NEITHER THIS
CONVERTIBLE PROMISSORY NOTE (THIS “NOTE”) NOR THE
SHARES INTO WHICH THIS NOTE IS CONVERTIBLE HAVE BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
“1933 ACT”), AND EXCEPT FOR ANY TRANSFERS SPECIFICALLY
AUTHORIZED UNDER THE TERMS OF THIS NOTE, NEITHER THIS NOTE NOR SUCH
SHARES MAY BE OFFERED, SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED ABSENT REGISTRATION THEREOF UNDER THE 1933 ACT OR
COMPLIANCE WITH RULE 144 OR RULE 144A PROMULGATED UNDER
THE 1933 ACT, OR UNLESS GAMCO INVESTORS, INC. HAS RECEIVED AN
OPINION OF COUNSEL, REASONABLY SATISFACTORY TO GAMCO INVESTORS,
INC., THAT SUCH REGISTRATION IS NOT REQUIRED. TRANSFER
OF THIS NOTE OR ANY INTEREST HEREIN IS ALSO SUBJECT TO RESTRICTIONS
UNDER THE TERMS HEREOF.
CONVERTIBLE PROMISSORY
NOTE
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$60,000,000.00
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Dated: October 2,
2008
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Rye, New
York
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FOR VALUE RECEIVED, the undersigned, GAMCO
INVESTORS, INC., a New York corporation (“ GAMCO
”), promises to pay to the order of CASCADE INVESTMENT,
L.L.C., a Washington limited liability company (“
Cascade ”), or its permitted registered assigns or at
such other place or places as the Holder (as defined below) may
designate in writing, on October 2, 2018 (the “ Stated
Maturity ”), the principal sum of SIXTY MILLION and
NO/100 DOLLARS ($60,000,000) minus the principal amount converted
or sold pursuant to the Put Option, the Change of Control Put
Option or the Fundamental Change Put Option (as each such term is
defined below) (such amount, as of any determination date, the
“ Unpaid Principal Amount ”) on or before
October 2, 2018, and to pay interest thereon from and including
October 2, 2008 (the “ Issue Date ”) or from the
most recent Interest Payment Date (as defined below) to which
interest has been paid or duly provided for, semi-annually on March
31 and September 30 in each year, commencing March 31, 2009, and at
Maturity (each, an “ Interest Payment Date ”) at
the rate of 6.5% per annum until the principal hereof is paid or
made available for payment; provided, however , that
(i) notwithstanding anything in this Note to the contrary the
amount payable to the Holder at Stated Maturity shall be reduced by
an amount equal to (A) the Teton Value (as defined below)
minus (B) the aggregate Teton Deductions (as defined below)
with respect to all prior exercises of the Put Option, the Change
of Control Put Option and the Fundamental Change Put Option (the
“ Teton Adjustment” ), (ii) upon the
occurrence and during the continuance of an Event of Default (as
defined below) this Note and (iii) any principal and any such
installment of interest which is overdue, in each case shall bear
interest at the rate of 15% per annum (or, if less, the maximum
interest rate permitted by the laws of the State of Washington or
any other applicable jurisdiction). The interest so
payable, and punctually paid or duly provided for, on any Interest
Payment Date will be paid to the Person in whose name this Note is
registered at the close of business on the day immediately prior to
such Interest Payment Date (whether or not a Business
Day). Payment of the principal of and interest on this
Note will be made in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
public and private debts.
Any payments in respect of this Note shall first
be applied to Enforcement Costs (as defined below), then to
interest and then to principal. If it is ever determined
that any rate of interest payable in respect of this Note exceeds
the maximum rate (if any) prescribed by applicable law, then any
portion of interest payments representing any amounts in excess of
said maximum shall be applied as provided in the preceding
sentence.
As used herein, “ Maturity ”
means the date on which the principal of this Note becomes due and
payable as provided herein, whether at its Stated Maturity, by
declaration of acceleration or otherwise, “ Holder
” means, at any time, the person in whose name this Note is
registered in the Note Register (as defined below) and “
Business Day ” means any day other than a Saturday, a
Sunday or any other day on which banking institutions in the
Borough of Manhattan, The City of New York are authorized or
required by law or executive order to be closed.
