exv3w3
Exhibit 3.3
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www.sos.state.oh.us
e-mail: busserv@sos.state.oh.us
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Prescribed by:
The Ohio Secretary of State
Central Ohio: (614) 466-3910
Toll Free: 1-877-SOS-FILE (1-877-767-3453)
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Certificate of Amendment by Directors
or Incorporators to Articles
(Domestic)
Filing Fee $50.00
(CHECK ONLY ONE (1) BOX)
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(1)
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Amendment by Directors
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(2)
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Amendment by Incorporators |
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Amended by Directors (123-AMDD)
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Amended by Incorporators (124-AMDI) |
Complete the general information in this section for the box checked above.
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Name of Corporation
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The Goodyear Tire & Rubber Company |
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Charter Number
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12127 |
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Please check if additional provisions attached hereto are incorporated herein and made
a part of these articles of organization. |
Complete the information in this section if box (1) is checked.
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Name and Title of Officer
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David L. Bialosky
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Secretary |
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(name)
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(title) |
(CHECK ONLY ONE (1) BOX)
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A meeting of the directors was duly called and held on
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(Date) |
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In an writing signed by all the Directors pursuant to section 1701.54 of the ORC |
The following resolution was adopted pursuant to section 1701.70(B) (1) of the ORC:
(Insert proper paragraph number)
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540
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Last Revised: May 2002 |
Page 1 of 2
Complete the information in this section if box (2) is checked.
WE, the undersigned, being all of the incorporators of the above named
corporation, do certify that the subscriptions to shares have not been received
and the initial directors are not named in the ariticles. We hereby have
elected to amend the articles as follows:
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REQUIRED
Must be authenticated (signed)
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/s/ David L. Bialosky
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March 30, 2011 |
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by an authorized representative
(See Instructions)
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Authorized Representative
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Date |
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David L. Bialosky
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(Print Name) |
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Secretary
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Authorized Representative
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Date |
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(Print Name)
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Authorized Representative
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(Print Name) |
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540
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Last Revised: May 2002 |
Page 2 of 2
ATTACHMENT TO THE CERTIFICATE OF AMENDMENT BY DIRECTORS
TO THE AMENDED ARTICLES OF INCORPORATION
OF
THE GOODYEAR TIRE & RUBBER COMPANY
PREFERRED STOCK DESIGNATION
OF
MANDATORY CONVERTIBLE PREFERRED STOCK
OF
THE GOODYEAR TIRE & RUBBER COMPANY
RESOLVED, that the Transaction Committee (the Committee) of the Board of Directors
of The Goodyear Tire & Rubber Company, an Ohio corporation, with its principal office located at
Akron, Summit County, Ohio (the Corporation), pursuant to the authority conferred upon
the Board of Directors by Section 1 of Part B of ARTICLE FOURTH of the Amended Articles of
Incorporation of the Corporation and by Section 1701.70(B)(1) of the Ohio Revised Code and upon the
Committee by the resolutions of the Board of Directors adopted at a meeting duly called and held on
the 8th day of June 2010 in accordance with Section 1701.63 of the Ohio Revised Code and
Article II, Section 6 of the Code of Regulations of the Corporation, as amended, hereby adopts the
following amendment to its Amended Articles of Incorporation, as amended to date, establishing the
terms of a series of shares of Preferred Stock of the Corporation designated as the 5.875%
Mandatory Convertible Preferred Stock.
FURTHER RESOLVED, that the Chief Executive Officer, the President, any Executive Vice
President, any Senior Vice President, any elected Vice President, the Treasurer, the Controller or
the Secretary of the Corporation are hereby authorized and directed to sign and file in the office
of the Secretary of State of the State of Ohio a certificate containing a copy of the resolution
adopting the amendment and a statement of the manner of its adoption.
FURTHER RESOLVED, that the Amended Articles of Incorporation of the Corporation are hereby
amended to create a series of Preferred Stock by adding a new Section 1-C to Part B of ARTICLE
FOURTH as follows:
SECTION 1-C. Mandatory Convertible Preferred Stock, Without Par Value.
A series of Preferred Stock is hereby created having the following terms:
SECTION 1. Designation. The shares of such series are designated as the 5.875% Mandatory
Convertible Preferred Stock (the Mandatory Convertible Preferred Stock).
SECTION 2. Authorized Number of Shares; Fractional Shares. (a) The authorized number of
shares constituting the Mandatory Convertible Preferred Stock is 10,000,000. Each share of the
Mandatory Convertible Preferred Stock is identical in all respects to every other share of the
Mandatory Convertible Preferred Stock.
(b) No fractional shares of Common Stock shall be issued as a result of any conversion of
shares of the Mandatory Convertible Preferred Stock.
(c) In lieu of any fractional share of Common Stock otherwise issuable in respect of the
aggregate number of shares of the Mandatory Convertible Preferred Stock of any Holder that are
converted pursuant to a Mandatory Conversion, Optional Conversion, Fundamental Change Conversion or
Conversion at the Corporations Option Upon Nonpayment of Dividends, that Holder shall be entitled
to receive an amount in cash at the current market value thereof (computed to the nearest cent) on
the basis of the Average VWAP per share of the Common Stock over the 20 consecutive Trading Day
period ending on, and including, the last Trading Day before the Conversion Date.
(d) If more than one share of the Mandatory Convertible Preferred Stock is surrendered for
conversion at one time by or for the same Holder, the number of full shares of Common Stock
issuable upon conversion thereof shall be computed on the basis of the aggregate number of shares
of the Mandatory Convertible Preferred Stock so surrendered.
SECTION 3. Definitions. As used herein with respect to Mandatory Convertible Preferred
Stock:
(a) Adjustment Shares shall have the meaning set forth in Section 8(a)(ii).
(b) Applicable Market Value of the Common Stock means the Average VWAP per share of
Common Stock for the 20 consecutive Trading Day period ending on, and including, the third Trading
Day immediately preceding the Mandatory Conversion Date, subject to adjustment pursuant to Section
12(d).
(c) Applicable Market Value of a unit of Exchange Property shall be (i) in the event
of a Mandatory Conversion or an Optional Conversion, (A) in the case of equity securities that are
traded on a U.S. national securities exchange, the Average VWAP per share or other single unit of
such securities for the 20 consecutive Trading Day period ending on, and including, the third
Trading Day immediately preceding the applicable Conversion Date, (B) in the case of cash, the
amount of such cash, and (C) in the case of any other property, as determined in good faith by the
Board of Directors or a duly authorized committee thereof; and (ii) in the event of a Fundamental
Change Conversion or a Conversion at the Corporations Option Upon Nonpayment of Dividends, as set
forth in subclause (i), except that the value of any equity securities that are traded on a U.S.
national securities exchange shall be the Average VWAP per share or other single unit of such
securities for either (A) the five Trading Day period ending on, and including, the Trading Day
immediately preceding the Effective Date of the
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Fundamental Change or (B) the five Trading Day period ending on, and including, the Trading
Day immediately following the date on which the Dividend Nonpayment Conversion Notice is sent, as
applicable. The Applicable Market Value of a unit of Exchange Property shall be subject to
adjustment pursuant to Section 12(d).
(d) Average VWAP means, for any period, the average of the VWAP for each Trading Day
in such period.
(e) Board of Directors means the Board of Directors of the Corporation or any
successor to the Corporation.
(f) Business Day means any day except Saturday, Sunday and any day on which banking
institutions in the State of New York generally are authorized or required by law or other
governmental action to close.
(g) Code of Regulations means the code of regulations of the Corporation, as it may
be amended from time to time.
(h) close of business means 5:00 p.m. (New York City time).
(i) Common Stock means the common stock, without par value, of the Corporation.
(j) Conversion Date shall have the meaning set forth in Section 10.
(k) Conversion Rate means the number of shares of Common Stock issuable upon
conversion of each share of the Mandatory Convertible Preferred Stock on the applicable Conversion
Date
(l) Conversion at the Corporations Option Upon Nonpayment of Dividends means a
conversion pursuant to Section 9.
(m) Corporate Trust Office means the principal corporate trust office of the
Transfer Agent at which, at any particular time, its corporate trust business shall be
administered.
(n) Corporation shall have the meaning set forth in the recitals.
(o) Current Market Price of the Common Stock on any day means the Average VWAP per
share of the Common Stock (or any other equity security traded on a U.S. national securities
exchange constituting a unit of or a portion of a unit of Exchange Property into which the
Mandatory Convertible Preferred Stock becomes convertible in connection with any Reorganization
Event) for the ten consecutive Trading Day period ending on the earlier of the day in question and
the day before the ex-date or other specified date with respect to the issuance or distribution
requiring such computation, subject to adjustment pursuant to Section 12(d). For purposes of this
definition, ex-date means the first date on which the shares of the Common Stock (or such other
equity security) trade on the applicable exchange or in the applicable market,
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regular way, without the right to receive the issuance or distribution in question from the
Corporation or, if applicable, from the seller of the Common Stock (or such other equity security)
(in the form of due bills or otherwise) as determined by such exchange or market. In the case of
any equity security that is not traded on a U.S. national securities exchange and that constitutes
a unit of or a portion of a unit of Exchange Property into which the Mandatory Convertible
Preferred Stock becomes convertible in connection with any Reorganization Event, Current Market
Price of the Common Stock shall mean the value of each share of such equity security as determined
in good faith by the Board of Directors or a duly authorized committee thereof.
(p) Depositary shall have the meaning set forth in Section 21(b).
(q) Dividend Nonpayment Conversion Date shall have the meaning set forth in Section
9(e).
(r) Dividend Nonpayment Conversion Notice shall have the meaning set forth in
Section 9(d).
(s) Dividend Nonpayment Conversion Rate shall have the meaning set forth in Section
9(a).
(t) Dividend Payment Date means (i) the 1st calendar day of January, April, July and
October of each year prior to the Mandatory Conversion Date, commencing on July 1, 2011, and (ii)
the Mandatory Conversion Date.
(u) Dividend Period means the period commencing on, and including, a Dividend
Payment Date (or if no Dividend Payment Date has occurred, commencing on, and including, the Issue
Date), and ending on, and including, the day immediately preceding the next succeeding Dividend
Payment Date.
(v) DTC means The Depository Trust Company.
(w) Early Conversion Date shall have the meaning set forth in Section 7(a).
(x) Effective Date means, with respect to a Fundamental Change, the date upon which
a Fundamental Change becomes effective.
(y) Exchange Act means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
(z) Exchange Property shall have the meaning set forth in Section 12(g)(i).
(aa) Expiration Date shall have the meaning set forth in Section 12(a)(v).
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(bb) Expiration Time shall have the meaning set forth in Section 12(a)(v).
(cc) Fixed Conversion Rates means, collectively, the Maximum Conversion Rate and the
Minimum Conversion Rate.
(dd) Fundamental Change shall be deemed to have occurred if any of the following
occurs:
(i) a person or group within the meaning of Section 13(d) of the Exchange Act has
become the direct or indirect beneficial owner, as defined in Rule 13d-3 under the
Exchange Act, of the Common Stock representing more than 50% of the voting power of the
Common Stock (other than in connection with a transaction described in subclause (ii), in
which case subclause (ii) shall apply);
(ii) the Corporation is involved in a transaction (whether by means of a consolidation
with or merger into any other person, or a merger of another person into the Corporation,
or the Corporation sells, leases or transfers in one transaction or a series of related
transactions all or substantially all of the property and assets of its and its
Subsidiaries) or series of related transactions pursuant to which (i) the Common Stock is
exchanged for, converted into or constitutes solely the right to receive cash, securities
or other property, and (ii) more than 10% of such cash, securities or other property
consists of securities that are not, or upon issuance shall not be, traded on the New York
Stock Exchange, the NASDAQ Global Select Market, the NASDAQ Global Market or any successor
to any of the foregoing;
(iii) the Common Stock (or any other security into which the Mandatory Convertible
Preferred Stock becomes convertible in connection with a Reorganization Event) ceases to be
listed or quoted on the New York Stock Exchange, the NASDAQ Global Select Market or the
NASDAQ Global Market; or any successor to any of the foregoing (other than in connection
with a transaction described in subclause (ii), in which case subclause (ii) shall apply);
or
(iv) the stockholders of the Corporation approve any plan for the liquidation,
dissolution or termination of the Corporation.
