distribution by Citigroup Inc. of shares of
Common Stock to holders of Citigroup common stock in a transaction qualifying
under Section 355 of the Internal Revenue Code of 1986, as amended.
"Voting Stock" of a corporation means all classes of Capital Stock of
such corporation then outstanding and normally entitled to vote in the election
of directors.
(j) The Indenture is amended by adding the following Article Sixteen:
ARTICLE XVI
CONVERSION OF NOTES
SECTION 16.1 Right To Convert.
Subject to and upon compliance with the provisions of this Indenture
(including the Company's right to elect a Cash Settlement as described below),
unless the Company has redeemed or repurchased the Notes, each holder of Notes
shall have the right, at his or her option, after April , 2003 and before 5:00
p.m., New York City time, on April , 2032, (except that, with respect to any
Note or portion thereof which is called for redemption prior to such date, such
right shall terminate before the close of business on the last Business Day
immediately preceding the Redemption Date), if at that time the conditions
described below are satisfied, to convert the principal amount of any Note held
by such holder, or any portion of such principal amount which is $25 or an
integral multiple thereof, at an initial conversion rate of shares of Class A
Common Stock for each $25 principal amount of Notes (equivalent to an initial
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conversion price of $ per share of Class A Common Stock), subject to
adjustment as described below. A holder of Notes will not be entitled to any
rights of a holder of Class A Common Stock until such holder of Notes has
converted his or her Notes to shares of Class A Common Stock, and only to the
extent such Notes are deemed to have been converted to shares of Class A Common
Stock under this Article XVI.
Holders of Notes may surrender their Notes for conversion into shares
of the Class A Common Stock during the period specified in the preceding
paragraph only under any one of the following circumstances:
(a) a Holder may surrender its Notes for conversion into shares of
Class A Common Stock if the average of the daily closing prices (as defined
in Section 16.6(g)) of Class A Common Stock for the 20 consecutive trading
days (as defined in Section 16.6(g)) immediately prior to the conversion
date (as defined in Section 16.6(g)) is at least 20% above the Conversion
Price on such conversion date.
(b) a Holder may surrender for conversion any Note called for
redemption before the close of business on the last Business Day immediately
preceding the Redemption Date.
(c) If the Company elects to:
(1) issue to all or substantially all holders of its outstanding
shares of Class A Common Stock rights or warrants entitling
such holders to subscribe for or purchase shares of Class A
Common Stock at a price per share less than the Current Market
Price (as defined in Section 16.6(g)) on the Record Date fixed
for the determination of shareholders entitled to receive such
rights or warrants, or
(2) by dividend or otherwise, distribute to all holders of its
Class A Common Stock shares of any class of Capital Stock of
the Company or any of its subsidiaries (other than any
dividends or distributions to which Section 16.6(a) applies)
or evidences of its indebtedness, cash or other assets
(including securities, but excluding any rights or warrants of
a type referred to in Section 16.6(c)) which exceeds 15% of
the sum of (1) the product of the Current Market Price
(determined as provided in Section 16.6(g)) of the Class A
Common Stock on the Record Date with respect to such
distribution multiplied by the number of shares of Class A
Common Stock outstanding on such date and (2) product of the
Current Market Price (determined as provided in Section
16.6(g)) of the Class B Common Stock on the Record Date with
respect to such distribution multiplied by the number of
shares of Class B Common Stock outstanding on such date,
then the Company must notify the Holders of the Notes at least 10 Business
Days prior to the ex-dividend date for such distribution. Once the Company
has provided such notice, Holders
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may surrender their Notes for conversion until the earlier of the close of
business on the Business Day prior to the ex-dividend date or the Company's
announcement that such distribution will not take place.
(d) If the Company is party to any consolidation, merger, share
exchange or combination of the Company with another corporation as a result
of which holders of Class A Common Stock shall be entitled to receive stock,
securities or property or assets (including cash) with respect to or in
exchange for such Class A Common Stock (other than if the property or assets
consists of shares of voting common stock of the surviving or acquiring
person that are, or upon issuance will be, traded on a United States
national securities exchange or approved for trading on an established
automated over-the-counter trading market in the United States, and such
shares represent at least 95% of the aggregate fair market value (as
determined by the Board of Directors) of the property), a Holder may
surrender Notes for conversion at any time from and after the date which is
15 days prior to the anticipated effective date of such transaction until 15
days after the actual effective date of such transaction.
(e) A Holder may surrender any of its Notes for conversion if the
long-term credit ratings assigned to the Notes by Xxxxx'x Investors Service,
Inc. ("Moody's") or Standard & Poor's Ratings Group ("S&P") are reduced to
or below Ba1 or BB+, respectively, or if either Moody's or S&P, or their
successors, no longer rates the Notes.
SECTION 16.2 Exercise of Conversion Privilege; Issuance of Class A Common
Stock on Conversion; No Adjustment for Interest or Dividends.
To exercise, in whole or in part, the conversion privilege with respect
to any Note, the holder of such Note shall surrender such Note, duly endorsed,
at an office or agency maintained for that purpose by the Company pursuant to
Section 10.2 (the "Conversion Agent"), accompanied by the funds, if any,
required by the last paragraph of this Section 16.2, and shall give written
notice of conversion in the form provided on the Notes (or such other notice
which is acceptable to the Company) to the Conversion Agent that the holder of
Notes elects to convert such Note or such portion thereof specified in said
notice. Such notice shall also state the name or names (with address or
addresses) in which the certificate or certificates for shares of Class A Common
Stock which are issuable on such conversion shall be issued, and shall be
accompanied by transfer taxes, if required pursuant to Section 16.8. Each such
Note surrendered for conversion shall, unless the shares issuable on conversion
are to be issued in the same name as the registration of such Note, be duly
endorsed by, or be accompanied by instruments of transfer in form satisfactory
to the Company duly executed by, the holder of Notes or his or her duly
authorized attorney. The Holder of such Notes will not be required to pay any
tax or duty which may be payable in respect of the issue or delivery of shares
of Class A Common Stock on conversion, but will be required to pay any tax or
duty which may be payable in respect of any transfer involved in the issue or
delivery of shares of Class A Common Stock in a name other than the same name as
the registration of such Note.
Subject to Section 16.3, as promptly as practicable after satisfaction
of the requirements for conversion set forth above, the Company shall issue and
shall deliver to such holder at the office or agency maintained by the Company
for such purpose pursuant to Section 10.2, a
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certificate or certificates for the number of full shares of Class A Common
Stock issuable upon the conversion of such Note or portion thereof in accordance
with the provisions of this Article XVI. Certificates representing shares of
Class A Common Stock will not be issued or delivered unless all taxes and
duties, if any, payable by the holder have been paid. In case any Note of a
denomination of an integral multiple greater than $25 is surrendered for partial
conversion, and subject to Section 3.3, the Company shall execute, and the
Trustee shall authenticate and deliver to the holder of the Note so surrendered,
without charge to him or her, a new Note or Notes in authorized denominations in
an aggregate principal amount equal to the unconverted portion of the
surrendered Note.
Each conversion shall be deemed to have been effected as to any such
Note (or portion thereof) on the date on which the requirements set forth above
in this Section 16.2 have been satisfied as to such Note (or portion thereof),
and the person in whose name any certificate or certificates for shares of Class
A Common Stock are issuable upon such conversion shall be deemed to have become
on said date the holder of record of the shares represented thereby; provided,
however, that any such surrender on any date when the Company's stock transfer
books are closed shall constitute the person in whose name the certificates are
to be issued as the record holder thereof for all purposes on the next
succeeding day on which such stock transfer books are open, but such conversion
shall be at the Conversion Price in effect on the date upon which such Note is
surrendered.