This Note was issued by GAMCO pursuant to that
certain Note Purchase Agreement, dated as of October 2, 2008 (the
“ Purchase Agreement ”), among GAMCO, Cascade
and the Gabelli Stockholders. Capitalized terms not
otherwise defined in this Note shall have the meaning set forth in
the Purchase Agreement, which definitions are incorporated
herein.
The Holder agrees to engage in good faith
discussions with the GAMCO regarding the possible subordination of
the Note in October 2009.
No
Redemption or Prepayment Prior to October 2,
2013
GAMCO agrees and acknowledges that the
conversion feature of this Note during the term of the Note is a
valuable right and that the Holder would not have purchased this
Note without assurances that the Note would not be called or
prepaid by GAMCO. Accordingly, GAMCO acknowledges and
agrees that prior to October 2, 2013 it shall not be entitled to
and will not, without the consent of the Holder, make any
prepayments of principal on this Note other than pursuant to an
acceleration of this Note or Forced Conversion (as hereinafter
defined), in each case as provided below. GAMCO may
redeem this Note in whole but not in part on any date on or after
October 2, 2013 (the “ Redemption Date ”) if
(i) at least 30 days’ prior to the Redemption Date,
GAMCO delivers to Holder a written notice stating that it intends
to effect such a redemption and specifying the Redemption Date,
(ii) on the Redemption Date, GAMCO delivers to Holder a
certificate, dated the Redemption Date, duly executed and delivered
by the chief executive officer of GAMCO certifying that, to the
best of his knowledge after reasonable investigation, neither he
nor GAMCO is then in possession of any non-public information
concerning GAMCO, any of its subsidiaries or any of their
businesses or operations which could reasonably be expected to have
a material positive effect on the market price (or, if no such
market price exists, the fair market value) of the Common Stock or
other consideration issuable upon conversion of the Note and
(iii) on the Redemption Date, GAMCO pays to Holder by wire
transfer of immediately available funds cash in an amount equal to
(A) (i) 101% of the Unpaid Principal Amount minus (ii) the Teton
Adjustment plus (B) all accrued but unpaid interest thereon to but
excluding the Redemption Date (the delivery of such notice and
certificate and the making of such payment are referred to herein
collectively as the “ Required Actions
”). If the market price of the Common Stock could
not reasonably be expected to exceed the then current Conversion
Price after disclosure of any non-public information concerning
GAMCO, any of its subsidiaries or any of their businesses of
operations, then such non-public information shall be conclusive
presumed not to have a material positive effect for purposes of the
immediately preceding sentence. This Note will be fully
discharged and cease to have any further legal force or effect if
and when GAMCO has fully performed all of the Required Actions on
the Redemption Date, and the Holder agrees to return this Note to
GAMCO promptly following such full performance.
Events of
Default
“ Event of Default ”,
wherever used with respect to this Note, means any one of the
following events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any Governmental
Authority):
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Payment
Default . GAMCO shall fail to pay or cause to
be paid all or any portion of the principal of or interest on this
Note when it becomes due and payable, and, in the event of failure
to pay interest on the Note, such failure continues for
10 days and time for payment has not been extended or deferred
by the Holder; or
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Escrow
Agreement Default . The Escrow Agent shall fail to
honor a request for disbursement of the funds under the Escrow
Agreement to Cascade, or GAMCO shall breach its obligations with
respect to the Escrow Agreement in Section 4.3 of the Purchase
Agreement, and such failure continues for 5 days and time for
payment has not been extended or deferred by the Holder.