(ee) Fundamental Change Company Notice shall have the meaning set forth in Section
8(d).
(ff) Fundamental Change Conversion shall have the meaning set forth in Section 8(a).
(gg) Fundamental Change Conversion Period shall have the meaning set forth in
Section 8(a).
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(hh) Fundamental Change Conversion Rate shall have the meaning set forth in Section
8(a)(ii).
(ii) Global Preferred Shares shall have the meaning set forth in Section 21(a).
(jj) Holder means the Person in whose name the shares of the Mandatory Convertible
Preferred Stock are registered, which may be treated by the Corporation and the Transfer Agent as
the absolute owner of the shares of the Mandatory Convertible Preferred Stock for all purposes,
including, without limitation, for purposes of making payment and settling conversions to the
fullest extent permitted by law.
(kk) Initial Liquidation Preference means $50.00 per share of Mandatory Convertible
Preferred Stock.
(ll) Initial Price shall have the meaning set forth in the definition of Mandatory
Conversion Rate.
(mm) Issue Date means the original issue date of the Mandatory Convertible Preferred
Stock.
(nn) Junior Stock means shares ranking junior to the Preferred Stock.
(oo) Mandatory Conversion means a conversion pursuant to Section 6.
(pp) Mandatory Conversion Date means April 1, 2014.
(qq) Mandatory Conversion Rate shall be as follows:
(i) if the Applicable Market Value of the Common Stock is equal to or greater than
$18.2125 (the Threshold Appreciation Price), then the Conversion Rate shall be
2.7454 shares of Common Stock per share of the Mandatory Convertible Preferred Stock (the
Minimum Conversion Rate), which is equal to $50.00 divided by the Threshold
Appreciation Price;
(ii) if the Applicable Market Value of the Common Stock is less than the Threshold
Appreciation Price but greater than $14.57 (the Initial Price), then the
Conversion Rate shall be $50.00 divided by the Applicable Market Value of the Common Stock;
or
(iii) if the Applicable Market Value of the Common Stock is less than or equal to the
Initial Price, then the Conversion Rate shall be 3.4317 shares of Common Stock per share of
the Mandatory Convertible Preferred Stock (the Maximum Conversion Rate), which is
equal to $50.00 divided by the Initial Price.
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The Minimum Conversion Rate and the Maximum Conversion Rate shall be subject to adjustment
pursuant to Section 12(a). The Threshold Appreciation Price and the Initial Price shall be subject
to adjustment pursuant to Section 12(d).
(rr) Mandatory Convertible Preferred Stock shall have the meaning set forth in
Section 1.
(ss) Market Disruption Event means any of the following events has occurred: (i)
any suspension of, or limitation imposed on, trading by the relevant exchange or quotation system
during any period or periods aggregating one half-hour or longer and whether by reason of movements
in price exceeding limits permitted by the relevant exchange or quotation system or otherwise
relating to the Common Stock (or any other equity security that is traded on a U.S. national
securities exchange and that constitutes a unit of or a portion of a unit of Exchange Property into
which the Mandatory Convertible Preferred Stock becomes convertible in connection with any
Reorganization Event) or in futures or option contracts relating to the Common Stock (or such other
security) on the relevant exchange or quotation system; (ii) any event (other than a failure to
open or a closure as described below) that disrupts or impairs the ability of market participants
during any period or periods aggregating one half-hour or longer in general to effect transactions
in, or obtain market values for, the Common Stock (or any other equity security that is traded on a
U.S. national securities exchange and that constitutes a unit of or a portion of a unit of Exchange
Property into which the Mandatory Convertible Preferred Stock becomes convertible in connection
with any Reorganization Event) on the relevant exchange or quotation system or futures or options
contracts relating to the Common Stock (or such other security) on any relevant exchange or
quotation system; or (iii) the failure to open of the exchange or quotation system on which futures
or options contracts relating to the Common Stock (or any other equity security that is traded on a
U.S. national securities exchange and that constitutes a unit of or a portion of a unit of Exchange
Property into which the Mandatory Convertible Preferred Stock becomes convertible in connection
with any Reorganization Event) are traded or the closure of such exchange or quotation system prior
to its respective scheduled closing time for the regular trading session on such day (without
regard to after-hours or other trading outside the regular trading session hours) unless such
earlier closing time is announced by such exchange or quotation system at least one hour prior to
the earlier of the actual closing time for the regular trading session on such day and the
submission deadline for orders to be entered into such exchange or quotation system for execution
at the actual closing time on such day.
(tt) Maximum Conversion Rate shall have the meaning set forth in the definition of
Mandatory Conversion Rate.
(uu) Minimum Conversion Rate shall have the meaning set forth in the definition of
Mandatory Conversion Rate.
(vv) Non-U.S. Holder means a beneficial owner of shares of Mandatory Convertible
Preferred Stock or Common Stock that are not U.S. Holders.
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(ww) Officer means the Chairman of the Board of Directors, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the Treasurer, or the
Secretary of the Corporation.
(xx) Officers Certificate means a certificate of the Corporation, signed by a duly
authorized Officer and the duly authorized principal financial or accounting officer of the
Corporation.
(yy) open of business means 9:00 a.m. (New York City time).
(zz) Optional Conversion shall have the meaning set forth in Section 7(a).
(aaa) Person means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint-stock company, limited liability company or trust.
(bbb) Preferred Stock means any and all series of preferred stock of the
Corporation, including, without limitation, the Mandatory Convertible Preferred Stock.
(ccc) Purchased Shares shall have the meaning set forth in Section 12(a)(v).
(ddd) Record Date means, for purposes of any Conversion Rate adjustment pursuant to
Section 12, with respect to any dividend, distribution or other transaction or event in which the
holders of Common Stock (or any other equity security constituting a unit of or a portion of a unit
of Exchange Property into which the Mandatory Convertible Preferred Stock becomes convertible in
connection with any Reorganization Event) have the right to receive any cash, securities or other
property or in which the Common Stock (or such other equity security) is exchanged for or converted
into any combination of cash, securities or other property, the date fixed for determination of
holders of the Common Stock (or such other equity security) entitled to receive such cash,
securities or other property (whether such date is fixed by the Board of Directors, any authorized
committee of the Board of Directors or by statute, contract or otherwise).
(eee) Record Holders means, as to any day, the Holders of record of the Mandatory
Convertible Preferred Stock as they appear on the stock register of the Corporation at the close of
business on such day.
(fff) Registrar means the Transfer Agent.
(ggg) Regular Record Date means with respect to payment of dividends on the
Mandatory Convertible Preferred Stock, the fifteenth calendar day of the month preceding the month
in which the relevant Dividend Payment Date falls or such other record date fixed by the Board of
Directors (or a duly authorized committee thereof) that is not more than 60 nor less than 10 days
prior to such Dividend Payment
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Date, but only to the extent a dividend has been declared to be payable on such Dividend
Payment Date.
(hhh) Reorganization Event shall have the meaning set forth in Section 12(g)(i).
(iii) Share Cap shall have the meaning set forth in Section 6(c).
(jjj) Spin-Off shall have the meaning set forth in Section 12(a)(iii).
(kkk) Stock Price means (i) in the case of a Fundamental Change described in clause
(ii) of the definition of Fundamental Change in which the holders of Common Stock receive only cash
in the Fundamental Change, the cash amount paid per share of Common Stock, and (ii) otherwise in
the case of any other Fundamental Change, the Average VWAP per share of the Common Stock over the
five Trading Day period ending on, and including, the Trading Day immediately preceding the
applicable Effective Date.
(lll) Subsidiary means, with respect to any Person, any corporation, association,
partnership or other business entity of which more than 50% of the total voting power of shares of
capital stock or other interests (including partnership interests) entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers, general partners or
trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person,
(ii) such Person and one or more Subsidiaries of such Person or (iii) one or more Subsidiaries of
the Corporation.
(mmm) Threshold Appreciation Price shall have the meaning set forth in the
definition of Mandatory Conversion Rate.
(nnn) Trading Day means any day on which (i) there is no Market Disruption Event and
(ii) the New York Stock Exchange is open for trading, or, if the Common Stock (or any other equity
security that is traded on a U.S. national securities exchange and that constitutes a unit of or a
portion of a unit of Exchange Property into which the Mandatory Convertible Preferred Stock becomes
convertible in connection with any Reorganization Event) is not listed on the New York Stock
Exchange, any day on which the principal national securities exchange on which the Common Stock (or
such other security) is listed is open for trading, or, if the Common Stock (or such other
security) is not listed on a national securities exchange, any Business Day. A Trading Day only
includes those days that have a scheduled closing time of 4:00 p.m. (New York City time) or the
then standard closing time for regular trading on the relevant exchange or trading system.
(ooo) Transfer Agent means Computershare Investor Services or any successor transfer
agent appointed pursuant to Section 20.
(ppp) unit of Exchange Property shall have the meaning set forth in Section
12(g)(ii).
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(qqq) U.S. Holder means any beneficial owner of shares of Mandatory Convertible
Preferred Stock or Common Stock that is a United States person as defined in Section 7701(a)(30)
of the Internal Revenue Code of 1986, as amended.
(rrr) VWAP per share of Common Stock on any Trading Day means, the price per share
of the Common Stock as displayed under the heading Bloomberg VWAP on Bloomberg (or any successor
service) page GT <Equity> AQR (or its equivalent successor if such page is not available) in
respect of the period from the scheduled open to 4:00 p.m., New York City time, on such Trading
Day; or, if such price is not available, the market value per share of Common Stock on such Trading
Day as determined, using a volume-weighted average method, by a nationally recognized independent
investment banking firm retained by the Corporation for such purpose. Following a Reorganization
Event as a result of which the Mandatory Convertible Preferred Stock becomes convertible into
Exchange Property, the VWAP of any equity security that is traded on a U.S. national securities
exchange and that constitutes a unit of or a portion of a unit of Exchange Property shall be
calculated in accordance with the foregoing definition, substituting the applicable Bloomberg page
for such equity security.
SECTION 4. Dividends. (a) Holders of shares of outstanding Mandatory Convertible
Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors,
or a duly authorized committee thereof, out of funds of the Corporation lawfully available
therefor, cumulative dividends at the rate per annum of 5.875% per share on the Initial Liquidation
Preference (equivalent to $2.9375 per annum per share), payable in cash in accordance with Section
5. Dividends on the Mandatory Convertible Preferred Stock shall be payable quarterly on each
Dividend Payment Date through the Mandatory Conversion Date, commencing on July 1, 2011. Dividends
shall accumulate from the most recent date as to which dividends shall have been paid or, if no
dividends have been paid, from the Issue Date, whether or not in any Dividend Period(s) there have
been funds lawfully available for the payment of such dividends. Dividends shall be payable to
Record Holders on a Regular Record Date, except that dividends payable on the Mandatory Conversion
Date shall be payable to the Holders presenting the Mandatory Convertible Preferred Stock for
conversion. If any Dividend Payment Date is not a Business Day, the dividend payable on such date
shall be paid on the next Business Day without any adjustment, interest or other penalty in respect
of such delay. Dividends payable on the Mandatory Convertible Preferred Stock for any period other
than a full Dividend Period (based upon the number of days elapsed during such Dividend Period)
shall be computed on the basis of a 360-day year consisting of twelve 30-day months. The initial
dividend on the Mandatory Convertible Preferred Stock for the first Dividend Period, assuming the
Issue Date is March 31, 2011, is expected to be $0.7425 per share (based on the annual dividend
rate of 5.875% and the Initial Liquidation Preference) and shall be payable, if declared, on July
1, 2011. Each subsequent quarterly dividend on the Mandatory Convertible Preferred Stock, when and
if declared, shall be $0.7344 per share (based on the annual dividend rate of 5.875% and the
Initial Liquidation Preference). Accumulations of dividends on shares of the Mandatory Convertible
Preferred Stock shall not bear interest.