Any Note or portion thereof surrendered for conversion during the
period from the close of business on any Regular Record Date for any interest
payment through the opening of business on the corresponding Interest Payment
Date shall (unless such Note or portion thereof being converted has been called
for redemption pursuant to a notice of redemption mailed by the Company to the
holders in accordance with the provisions of Section 11.4) after such Regular
Record Date and before such Interest Payment Date be accompanied by payment, in
funds acceptable to the Company, of an amount equal to the interest and
liquidated damages, if any, otherwise payable on such Interest Payment Date on
the principal amount being converted; provided however, that no such payment
need be made if there exists at the time of conversion a default in the payment
of interest or liquidated damages, if applicable, on the Notes. An amount equal
to such payment (or the interest payment due, as the case may be) shall be paid
by the Company on such Interest Payment Date to the holder of such Note at the
close of business on such Record Date; provided, however, that if the Company
defaults in the payment of interest or liquidated damages, if applicable, on
such Interest Payment Date, such amount shall be paid to the person who made
such required payment. Except as provided above in this Section 16.2, no
adjustment shall be made for interest and liquidated damages, if any, accrued on
any Note converted or for dividends on any shares of Class A Common Stock issued
upon the conversion of such Note as provided in this Article XVI.
SECTION 16.3 Right to Make Cash Settlement.
Notwithstanding anything to the contrary contained in this Article XVI,
from April , 2003, and until the next Business Day following the date of the
Distribution (provided that the Distribution has not occurred by April , 2003),
the Company may elect to make a cash settlement (a "Cash Settlement") in respect
of any Notes surrendered for conversion by delivering notice to the Conversion
Agent not more than five trading days after the Notes are
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surrendered. If the Distribution does not occur, the Company's option to elect a
Cash Settlement will continue.
The amount of cash that a Holder of Notes will receive in the case of a
Cash Settlement with respect to any Notes surrendered for conversion will be
equal to the value of the underlying shares of Class A Common Stock as
calculated by determining the product of (i) the then applicable conversion rate
(which is equal to, for each $25 principal amount of Notes surrendered for
conversion, $25 divided by the then prevailing Conversion Price) and (ii) the
average of the closing price, as defined in Section 16.6(g), of the Class A
Common Stock on the five trading days beginning two trading days after the
Company's delivery of the notice to the Conversion Agent. The Company will pay
the Cash Settlement as promptly as practicable after the completion of the five
trading day period.
SECTION 16.4 Cash Payments in Lieu of Fractional Shares.
Except as described in this Section 16.4, the Company will not make any
payment or other adjustment for accrued interest on the Notes or dividends on
any shares of Class A Common Stock issued upon conversation of any Note. No
fractional shares of Class A Common Stock or scrip representing fractional
shares shall be issued upon conversion of Notes. If more than one Note shall be
surrendered for conversion at one time by the same Holder, the number of full
shares of Class A Common Stock which shall be issuable upon conversion shall be
computed on the basis of the aggregate principal amount of the Notes (or
specified portions thereof to the extent permitted hereby) so surrendered for
conversion. If any fractional share of Class A Common Stock otherwise would be
issuable upon the conversion of any Note or Notes, the Company shall make an
adjustment therefor in cash based upon the Daily Market Price of the Class A
Common Stock on the last trading day prior to the date of conversion.
SECTION 16.5 Conversion Price.
The Conversion Price shall be as specified in Section 16.1, subject to
adjustment as provided in this Article XVI. In the event that the Conversion
Price is adjusted pursuant to the provisions of Section 16.6, the conversion
rate shall be adjusted accordingly.
SECTION 16.6 Adjustment of Conversion Price.
The Conversion Price shall be adjusted from time to time by the Company
as follows:
(a) If the Company shall hereafter pay a dividend or make a
distribution to all holders of the outstanding Class A Common Stock in shares of
Class A Common Stock, the Conversion Price in effect at the opening of business
on the date following the date fixed for the determination of shareholders
entitled to receive such dividend or other distribution shall be reduced by
multiplying such Conversion Price by a fraction of which the numerator shall be
the number of shares of Class A Common Stock outstanding at the close of
business on the Record Date (as defined in Section 16.6(g)) fixed for such
determination and the denominator shall be the sum of such number of shares of
Class A Common Stock and the total number of shares of Class A Common Stock
constituting such dividend or other distribution, such reduction to become
effective immediately after the opening of business on the day following the
Record Date. If any dividend or distribution of the type described in this
Section 16.6(a) is declared but
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not so paid or made, the Conversion Price shall again be adjusted to the
Conversion Price which would then be in effect if such dividend or distribution
had not been declared.
(b) If the outstanding shares of Class A Common Stock shall be
subdivided or split into a greater number of shares of Class A Common Stock or
the Company issues any shares of Capital Stock in connection with a
reclassification of the Company's Class A Common Stock (other than the shares of
Class A Common Stock issued by the Company to Citigroup Inc. within 30 days of
the consummation of the offering of the Notes), the Conversion Price in effect
at the opening of business on the day following the day upon which such
subdivision or split becomes effective shall be proportionately reduced, and,
conversely, if the outstanding shares of Class A Common Stock shall be combined
into a smaller number of shares of Class A Common Stock, the Conversion Price in
effect at the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately increased, such reduction
or increase, as the case may be, to become effective immediately after the
opening of business on the day following the day upon which such subdivision or
combination becomes effective.
(c) If the Company issues rights or warrants to all or substantially
all holders of its outstanding shares of Class A Common Stock entitling such
holders to subscribe for or purchase shares of Class A Common Stock at a price
per share less than the Current Market Price (as defined in Section 16.6(g)) of
the Class A Common Stock on the Record Date fixed for the determination of
shareholders entitled to receive such rights or warrants, the Conversion Price
shall be adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect at the opening of business on the
date after such Record Date by a fraction of which the numerator shall be the
number of shares of Class A Common Stock outstanding at the close of business on
the Record Date plus the number of shares of Class A Common Stock which the
aggregate offering price of the total number of shares of Class A Common Stock
so offered would purchase at such Current Market Price, and of which the
denominator shall be the number of shares of Class A Common Stock outstanding on
the close of business on the Record Date plus the total number of additional
shares of Class A Common Stock so offered for subscription or purchase. Such
adjustment shall become effective immediately after the opening of business on
the day following the Record Date fixed for determination of shareholders
entitled to receive such rights or warrants. To the extent that shares of Class
A Common Stock are not delivered pursuant to such rights or warrants, upon the
expiration or termination of such rights or warrants, the Conversion Price shall
be readjusted to be the Conversion Price which would then be in effect had the
adjustments made upon the issuance of such rights or warrants been made on the
basis of delivery of only the number of shares of Class A Common Stock actually
delivered. If such rights or warrants are not so issued, the Conversion Price
shall again be adjusted to be the Conversion Price which would then be in effect
if such date fixed for the determination of shareholders entitled to receive
such rights or warrants had not been fixed. In determining whether any rights or
warrants entitle the holders to subscribe for or purchase shares of Class A
Common Stock at less than such Current Market Price, and in determining the
aggregate offering price of such shares of Class A Common Stock, there shall be
taken into account any consideration received for such rights or warrants, with
the value of such consideration, if other than cash, to be determined by the
Board of Directors.