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Put Option
Default . GAMCO shall fail to pay or cause to
be paid all or any portion of the Put Consideration when it becomes
due and payable, and such failure continues for 5 days and
time for payment has not been extended or deferred by the Holder;
or
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Change of
Control Put Option or Fundamental Change Put Option
Default . GAMCO shall fail to pay or cause to
be paid all or any portion of the Change of Control Put
Consideration or the Fundamental Change Put Consideration when it
becomes due and payable; or
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Breach of
Representation or Warranty . Any representation or warranty made
by GAMCO in the Purchase Agreement shall prove to have been untrue
or misleading when made in any respect that is material and adverse
to the value of the Holder’s investment in the Note or the
Conversion Shares; provided, however , that this shall
constitute an Event of Default only if Cascade or one of its
Affiliates (as defined below) is the Holder and if the Holder
accelerates this Note as provided below during the period in which
any such representation and warranty survives as provided in the
Purchase Agreement; or
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Breach of
Other Covenants or Failure of any Condition . GAMCO shall fail to perform, keep
or observe any agreement or covenant contained in this Note or the
Purchase Agreement that is not covered by clauses (a) through
(d) above, and any such failure shall remain unremedied for thirty
(30) days after written notice thereof shall have been given
to GAMCO by the Holder; provided, however , that if any such
failure is not susceptible to cure within 30 days and GAMCO
commences to cure such failure within said 30-day period, then no
Event of Default shall be deemed to have occurred if GAMCO
diligently prosecutes said cure thereafter to completion and cures
said failure by the sixtieth (60th) day after the date of said
notice; or
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Cross
Defaults (Payment and Other) . GAMCO or any of its Subsidiaries
that are at the time significant subsidiaries of GAMCO within the
meaning of Rule 1-02(w) of Regulation S-X promulgated by
the Securities and Exchange Commission (the “ SEC
”) as of the date of this Note (each, a “
Significant Subsidiary ”) shall be in default under
indebtedness for borrowed money with an aggregate principal amount
of twenty five million dollars ($25,000,000) or more to any person
or persons and such default (i) shall constitute a failure to
make any payment of or with respect to such indebtedness or
(ii) permits the holder thereof to accelerate the payment of
such indebtedness or otherwise causes such indebtedness to become
due and payable prior to its stated
maturity. Notwithstanding the foregoing, there shall not
be an Event of Default under this section (f) until expiration
of, without cure, any period for cure contained in any other
agreement regarding such indebtedness; or
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Judgments . A final judgment or final order
(not covered by insurance, treating deductibles, self-insurance and
retentions as not so covered) for the payment of money in excess of
twenty-five million dollars ($25,000,000) in the aggregate for all
such judgments and orders is entered by a court or courts of
competent jurisdiction against GAMCO or any of its Significant
Subsidiaries and shall not be paid or discharged, and there shall
be a period of 60 consecutive days after the final judgment or
order that causes such aggregate amount to exceed twenty-five
million dollars ($25,000,000) during which a stay of enforcement of
such final judgment or order is not in effect; or
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Involuntary
Bankruptcy Events . The entry by a court having
jurisdiction in the premises of a decree or order (A) for
relief in respect of GAMCO or any of its Significant Subsidiaries
(each, a “ Subject Entity ”) in an involuntary
case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or
(B) adjudging any Subject Entity bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of any
Subject Entity under any applicable Federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of any Subject Entity or of
any substantial part of any property of any Subject Entity, or
ordering the winding up or liquidation of the affairs of any
Subject Entity, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days;
or
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Voluntary
Bankruptcy Events . Any Subject Entity commences a
voluntary case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or of
any other case or proceeding to be adjudicated as bankrupt or
insolvent, or the consent by any Subject Entity to the entry of a
decree or order for relief in respect of it in an involuntary case
or proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding
against it, or the filing by any Subject Entity of a petition or
answer or consent seeking reorganization or relief under any
applicable Federal or state law, or the consent by any Subject
Entity to the filing of such a petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of such Subject
Entity or of any substantial part of such Subject Entity’s
property, or the making by any Subject Entity of an assignment for
the benefit of creditors, or the admission by any Subject Entity in
writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by any Subject Entity in
furtherance of any such action.
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If an Event of Default (other than an Event of
Default specified in clause (i) or (j) above with respect to
GAMCO) occurs and is continuing, the Holder may declare (A) (i) the
Unpaid Principal Amount of this Note minus (ii) the Teton
Adjustment and (B) all accrued and unpaid interest hereon to be
immediately due and payable. If an Event of Default
specified in clause (i) or (j) above occurs with respect to
GAMCO, the Unpaid Principal Amount of the Note and all accrued and
unpaid interest hereon shall automatically become and be
immediately due and payable without any declaration or other act on
the part of the Holder or any other Person.
