Exhibit 99(c)
[Form of Face of STRYPES Certificate]
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS
A WHOLE BY THE DEPOSITORY TRUST COMPANY (THE "DEPOSITORY") TO A NOMINEE OF THE
DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.]
No. ____________ ___________ STRYPES
CUSIP NO.
XXXXXXX XXXXX & CO., INC.
Structured Yield Product Exchangeable for Stock-SM-
___% STRYPES-SM- Due ________ __, 2001
(Payable with Shares of Common Stock,
par value $.01 per share, of CIBER, Inc.)
Issue Price Per STRYPES: $
Xxxxxxx Xxxxx & Co., Inc., a Delaware corporation (hereinafter called the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay and
discharge each STRYPES evidenced hereby on _________________ __, 2001 (the
"Maturity Date") by delivering to _____________________________________, or
registered assigns, a number of shares (such number of shares, the "Payment
Rate") of common stock, par value $.01 per share ("CIBER Common Stock"), of
CIBER, Inc. ("CIBER") (or, in the event there shall occur a
Reorganization Event, cash and/or Marketable Securities in lieu thereof)
determined in accordance with the Payment Rate Formula (as defined below), and
to pay interest (computed on the basis of a 360-day year of twelve 30-day
months) on such STRYPES from _________ __, 1998, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for, on
_________, _______, ______ and _________ in each year, commencing _________,
1998, and on the Maturity Date, at the rate of $_____ per STRYPES per annum (or
$_____ per STRYPES per quarter), until the Maturity Date or such earlier date on
which the Issue Price of such STRYPES is repaid in accordance with the
provisions described below. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in said
Indenture, be paid to the Person in whose name this STRYPES Certificate (or one
or more Predecessor STRYPES Certificates) is registered at the close of business
on the fifteenth calendar day (whether or not a Business Day) immediately
preceding such Interest Payment Date (each a "Regular Record Date"). In any
case where such Interest Payment Date shall not be a Business Day, then
(notwithstanding any other provision of said Indenture or this STRYPES
Certificate) payment of such interest need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect as if
made on such date, and, if such payment is so made, no interest shall accrue for
the period from and after such date. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the registered
Holder on the relevant Regular Record Date, and may be paid to the Person in
whose name this STRYPES Certificate (or one or more Predecessor STRYPES
Certificates) is registered at the close of business on a Special Record Date
for the payment of such interest to be fixed by the Trustee hereinafter referred
to, notice whereof shall be given to Holders of STRYPES not less than 10 days
prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the STRYPES may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in said Indenture.
The Payment Rate shall be determined in accordance with the following
formula (the "Payment Rate Formula"), subject to adjustment as a result of
certain dilution events relating to the CIBER Common Stock as provided for in
the Indenture: (a) if the Maturity Price (as defined below) is greater than or
equal to $____ (the "Threshold Appreciation Price"), _____ shares of CIBER
Common Stock per STRYPES, (b) if the Maturity Price is less than the Threshold
Appreciation Price but is greater than $ _____ (the "Initial Appreciation Cap"),
a fractional share of CIBER Common Stock per STRYPES so that the value thereof
(determined based on the Maturity Price) equals the Initial Appreciation Cap
(such fractional share being calculated to the nearest 1/10,000th of a share of
CIBER Common Stock or, if there is not a nearest 1/10,000th of a share, to the
next lower 1/10,000th of a share), (c) if the Maturity Price is less than or
equal to the Initial Appreciation Cap but is greater than or equal to the
Initial Price, one share of CIBER Common Stock per STRYPES, (d) if the Maturity
Price is less than the Initial Price but is greater than or equal to $ _____
(the "Downside Protection Threshold Price"), a number of shares of CIBER Common
Stock per STRYPES so that the value thereof (determined based on the Maturity
Price) equals the Initial Price and (e) if the Maturity Price is less than the
Downside Protection Threshold Price, _____ shares of CIBER Common Stock per
STRYPES. No fractional share of CIBER Common Stock shall be delivered on the
Maturity Date.