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(b) No dividend shall be declared or paid upon, or any sum set apart for the payment of
dividends upon, any outstanding share of the Mandatory Convertible Preferred Stock with respect to
any Dividend Period unless all dividends for all preceding Dividend Periods have been declared and
paid, or declared and a sufficient sum has been set apart for the payment of such dividends, upon
all outstanding shares of Mandatory Convertible Preferred Stock.
(c) Dividends on the Mandatory Convertible Preferred Stock shall accrue and accumulate if the
Corporation fails to pay one or more dividends in any amount, whether or not declared and whether
or not the Corporation is then legally prohibited under Ohio law from paying such dividends.
(d) If the Board of Directors or a duly authorized committee of the Board of Directors
determines not to pay any dividend or a full dividend on a Dividend Payment Date for the Mandatory
Convertible Preferred Stock, the Corporation shall provide written notice to the Holders prior to
such Dividend Payment Date.
SECTION 5. Method of Payment of Dividends. All dividends (or any portion of any dividend) on
the Mandatory Convertible Preferred Stock (whether for a current Dividend Period or any prior
Dividend Period, and including accrued and unpaid dividends payable upon conversion of the
Mandatory Convertible Preferred Stock pursuant to Section 6, Section 7, Section 8 or Section 9)
shall be paid in cash.
SECTION 6. Mandatory Conversion on the Mandatory Conversion Date. (a) Each share of
Mandatory Convertible Preferred Stock, unless previously converted in an Optional Conversion,
Fundamental Change Conversion or a Conversion at the Corporations Option Upon Nonpayment of
Dividends, shall automatically convert on the Mandatory Conversion Date into a number of shares of
Common Stock equal to the Mandatory Conversion Rate.
(b) In addition to the number of shares of Common Stock issuable upon the conversion of shares
of Mandatory Convertible Preferred Stock pursuant to clause (a) of this Section 6, the Corporation
shall pay, to the extent the Corporation is legally permitted to make such payment, an amount in
cash equal to all accrued and unpaid dividends on the converted shares of Mandatory Convertible
Preferred Stock, whether or not previously declared, for the then-current Dividend Period ending on
the Mandatory Conversion Date and all prior Dividend Periods. If the Corporation fails to pay such
cash amount for any reason, the Mandatory Conversion Rate shall be adjusted in accordance with
Section 12(b) and the converting Holders right to receive such cash amount shall be extinguished
upon conversion.
(c) Notwithstanding anything to the contrary herein, in no event shall the number of shares of
Common Stock issued upon the conversion of shares of Mandatory Convertible Preferred Stock pursuant
to this Section 6 exceed a number per share of Mandatory Convertible Preferred Stock equal to the
product of (i) two and (ii) the Maximum Conversion Rate, subject to adjustment pursuant to Section
12(a) (the Share Cap).
11
(d) Following a Reorganization Event as a result of which the Mandatory Convertible Preferred
Stock become convertible into Exchange Property, the Mandatory Conversion Rate in respect of a
Mandatory Conversion shall be calculated based on the Applicable Market Value of a unit of Exchange
Property rather than the Applicable Market Value of the Common Stock.
SECTION 7. Conversion at the Option of the Holder. (a) Other than during a Fundamental
Change Conversion Period or following an issuance of a Dividend Nonpayment Conversion Notice,
Holders of the Mandatory Convertible Preferred Stock have the right to convert the Mandatory
Convertible Preferred Stock, in whole or in part (Optional Conversion), at any time prior
to the Mandatory Conversion Date, into shares of Common Stock at the Minimum Conversion Rate. The
date on which a Holder converts shares of Mandatory Convertible Preferred Stock in an Optional
Conversion is referred to herein as an Early Conversion Date.
(b) In addition to the number of shares of Common Stock issuable upon the conversion of shares
of Mandatory Convertible Preferred Stock pursuant to clause (a) of this Section 7, on the
applicable Early Conversion Date, the Corporation shall pay, to the extent the Corporation is
legally permitted to make such payment, an amount in cash equal to all accrued and unpaid dividends
on the converted shares of Mandatory Convertible Preferred Stock, whether or not previously
declared, for all Dividend Periods ending on or prior to the Dividend Payment Date immediately
preceding such Early Conversion Date. If the Corporation fails to pay such cash amount for any
reason, the Minimum Conversion Rate shall be adjusted in accordance with Section 12(b) and the
converting Holders right to receive such cash amount shall be extinguished upon conversion.
(c) Notwithstanding Section 7(b), if the Early Conversion Date for any Optional Conversion
occurs during the period from the close of business on a Regular Record Date for any declared
dividend to the open of business on the immediately following Dividend Payment Date:
(i) the Corporation shall pay such dividend on the Dividend Payment Date to the Record
Holder of the converted share(s) of Mandatory Convertible Preferred Stock on such Regular
Record Date;
(ii) share(s) of Mandatory Convertible Preferred Stock surrendered for conversion
during such period must be accompanied by cash in an amount equal to the amount of such
dividend for the then-current Dividend Period with respect to the share(s) so converted;
and
(iii) the consideration that the Corporation delivers to the converting Holder on the
Early Conversion Date shall not include any consideration for such dividend.
(d) In order to convert shares of Mandatory Convertible Preferred Stock pursuant to this
Section 7, a Holder shall deliver to the Transfer Agent at its
12
Corporate Trust Office a written notice of conversion, duly executed by such Holder,
specifying:
(i) the number of shares of Mandatory Convertible Preferred Stock to be converted;
(ii) the name(s) in which such Holder desires the shares of Common Stock issuable upon
conversion to be registered; and
(iii) any other transfer forms, tax forms or other relevant documentation required and
specified by the Transfer Agent, if necessary, to effect the conversion.
(e) If specified by the Holder in the notice of conversion that shares of Common Stock
issuable upon conversion of the Mandatory Convertible Preferred Stock shall be issued to a Person
other than the Holder surrendering the shares of Mandatory Convertible Preferred Stock being
converted, then the Holder shall pay or cause to be paid any transfer or similar taxes payable in
connection with the shares of Common Stock so issued.
(f) Upon receipt by the Transfer Agent of a completed and duly executed notice of conversion
as set forth in Section 7(d), compliance with Section 7(e), if applicable, and surrender of a
certificate representing the shares of Mandatory Convertible Preferred Stock to be converted (if
such shares are held in certificated form), the Corporation shall, on the third Business Day
following receipt of such notice of conversion, issue and shall instruct the Transfer Agent to
register the number of shares of Common Stock to which such Holder is entitled upon conversion in
the name(s) specified by such Holder in its notice of conversion. Upon an Optional Conversion, the
Transfer Agent shall deliver to the Holder any cash payment due upon such Optional Conversion,
including any payment of cash in lieu of any fraction of a share as provided in Section 2. In the
event that there shall have been surrendered a certificate or certificates representing shares of
Mandatory Convertible Preferred Stock, only a portion of which are to be converted, the Corporation
shall issue and deliver to such Holder or such Holders designee in the manner provided in the
first sentence of this paragraph a new certificate or certificates representing the number of
shares of Mandatory Convertible Preferred Stock that shall not have been converted.
(g) Notwithstanding anything to the contrary herein, in no event shall the number of shares of
Common Stock issued upon the conversion of shares of Mandatory Convertible Preferred Stock pursuant
to this Section 7 exceed a number per share of Mandatory Convertible Preferred Stock equal to the
Share Cap.
SECTION 8. Fundamental Change Conversion. (a) If a Fundamental Change occurs prior to the
Mandatory Conversion Date, the Holders of the Mandatory Convertible Preferred Stock shall have the
right to convert their shares of Mandatory Convertible Preferred Stock during the period (the
Fundamental Change Conversion Period) beginning on, and including, the Effective Date of
such Fundamental Change
13
and ending on, but excluding, the earlier of (i) the Mandatory Conversion Date and (ii) the
date that is 20 days after the Effective Date (any conversion pursuant to this Section 8, a
Fundamental Change Conversion) into:
(i) a number of shares of Common Stock or units of Exchange Property (if applicable)
based on the Mandatory Conversion Rate treating the Effective Date as the Mandatory
Conversion Date for purposes of calculating the Applicable Market Value of the Common Stock
(or the Applicable Market Value of a unit of Exchange Property in the case of an Effective
Date occurring subsequent to a Reorganization Event as a result of which the Mandatory
Convertible Preferred Stock has become convertible into Exchange Property); as adjusted by
(ii) the number of shares of Common Stock (or units of Exchange Property, if
applicable) (Adjustment Shares) determined as described under Section 8(c) below
(the Conversion Rate determined in accordance with the preceding paragraph (i), as so
adjusted, shall be referred to as the Fundamental Change Conversion Rate).
(b) In addition to the number of shares of Common Stock issuable upon the conversion of shares
of Mandatory Convertible Preferred Stock pursuant to clause (a) of this Section 8, the Corporation
shall pay, to the extent that the Corporation is legally permitted to make such payment, the sum of
an amount in cash equal to (i) all accrued and unpaid dividends, whether or not previously
declared, on the converted shares of Mandatory Convertible Preferred Stock, to but not including,
the Effective Date, and (ii) the present value, as of the Effective Date, of all remaining dividend
payments on the converted shares of Mandatory Convertible Preferred Stock through, and including,
the Mandatory Conversion Date (excluding accrued and unpaid dividends to the Effective Date),
discounted on a quarterly basis assuming a 360-day year consisting of twelve 30-day months at an
annual discount rate of 7%; provided, however, that if (i) the applicable Conversion Date occurs
during the period from the close of business on a regular Record Date for any declared dividend to
the open of business on the immediately following Dividend Payment Date, or (ii) a Dividend Payment
Date for any declared dividend occurs after the Effective Date but before the applicable Conversion
Date, then, in each such case (but without duplication), the Corporation shall pay such dividend on
the applicable Dividend Payment Date to the converting Holder and the cash amount paid to the
converting Holder upon conversion shall be reduced by the amount of such dividend. If the
Corporation fails to pay such cash amount for any reason, the Fundamental Change Conversion Rate
shall be adjusted in accordance with Section 12(b) and the converting Holders right to receive
such cash amount shall be extinguished upon conversion.
(c) The following table sets forth the number of Adjustment Shares per the Initial Liquidation
Preference of the Mandatory Convertible Preferred Stock based on the Effective Date and Stock Price
in the Fundamental Change. The Stock Prices set forth in the first row of the table (i.e., the
column headers) shall be adjusted as of any date on which the Fixed Conversion Rates of the
Mandatory Convertible Preferred
14
Stock are adjusted The adjusted Stock Prices shall equal the Stock Prices applicable
immediately prior to such adjustment multiplied by a fraction, the numerator of which is the
Minimum Conversion Rate immediately prior to the adjustment giving rise to the Stock Price
adjustment and the denominator of which is the Minimum Conversion Rate as so adjusted. The
Adjustment Shares shall be correspondingly adjusted in the same manner as each Fixed Conversion
Rate is adjusted in accordance with Section 12(a). In the case of a Fundamental Change that occurs
subsequent to a Reorganization Event as a result of which the Mandatory Convertible Preferred Stock
has become convertible into units of Exchange Property, the Stock Price shall be determined by
reference to the Applicable Market Value of a unit of Exchange Property.