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(d) If the Company shall, by dividend or otherwise, distribute to all
holders of its Class A Common Stock shares of any class of Capital Stock of the
Company or any of its subsidiaries (other than any dividends or distributions to
which Section 16.6(a) applies) or evidences of its indebtedness, cash or other
assets (including securities, but excluding (i) any rights or warrants of a type
referred to in Section 16.6(c) and (ii) dividends and distributions paid
exclusively in cash) (the foregoing hereinafter in this Section 16.6(d) called
the "Securities"), then, in each such case, the Conversion Price shall be
reduced so that the same shall be equal to the price determined by multiplying
the Conversion Price in effect immediately prior to the close of business on the
Record Date (as defined in Section 16.6(g)) with respect to such distribution by
a fraction the numerator of which shall be the Current Market Price (determined
as provided in Section 16.6(g)) of the Class A Common Stock on such date and the
denominator of which shall be the fair market value on such date of the portion
of the Securities so distributed applicable to one share of Class A Common Stock
plus such Current Market Price, such reduction to become effective immediately
prior to the opening of business on the day following the Record Date; provided,
however, that in the event the then fair market value of the portion of the
Securities so distributed applicable to one share of Class A Common Stock is
equal to or greater than the Current Market Price of the Class A Common Stock on
the Record Date, in lieu of the foregoing adjustment, adequate provision shall
be made so that each Holder of Notes shall have the right to receive upon
conversion of a Note (or any portion thereof) the amount of Securities such
holder would have received had such holder converted such Note (or portion
thereof) immediately prior to such Record Date. If such dividend or distribution
is not so paid or made, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such dividend or distribution
had not been declared. If the Board of Directors determines the fair market
value of any distribution for purposes of this Section 16.6(d) by reference to
the actual or when issued trading market for any securities comprising all or
part of such distribution, it must in doing so consider the prices in such
market over the same period used in computing the Current Market Price of the
Class A Common Stock pursuant to Section 16.6(g) to the extent possible.
In the event the Company elects to make a distribution described in the
(c) or (d) above, the Company will be required to give notice to the Holders of
the Notes at least 10 Business Days before the ex-dividend date for such
distribution and, upon the giving of such notice, the Notes may be surrendered
for conversion at any time until the close of business on the Business Day
before to the ex-dividend date or until the Company announces that such
distribution will not take place.
For the purposes of this Section 16.6(d) only, "fair market value" of
the Securities to be distributed to holders of Class A Common Stock means the
average of the sales prices of those Securities over the first five trading days
after the effective date of the distribution.
Notwithstanding any other provision of this Section 16.6(d) to the
contrary, rights, warrants, evidences of indebtedness, other securities, cash or
other assets (including, without limitation, any rights distributed pursuant to
any shareholder rights plan) shall be deemed not to have been distributed for
purposes of this Section 16.6 (d) if the Company makes proper provision so that
each holder of Notes who converts a Note (or any portion thereof) after the date
fixed for determination of shareholders entitled to receive such distribution
shall be entitled to receive upon such conversion, in addition to the shares of
Class A Common Stock issuable upon
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such conversion, the amount and kind of such distributions that such holder
would have been entitled to receive if such holder had, immediately prior to
such determination date, converted such Note into shares of Class A Common
Stock.
Rights or warrants distributed by the Company to all holders of Class A
Common Stock entitling the holders thereof to subscribe for or purchase shares
of the Company's capital stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a specified
event or events ("Trigger Event"): (i) are deemed to be transferred with such
shares of Class A Common Stock; (ii) are not exercisable; and (iii) are also
issued in respect of future issuances of Class A Common Stock, shall be deemed
not to have been distributed for purposes of this Section 16.6(d) (and no
adjustment to the Conversion Price under this Section 16.6(d) shall be required)
until the occurrence of the earliest Trigger Event, whereupon such rights and
warrants shall be deemed to have been distributed and an appropriate adjustment
to the Conversion Price under this Section 16.6(d) shall be made. If any such
rights or warrants, including any such existing rights or warrants distributed
prior to the date of this Indenture, are subject to subsequent events, upon the
occurrence of each of which such rights or warrants shall become exercisable to
purchase different securities, evidences of indebtedness or other assets, then
the occurrence of each such event shall be deemed to be such date of issuance
and record date with respect to new rights or warrants (and a termination or
expiration of the existing rights or warrants without exercise by the holder
thereof). In addition, in the event of any distribution (or deemed distribution)
of rights or warrants, or any Trigger Event with respect thereto, that was
counted for purposes of calculating a distribution amount for which an
adjustment to the Conversion Price under this Section 16.6 was made, (1) in the
case of any such rights or warrants which shall all have been redeemed or
repurchased without exercise by any holders thereof, the Conversion Price shall
be readjusted upon such final redemption or repurchase to give effect to such
distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or repurchase price received by
a holder or holders of Class A Common Stock with respect to such rights or
warrants (assuming such holder had retained such rights or warrants), made to
all holders of Class A Common Stock as of the date of such redemption or
repurchase, and (2) in the case of such rights or warrants which shall have
expired or been terminated without exercise by any holders thereof, the
Conversion Price shall be readjusted as if such rights and warrants had not been
issued.
For purposes of this Section 16.6(d) and Sections 16.6(a) and (c), any
dividend or distribution to which this Section 16.6(d) is applicable that also
includes shares of Class A Common Stock, or rights or warrants to subscribe for
or purchase shares of Class A Common Stock to which Section 16.6(c) applies (or
both), shall be deemed instead to be (1) a dividend or distribution of the
evidences of indebtedness, assets, shares of capital stock, rights or warrants
other than such shares of Class A Common Stock or rights or warrants to which
Section 16.6(c) applies (and any Conversion Price reduction required by this
Section 16.6(d) with respect to such dividend or distribution shall then be
made) immediately followed by (2) a dividend or distribution of such shares of
Class A Common Stock or such rights or warrants (and any further Conversion
Price reduction required by Sections 16.6(a) and (c) with respect to such
dividend or distribution shall then be made, except that (A) the Record Date of
such dividend or distribution shall be substituted as "the date fixed for the
determination of shareholders entitled to receive such dividend or other
distribution", "Record Date fixed for such determination" and "Record Date"
within the meaning of Section 16.6(a) and as "the date fixed for the
determination of
10
shareholders entitled to receive such rights or warrants", "the Record Date
fixed for the determination of the shareholders entitled to receive such rights
or warrants" and "such Record Date" within the meaning of Section 16.6(c) and
(B) any shares of Class A Common Stock included in such dividend or distribution
shall not be deemed "outstanding at the close of business on the date fixed for
such determination" within the meaning of Section 16.6(a)).
(e) If the Company shall make a distribution (other than regular
quarterly dividends paid by the Company) consisting exclusively of cash to all
holders of its Common Stock (excluding any cash that is distributed upon a
merger, share exchange or consolidation to which Section 16.7 applies or as part
of a distribution referred to in Section 16.6(d)) in an aggregate amount that,
combined together with (1) the aggregate amount of any other such all-cash
distributions to all holders of its Common Stock within the 12 months preceding
the date of payment of such distribution, and in respect of which no adjustment
pursuant to this Section 16.6(e) has been made, and (2) the aggregate of any
cash plus the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a resolution of the Board of
Directors) of consideration payable in respect of any tender or exchange offer
by the Company or any of its subsidiaries for all or any portion of the Common
Stock concluded within the 12 months preceding the date of payment of such
distribution, and in respect of which no adjustment pursuant to Section 16.6(f)
has been made, exceeds 15% of the sum of (1) the product of the Current Market
Price (determined as provided in Section 16.6(g)) of the Class A Common Stock on
the Record Date with respect to such distribution multiplied by the number of
shares of Class A Common Stock outstanding on such date and (2) the product of
the Current Market Price (determined as provided in Section 16.6(g)) of the
Class B Common Stock on the Record Date with respect to such distribution
multiplied by the number of shares of Class B Common Stock outstanding on such
date, then, and in each such case, immediately after the close of business on
such date, the Conversion Price shall be reduced so that the same shall equal
the price determined by multiplying the Conversion Price in effect immediately
prior to the close of business on such Record Date by a fraction (i) the
numerator of which shall be equal to the sum of the Current Market Price
(determined as provided in Section 16.6(g)) of the Class A Common Stock on the
Record Date less an amount equal to the quotient of (x) the excess of such
combined amount over such 15% allocable to the shares of Class A Common Stock
and (y) the number of shares of Class A Common Stock outstanding on the Record
Date and (ii) the denominator of which shall be equal to the Current Market
Price of the Class A Common Stock on the Record Date; provided, however, that if
the portion of the cash so distributed applicable to one share of Class A Common
Stock is equal to or greater than the Current Market Price of the Class A Common
Stock on the Record Date, in lieu of the foregoing adjustment, adequate
provision shall be made so that each holder of Notes shall have the right to
receive upon conversion of a Note (or any portion thereof) the amount of cash
such holder would have received had such holder converted such Note (or portion
thereof) immediately prior to such Record Date. If such dividend or distribution
is not so paid or made, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such dividend or distribution
had not been declared. Any cash distribution to all holders of Class A Common
Stock as to which the Company makes the election permitted by Section 16.6(m)
and as to which the Company has complied with the requirements of such Section
shall be treated as not having been made for all purposes of this Section
16.6(e).