2
Notwithstanding the foregoing, the Company may, at its option, in lieu of
delivering shares of CIBER Common Stock on the Maturity Date, deliver cash in an
amount (calculated to the nearest 1/100th of a dollar per STRYPES or, if there
is not a nearest 1/100th of a dollar, then to the next higher 1/100th of a
dollar) equal to the value of such number of shares of CIBER Common Stock at the
Maturity Price, all as provided in the Indenture. Such number of shares of
CIBER Common Stock (or, in the event there shall occur a Reorganization Event as
provided in the Indenture, cash and/or Marketable Securities in lieu thereof)
or, at the Company's option, the amount of cash, in either case deliverable upon
payment and discharge hereof is hereinafter referred to as the "Maturity
Consideration." The term "Maturity Price" means, except as otherwise provided
in the Indenture, the average Closing Price per share of CIBER Common Stock on
the 20 Trading Days immediately prior to, but not including, the second Trading
Day preceding the Maturity Date. The term "Closing Price" means, with respect
to any security on any date of determination, the closing sale price (or, if no
closing price is reported, the last reported sale price) of such security on the
NYSE on such date or, if such security is not listed for trading on the NYSE on
any such date, as reported in the composite transactions for the principal
United States securities exchange on which such security is so listed, or if
such security is not so listed on a United States national or regional
securities exchange, as reported by the National Association of Securities
Dealers, Inc. Automated Quotation System, or, if such security is not so
reported, the last quoted bid price for such security in the over-the-counter
market as reported by the National Quotation Bureau or similar organization, or,
if such bid price is not available, the market value of such security on such
date as determined by a nationally recognized independent investment banking
firm retained for this purpose by the Company. The term "Trading Day" means,
with respect to any security, the Closing Price of which is being determined, a
day on which such security (i) is not suspended from trading on any national or
regional securities exchange or association or over-the-counter market at the
close of business and (ii) has traded at least once on the national or regional
securities exchange or association or over-the-counter market that is the
primary market for the trading of such security. The term "Business Day" means
any day that is not a Saturday, a Sunday or a day on which the NYSE or banking
institutions or trust companies in The City of New York are authorized or
obligated by law or executive order to close.
Interest on the STRYPES evidenced hereby will be payable, and delivery of
the Maturity Consideration in payment of the STRYPES evidenced hereby on the
Maturity Date will be made, upon surrender of this STRYPES Certificate, at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, and payment of interest on the STRYPES
evidenced by this STRYPES Certificate (and, if the Company elects to deliver
cash in lieu of the CIBER Common Stock on the Maturity Date, the amount of cash
payable on the Maturity Date) will be made in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; PROVIDED, HOWEVER, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear on the Securities Register.
ADDITIONAL PROVISIONS OF THIS STRYPES CERTIFICATE ARE CONTAINED ON THE
REVERSE HEREOF AND SUCH PROVISIONS SHALL HAVE THE SAME EFFECT AS THOUGH FULLY
SET FORTH IN THIS PLACE.
3
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee by manual signature, this STRYPES Certificate shall not be
entitled to any benefit under the Indenture, or be valid or obligatory for any
purpose. "Structured Yield Product Exchangeable for Stock" and "STRYPES" are
service marks of Xxxxxxx Xxxxx & Co., Inc.
IN WITNESS WHEREOF, Xxxxxxx Xxxxx & Co., Inc. has caused this instrument to
be duly executed under its corporate seal.
Dated:
XXXXXXX XXXXX & CO., INC.
By: ________________________
Name:
Title:
Attest: ______________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This certificate evidences Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By: _____________________________
Authorized Officer
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[Form of Reverse of STRYPES Certificate]
XXXXXXX XXXXX & CO., INC.
Structured Yield Product Exchangeable for Stock
___% STRYPES Due _________ __, 2001
(Payable with Shares of Common Stock,
par value $.01 per share, of CIBER, Inc.)