Stock Price on Effective Date
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Effective Date |
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$ 5.00 |
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$ 7.50 |
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$ 10.00 |
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$ 14.5700 |
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$ 18.2125 |
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$ 20.00 |
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$ 30.00 |
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$ 40.00 |
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$ 50.00 |
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$ 60.00 |
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$ 70.00 |
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$ 80.00 |
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$ 90.00 |
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$ 100.00 |
3/31/2011 |
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(0.1320 |
) |
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(0.2590 |
) |
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(0.3669 |
) |
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(0.5015 |
) |
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0.1206 |
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0.0984 |
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0.0336 |
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0.0127 |
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0.0051 |
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0.0021 |
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0.0009 |
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0.0004 |
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0.0001 |
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0.0000 |
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4/1/2011 |
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(0.1318 |
) |
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(0.2588 |
) |
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(0.3667 |
) |
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(0.5014 |
) |
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0.1207 |
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0.0984 |
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0.0336 |
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0.0127 |
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0.0051 |
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0.0021 |
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0.0009 |
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0.0004 |
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0.0001 |
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0.0000 |
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7/1/2011 |
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(0.1140 |
) |
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(0.2389 |
) |
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(0.3499 |
) |
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(0.4919 |
) |
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0.1260 |
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0.1023 |
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0.0339 |
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0.0124 |
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0.0048 |
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0.0020 |
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0.0008 |
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0.0003 |
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0.0001 |
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0.0000 |
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10/1/2011 |
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(0.0959 |
) |
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(0.2175 |
) |
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(0.3313 |
) |
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(0.4815 |
) |
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0.1315 |
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0.1062 |
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0.0338 |
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0.0119 |
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0.0045 |
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0.0018 |
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0.0007 |
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0.0003 |
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0.0001 |
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0.0000 |
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1/1/2012 |
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(0.0780 |
) |
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(0.1946 |
) |
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(0.3110 |
) |
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(0.4703 |
) |
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0.1373 |
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0.1100 |
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0.0334 |
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0.0111 |
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0.0040 |
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0.0015 |
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0.0006 |
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0.0002 |
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0.0001 |
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0.0000 |
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4/1/2012 |
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(0.0608 |
) |
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(0.1705 |
) |
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(0.2887 |
) |
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(0.4581 |
) |
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0.1431 |
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0.1138 |
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0.0326 |
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0.0102 |
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0.0034 |
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0.0012 |
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0.0005 |
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0.0002 |
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0.0001 |
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0.0000 |
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7/1/2012 |
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(0.0445 |
) |
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(0.1447 |
) |
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(0.2639 |
) |
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(0.4445 |
) |
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0.1491 |
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0.1172 |
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0.0311 |
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0.0089 |
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0.0028 |
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0.0009 |
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0.0003 |
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0.0001 |
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0.0000 |
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0.0000 |
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10/1/2012 |
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(0.0295 |
) |
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(0.1172 |
) |
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(0.2356 |
) |
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(0.4291 |
) |
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0.1553 |
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0.1203 |
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0.0288 |
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0.0073 |
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0.0020 |
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0.0006 |
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0.0002 |
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0.0001 |
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0.0000 |
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0.0000 |
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1/1/2013 |
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(0.0169 |
) |
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(0.0883 |
) |
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(0.2031 |
) |
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(0.4113 |
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0.1614 |
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0.1226 |
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0.0254 |
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0.0055 |
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0.0013 |
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0.0003 |
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0.0001 |
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0.0000 |
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0.0000 |
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0.0000 |
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4/1/2013 |
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(0.0077 |
) |
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(0.0597 |
) |
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(0.1663 |
) |
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(0.3906 |
) |
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0.1670 |
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0.1235 |
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0.0208 |
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0.0036 |
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0.0007 |
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0.0001 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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7/1/2013 |
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(0.0022 |
) |
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(0.0322 |
) |
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(0.1226 |
) |
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(0.3643 |
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0.1715 |
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0.1215 |
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0.0147 |
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0.0017 |
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0.0002 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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10/1/2013 |
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(0.0002 |
) |
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(0.0102 |
) |
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(0.0710 |
) |
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(0.3279 |
) |
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0.1729 |
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0.1132 |
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0.0071 |
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0.0004 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
|
1/1/2014 |
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0.0000 |
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(0.0005 |
) |
|
|
(0.0178 |
) |
|
|
(0.2665 |
) |
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|
0.1620 |
|
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|
0.0866 |
|
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|
0.0009 |
|
|
|
0.0000 |
|
|
|
0.0000 |
|
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|
0.0000 |
|
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|
0.0000 |
|
|
|
0.0000 |
|
|
|
0.0000 |
|
|
|
0.0000 |
|
4/1/2014 |
|
|
0.0000 |
|
|
|
0.0000 |
|
|
|
0.0000 |
|
|
|
0.0000 |
|
|
|
0.0000 |
|
|
|
0.0000 |
|
|
|
0.0000 |
|
|
|
0.0000 |
|
|
|
0.0000 |
|
|
|
0.0000 |
|
|
|
0.0000 |
|
|
|
0.0000 |
|
|
|
0.0000 |
|
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|
0.0000 |
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The exact Stock Price and Effective Date may not be set forth on the table, in which
case:
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if the Stock Price is between two Stock Price amounts on the table or the
Effective Date is between two dates on the table, the number of Adjustment
Shares shall be determined by straight-line interpolation between the number
of Adjustment Shares set forth for the higher and lower Stock Price amounts
and the two Effective Dates, as applicable, based on a 365-day year; |
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if the Stock Price is in excess of $100.00 per share (subject to adjustment
as described above), then the number of Adjustment Shares shall be equal to
zero; and |
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if the Stock Price is less than $5.00 per share (subject to adjustment as
described above), then the number of Adjustment Shares shall be equal to zero. |
(d) The Corporation shall notify Holders, to the extent practicable, at least 20 Business Days
prior to the anticipated Effective Date of the Fundamental Change, but in any event not later than
two Business Days following the Corporation
15
becoming aware of the occurrence of a Fundamental Change (the Fundamental Change Company
Notice). The Fundamental Change Company Notice shall be sent by or on behalf of the
Corporation, by first-class mail, postage prepaid, to the Record Holders and shall state:
(i) the date on which the Fundamental Change is anticipated to be effected;
(ii) the Fundamental Change Conversion Period;
(iii) the Fundamental Change Conversion Rate, including the number of Adjustment
Shares; provided, however, that if the Fundamental Change Conversion Rate is not calculable
at the time the Fundamental Change Company Notice is sent to Record Holders, the
Fundamental Change Company Notice shall instead disclose the method for calculating such
rate;
(iv) whether the Corporation shall pay the cash amount in respect of accrued and
unpaid dividends or whether the Fundamental Change Conversion Rate is to be adjusted in
accordance with Section 12(b); and
(v) the instructions a Holder must follow to effect a Fundamental Change Conversion in
connection with such Fundamental Change.
(e) In order to convert shares of Mandatory Convertible Preferred Stock pursuant to this
Section 8, a Holder shall deliver to the Transfer Agent at its Corporate Trust Office, no earlier
than the Effective Date of the Fundamental Change, and no later than the close of business on the
last day of the Fundamental Change Conversion Period, a written notice of conversion, duly executed
by such Holder, specifying:
(i) the number of shares of Mandatory Convertible Preferred Stock to be converted;
(ii) the name(s) in which such Holder desires the shares of Common Stock issuable upon
conversion to be registered; and
(iii) any other transfer forms, tax forms or other relevant documentation required and
specified by the Transfer Agent, if necessary, to effect the conversion.
(f) If specified by the Holder in the notice of conversion that shares of Common Stock
issuable upon conversion of the Mandatory Convertible Preferred Stock shall be issued to a Person
other than the Holder surrendering the shares of Mandatory Convertible Preferred Stock being
converted, then the Holder shall pay or cause to be paid any transfer or similar taxes payable in
connection with the shares of Common Stock so issued.
16
(g) Upon receipt by the Transfer Agent of a completed and duly executed notice of
conversion as set forth in Section 8(e), compliance with Section 8(f), if applicable, and surrender
of a certificate representing shares of Mandatory Convertible Preferred Stock to be converted (if
such shares are held in certificated form), the Corporation shall, on the third Business Day
following receipt of such notice of conversion, issue and shall instruct the Transfer Agent to
register the number of shares of Common Stock to which such Holder shall be entitled upon
conversion in the name(s) specified by such Holder in its notice of conversion. Upon a Fundamental
Change Conversion, the Transfer Agent shall deliver to the Holder any cash payment due upon such
Fundamental Change Conversion, including any payment of cash in lieu of any fraction of a share as
provided in Section 2. In the event that there shall have been surrendered a certificate or
certificates representing shares of Mandatory Convertible Preferred Stock, only a portion of which
are to be converted, the Corporation shall issue and deliver to such Holder or such Holders
designee in the manner provided in the first sentence of this paragraph a new certificate or
certificates representing the number of shares of Mandatory Convertible Preferred Stock that shall
not have been converted.
(h) Notwithstanding anything to the contrary herein, in no event shall the number of shares of
Common Stock issued upon the conversion of shares of Mandatory Convertible Preferred Stock pursuant
to this Section 8 exceed a number per share of Mandatory Convertible Preferred Stock equal to the
Share Cap.
SECTION 9. Conversion at the Corporations Option Upon Nonpayment of Dividends. (a) If the
Corporation, at any time, has not paid the equivalent of six full quarterly dividends (whether or
not consecutive and whether or not earned or declared) on any series of Preferred Stock at the time
outstanding, including the Mandatory Convertible Preferred Stock, prior to the Mandatory Conversion
Date, the Corporation may at its option cause all (but not less than all) shares of the Mandatory
Convertible Preferred Stock to be automatically converted into a number of shares of Common Stock
based on the Fundamental Change Conversion Rate determined as described in Section 9(c) below (the
Dividend Nonpayment Conversion Rate).
(b) In addition to the number of shares of Common Stock issuable upon conversion of each share
of Mandatory Convertible Preferred Stock pursuant to clause (a) of this Section 9, the Corporation
shall pay, to the extent the Corporation is legally permitted to make such payment, an amount in
cash equal to (A) all accrued and unpaid dividends, whether or not previously declared, on the
converted shares of Mandatory Convertible Preferred Stock to, but not including, the Dividend
Nonpayment Conversion Date, and (B) the present value, as of such Dividend Nonpayment Conversion
Date, of all remaining dividend payments on the converted shares of Mandatory Convertible Preferred
Stock through, and including, the Mandatory Conversion Date (excluding accrued and unpaid dividends
to the Dividend Nonpayment Conversion Date), discounted on a quarterly basis assuming a 360-day
year consisting of twelve 30-day months at an annual discount rate of 7%; provided, however, that
if the applicable Conversion Date occurs during the period from the close of business on a regular
Record Date for any declared dividend to the open of business on the immediately following Dividend
Payment Date, the Corporation shall pay such dividend on the
17
applicable Dividend Payment Date and the cash amount paid to the Holders upon conversion shall
be reduced by the amount of such dividend. If the Corporation fails to pay such cash amount for
any reason, the Dividend Nonpayment Conversion Rate shall be adjusted in accordance with Section
12(b) and the converting Holders right to receive such cash amount shall be extinguished upon
conversion.
(c) For purposes of determining the Dividend Nonpayment Conversion Rate (including the number
of the Adjustment Shares) in connection with a Conversion at the Corporations Option Upon
Nonpayment of Dividends, the provisions set forth under Section 8 applicable to the determination
of the Fundamental Change Conversion Rate shall apply except that (i) the Effective Date shall be
the Dividend Nonpayment Conversion Date and (ii) the Stock Price shall be the Average VWAP per
share of Common Stock over the five Trading Day period beginning on, and including, the Trading Day
immediately following the date on which the Dividend Nonpayment Conversion Notice was sent to the
Holders or, if the Dividend Nonpayment Conversion Date occurs subsequent to a Reorganization Event
as a result of which the Mandatory Convertible Preferred Stock has become convertible into units of
Exchange Property, the Applicable Market Value of a unit of Exchange Property.
(d) To exercise the conversion right pursuant to this Section 9, the Corporation shall notify
registered Holders by mail (the Dividend Nonpayment Conversion Notice) prior to the close
of business on the 45th Trading Day following the Dividend Payment Date for such sixth unpaid
dividend. In addition, concurrently with such mailing, the Corporation shall post the Dividend
Nonpayment Conversion Notice on its website. Failure to mail a notice or communication to a Holder
or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or
communication is mailed in the manner provided herein, it shall be deemed to have been duly given,
whether or not the addressee receives it.