11
(f) If a tender or exchange offer made by the Company or any of its
subsidiaries for all or any portion of the Common Stock expires and such tender
or exchange offer (as amended upon the expiration thereof) requires the payment
to shareholders (based on the acceptance (up to any maximum specified in the
terms of the tender or exchange offer) of Purchased Shares (as defined below))
of an aggregate consideration having a fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors) that, combined together with (1) the
aggregate of the cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a resolution
of the Board of Directors), as of the expiration of such tender or exchange
offer, of consideration payable in respect of any other tender offers, by the
Company or any of its subsidiaries for all or any portion of the Common Stock,
expiring within the 12 months preceding the expiration of such tender offer and
in respect of which no adjustment pursuant to this Section 16.6(f) has been made
and (2) the aggregate amount of any such all-cash distributions to all holders
of the Common Stock within 12 months preceding the expiration of such tender
offer and in respect of which no adjustment pursuant to Section 16.6(e) has been
made, exceeds 15% of the sum of (1) the product of the Current Market Price
(determined as provided in Section 16.6(g)) of the Class A Common Stock as of
the last time (the "Expiration Time") tenders could have been made pursuant to
such tender offer (as it may be amended) multiplied by the number of shares of
Class A Common Stock outstanding (including any tendered shares) as of the
Expiration Time and (2) the product of the Current Market Price (determined as
provided in Section 16.6(g)) of the Class B Common Stock as of the Expiration
Time multiplied by the number of shares of Class B Common Stock outstanding
(including any tendered shares) as of the Expiration Time, then, and in each
such case, immediately prior to the opening of business on the day after the
date of the Expiration Time, the Conversion Price shall be adjusted so that the
same shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to close of business on the date of the Expiration Time
by a fraction of which the numerator shall be the number of shares of Class A
Common Stock outstanding (including any tendered shares) as of the Expiration
Time multiplied by the Current Market Price of the Class A Common Stock on the
trading day next succeeding the Expiration Time and the denominator shall be the
sum of (x) the fair market value (determined as aforesaid) of the aggregate
consideration payable to holders of Class A Common Stock based on the acceptance
(up to any maximum specified in the terms of the tender offer) of all shares of
Class A Common Stock validly tendered and not withdrawn as of the Expiration
Time (the shares deemed so accepted, up to any such maximum, being referred to
as the "Purchased Shares") and (y) the product of the number of shares of Class
A Common Stock outstanding (less any Purchased Shares) on the Expiration Time
and the Current Market Price of the Class A Common Stock on the trading day next
succeeding the Expiration Time, such reduction (if any) to become effective
immediately prior to the opening of business on the day following the Expiration
Time. If the Company is obligated to purchase shares pursuant to any such tender
or exchange offer, but the Company is permanently prevented by applicable law
from effecting any such purchases or all such purchases are rescinded, the
Conversion Price shall again be adjusted to be the Conversion Price which would
then be in effect if such tender or exchange offer had not been made. If the
application of this Section 16.6(f) to any tender or exchange offer would result
in an increase in the Conversion Price, no adjustment shall be made for such
tender or exchange offer under this Section 16.6(f).
12
(g) For purposes of this Section 16.6, the following terms shall have
the meaning indicated:
(1) "Class B Common Stock" means any Common Stock of the Company of
the class not designated as Class A Common Stock as of the date of this
Indenture.
(2) "closing price" with respect to any securities on any day means
the closing price on such day or, if no such sale takes place on such day, the
average of the reported high and low prices on such day, in each case on the
Nasdaq National Market or the New York Stock Exchange, as applicable, or, if
such security is not listed or admitted to trading on such national market or
exchange, on the principal national securities exchange or quotation system on
which such security is quoted or listed or admitted to trading, or, if not
quoted or listed or admitted to trading on any national securities exchange or
quotation system, the average of the high and low prices of such security on the
over-the-counter market on the day in question as reported by the National
Quotation Bureau Incorporated, or a similar generally accepted reporting
service, or, if not so available, in such manner as furnished by any New York
Stock Exchange member firm selected from time to time by the Board of Directors
for that purpose, or a price determined in good faith by the Board of Directors,
whose determination shall be conclusive and described in a resolution of the
Board of Directors.
(3) "conversion date" means any day on which a Holder surrenders
such Holder's Notes to the Conversion Agent for conversion pursuant to the
procedures in this Section 16.6.
(4) "Current Market Price" means the average of the daily closing
prices per share of Class A Common Stock or Class B Common Stock, as the case
may be, for the five consecutive trading days immediately prior to the date in
question; provided, however, that (1) if the "ex" date (as hereinafter defined)
for any event (other than the issuance or distribution requiring such
computation) that requires an adjustment to the Conversion Price pursuant to
Sections 16.6(a), (b), (c), (d), (e) or (f) (or, in the case of the Class B
Common Stock, would require an adjustment to the Conversion Price of the Notes
if the Notes were convertible into shares of Class B Common Stock) occurs during
such five consecutive trading days, the closing price for each trading day prior
to the "ex" date for such other event shall be adjusted by multiplying such
closing price by the same fraction by which the Conversion Price is (or, in the
case of the Class B Common Stock, would be) so required to be adjusted as a
result of such other event, (2) if the "ex" date for any event (other than the
issuance or distribution requiring such computation) that requires (or in the
case of the Class B Common Stock, that would require) an adjustment to the
Conversion Price pursuant to Section 16.6(a), (b), (c), (d), (e) or (f) occurs
on or after the "ex" date for the issuance or distribution requiring such
computation and prior to the day in question, the closing price for each trading
day on and after the "ex" date for such other event shall be adjusted by
multiplying such closing price by the reciprocal of the fraction by which the
Conversion Price is (or, in the case of the Class B Common Stock, would be) so
required to be adjusted as a result of such other event, and (3) if the "ex"
date for the issuance or distribution requiring (or, in the case of the Class B
Common Stock, that would require) such computation is prior to the day in
question, after taking into account any adjustment required (or, in the case of
the Class B Common Stock, that would be required) pursuant to clause (1) or (2)
of
13
this proviso, the closing price for each trading day on or after such "ex" date
shall be adjusted by adding thereto the amount of any cash and the fair market
value (as determined by the Board of Directors in a manner consistent with any
determination of such value for purposes of Sections 16.6(d) or (f), whose
determination shall be conclusive and described in a resolution of the Board of
Directors) of the evidences of indebtedness, shares of capital stock or assets
being distributed applicable to one share of Class A Common Stock, or Class B
Common Stock, as the case may be, as of the close of business on the day before
such "ex" date. For purposes of any computation under Section 16.6(f), the
Current Market Price on any date shall be deemed to be the average of the daily
closing prices per share of Class A Common Stock or Class B Common Stock, as the
case may be, for such day and the next two succeeding trading days; provided,
however, that if the "ex" date for any event (other than the tender or exchange
offer requiring such computation) that requires (or, in the case of the Class B
Common Stock, that would require) an adjustment to the Conversion Price pursuant
to Section 16.6(a), (b), (c), (d), (e) or (f) occurs on or after the Expiration
Time for the tender or exchange offer requiring such computation and prior to
the day in question, the closing price for each trading day on and after the
"ex" date for such other event shall be adjusted by multiplying such Closing
Price by the reciprocal of the fraction by which the Conversion Price is (or, in
the case of the Class B Common Stock, would be) so required to be adjusted as a
result of such other event. For purposes of this paragraph, the term "ex" date,
(1) when used with respect to any issuance or distribution, means the first date
on which the Class A Common Stock or the Class B Common Stock, as the case may
be, trades regular way on the relevant exchange or in the relevant market from
which the closing price was obtained without the right to receive such issuance
or distribution, (2) when used with respect to any subdivision or combination of
shares of Class A Common Stock or Class B Common Stock, as the case may be,
means the first date on which the Class A Common Stock or Class B Common Stock
trades regular way on such exchange or in such market after the time at which
such subdivision or combination becomes effective, and (3) when used with
respect to any tender or exchange offer means the first date on which the Class
A Common Stock or the Class B Common Stock, as the case may be, trades regular
way on such exchange or in such market after the Expiration Time of such offer.