Conversion Rights
The Holder shall have the right to convert this
Note as provided in Exhibit A hereto, which Exhibit
shall be incorporated by reference herein.
If the Closing Price (as hereinafter defined) of
the Common Stock is at least 125%, 150%, 175% or 200%, as the case
may be, of the Conversion Price (as hereinafter defined) on each
Trading Day (as hereinafter defined) during any period of
20 consecutive Trading Days (each, a “ Qualified
Trading Period ”) occurring within any six month period
beginning on the Exercise Date (as hereinafter defined) or any six
month anniversary thereof and ending on the next six month
anniversary of the Exercise Date (each, a “ Six Month
Period ”), then on any date on or after the tenth
Business Day following the last trading day of any such Qualified
Trading Period during such Six Month Period (each a “
Conversion Date ”) GAMCO may convert any portion of
the Unpaid Principal Amount which, together with the aggregate
principal amount of this Note that has been converted by the Holder
on or prior to such Conversion Date or by GAMCO pursuant to this
provision with respect to such Six Month Period, does not exceed
the Maximum Conversion Amount (as defined below) with respect to
such Six Month Period, into fully paid and nonassessable shares of
Common Stock (calculated as to each conversion to the nearest full
share of Common Stock) at the Conversion Price in effect on the
applicable Conversion Date by delivering written notice to that
effect to the Holder on or prior to such Conversion Date;
provided, however , that notwithstanding the
foregoing to the extent that any prior conversions by the Holder
prevented GAMCO from converting the full Maximum Conversion Amount
with respect to any Six Month Period and GAMCO caused the
conversion of all of the Unpaid Principal Amount that it was
permitted to convert with respect to such Six Month Period, then to
such extent such prior conversions by the Holder shall not be taken
into account in calculating the Unpaid Principal Amount that GAMCO
is entitled to convert in any subsequent Six Month Period pursuant
to the foregoing provisions. After any conversion
pursuant to the foregoing, the Holder shall have the right and
option (the “ Share Put Option ”), but not the
obligation, exercisable by delivering a written notice (the “
Share Put Notice ”) to GAMCO no later than the tenth
day after the Conversion Date, to cause GAMCO to purchase up to 50%
of the Conversion Shares issued in such conversion (the “
Forced Conversion Shares ”) for a purchase price per
share in cash equal to the average of the Closing Prices for the
five Trading Days immediately following the date on which the Share
Put Notice is delivered to GAMCO (the “ Share Put
Consideration ”). The closing of any Share Put
Option will be held at 10:00 A.M. at the principal executive
offices of the Holder on the later of the ninth Trading Day
immediately following the date on which the Share Put Notice is
delivered to GAMCO or the first day on which all regulatory
approvals and requirements applicable to such closing shall have
been obtained or satisfied, or at such other time and place upon
which the Holder and GAMCO shall agree. At such closing,
GAMCO shall pay the Share Put Consideration to the Holder in cash
by wire transfer of immediately available funds against the
delivery to GAMCO of a certificate representing the Forced
Conversion Shares with respect to which the Share Put Option has
been exercised, duly endorsed to GAMCO or in blank, and
concurrently with such delivery GAMCO shall, or shall cause the
applicable transfer agent for such shares to, duly execute and
deliver to the Holder a new share certificate representing the
number of Forced Conversion Shares with respect to which the Share
Put Option has not been exercised.
The “ Maximum Conversion Amount
” means, with respect to any Six Month Period,
(i) $15 million, if the Closing Price during each of the
20 consecutive Trading Days during the first Qualified Trading
Period in such Six Month Period with respect to which GAMCO has
effected a conversion pursuant to the foregoing provisions (the
“ Qualified Trading Price ”) is at least 125%
but less than 150% of the Conversion Price,
(ii) $30 million, if the Qualified Trading Price is at
least 150% but less than 175% of the Conversion Price,
(iii) $45 million, if the Qualified Trading Price is at
least 175% but less than 200% of the Conversion Price, or
(iv) $60 million, if the Qualified Trading Price is at
least 200% of the Conversion Price.