(e) The Conversion Date shall be a date selected by the Corporation (the Dividend
Nonpayment Conversion Date) that is no fewer than 10 and no more than 15 Trading Days after
the date the Dividend Payment Conversion Notice is sent to Holders. In addition to any information
required by applicable law or regulation, the Dividend Nonpayment Conversion Notice shall state, as
appropriate:
(i) the Dividend Nonpayment Conversion Date;
(ii) the method for calculating the Dividend Nonpayment Conversion Rate, including the
number of Adjustment Shares;
(iii) whether the Corporation shall pay the cash amount in respect of accrued and
unpaid dividends or whether the Dividend Nonpayment Conversion Rate is to be adjusted in
accordance with Section 12(b); and
(iv) that dividends on the shares of Mandatory Convertible Preferred Stock shall cease
to accrue on the Dividend Nonpayment Conversion Date.
18
(f) Notwithstanding anything to the contrary herein, in no event shall the number of shares of
Common Stock issued upon the conversion of shares of Mandatory Convertible Preferred Stock pursuant
to this Section 9 exceed a number per share of Mandatory Convertible Preferred Stock equal to the
Share Cap.
SECTION 10. Effect of Conversion; Conversion Procedures; Effect of Share Cap. (a) On the
Mandatory Conversion Date, the Fundamental Change Conversion Date, the Dividend Nonpayment
Conversion Date or any Early Conversion Date (each, a Conversion Date), dividends on any
shares of Mandatory Convertible Preferred Stock converted to Common Stock shall cease to accrue and
accumulate, such shares of Mandatory Convertible Preferred Stock shall cease to be outstanding and
all rights of Holders of such shares of Mandatory Convertible Preferred Stock shall terminate, in
each case, subject to the right of such Holders to receive any shares of Common Stock issuable upon
conversion thereof, any accrued and unpaid dividends, the present value of any remaining dividends,
and any cash due in lieu of fractional shares with respect to such shares, to which such Holders
are otherwise entitled.
(b) The Person or Persons entitled to receive the Common Stock issuable upon any such
conversion shall be treated for all purposes as the record holder(s) of such shares of Common Stock
as of the close of business on the applicable Conversion Date. Prior to such applicable Conversion
Date, shares of Common Stock issuable upon conversion of any shares of Mandatory Convertible
Preferred Stock shall not be deemed outstanding for any purpose, and Holders shall have no rights
with respect to the Common Stock (including without limitation voting rights, rights to respond to
tender offers for the Common Stock and rights to receive any dividends or other distributions on
the Common Stock) by virtue of holding shares of Mandatory Convertible Preferred Stock.
(c) Shares of Mandatory Convertible Preferred Stock duly converted in accordance herewith, or
otherwise reacquired by the Corporation, shall resume the status of authorized and unissued
Preferred Stock, undesignated as to series and available for future issuance (provided that any
such cancelled shares of Mandatory Convertible Preferred Stock may be reissued only as shares of
any series of Preferred Stock other than Mandatory Convertible Preferred Stock).
(d) In the event that a Holder of shares of Mandatory Convertible Preferred Stock shall not by
written notice designate the name in which shares of Common Stock to be issued upon conversion of
such Mandatory Convertible Preferred Stock should be registered, the Corporation shall be entitled
to register such shares, and make such payment, in the name of the Holder of such Mandatory
Convertible Preferred Stock as shown on the records of the Corporation. In the case of a Mandatory
Conversion or a Conversion at the Corporations Option Upon Nonpayment of Dividends, in the event
that shares of the Preferred Stock are then held in certificated form and a Holder of Mandatory
Convertible Preferred Stock shall not, by written notice to the Corporation, affirmatively elect to
receive shares of Common Stock deliverable upon such Mandatory Conversion or Conversion at the
Corporations Option Upon Nonpayment of Dividends, in certificated form and provide the Corporation
with the
19
name in which such shares should be registered and the address to which the certificate or
certificates representing such shares of Common Stock should be sent, the Corporation shall be
entitled to register such shares, and make such payment, in book-entry form, in the name of the
Holder of such Mandatory Convertible Preferred Stock as shown on the records of the Corporation.
(e) To the extent that the Corporation delivers a number of whole shares of Common Stock equal
to the Share Cap on conversion of the Mandatory Convertible Preferred Stock, the Corporation shall
be deemed to have paid in full all cash amounts, including all accrued and unpaid dividends, in
respect of such Mandatory Convertible Preferred Stock. However, in the Corporations sole
discretion, the Corporation may elect to pay any amount above the Share Cap that would otherwise be
payable in cash to the extent the Corporation has lawfully available funds to do so.
SECTION 11. Reservation of Common Stock. (a) The Corporation shall at all times reserve and
keep available out of its authorized and unissued Common Stock or shares held in the treasury of
the Corporation, solely for issuance upon the conversion of shares of Mandatory Convertible
Preferred Stock as herein provided, free from any preemptive or other similar rights, a number of
shares of Common Stock equal to the Share Cap times the number of shares of Mandatory Convertible
Preferred Stock then outstanding.
(b) Notwithstanding the foregoing, the Corporation shall be entitled to deliver upon
conversion of shares of Mandatory Convertible Preferred Stock, as herein provided, shares of Common
Stock reacquired and held in the treasury of the Corporation (in lieu of the issuance of authorized
and unissued shares of Common Stock), so long as any such treasury shares are free and clear of all
liens, charges, security interests or encumbrances (other than liens, charges, security interests
and other encumbrances created by the Holders).
(c) All shares of Common Stock delivered upon conversion of the Mandatory Convertible
Preferred Stock shall be duly authorized, validly issued, fully paid and non-assessable, free and
clear of all liens, claims, security interests and other encumbrances (other than liens, charges,
security interests and other encumbrances created by the Holders).
(d) Prior to the delivery of any securities that the Corporation shall be obligated to deliver
upon conversion of the Mandatory Convertible Preferred Stock, the Corporation shall use its
reasonable best efforts to comply with all federal and state laws and regulations thereunder
requiring the registration of such securities with, or any approval of or consent to the delivery
thereof by, any governmental authority.
(e) The Corporation hereby covenants and agrees that the Corporation shall, if permitted by
the rules of the New York Stock Exchange or any other national securities exchange or automated
quotation system on which the Common Stock is listed, list and keep listed, so long as the Common
Stock shall be so listed on such exchange or
20
automated quotation system, all Common Stock issuable upon conversion of the Mandatory
Convertible Preferred Stock.
SECTION 12. Conversion Rate Adjustments and Procedures.
(a) Adjustments to Fixed Conversion Rates. Each Fixed Conversion Rate shall be adjusted from
time to time as described below.
(i) If the Corporation issues Common Stock as a dividend or distribution to all or
substantially all holders of the Common Stock, or if the Corporation effects a subdivision
or combination (including, without limitation, a reverse stock split) of the Common Stock,
each Fixed Conversion Rate shall be adjusted based on the following formula:
|
|
|
|
|
|
|
|
|
CR1
|
|
=
|
|
CR0 × (OS1 / OS0) |
|
|
|
|
|
|
|
|
|
where, |
|
|
|
|
|
|
|
|
|
|
|
|
|
CR0
|
|
=
|
|
the Fixed Conversion Rate in effect immediately prior to
the close of business on the Record Date for such
dividend or distribution or immediately prior to the open
of business on the effective date for such subdivision or
combination, as the case may be; |
|
|
|
|
|
|
|
|
|
CR1
|
|
=
|
|
the Fixed Conversion Rate in effect immediately after the
close of business on such Record Date or immediately
after the open of business on such effective date, as the
case may be; |
|
|
|
|
|
|
|
|
|
OS0
|
|
=
|
|
the number of shares of Common Stock outstanding
immediately prior to the close of business on such Record
Date or immediately prior to the open of business on such
effective date, as the case may be (and prior to giving
effect to such event); and |
|
|
|
|
|
|
|
|
|
OS1
|
|
=
|
|
the number of shares of Common Stock that would be
outstanding immediately after, and solely as a result of,
such dividend, distribution, subdivision or combination. |
Any adjustment made under this clause (i) shall become effective
immediately after the close of business on the Record Date for such dividend or
distribution, or immediately after the open of business on the effective date for
such subdivision or combination, as the case may be. If any dividend,
distribution, subdivision or combination of the type described in this clause (i)
is declared but not so paid or made, each Fixed Conversion Rate shall be
immediately readjusted, effective as of the
21
earlier of (a) the date the Board of Directors or a duly authorized committee
thereof determines not to pay or make such dividend, distribution, subdivision or
combination and (b) the date the dividend or distribution was to be paid or the
date the subdivision or combination was to have been effective, to the Fixed
Conversion Rate that would then be in effect if such dividend, distribution,
subdivision or combination had not been declared.
(ii) If the Corporation issues to all or substantially all holders of the Common Stock
any rights, options or warrants (other than pursuant to any shareholder rights plan)
entitling them for a period expiring 60 days or less from the date of issuance of such
rights, options or warrants to subscribe for or purchase shares of Common Stock at less
than the Current Market Price of the Common Stock as of the announcement date for such
issuance, each Fixed Conversion Rate shall be increased based on the following formula:
|
|
|
|
|
|
|
|
|
CR1
|
|
=
|
|
CR0 × [(OS0 + X) / (OS0 + Y)] |
|
|
|
|
|
|
|
|
|
where, |
|
|
|
|
|
|
|
|
|
|
|
|
|
CR0
|
|
= |
|
the Fixed Conversion Rate in effect immediately prior to
the close of business on the Record Date for such
issuance; |
|
|
|
|
|
|
|
|
|
CR1
|
|
=
|
|
the Fixed Conversion Rate in effect immediately after the
close of business on such Record Date; |
|
|
|
|
|
|
|
|
|
OS0
|
|
=
|
|
the number of shares of Common Stock outstanding
immediately prior to the close of business on such Record
Date; |
|
|
|
|
|
|
|
|
|
X
|
|
=
|
|
the total number of shares of Common Stock issuable
pursuant to such rights, options or warrants; and |
|
|
|
|
|
|
|
|
|
Y
|
|
=
|
|
the aggregate price payable to exercise such rights,
options or warrants, divided by the Average VWAP per
share of the Common Stock for the 10 consecutive Trading
Day period ending on, and including, the Trading Day
immediately preceding the date of announcement for such
issuance. |
Any increase in the Fixed Conversion Rates made pursuant to this
clause (ii) shall become effective immediately after the close of business on the
Record Date for such issuance. To the extent such rights,
22
options or warrants are not exercised prior to their expiration or
termination, each Fixed Conversion Rate shall be decreased, effective as of the
date of such expiration or termination, to the Fixed Conversion Rate that would
then be in effect had the increase with respect to the issuance of such rights,
options or warrants been made on the basis of delivery of only the number of
shares of Common Stock actually delivered. If such rights, options or warrants
are not so issued, each Fixed Conversion Rate shall be decreased, effective as of
the earlier of (a) the date the Board of Directors or a duly authorized committee
thereof determines not to issue such rights, options or warrants and (b) the date
such rights, options or warrants were to have been issued, to the Fixed Conversion
Rate that would then be in effect if such Record Date for such issuance had not
occurred.
For purposes of this clause (ii), in determining whether any rights, options
or warrants entitle the holders thereof to subscribe for or purchase shares of the
Common Stock at less than the Current Market Price of Common Stock as of the
announcement date for such issuance, and in determining the aggregate price
payable to exercise such rights, options or warrants, there shall be taken into
account any consideration the Corporation receives for such rights, options or
warrants and any amount payable on exercise thereof, with the value of such
consideration, if other than cash, to be determined in good faith by the Board of
Directors or a duly authorized committee thereof.