Notwithstanding the foregoing, whenever successive adjustments to the Conversion
Price are (or, in the case of the Class B Common Stock, would be) called for
pursuant to this Section 16.6, such adjustments shall be made to the Current
Market Price as may be necessary or appropriate to effectuate the intent of this
Section 16.6 and to avoid unjust or inequitable results as determined in good
faith by the Board of Directors. Notwithstanding the foregoing, prior to the
Distribution, the Current Market Price of the Class B Common Stock at any time
shall be equal to the Current Market Price of the Class A Common Stock at such
time.
(5) "fair market value" shall mean the amount which a willing
buyer would pay a willing seller in an arm's length transaction.
(6) "Record Date" shall mean, with respect to any dividend,
distribution or other transaction or event in which the holders of Class A
Common Stock or Class B Common Stock, as the case may be, have the right to
receive any cash, securities or other property or in which the Class A Common
Stock or Class B Common Stock (or other applicable security) is exchanged for or
converted into any combination of cash, securities or other property, the date
fixed for determination of shareholders entitled to receive such cash,
securities
14
or other property (whether such date is fixed by the Board of Directors or by
statute, contract or otherwise).
(7) "trading day" shall mean (x) if the applicable security is
listed or admitted for trading on the New York Stock Exchange or another
national securities exchange, a day on which the New York Stock Exchange or such
other national securities exchange is open for business or (y) if the applicable
security is quoted on the Nasdaq National Market, a day on which trades may be
made thereon or (z) if the applicable security is not so listed, admitted for
trading or quoted, any day other than a Saturday or Sunday or a day on which
banking institutions in the State of New York are authorized or obligated by law
or executive order to close.
(h) The Company may make such reductions in the Conversion Price, in
addition to those required by Sections 16.6(a), (b), (c), (d), (e) and (f), as
the Board of Directors considers to be advisable to avoid or diminish any income
tax to holders of Class A Common Stock or rights to purchase Class A Common
Stock resulting from any dividend or distribution of shares (or rights to
acquire shares) or from any event treated as such for income tax purposes or for
any other reason.
The Company from time to time may, to the extent permitted by law,
reduce the Conversion Price by any amount for any period of at least 20 days, if
the Board of Directors has made a determination that such reduction would be in
the Company's best interests, which determination shall be conclusive and
described in a resolution of the Board of Directors. The reduction in Conversion
Price shall be irrevocable during this period. Whenever the Conversion Price is
reduced pursuant to the preceding sentence, the Company shall mail to the
holders of Notes at his or her last address appearing on the Register of holders
maintained for that purpose a notice of the reduction at least 14 days prior to
the date the reduced Conversion Price takes effect, and such notice shall state
the reduced Conversion Price and the period during which it will be in effect.
(i) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in such price;
provided, however, that any adjustments which by reason of this Section 16.6(i)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Article XVI shall be made
by the Company and shall be made to the nearest cent or to the nearest one
hundredth of a share, as the case may be.
No adjustment need be made for a change in the par value or no par
value of the Class A Common Stock.
(j) Whenever the Conversion Price is adjusted as herein provided, the
Company shall promptly file with the Trustee and any Conversion Agent other than
the Trustee an Officers' Certificate setting forth the Conversion Price after
such adjustment and setting forth a brief statement of the facts requiring such
adjustment. Promptly after delivery of such certificate, the Company shall
prepare a notice of such adjustment of the Conversion Price setting forth the
adjusted Conversion Price and the date on which each adjustment becomes
effective and shall mail such notice of such adjustment of the Conversion Price
to each holder of Notes at his or her
15
last address appearing on the Security Register of holders maintained for that
purpose within 20 days after the effective date of such adjustment. Failure to
deliver such notice shall not affect the legality or validity of any such
adjustment.
(k) In any case in which this Section 16.6 provides that an adjustment
shall become effective immediately after a Record Date for an event, the Company
may defer until the occurrence of such event issuing to the holder of any Note
converted after such Record Date and before the occurrence of such event the
additional shares of Class A Common Stock issuable upon such conversion by
reason of the adjustment required by such event over and above the Class A
Common Stock issuable upon such conversion before giving effect to such
adjustment.
(l) For purposes of this Section 16.6, the number of shares of Common
Stock at any time outstanding shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock.
(m) No adjustment of the Conversion Price will be required to be made
for the issuance of any shares of Class A Common Stock pursuant to any present
or future plan providing for the reinvestment of dividends or interest payable
on the securities of the Company and the investment of additional optional
amounts in shares of Class A Common Stock under any such plan, and the issuance
of any shares of Class A Common Stock or options or rights to purchase such
shares pursuant to any employee benefit plan or program of the Company, pursuant
to any option, warrant or exercisable, exchangeable or convertible security
outstanding as of the date hereof.
(n) If the Company issues rights under its shareholder rights plan,
there shall be no adjustment to the Conversion Price as a result of (i) the
issuance of the rights; (ii) the distribution of separate certificates
representing the rights; (iii) the exercise or redemption of the rights in
accordance with any rights agreement; or (iv) the termination or invalidation of
the rights.
(o) In lieu of making any adjustment to the Conversion Price pursuant
to Section 16.6(e), the Company may elect to reserve an amount of cash for
distribution to the holders of Notes upon the conversion of the Notes so that
any such holder converting Notes will receive upon such conversion, in addition
to the shares of Class A Common Stock and other items to which such holder is
entitled, the full amount of cash which such holder would have received if such
holder had, immediately prior to the Record Date for such distribution of cash,
converted its Notes into Class A Common Stock, together with any interest
accrued with respect to such amount, in accordance with this Section 16.6(m).
The Company may make such election by providing an Officers' Certificate to the
Trustee to such effect on or prior to the payment date for any such distribution
and depositing with the Trustee on or prior to such date an amount of cash equal
to the aggregate amount that the holders of Notes would have received if such
holders had, immediately prior to the Record Date for such distribution,
converted all of the Notes into Class A Common Stock. Any such funds so
deposited by the Company with the Trustee shall be invested by the Trustee in
U.S. Government Obligations with a maturity not more than three (3) months from
the date of issuance. Upon conversion of Notes by a holder thereof, such holder
shall be entitled to receive, in addition to the Class A Common Stock issuable
upon conversion, an amount of cash equal to the amount such holder would have
received if such holder had, immediately prior to the Record Date for such
distribution, converted its Note into Class A
16
Common Stock, along with such holder's pro-rata share of any accrued interest
earned as a consequence of the investment of such funds. Promptly after making
an election pursuant to this Section 16.6(m), the Company shall give or shall
cause to be given notice to all holders of Notes of such election, which notice
shall state the amount of cash per $25 principal amount of Notes such holders
shall be entitled to receive (excluding interest) upon conversion of the Notes
as a consequence of the Company having made such election.
SECTION 16.7 Effect of Reclassification, Consolidation, Merger or Sale.