This STRYPES Certificate evidences part of a duly authorized issue of
unsecured and unsubordinated debentures, notes or other evidences of senior
indebtedness (hereinafter called the "Securities") of the Company of the series
hereinafter specified, all such Securities issued and to be issued under an
indenture dated as of April 1, 1983 and restated as of April 1, 1987, between
the Company and The Chase Manhattan Bank, formerly known as Chemical Bank
(successor by merger to Manufacturers Hanover Trust Company), as Trustee, as
amended and supplemented by that certain Eleventh Supplemental Indenture dated
as of _________ __, 1998 (the "Supplemental Indenture") (the indenture dated as
of April 1, 1983 and restated as of April 1, 1987, as amended, restated and
supplemented from time to time, the "Indenture"), to which Indenture and all
other indentures supplemental thereto reference is hereby made for a statement
of the rights and limitation of rights thereunder of the Holders of the
Securities and of the rights, obligations, duties and immunities of the Trustee
for each series of Securities and of the Company, and the terms upon which the
Securities are and are to be authenticated and delivered. As provided in the
Indenture, the Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may be denominated
in currencies other than U.S. Dollars (including composite currencies), may
mature at different times, may bear interest, if any, at different rates, may be
subject to different redemption provisions, if any, may be subject to different
sinking, purchase and analogous funds, if any, may be subject to different
covenants and Events of Default and may otherwise vary as in the Indenture
provided or permitted. This STRYPES Certificate evidences Securities of the
series designated as Structured Yield Product Exchangeable for Stock, ___%
STRYPES Due ______ __, 2001 (each, a "STRYPES").
The STRYPES are not redeemable at the option of the Company prior to the
Maturity Date. The STRYPES are not subject to any sinking fund or other
mandatory redemption provisions. The STRYPES are not payable at the option of
the Holders prior to the Maturity Date.
If an Event of Default with respect to the STRYPES, as defined in the
Indenture, shall occur and be continuing, then an amount equal to the issue
price of all the STRYPES may be declared immediately due and payable in cash in
the manner and with the effect provided in the Indenture.
5
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the STRYPES under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of 66-2/3%
of the aggregate issue price of the Outstanding STRYPES. The Indenture also
contains provisions permitting the Holders of a majority of the aggregate issue
price of the Outstanding STRYPES, on behalf of the Holders of all STRYPES, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences with respect to
the STRYPES. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of the
STRYPES evidenced by this STRYPES Certificate and of any STRYPES evidenced by a
STRYPES Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent of waiver is made upon this
STRYPES Certificate.
No reference herein to the Indenture and no provision of this STRYPES
Certificate or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to deliver or pay the interest on,
and Maturity Consideration in respect of, the STRYPES evidenced by this STRYPES
Certificate at the times, place and rate, and in the manner, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the STRYPES evidenced by this STRYPES Certificate are transferable on the
Security Register of the Company, upon surrender of this STRYPES Certificate for
registration of transfer at the office or agency of the Company to be maintained
for that purpose in The City of New York, New York, or at any other office or
agency of the Company maintained for that purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new STRYPES
Certificates, evidencing the same aggregate number of STRYPES, will be issued to
the designated transferee or transferees.
No service charge shall be made for any such transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection with the registration of such transfer
or exchange, other than certain exchanges not involving any transfer.
This STRYPES Certificate shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York. The Company,
the Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this STRYPES Certificate is registered as the owner of the STRYPES
evidenced hereby for the purpose of receiving payment as herein provided and for
all other purposes, whether or not the STRYPES be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
Capitalized words and phrases used in this STRYPES Certificate and not
otherwise defined shall have the meanings ascribed to them in the Indenture.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
UNIF GIFT MIN ACT--______Custodian_______
TEN COM--as tenants in common (Cust) (Minor)
TEN ENT--as tenants by the entireties under Uniform Gifts to
JT TEN--as joint tenants with right Minors Act ___________
of survivorship and not as (State)
tenants in common
Additional abbreviations also may be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY
OR TAXPAYER I.D. OR OTHER
IDENTIFYING NUMBER OF
ASSIGNEE
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal
zip code of assignee)
___________________________ STRYPES and all rights thereunder, hereby
irrevocably constituting and appointing______________________________
attorney to transfer said STRYPES on the books of the Company, with full power
of substitution in the premises.
Dated:
------------------------------------------------------------
NOTICE: The signature to this assignment must correspond
with the name as written on the face of the within
Security in every particular, without alteration or
enlargement or any change whatever.
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