(iii) If the Corporation pays a dividend or other distribution to all or substantially
all holders of Common Stock of shares of the Corporations capital stock (other than Common
Stock), evidences of the Corporations indebtedness, the Corporations assets or other
property or rights to acquire the Corporations capital stock (other than Common Stock),
indebtedness or assets or other property of the Corporation, excluding:
(A) any dividend, distribution or issuance as to which an adjustment was
effected pursuant to clause (i) or (ii) above;
(B) dividends or distributions paid exclusively in cash as to which an
adjustment was effected pursuant to clause (iv) below; and
(C) Spin-Offs as to which the provisions set forth below in this clause (iii)
apply,
then each Fixed Conversion Rate shall be increased based on the following formula:
|
|
|
|
|
|
|
|
|
CR1
|
|
=
|
|
CR0 × SP0 / (SP0 FMV) |
|
|
|
|
|
|
|
|
|
where, |
|
|
|
|
23
|
|
|
|
|
|
|
|
|
CR0
|
|
=
|
|
the Fixed Conversion Rate in effect immediately prior to
the close of business on the Record Date for such
dividend or distribution; |
|
|
|
|
|
|
|
|
|
CR1
|
|
=
|
|
the Fixed Conversion Rate in effect immediately after the
close of business on such Record Date; |
|
|
|
|
|
|
|
|
|
SP0
|
|
=
|
|
the Current Market Price of the Common Stock as of such
Record Date; and |
|
|
|
|
|
|
|
|
|
FMV
|
|
=
|
|
the fair market value (as determined in good faith by the
Board of Directors or a duly authorized committee
thereof) on the Record Date for such dividend or
distribution of shares of the Corporations capital stock
(other than Common Stock), evidences of the Corporations
indebtedness, the Corporations assets or other property
or rights to acquire the Corporations capital stock
(other than Common Stock), indebtedness or assets or
other property of the Corporation, expressed as an amount
per share of Common Stock. |
If the Board of Directors or a duly authorized committee thereof
determines the FMV (as defined above) of any dividend or other distribution for
purposes of this clause (iii) by referring to the actual or when-issued trading
market for any securities, it shall in doing so consider the prices in such market
over the same period used to determine the Current Market Price of the Common
Stock as of the Record Date for such dividend or other distribution.
Notwithstanding the foregoing, if FMV (as defined above) is equal to or greater
than SP0 (as defined above), in lieu of the foregoing increase, each Holder of
Mandatory Convertible Preferred Stock shall receive, in respect of each share
thereof, at the same time and upon the same terms as holders of Common Stock
receive the shares of the Corporations capital stock (other than Common Stock),
evidences of the Corporations indebtedness, assets or other property or rights to
acquire the Corporations capital stock (other than Common Stock), the
Corporations indebtedness or assets or other property that such Holder would have
received if such Holder owned a number of shares of Common Stock equal to the
Maximum Conversion Rate in effect immediately prior to the close of business on
the Record Date for such dividend or other distribution.
Any increase made under the portion of this clause (iii) shall become
effective immediately after the close of business on the Record Date for such
dividend or other distribution. If such dividend or distribution is not so paid
or made, each Fixed Conversion Rate shall be decreased, effective as of the
earlier of (a) the date the Board of Directors
24
or a duly authorized committee thereof determines not to pay such dividend or
other distribution and (b) the date such dividend or distribution was to have been
paid, to the Fixed Conversion Rate that would then be in effect if the dividend or
other distribution had not been declared.
Notwithstanding the foregoing, if the transaction that gives rise to an
adjustment pursuant to this clause (iii) is one pursuant to which the payment of a
dividend or other distribution on the Common Stock consists of shares of capital
stock of, or similar equity interests in, a Subsidiary or other business unit of
the Corporation (a Spin-Off) that are, or, when issued, shall be, traded
on a U.S. national securities exchange, then each Fixed Conversion Rate shall
instead be increased based on the following formula:
|
|
|
|
|
|
|
|
|
CR1
|
|
=
|
|
CR0 × (FMV0 + MP0) / MP0 |
|
|
|
|
|
|
|
|
|
where, |
|
|
|
|
|
|
|
|
|
|
|
|
|
CR0
|
|
= |
|
the Fixed Conversion Rate in effect at the close of
business on the tenth Trading Day immediately following,
and including, the date on which ex-dividend trading
commences for such dividend or distribution on the
relevant exchange; |
|
|
|
|
|
|
|
|
|
CR1
|
|
=
|
|
the Fixed Conversion Rate in effect immediately after the
close of business on the tenth Trading Day immediately
following, and including, the date on which ex-dividend
trading commences for such dividend or distribution on
the relevant exchange; |
|
|
|
|
|
|
|
|
|
FMV0
|
|
=
|
|
the Average VWAP per share of such capital stock or
similar equity interests distributed to holders of the
Common Stock applicable to one share of Common Stock for
the 10 consecutive Trading Day period commencing on, and
including, the date on which ex-dividend trading
commences for such dividend or distribution on the
relevant exchange; and |
|
|
|
|
|
|
|
|
|
MP0
|
|
=
|
|
the Average VWAP per share of the Common Stock over the
10 consecutive Trading Day period commencing on, and
including, the date on which ex-dividend trading
commences for such dividend or distribution on the
relevant exchange. |
The adjustment to each Fixed Conversion Rate under the immediately
preceding paragraph shall occur at the close of business on the 10th consecutive
Trading Day immediately following, and including, the date on which ex-dividend
trading commences for such dividend or
25
distribution on the relevant exchange, but shall be given effect as of the
open of business on the date immediately succeeding the Record Date for such
dividend or distribution on the relevant exchange. The Corporation shall delay
the settlement of any conversion of the Mandatory Convertible Preferred Stock if
the Conversion Date occurs after the Record Date for such dividend or distribution
and prior to the end of such 10 consecutive Trading Day period. In such event,
the Corporation shall deliver the shares of Common Stock issuable in respect of
such conversion (based on the adjusted Fixed Conversion Rates) on the first
Business Day immediately following the last Trading Day of such 10 consecutive
Trading Day period.
(iv) If the Corporation pays or makes a distribution consisting exclusively of cash to
all or substantially all holders of the Common Stock, excluding (a) any cash that is
distributed as part of a dividend or distribution referred to in clause (iii) above and (b)
any consideration payable in connection with a tender or exchange offer made by the
Corporation or any of the Corporations Subsidiaries referred to in clause (v) below, each
Fixed Conversion Rate shall be increased based on the following formula:
|
|
|
|
|
|
|
|
|
CR1
|
|
=
|
|
CR0 × SP0 / (SP0 C) |
|
|
|
|
|
|
|
|
|
where, |
|
|
|
|
|
|
|
|
|
|
|
|
|
CR0
|
|
=
|
|
the Fixed Conversion Rate in effect immediately prior to
the close of business on the Record Date for such
distribution; |
|
|
|
|
|
|
|
|
|
CR1
|
|
=
|
|
the Fixed Conversion Rate in effect immediately after the
close of business on the Record Date for such
distribution; |
|
|
|
|
|
|
|
|
|
SP0
|
|
=
|
|
the Current Market Price of the Common Stock as of the
Record Date for such distribution; and |
|
|
|
|
|
|
|
|
|
C
|
|
=
|
|
an amount of cash per share of the Common Stock that the
Corporation distributes to holders of the Common Stock. |
The adjustment to each Fixed Conversion Rate made pursuant to this
clause (iv) shall become effective immediately after the close of business on the
Record Date for such distribution. Notwithstanding the foregoing, if C (as
defined above) is equal to or greater than SP0 (as defined above), in lieu of
the foregoing increase, each Holder of Mandatory Convertible Preferred Stock shall
receive, in respect of each share thereof, at the same time and upon the same
terms as holders of shares of the Common Stock, the amount of cash that such
26
Holder would have received if such Holder owned a number of shares of the
Common Stock equal to the Maximum Conversion Rate in effect immediately prior to
the close of business on the Record Date for such distribution. If such
distribution is not so paid, each Fixed Conversion Rate shall be decreased,
effective as of the earlier of (a) the date the Board of Directors or a duly
authorized committee thereof determines not to pay such dividend and (b) the date
such dividend was to have been paid, to the Fixed Conversion Rate that would then
be in effect if such distribution had not been declared.
(v) If the Corporation or one or more of its Subsidiaries purchases Common Stock
pursuant to a tender offer or exchange offer and the cash and value of any other
consideration included in the payment per share of Common Stock validly tendered or
exchanged exceeds the Average VWAP per share of Common Stock over the 10 consecutive
Trading Day period commencing on, and including, the Trading Day next succeeding the last
date on which tenders or exchanges may be made pursuant to such tender or exchange offer
(the Expiration Date), each Fixed Conversion Rate shall be increased based on the
following formula:
|
|
|
|
|
|
|
|
|
CR1
|
|
=
|
|
CR0 × (FMV + (SP1 × OS1)) / (SP1 × OS0) |
|
|
|
|
|
|
|
|
|
where: |
|
|
|
|
|
|
|
|
|
|
|
|
|
CR0
|
|
=
|
|
the Fixed Conversion Rate in effect immediately prior to the close of
business on the 11th Trading Day immediately following the Expiration
Date; |
|
|
|
|
|
|
|
|
|
CR1
|
|
=
|
|
the Fixed Conversion Rate in effect immediately after the close of
business on 11th Trading Day immediately following the Expiration Date; |
|
|
|
|
|
|
|
|
|
FMV
|
|
=
|
|
the fair market value (as determined in good faith by the Board of
Directors or a duly authorized committee thereof) as of the Expiration
Date of the aggregate value of all cash and any other consideration
paid or payable for shares of the Common Stock validly tendered or
exchanged and not withdrawn as of the Expiration Date (the Purchased
Shares); |
|
|
|
OS1
|
|
=
|
|
the number of shares of Common Stock outstanding as of the last time
tenders or exchanges may be made pursuant to such tender |
27
|
|
|
|
|
|
|
|
|
|
|
|
|
or exchange
offer (the Expiration Time), less any Purchased Shares; |
|
|
|
|
|
|
|
|
|
OS0
|
|
=
|
|
the number of shares of Common Stock outstanding at the Expiration
Time, including any Purchased Shares; and |
|
|
|
|
|
|
|
|
|
SP1
|
|
=
|
|
the Average VWAP per share of the Common Stock for the 10 consecutive
Trading Day period commencing on, and including, the Trading Day next
succeeding the Expiration Date. |
The adjustment to each Fixed Conversion Rate under this clause (v) shall
occur at the close of business on the 11th consecutive Trading Day immediately
following the Expiration Date, but shall be given effect as of the open of
business on the Expiration Date. The Corporation shall delay the settlement of
any conversion of Mandatory Convertible Preferred Stock if the Conversion Date
occurs during such 10 consecutive Trading Day period. In such event, the
Corporation shall deliver the shares of Common Stock issuable in respect of such
conversion (based on the adjusted Fixed Conversion Rates) on the first Business
Day immediately following the last Trading Day of such 10 consecutive Trading Day
period.
(vi) If the Corporation has in effect a shareholder rights plan while any shares of
Mandatory Convertible Preferred Stock remain outstanding, Holders of Mandatory Convertible
Preferred Stock shall receive, upon a conversion of Mandatory Convertible Preferred Stock,
in addition to Common Stock, rights under the Corporations shareholder rights agreement
unless, prior to such conversion, the rights have expired, terminated or been redeemed or
unless the rights have separated from the Common Stock. If the rights provided for in the
shareholder rights plan have separated from the Common Stock in accordance with the
provisions of the applicable shareholder rights agreement so that Holders of Mandatory
Convertible Preferred Stock would not be entitled to receive such rights in respect of the
Common Stock, if any, that the Corporation is required to deliver upon conversion of
Mandatory Convertible Preferred Stock, each Fixed Conversion Rate shall be adjusted at the
time of separation as if the Corporation had distributed to all holders of the Common
Stock, capital stock (other than Common Stock), evidences of the Corporations
indebtedness, the Corporations assets or rights to acquire capital stock (other than
Common Stock), indebtedness or assets of the Corporation pursuant to clause (iii) above,
subject to readjustment upon the subsequent expiration, termination or redemption of the
rights. A distribution of rights pursuant to a shareholder rights plan shall not trigger
an adjustment to the Fixed Conversion Rates pursuant to clauses (ii) or (iii) above.