If any of the following events occur: (i) any reclassification or
change of the outstanding shares of Class A Common Stock (other than a change in
par value, or from par value to no par value, or from no par value to par value,
or as a result of a subdivision or combination), (ii) any consolidation, merger,
share exchange or combination of the Company with another corporation as a
result of which holders of Class A Common Stock shall be entitled to receive
stock, securities or other property or assets (including cash) with respect to
or in exchange for such Class A Common Stock, or (iii) any sale or conveyance of
the properties and assets of the Company as an entirety or substantially as an
entirety to any other corporation as a result of which holders of Class A Common
Stock shall be entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Class A Common Stock
(each of the events described in (i), (ii) and (iii) being a "Fundamental
Event"), then the Company or the successor or purchasing corporation, as the
case may be, shall execute with the Trustee a supplemental indenture (which
shall comply with the Trust Indenture Act as in force at the date of execution
of such supplemental indenture if such supplemental indenture is then required
to so comply) providing that the Notes shall be convertible into the kind and
amount of shares of stock and other securities or property or assets (including
cash) receivable upon such reclassification, change, consolidation, merger,
share exchange, combination, sale or conveyance by a holder of a number of
shares of Class A Common Stock issuable upon conversion of the Notes (assuming,
for such purposes, a sufficient number of authorized shares of Class A Common
Stock available to convert all such Notes) immediately prior to such
reclassification, change, consolidation, merger, share exchange, combination,
sale or conveyance assuming such holder of Class A Common Stock did not exercise
his or her rights of election, if any, as to the kind or amount of securities,
cash or other property receivable upon such consolidation, merger, share
exchange, sale or conveyance (provided that, if the kind or amount of
securities, cash or other property receivable upon such consolidation, merger,
share exchange, sale or conveyance is not the same for each share of Class A
Common Stock in respect of which such rights of election have not been exercised
("non-electing share"), then, for the purposes of this Section 16.7, the kind
and amount of securities, cash or other property receivable upon such
consolidation, merger, share exchange, sale or conveyance for each non-electing
share shall be deemed to be the kind and amount so receivable per share by a
plurality of the non-electing shares). Such supplemental indenture shall provide
for adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article XVI. If, in the case of any such
reclassification, change, consolidation, merger, share exchange, combination,
sale or conveyance, the stock or other securities and assets receivable
thereupon by a holder of shares of Class A Common Stock includes shares of stock
or other securities and assets of a corporation other than the successor or
purchasing corporation, as the case may be, in such reclassification, change,
consolidation, merger, share exchange, combination, sale or conveyance, then
such supplemental indenture shall also be executed by such other corporation
17
and shall contain such additional provisions to protect the interests of the
holders of the Notes as the Board of Directors shall reasonably consider
necessary by reason of the foregoing.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each holder of Notes at his or her address appearing
on the Security Register of holders for that purpose within 20 days after
execution thereof. Failure to deliver such notice shall not affect the legality
or validity of such supplemental indenture.
The above provisions of this Section 16.7 shall similarly apply to
successive reclassifications, changes, consolidations, mergers, share exchanges,
combinations, sales and conveyances.
If this Section 16.7 applies to any event or occurrence, Section 16.6
shall not apply.
SECTION 16.8 Taxes on Shares Issued.
The issue of share certificates on conversions of Notes shall be made
without charge to the converting holder for any tax in respect of the issue
thereof. The Company shall not, however, be required to pay any tax which may be
payable in respect of any transfer involved in the issue and delivery of shares
of Class A Common Stock in any name other than that of the Holder of any Note
converted, and the Company shall not be required to issue or deliver any such
stock certificate unless and until the person or persons requesting the issue
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
SECTION 16.9 Reservation of Shares; Shares to Be Fully Paid; Listing of
Class A Common Stock.
The Company shall provide, free from preemptive rights, out of its
authorized but unissued shares, sufficient shares to provide for the conversion
of the Notes from time to time into shares of Class A Common Stock as such Notes
are presented for conversion.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the shares of Class A
Common Stock issuable upon conversion of the Notes, the Company shall take all
corporate action which may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue shares of such Class A Common
Stock at such adjusted Conversion Price.
The Company covenants that all shares of Class A Common Stock issued
upon conversion of Notes will be fully paid and nonassessable by the Company and
free from all taxes, liens and charges with respect to the issue thereof.
The Company further covenants that as long as the Class A Common Stock
is traded on the New York Stock Exchange, or its successor, the Company shall
cause all shares of Class A Common Stock issuable upon conversion of the Notes
to be eligible for such listing in accordance with, and at the times required
under, the requirements of such exchange.
18
SECTION 16.10 Responsibility of Trustee.
The Trustee shall not at any time be under any duty of responsibility
to any holders of Notes to determine whether any facts exist which may require
any adjustment of the Conversion Price, or with respect to the nature or extent
or calculation of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in
making the same. The Trustee shall not be accountable with respect to the
validity or value (or the kind or amount) of any shares of Class A Common Stock,
or of any securities or property, which may at any time be issued or delivered
upon the conversion of any Note; and the Trustee makes no representations with
respect thereto. Subject to the provisions of Section 6.1, the Trustee shall not
be responsible for any failure of the Company to issue, transfer or deliver any
shares of Class A Common Stock or stock certificates or other securities or
property or cash upon the surrender of any Note for the purpose of conversion or
to comply with any of the duties, responsibilities or covenants of the Company
contained in this Article XVI. Without limiting the generality of the foregoing,
the Trustee shall not have any responsibility to determine the correctness of
any provisions contained in any supplemental indenture entered into pursuant to
Section 16.7 relating either to the kind or amount of shares of stock or
securities or property (including cash) receivable by holders of Notes upon the
conversion of their Notes after any event referred to in such Section 16.7 or to
any adjustment to be made with respect thereto, but, subject to the provisions
of Section 6.1, may accept as conclusive evidence of the correctness of any such
provisions, and shall be protected in relying upon, the Officers' Certificate
and Opinion of Counsel (which the Company shall be obligated to file with the
Trustee prior to the execution of any such supplemental indenture) with respect
thereto.
SECTION 16.11 Notice to Holders Prior to Certain Actions.
If:
(a) the Company declares a dividend (or any other distribution) on its
Class A Common Stock (other than in cash out of retained earnings or other than
a dividend that results in an adjustment in the Conversion Price pursuant to
Section 16.6 as to which the Company has made an election in accordance with
Section 16.6(m)); or
(b) the Company authorizes the granting to the holders of its shares of
Class A Common Stock of rights or warrants entitling such holders to subscribe
for or purchase shares of Class A Common Stock or any other rights or warrants
(other than rights or warrants referred to in the fifth paragraph of Section
16.6(d)); or
(c) there is any reclassification of the Class A Common Stock (other
than a subdivision or combination of outstanding Class A Common Stock, or a
change in par value, or from par value to no par value, or from no par value to
par value), or of any consolidation, merger or share exchange to which the
Company is a party and for which approval of any shareholders of the Company is
required, or of the sale or transfer of all or substantially all of the assets
of the Company; or
(d) there is any voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
19
then the Company shall cause to be filed with the Trustee and to be mailed to
each holder of Notes at his or her address appearing on the Security Register
maintained for that purpose as promptly as possible but in any event at least 14
days prior to the applicable date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend,
distribution, rights or warrants, or, if a record is not to be taken, the date
as of which the holders of Class A Common Stock of record to be entitled to such
dividend, distribution, rights or warrants are to be determined, or (y) the date
on which such reclassification, consolidation, merger, share exchange, sale,
transfer, dissolution, liquidation or winding-up is expected to become effective
or occur, and the date as of which it is expected that holders of Class A Common
Stock of record shall be entitled to exchange their Class A Common Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger, share exchange, sale, transfer, dissolution, liquidation
or winding-up. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of such dividend, distribution,
reclassification, consolidation, merger, share exchange, sale, transfer,
dissolution, liquidation or winding-up.
SECTION 2. This Supplemental Indenture and each Note shall be deemed to
be a contract made under the laws of the State of New York and this Supplemental
Indenture and each Note shall be governed by and construed in accordance with
the laws of the State of New York.