28
(b) Adjustment for Certain Cash Amounts Payable Upon Conversion. If, prior to the conversion
of any shares of Mandatory Convertible Preferred Stock, the Corporation has not informed the
converting Holders of its intention to pay, and at the time of settlement of such conversion does
not pay, any cash amounts required to be paid upon such conversion as set forth under Section 6(b),
Section 7(b), Section 8(b) or Section 9(b), the Conversion Rate applicable to such conversion of
such shares of Mandatory Convertible Preferred Stock (and only to the conversion of such shares)
shall be increased based on the following formula:
|
|
|
|
|
|
|
|
|
CR1 =
|
|
|
|
CR0 + (D/SP1) |
|
|
|
|
|
|
|
|
|
where, |
|
|
|
|
|
|
|
|
|
|
|
|
|
CR0
|
|
= |
|
the Conversion Rate in effect immediately prior to such
Conversion Date; |
|
|
|
|
|
|
|
|
|
CR1
|
|
=
|
|
the Conversion Rate in effect for purposes of such conversion; |
|
|
|
|
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the total unpaid cash amount due with respect to the shares
being converted divided by the number of shares being converted; and |
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SP1
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the Average VWAP per share of our common stock over the 10
consecutive Trading Day period ending on, and including, the Trading Day
immediately preceding the Conversion Date. |
The adjustment to the applicable Conversion Rate under this clause (b) of Section 12 shall be
given effect as of, and apply to conversion on, the applicable Conversion Date.
(c) Adjustment for Tax Reasons. The Corporation may make such increases in each Fixed
Conversion Rate, in addition to any other increases required by this Section 12, if the Corporation
deems it advisable in order to avoid or diminish any income tax to holders of the Common Stock
resulting from any dividend or distribution of the Corporations shares of capital stock (or
issuance of rights or warrants to acquire such shares of capital stock) or from any event treated
as such for income tax purposes or for any other reasons; provided, however, that the Corporation
shall only make such adjustment if the same proportionate adjustment is made to each Fixed
Conversion Rate. If any adjustment to the Fixed Conversion Rate is treated as a distribution to
any non-U.S. Holder that is subject to withholding tax, the Corporation (or Transfer Agent or any
paying agent on behalf of the Corporation) may set off any withholding tax that is required to be
collected with respect to such deemed distribution against cash payments and other distributions
otherwise deliverable to such non-U.S. Holder.
(d) Adjustments to Threshold Appreciation Price, Initial Price, Applicable Market Value and
Current Market Price of the Common Stock. If an adjustment is made to the Fixed Conversion Rates
pursuant to Section 12(a) or (c), an inversely proportional adjustment shall also be made to the
Threshold Appreciation Price
29
and the Initial Price solely for purposes of determining which of clauses (i), (ii) and (iii)
of the definition of Mandatory Conversion Rate shall apply on the Mandatory Conversion Date. Such
adjustment shall be made by dividing each of the Threshold Appreciation Price and the Initial Price
by a fraction, the numerator of which shall be either the Fixed Conversion Rate immediately after
such adjustment pursuant to Section 12(a) or Section 12(c), as applicable, and the denominator of
which shall be such Fixed Conversion Rate immediately before such adjustment. In calculating the
Applicable Market Value of the Common Stock, the Applicable Market Value of a unit of Exchange
Property or the Current Market Price of the Common Stock, to the extent relevant to such
calculation, the Corporation shall make appropriate adjustments to the Average VWAP per share of
the Common Stock or any other equity security traded on a U.S. national securities exchange over
the measurement period applicable to such calculation to take into account the occurrence during
such measurement period of any event described in Section 12(a) or Section 12(c).
(e) Calculation of Adjustments to Fixed Conversion Rates.
(i) No adjustment in any Fixed Conversion Rate shall be required unless the adjustment
would require an increase or decrease of at least 1% of the Fixed Conversion Rate. If the
adjustment is not made because the adjustment does not change the Fixed Conversion Rate by
at least 1%, then the adjustment that is not made shall be carried forward and taken into
account in any future adjustment. All required calculations shall be made to the nearest
cent or 1/10,000th of a share. Notwithstanding the foregoing, all adjustments not
previously made shall be made upon any Mandatory Conversion, Optional Conversion,
Fundamental Change Conversion or Conversion at the Corporations Option Upon Nonpayment of
Dividends.
(ii) No adjustment in any Fixed Conversion Rate need be made if Holders participate in
the transaction that would otherwise require an adjustment (other than in the case of a
share split or share combination) at the same time, upon the same terms and otherwise on
the same basis as holders of the Common Stock and solely as a result of holding Mandatory
Convertible Preferred Stock, as if such Holders held a number of shares of the Common Stock
equal to the Maximum Conversion Rate as of the Record Date for such transaction, multiplied
by the number of shares of Mandatory Convertible Preferred Stock held by such Holders.
(iii) The Fixed Conversion Rates shall not be adjusted upon:
(A) the issuance of any shares of Common Stock pursuant to any present or
future plan providing for the reinvestment of dividends or interest payable on the
Corporations securities and the investment of additional optional amounts in the
Common Stock under any plan;
(B) the issuance of any shares of Common Stock or options or rights to
purchase those shares pursuant to any present or future employee,
30
director or consultant benefit plan, employee agreement or arrangement or
program of the Corporation;
(C) the issuance of any shares of Common Stock pursuant to any option,
warrant, right, or exercisable, exchangeable or convertible security outstanding as
of the Issue Date;
(D) a change solely in the par value of the Common Stock; or
(E) as a result of a tender offer solely to holders of fewer than 100 shares
of the Common Stock.
(iv) The Corporation shall have the power to resolve any ambiguity and its action in
so doing, as evidenced by a resolution of the Board of Directors or a duly authorized
committee thereof, shall be final and conclusive unless clearly inconsistent with the
intent hereof.
(f) Notice of Adjustment. Whenever a Fixed Conversion Rate is to be adjusted, the Corporation
shall: (i) compute such adjusted Fixed Conversion Rate and prepare and transmit to the Transfer
Agent an Officers Certificate setting forth such adjusted Fixed Conversion Rate, the method of
calculation thereof in reasonable detail and the facts requiring such adjustment and upon which
such adjustment is based; and (ii) as soon as practicable following the determination of a revised
Fixed Conversion Rate, provide, or cause to be provided, to the Holders of the Mandatory
Convertible Preferred Stock a statement setting forth in reasonable detail the method by which the
adjustment to such Fixed Conversion Rate was determined and setting forth such revised Fixed
Conversion Rate.
(g) Recapitalizations, Reclassifications and Changes of the Common Stock.
(i) In the event of:
(A) any recapitalization, reclassification or change of the Common Stock
(other than changes only in par value or resulting from a subdivision or
combination);
(B) any consolidation or merger of the Corporation with or into another
Person;
(C) any sale, transfer, lease or conveyance to another Person of all or
substantially all of the Corporations and its Subsidiaries property and assets;
or
(D) any statutory exchange of the Corporations securities with another Person
(other than in connection with a merger or acquisition);
31
in each case as a result of which the shares of Common Stock are exchanged for, or
converted into, other securities, property or assets (including cash or any combination
thereof) (any such event, a Reorganization Event), then, at and after the
effective time of such Reorganization Event, each share of Mandatory Convertible Preferred
Stock outstanding immediately prior to such Reorganization Event shall, without the consent
of the Holders of the Mandatory Convertible Preferred Stock, become convertible into the
type of such other securities, property or assets (including cash or any combination
thereof) that Holders would have received if such Holder had converted its Mandatory
Convertible Preferred immediately prior to such Reorganization Event (the Exchange
Property).
(ii) If a Conversion Date with respect to the Mandatory Convertible Preferred Stock
occurs after a Reorganization Event, each share of Mandatory Convertible Preferred Stock
shall convert into an amount of Exchange Property equal to the product of (i) the
applicable Conversion Rate then in effect and (ii) a unit of Exchange Property, without
interest thereon and without any right to dividends or distributions thereon. For the
purposes of the foregoing, a unit of Exchange Property shall mean the type and
amount of Exchange Property received per share of Common Stock in such Reorganization
Event. In the case of any Reorganization Event that causes Common Stock to be exchanged
for or converted into the right to receive more than a single type of consideration
determined in part upon any form of stockholder election, the type and amount of
consideration that a Holder of outstanding shares of Mandatory Convertible Preferred Stock
would have been entitled to receive as a holder of Common Stock shall be deemed to be the
weighted average of the type and amount of consideration received by Holders of Common
Stock that affirmatively make such an election. For purposes of the foregoing, the
applicable Conversion Rate shall be (A) in the case of a Mandatory Conversion, the
Mandatory Conversion Rate determined using the Applicable Market Value of a unit of
Exchange Property instead of the Applicable Market Value of the Common Stock, (B) in the
case of an Optional Conversion, the Minimum Conversion Rate, and (C) in the case of a
Fundamental Change Conversion or Conversion at the Corporations Option Upon Nonpayment of
Dividends, the Fundamental Change Conversion Rate or Dividend Nonpayment Conversion Rate,
as the case may be, determined using the Applicable Market Value of a unit of Exchange
Property instead of the Applicable Market Value of the Common Stock.
(iii) The above provisions of this Section 12(g) shall similarly apply to successive
reorganization events and the provisions of Section 12 shall apply to any shares of capital
stock (or any other equity security) received by the holders of Common Stock in any such
Reorganization Event. For purposes of the conversion rate adjustments set forth above,
following a Reorganization Event as a result of which the Mandatory Convertible Preferred
Stock becomes convertible into units of Exchange Property, references to Common Stock shall
be deemed to be references to each equity security constituting a unit or a portion of a
unit of Exchange Property and references to the Conversion Rate shall be deemed to refer
32
to, and adjustments to the Conversion Rate shall be applied to, each such equity
security and not to any other property constituting a portion of a unit of Exchange
Property.
(iv) The Corporation (or any successor of the Corporation) shall, as soon as
reasonably practicable (but in any event within 20 days) after the occurrence of any
Reorganization Event, provide written notice to the Holders of the Mandatory Convertible
Preferred Stock of the occurrence of such event and of the type and amount of cash,
securities or other property that constitute the Exchange Property. Failure to deliver
such notice shall not affect the operation of this Section 12(g).
SECTION 13. Liquidation Preference. In the event of the voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, each Holder of Mandatory Convertible
Preferred Stock shall be entitled to receive for each share of Mandatory Convertible Preferred
Stock in full out of the assets of the Corporation (including the Corporations capital) available
for distribution to stockholders of the Corporation, subject to the rights of any creditors of the
Corporation, before any payment or distribution is made to the holders of Common Stock and any
other Junior Stock of the Corporation, payment in full in an amount equal to the sum of (a) the
Initial Liquidation Preference plus (b) an amount equal to (i) any accrued and unpaid dividends
upon the shares of the Mandatory Convertible Preferred Stock payable on all Dividend Payment Dates
occurring on or prior to the date of payment of the amount due pursuant to such liquidation,
dissolution or winding up and (ii) if such date is not a Dividend Payment Date, a proportionate
dividend on the shares of the Mandatory Convertible Preferred Stock, based on the number of elapsed
days, for the period from the day following the most recent such Dividend Payment Date through such
date of payment of the amount due pursuant to such liquidation, dissolution or winding up.
SECTION 14. No Sinking Fund. The Mandatory Convertible Preferred Stock shall not be subject
to any mandatory redemption, sinking fund or other similar provisions. Holders of Mandatory
Convertible Preferred Stock shall have no right to require redemption or repurchase of any shares
of Mandatory Convertible Preferred Stock.
SECTION 15. Status of Repurchased Shares. Shares of Mandatory Convertible Preferred Stock
that are repurchased or otherwise acquired by the Corporation shall revert to authorized but
unissued shares of Preferred Stock (provided that any such cancelled shares of Mandatory
Convertible Preferred Stock may be reissued only as shares of any series of Preferred Stock other
than Mandatory Convertible Preferred Stock).