SECTION 3. All capitalized terms used in this Supplemental Indenture
and not otherwise defined herein that are defined in the Basic Indenture shall
have the meanings set forth therein.
SECTION 4. 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 5. The recitals contained herein and in the Note, 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
correctness. The Trustee makes no representations as to the validity or
sufficiency of the Basic Indenture, this Supplemental Indenture or the Notes and
shall not be accountable for the use or application by the Company of the Notes
or the proceeds thereof.
20
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.
TRAVELERS PROPERTY CASUALTY CORP.
By:
--------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
--------------------------------------
Name:
Title:
21
ANNEX A
(Face of Note)
This Note is a Global Note within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Note is exchangeable for Notes registered in the
name of a person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Note (other
than a transfer of this Note 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) may be registered except in limited circumstances.
Unless this Note is presented by an authorized representative of The
Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the issuer or
its agent for registration of transfer, exchange or payment, and any Note issued
is registered in the name of Cede & Co. or such other name as requested by an
authorized representative of The Depository Trust Company and any payment hereon
is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede & Co.,
has an interest herein.
No. _________ CUSIP No. __________
TRAVELERS PROPERTY CASUALTY CORP.
% CONVERTIBLE JUNIOR SUBORDINATED NOTES
DUE APRIL , 2032
TRAVELERS PROPERTY CASUALTY CORP., a Connecticut corporation (the
"Company," which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co., or its registered assigns, the principal sum of ($ ) on
April , 2032, and to pay interest on said principal sum from March , 2002,
or from the most recent interest payment date (each such date, an "Interest
Payment Date") to which interest has been paid or duly provided for, subject to
the Company's right to defer payments of interest, quarterly in arrears on
January , April , July and October of each year commencing July ,
2002, at a rate of % per annum, until the principal hereof shall have become
due and payable, and on any overdue principal and premium, if any, and (without
duplication and to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the same rate per
annum compounded quarterly. The amount of interest payable on any Interest
Payment Date shall be computed on the basis of a 360-day year of twelve 30-day
months. In the event that any date on which interest is payable on this Note is
not a Business Day, then payment of interest payable on such date will be made
on the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date. The interest installment so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this
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Note (or one or more Predecessor Securities, as defined in said Indenture) is
registered at the close of business on the regular record date for such interest
installment, which shall be the close of business on , , or
immediately preceding such Interest Payment Date. Any such interest installment
not punctually paid or duly provided for shall forthwith cease to be payable to
the registered Holders on such regular record date and may be paid to the Person
in whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice whereof shall be given to the
registered Holders of this series of Notes 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 Notes
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture. Payments on this Global Note will be made
to The Depository Trust Company, or to a successor Depositary. If pursuant to
the Indenture the Notes are no longer represented by a Global Note, the Company
shall have the right to select record dates, which shall be more than 14 days
but less than 60 days prior to such Interest Payment Date and the principal of
(and premium, if any) and the interest on this Note shall be payable, the
transfer of the Notes will be registrable and the Notes will be exchangeable at
the office or agency of the Trustee maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
registered Holder at such address as shall appear in the Note Register.
The indebtedness evidenced by this Note is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness of the Company, and this Note is issued
subject to the provisions of the Indenture with respect thereto. Each Holder of
this Note, by accepting the same, (a) agrees to and shall be bound by, such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness of the Company, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Note are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated: __________
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TRAVELERS PROPERTY CASUALTY CORP.
By:
--------------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in the
within-mentioned Indenture.
The Bank of New York,
as Trustee
By:
--------------------------
Authorized Signatory
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(Reverse of Note)
This Note is one of a duly authorized series of securities of the
Company (herein sometimes referred to as the "Notes"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an Indenture, dated as of March , 2002 (the "Indenture"), duly executed
and delivered between the Company and The Bank of New York, as Trustee (the
"Trustee"), as supplemented by the First Supplemental Indenture, dated as of
March , 2002, between the Company and the Trustee, to which Indenture and
all indentures supplemental thereto reference is hereby made for a description
of the respective rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holders of the Notes.
By the terms of the Indenture, the Notes are issuable as provided in the
Indenture. The Notes are limited in aggregate principal amount to $892,500,000.
The Company will have the right to redeem the Notes, in whole or in
part, from time to time, on or after April , 2007, upon not less than 30 nor
more than 60 days' notice. The redemption price will be as set forth below
(expressed as a percentage of the principal amount of the Notes being redeemed),
together with any accrued and unpaid interest to, but excluding, the redemption
date:
YEAR REDEMPTION PRICE
---- ----------------
2007 ...........................................
2008............................................
2009............................................
2010............................................
2011............................................
2012 and thereafter............................. 100.00%
If fewer than all of the Notes are to be redeemed, the Trustee will
select the Notes to be redeemed by lot, or in its discretion, on a pro rata
basis or by another method the Trustee considers fair and appropriate. If any
Note is to be redeemed in part only, a new Note in principal amount equal to the
unredeemed principal portion will be issued. If a portion of the Notes is
selected for partial redemption and a Holder converts a portion of such Holder's
Notes, the converted portion will be deemed to be of the portion selected for
redemption.
The Company is not required to make mandatory redemption or sinking
fund payments with respect to the Notes.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes of each series affected at the time
outstanding, as defined in the Indenture, to execute
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supplemental indentures for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Notes; provided, however, that no such supplemental indenture shall,
without the consent of Holders of each Security then outstanding and affected
thereby: change the fixed maturity of the Notes or reduce the principal amount
thereof; reduce the rate or change the time of payment of interest thereon;
reduce any premium payable upon the redemption thereof or change the time at
which such security may or must be redeemed or repurchased; change the money in
which such Note is payable; make any change in the provisions of the Indenture
relating to waivers of past defaults or the rights of Holders to receive
payments of principal of, premium, if any, interest or liquidated damages, if
any, on any of the Notes; make any change in the ability of the Holders to
enforce their rights under the Indenture; reduce the aforesaid percentage of
Notes, the Holders of which are required to consent to any such supplemental
indenture; or, except as permitted by the Indenture, increase any conversion
price or modify the provisions of the Indenture relating to the conversion of
the Notes in a manner adverse to Holders thereof. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount of
the Notes of any series at the time outstanding affected thereby, on behalf of
all of the Holders of the Notes of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture with respect to such series, and its consequences,
except a default in the payment of the principal of or premium, if any, interest
or liquidated damages, if any, on any of the Notes. Any such consent or waiver
by the registered Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders and owners of this Note and of any Note issued in exchange herefor or in
place hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this Note.
Without the consent of the Holder of each Note so affected, no
supplemental indenture or other amendment or waiver shall, except as permitted
by the Indenture, increase the conversion price or modify the provisions of the
Indenture relating to conversion of the Notes in a manner adverse to the Holders
thereof.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time and place and at the rate and in the money
herein prescribed.
The Company shall have the right at any time during the term of the
Notes and from time to time to extend the interest payment period of such Notes
for up to 20 consecutive interest periods (an "Extended Interest Payment
Period"), at the end of which period the Company shall pay all interest then
accrued and unpaid (together with interest on such deferred interest payments at
the rate specified for the Notes to the extent that payment of such interest is
enforceable under applicable law); provided, that no such Extended Interest
Payment Period shall extend beyond the maturity of the Notes; and provided
further that during any such Extended Interest Payment Period (a) the Company
shall not declare or pay any dividend on, make any distributions with respect
to, or redeem, purchase, acquire or make a liquidation payment with respect to,
any of its capital stock or make any guarantee payment with respect thereto
(other than (i) repurchases, redemptions or other acquisitions of shares of
capital stock of
A-5
the Company in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of employees, officers, directors or
consultants, (ii) as a result of an exchange or conversion of any class or
series of the Company's capital stock for any other class or series of the
Company's capital stock, or (iii) the purchase of fractional interests in shares
of the Company's capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged), and (b) the
Company shall not make any payment of interest on or principal of (or premium,
if any, on), or repay, repurchase or redeem, any debt securities issued by the
Company which rank pari passu with or junior to the Notes. The foregoing,
however, will not apply to any stock dividends paid by the Company where the
dividend stock is the same stock as that on which the dividend is being paid.
Before the termination of any such Extended Interest Payment Period, the Company
may further extend such Extended Interest Payment Period, provided that such
Extended Interest Payment Period together with all such further extensions
thereof shall not exceed 20 consecutive interest periods. At the termination of
any such Extended Interest Payment Period and upon the payment of all accrued
and unpaid interest and any additional amounts then due, the Company may
commence a new Extended Interest Payment Period.
Subject to and upon compliance with the provisions of the Indenture,
and subject to the Company's right to elect a Cash Settlement (as defined
below), unless the Company has redeemed or repurchased the Notes, the registered
holder of this Note has the right at any time after April , 2003 and prior to
5:00 p.m., New York City time, on April , 2032 (or in case this Note or any
portion hereof is called for redemption prior to such date, before the close of
business on the last trading day preceding the date fixed for redemption), if at
that time the conditions for conversion contained in the Indenture have been
satisfied, to convert the principal amount hereof, or any portion of such
principal amount which is $25 or an integral multiple thereof, at an initial
conversion rate of shares of class A common stock of the Company ("Class A
Common Stock") for each $25 principal amount of Notes (equivalent to an initial
conversion price of $ per share of Class A Common Stock, as adjusted from
time to time as provided in the Indenture (the "Conversion Price"), upon
surrender of this Note to the Company at the office or agency maintained for
such purpose (and at such other offices or agencies designated for such purpose
by the Company), accompanied by written notice of conversion duly executed (and
if the shares of Class A Common Stock to be issued on conversion are to be
issued in any name other than that of the registered holder of this Note by
instruments of transfer, in form satisfactory to the Company, duly executed by
the registered holder or its duly authorized attorney) and, in case such
surrender shall be made during the period from the close of business on the
Regular Record Date immediately preceding any Interest Payment Date through the
close of business on the last trading day immediately preceding such Interest
Payment Date (unless this Note or the portion thereof being converted has been
called for redemption on a date in such period), also accompanied by payment, in
funds acceptable to the Company, of an amount equal to the interest otherwise
payable on such Interest Payment Date on the principal amount of this Note then
being converted. Subject to the aforesaid requirement for a payment in the event
of conversion after the close of business on a Regular Record Date immediately
preceding an Interest Payment Date, no adjustment shall be made on conversion
for interest accrued hereon or for dividends on Class A Common Stock delivered
on conversion. Holders may convert this Note during the period specified above
only under any one of the following circumstances, as more fully described in
the Indenture: (i) upon satisfaction of the Class A Common Stock closing price
condition, (ii) if the Note is called for redemption, (iii) upon the occurrence
of certain
A-6
corporate transactions specified in the Indenture, (iv) upon the occurrence of
certain credit ratings events specified in the Indenture and (v) upon the
occurrence of certain consolidations, mergers, share exchanges or combinations
of the Company as specified in the Indenture. In the event that the Conversion
Price is adjusted as provided in the Indenture, the applicable conversion rate
will be adjusted accordingly.
The Company shall not issue fractional shares or scrip representing
fractions of shares of Class A Common Stock upon any such conversion, but shall
make an adjustment therefor in cash based upon the current market price, (as
defined in the Indenture) of the Class A Common Stock on the last trading day
prior to the date of conversion.
From April , 2003, and until the next Business Day following the
date of the distribution by Citigroup Inc. of shares of Common Stock to holders
of Citigroup Inc. common stock in a transaction qualifying under Section 355 of
the Internal Revenue Code of 1986, as amended (the "Distribution") (provided
that such Distribution has not occurred by April , 2003), the Company may elect
to make a cash settlement (the "Cash Settlement") in respect of any Notes
surrendered for conversion by delivering notice to the Conversion Agent not more
than five trading days after the Notes are surrendered for conversion. If the
Distribution does not occur, the Company's option to elect a Cash Settlement
will continue.
The amount of cash that a Holder of Notes will receive in the case of a
Cash Settlement with respect to any Notes surrendered for conversion will be
equal to the value of the underlying shares of the Class A Common Stock as
calculated by determining the product of (i) the then applicable conversion rate
( which is equal to, for each $25 principal amount of Notes surrendered for
conversion, $25 divided by the then prevailing Conversion Price) and (ii) the
average of the closing price, as defined in the Indenture, of the Class A Common
Stock on the five trading days beginning two trading days after the Company's
delivery of the notice to the Conversion Agent. The Company will pay the Cash
Settlement as promptly as practicable after the completion of the five trading
day period.
As provided in the Indenture and subject to certain limitations therein
set forth, this Note is transferable by the registered Holder hereof on the
Security Register of the Company, upon surrender of this Note for registration
of transfer at the office or agency of the Trustee in the City and State of New
York accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the registered
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes of authorized denominations and for the same aggregate principal
amount and series will be issued to the designated transferee or transferees. No
service charge will be made for any such transfer, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any paying agent and the Note Registrar may deem and treat
the registered holder hereof as the absolute owner hereof (whether or not this
Note shall be overdue and notwithstanding any notice of ownership or writing
hereon made by anyone other than the Note Registrar) for the purpose of
receiving payment of or on account of the principal hereof and premium, if any,
and interest due hereon and for all other purposes, and neither the Company nor
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the Trustee nor any paying agent nor any Note Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
This Global Note is exchangeable for Notes in definitive form only
under certain limited circumstances set forth in the Indenture. Notes of this
series so issued are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations herein and therein set forth, Notes
of this series so issued are exchangeable for a like aggregate principal amount
of Notes of this series of a different authorized denomination, as requested by
the Holder surrendering the same.
All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
A-8
FORM OF CONVERSION NOTICE
To: TRAVELERS PROPERTY CASUALTY CORP.
The undersigned beneficial owner of the Note hereby irrevocably
exercises the option to convert this Note, or portion hereof (which is $25 or an
integral multiple thereof) below designated, into shares of Class A Common Stock
of Travelers Property Casualty Corp. in accordance with the terms of the
Indenture referred to in this Note, and directs that the shares issuable and
deliverable upon the conversion, together with any check in payment for
fractional shares and Notes representing any unconverted principal amount
hereof, be issued and delivered to the beneficial owner hereof unless a
different name has been indicated below. If shares or any portion of this Note
not converted are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto. Any amount required to be paid by the undersigned on account of
interest, liquidated damages, if any, and taxes accompanies this Note.
Dated:
____________________________________
Fill in for registration of shares
if to be delivered, and Notes if to ____________________________________
be issued, other than to and in the
name of the beneficial owner ____________________________________
(Please Print): Signature(s)
Principal amount to be converted (if
less than all):
_______________________________________
Name $_______
_______________________________________ ____________________________________
(Street Address) Social Security or other Taxpayer
Identification Number
_______________________________________
(City, State and Zip Code)
Signature Guarantee:
_______________________________________
Signatures must be guaranteed by an eligible Guarantor Institution (banks,
brokers, dealers, savings and loan associations and credit unions) with
membership in an approved signature guarantee medallion program pursuant to
Securities and Exchange Commission Rule 17Ad-15 if shares are to be issued, or
Convertible Subordinated Notes are to be delivered, other than to and in the
name of the registered holder(s).
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to
________________________________________________________________________________
(Insert assignee's social security or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________ agent to transfer this
Note on the books of the Company. The agent may substitute another to act for
him.
Your Signature: _______________________________________________
(Sign exactly as your name appears on the
other side of this Note)
Date: ____________________________
Medallion Signature Guarantee: ________________________________
Your Signature: _______________________________________________
(Sign exactly as your name appears on the
other side of this Note)
Date: ____________________________
Medallion Signature Guarantee: ________________________________
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