SECTION 16. Record Holders. To the fullest extent permitted by applicable law, the
Corporation and the Transfer Agent may deem and treat the Holder of any share of Mandatory
Convertible Preferred Stock as the true and lawful owner thereof for all purposes, and neither the
Corporation nor the Transfer Agent shall be affected by any notice to the contrary.
33
SECTION 17. Notices. All notices or communications in respect of Mandatory Convertible
Preferred Stock shall be sufficiently given if given in writing and delivered in person or by first
class mail, postage prepaid, or if given in such other manner as may be permitted in these Amended
Articles of Incorporation or the Code of Regulations or by applicable law. Notwithstanding the
foregoing, if shares of Mandatory Convertible Preferred Stock are issued in book-entry form through
DTC or any similar facility, such notices may be given to the Holders of Mandatory Convertible
Preferred Stock in any manner permitted by such facility.
SECTION 18. No Redemption Right. The Mandatory Convertible Preferred Stock shall not be
redeemable.
SECTION 19. Replacement Stock Certificates. (a) If physical certificates are issued, and
any of the Mandatory Convertible Preferred Stock certificates shall be mutilated, lost, stolen or
destroyed, the Corporation shall, at the expense of the Holder, issue, in exchange and in
substitution for and upon cancellation of the mutilated Mandatory Convertible Preferred Stock
certificate, or in lieu of and substitution for the Mandatory Convertible Preferred Stock
certificate lost, stolen or destroyed, a new Mandatory Convertible Preferred Stock certificate of
like tenor and representing an equivalent amount of shares of Mandatory Convertible Preferred
Stock, but only upon receipt of evidence of such loss, theft or destruction of such Mandatory
Convertible Preferred Stock certificate and indemnity, if requested, satisfactory to the
Corporation and the Transfer Agent.
(b) The Corporation is not required to issue any certificate representing the Mandatory
Convertible Preferred Stock on or after the Mandatory Conversion Date. In lieu of the delivery of
a replacement certificate following the Mandatory Conversion Date, the Transfer Agent, upon
delivery of the evidence and indemnity described above, shall deliver the shares of Common Stock
issuable pursuant to the terms of the Mandatory Convertible Preferred Stock formerly evidenced by
the certificate.
SECTION 20. Transfer Agent, Registrar, Conversion and Dividend Disbursing Agent. The duly
appointed transfer agent, registrar, conversion and dividend disbursing agent for the Mandatory
Convertible Preferred Stock shall be the Transfer Agent. The Corporation may, in its sole
discretion, remove the Transfer Agent in accordance with the agreement between the Corporation and
the Transfer Agent; provided that the Corporation shall appoint a successor transfer agent who
shall accept such appointment prior to the effectiveness of such removal. Upon any such removal or
appointment, the Corporation shall send notice thereof by first-class mail, postage prepaid, to the
Holders of the Mandatory Convertible Preferred Stock.
SECTION 21. Form; Book-Entry. (a) The shares of the Mandatory Convertible Preferred Stock
shall be represented by stock certificates substantially in the form set forth as Exhibit A
or such other form determined in accordance with these Amended Articles of Incorporation, the Code
of Regulations and applicable Ohio law. The shares of the Mandatory Convertible Preferred Stock
shall be issued in global form
34
(Global Preferred Shares) eligible for book-entry settlement with the Depositary,
represented by one or more stock certificates in global form registered in the name of the
Depositary or a nominee of the Depositary bearing the form of global securities legend set forth in
Exhibit A. The aggregate number of shares of Mandatory Convertible Preferred Stock
represented by each stock certificate representing Global Preferred Shares may from time to time be
increased or decreased by a notation by the Registrar and Transfer Agent on Schedule I attached to
the stock certificate.
(b) So long as DTC, or its nominee, is the registered owner or holder of the Global Preferred
Shares (the Depositary), the Depositary or its nominee shall be treated by the
Corporation, the Registrar and any agent of the Corporation or the Registrar as the owner of the
Global Preferred Shares for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Corporation, the Registrar or any agent of the Corporation or the Registrar from
giving effect to any written certification, proxy or other authorization furnished by the
Depositary or impair, as between the Depositary and participants in the Depositary, the operation
of customary practices of the Depositary governing the exercise of the rights of a holder of a
beneficial interest in any Global Preferred Share.
(c) If DTC is unwilling or unable to continue as Depositary for the Global Preferred Shares
and the Corporation does not appoint a qualified replacement for DTC within 90 days or DTC ceases
to be a clearing agency registered under the Exchange Act and a qualified successor depositary is
not appointed by the Corporation within 90 days, the Corporation shall issue certificated shares in
exchange for the Global Preferred Shares. In any such case, stock certificates representing the
Global Preferred Shares shall be exchanged in whole for definitive stock certificates that are not
issued in global form, representing an equal aggregate number of shares of Preferred Stock.
Definitive stock certificates representing shares of the Mandatory Convertible Preferred Stock
issued in exchange for stock certificates in global form shall be registered in the name or names
of the Person or Persons specified by DTC in a written instrument to the Registrar.
SECTION 22. Stock Transfer and Stamp Taxes. The Corporation shall pay any and all stock
transfer and documentary stamp taxes that may be payable in respect of any issuance or delivery of
shares of Mandatory Convertible Preferred Stock or shares of Common Stock or other securities
issued on account of Mandatory Convertible Preferred Stock pursuant hereto or certificates
representing such shares or securities. The Corporation shall not, however, be required to pay any
such tax that may be payable in respect of any transfer involved in the issuance or delivery of
shares of Mandatory Convertible Preferred Stock or Common Stock or other securities in a name other
than that in which the shares of Mandatory Convertible Preferred Stock with respect to which such
shares or other securities are issued or delivered were registered, or in respect of any payment to
any Person other than a payment to the Holder thereof, and shall not be required to make any such
issuance, delivery or payment unless and until the Person otherwise entitled to such issuance,
delivery or payment has paid to the Corporation the amount of any such tax or has established, to
the satisfaction of the Corporation, that such tax has been paid or is not payable.
35
SECTION 23. Other Rights. The shares of Mandatory Convertible Preferred Stock shall not have
any rights, preferences, privileges or voting powers or relative, participating, optional or other
special rights, or qualifications, limitations or restrictions thereof, other than as set forth
herein or in these Amended Articles of Incorporation or as provided by applicable law.
36
Exhibit A
[FORM OF FACE OF MANDATORY CONVERTIBLE PREFERRED STOCK]
[INCLUDE FOR GLOBAL PREFERRED SHARES]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE CORPORATION OR THE TRANSFER AGENT NAMED ON
THE FACE OF THIS CERTIFICATE, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS
MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE STATEMENT WITH RESPECT TO SHARES. IN CONNECTION WITH ANY TRANSFER, THE HOLDER SHALL
DELIVER TO THE TRANSFER AGENT NAMED ON THE FACE OF THIS CERTIFICATE SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES
WITH THE FOREGOING RESTRICTIONS.
A-1
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Certificate Number [ ]
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[Initial] Number of Shares |
CUSIP No. 382550 309
ISIN No. US3825503093
THE GOODYEAR TIRE & RUBBER COMPANY
5.875% Mandatory Convertible Preferred Stock
(without par value)
(liquidation amount as specified below)
THE GOODYEAR TIRE & RUBBER COMPANY, an Ohio corporation (the Corporation), hereby
certifies that [___________] (the Holder), is the registered owner of [[ ] ([__________])][the number shown on Schedule I hereto of] fully paid and non-assessable
shares of the Corporations designated 5.875% Mandatory Convertible Preferred Stock, without par
value and with an initial liquidation preference of $50.00 per share (the Mandatory
Convertible Preferred Stock). The shares of Mandatory Convertible Preferred Stock are
transferable on the books and records of the Registrar, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for transfer. The
designations, rights, privileges, restrictions, preferences and other terms and provisions of the
Mandatory Convertible Preferred Stock represented hereby are and shall in all respects be subject
to the provisions of the Amended Articles of Incorporation of the Corporation, as amended from time
to time (the Articles of Incorporation). Capitalized terms used herein but not defined
shall have the meaning given them in the Articles of Incorporation. The Corporation shall provide
a copy of the Articles of Incorporation to any Holder without charge upon written request to the
Corporation at its principal place of business.
Reference is hereby made to select provisions of the Mandatory Convertible Preferred Stock set
forth on the reverse hereof, and to the Articles of Incorporation, which select provisions and the
Articles of Incorporation shall for all purposes have the same effect as if set forth at this
place.
Upon receipt of this executed certificate, the Holder is bound by the Articles of
Incorporation and is entitled to the benefits thereunder.
Unless the Registrar has properly countersigned this certificate, these shares of Mandatory
Convertible Preferred Stock shall not be entitled to any benefit under the Articles of
Incorporation or be valid or obligatory for any purpose.
A-2
IN WITNESS WHEREOF, this certificate has been executed on behalf of the Corporation by [_______],
the [_______] of the Corporation and by [_______], the [_______] of the Corporation, this [_______] of [_______]
[_______].
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THE GOODYEAR TIRE & RUBBER COMPANY
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By: |
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Name: |
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Title: |
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A-3
REGISTRARS COUNTERSIGNATURE
These are shares of Mandatory Convertible Preferred Stock referred to in the within-mentioned
Articles of Incorporation.
Dated: [_______], [_______]
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COMPUTERSHARE INVESTOR SERVICES,
as Registrar,
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A-4
[FORM OF REVERSE OF CERTIFICATE FOR MANDATORY CONVERTIBLE
PREFERRED STOCK]
Cumulative dividends on each share of Mandatory Convertible Preferred Stock shall be payable
at the applicable rate provided in the Articles of Incorporation
The shares of Mandatory Convertible Preferred Stock shall be convertible in the manner and
accordance with the terms set forth in the Articles of Incorporation.
The Corporation shall furnish without charge to each holder who so requests a summary of the
terms of the Mandatory Convertible Preferred Stock as well as of the authority of the board of
directors to determine variations for future series within a class of stock and the designations,
limitations, preferences and relative, participating, optional or other special rights of each
class or series of share capital issued by the Corporation and the qualifications, limitations or
restrictions of such preferences or rights.
A-5
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers the shares of Mandatory Convertible
Preferred Stock evidenced hereby to:
(Insert assignees social security or taxpayer identification number, if any)
(Insert address and zip code of assignee)
and irrevocably appoints:
as agent to transfer the shares of Mandatory Convertible Preferred Stock evidenced hereby on the
books of the Transfer Agent. The agent may substitute another to act for him or her.
Date:
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Signature: |
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(Sign exactly as your name appears on the other side of this Certificate) |
(Signature must be guaranteed by an eligible guarantor institution that is a bank,
stockbroker, savings and loan association or credit union meeting the requirements of the Transfer
Agent, which requirements include membership or participation in the Securities Transfer Agents
Medallion Program (STAMP) or such other signature guarantee program as may be
determined by the Transfer Agent in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.)
A-6
Schedule I1
The Goodyear Tire & Rubber Company
Global Preferred Share
5.875% Mandatory Convertible Preferred Stock
Certificate Number:
The number of shares of Mandatory Convertible Preferred Stock initially represented by this Global
Preferred Share shall be _____. Thereafter the Transfer Agent and Registrar shall note changes in
the number of shares of Mandatory Convertible Preferred Stock evidenced by this Global Preferred
Share in the table set forth below:
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Number of Shares |
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Amount of Decrease |
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Amount of Increase |
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Represented by this |
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in Number of Shares |
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in Number of Shares |
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Global Preferred |
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Signature of |
Represented by this |
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Represented by this |
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Share following |
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Authorized Officer |
Global Preferred |
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Global Preferred |
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of Transfer Agent |
Share |
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Share |
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Increase |
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and Registrar |
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Attach Schedule I only to Global Preferred Shares. |
A-7