Except as otherwise provided above, any
conversion pursuant to the foregoing clauses (each, a “
Forced Conversion ”) shall be made in accordance with
the provisions of Exhibit A . If GAMCO
effects a Forced Conversion, then on such Conversion Date the
Holder shall surrender the Note at the principal executive offices
of GAMCO (which, if GAMCO shall so require, shall be duly endorsed
to GAMCO or in blank, or be accompanied by proper instruments of
transfer to GAMCO or in blank), accompanied by irrevocable written
notice to GAMCO specifying the name or names (with address or
addresses) in which a certificate or certificates evidencing the
full number of shares of Common Stock issuable upon such conversion
are to be issued and GAMCO shall deliver such certificate or
certificates registered in the name(s) and in the denominations set
forth in such instructions, together with a cash adjustment in
respect of any fraction of a share of Common Stock and, if less
than all of the Unpaid Principal Amount is being converted, a new
Note of like tenor with an Unpaid Principal Amount equal to the
portion not being converted. Any such conversion shall
be deemed to have been made as of the applicable Conversion Date,
and the person or persons entitled to receive the Common Stock
deliverable upon conversion of this Note shall be treated for all
purposes as the record holder or holders of such Common Stock on
such date.
Put
Option
The Holder shall have the right and option, but
not the obligation, to cause GAMCO to purchase all or any portion
of the Unpaid Principal Amount of this Note (the “ Put
Option ”) on October 2, 2009 (the “ Exercise
Date ”) for a purchase price in cash (the “ Put
Consideration ”) equal to (i) 100% of the principal
amount of the Note to be purchased plus accrued and unpaid interest
thereon to but excluding the Exercise Date minus (ii) the
Teton Deduction (as defined below). The Put Consideration shall be
payable to the Holder by wire transfer of immediately available
funds on the Exercise Date against the delivery to GAMCO of this
Note duly endorsed to it or in blank; provided,
however , that if only a portion of the principal amount of
this Note is being purchased, then concurrently with such delivery
GAMCO shall duly execute and deliver to the Holder a new Note of
the same tenor as this Note but with a principal amount equal to
the principal amount of this Note not being
purchased. In order to exercise the Put Option, the
Holder must deliver a written notice of its election to exercise to
GAMCO at least 30 days prior to the Exercise
Date. Notwithstanding the foregoing, if the Holder has
not delivered written notice of its election to exercise the Put
Option in whole, the Holder may change the Exercise Date to October
2, 2010 by delivering a written notice of such change to GAMCO at
least 30 days prior to October 2, 2009 and from and after the
delivery of such written notice the Exercise Date shall be deemed
to be October 2, 2010 for all purposes of this Note. The closing of
any exercise of the Put Option will be held at 10:00 A.M. at
the principal executive offices of the Holder on the Exercise Date,
or at such other time and place upon which the Holder and GAMCO
shall agree.
“ Teton Deduction ”
shall mean, with respect to any exercise of the Put Option, the
Change of Control Put Option or Fundamental Change Put Option, the
product of (i) the Teton Value and (ii) a fraction the numerator of
which shall be the principal amount of the Note to be purchased
pursuant to such exercise and the denominator of which shall be
$60,000,000.
Change of
Control Put Option
If a Change of Control or a Key Executive Change
occurs at any time, the Holder shall have the right and option, but
not the obligation, to cause GAMCO to purchase on the Change of
Control Exercise Date (as defined below) all or any portion of the
Unpaid Principal Amount of this Note (the “ Change of
Control Put Option ”) for a purchase price in cash (the
“ Change of Control Put Consideration ”) equal
to (i) 101% of the principal amount of the Note to be purchased
plus accrued and unpaid interest thereon to but excluding the
Change of Control Exercise Date minus (ii) the Teton
Deduction. The Change of Control Put Consideration shall
be payable to the Holder by wire transfer of immediately available
funds on the Change of Control Exercise Date against the delivery
to GAMCO of this Note duly endorsed to it or in blank; provided,
however , that if only a portion of the principal amount of
this Note is being purchased, then concurrently with such delivery
GAMCO shall duly execute and deliver to the Holder a new Note of
the same tenor as this Note but with a principal amount equal to
the principal amount of this Note not being
purchased. GAMCO shall give the Holder prompt written
notice if a Change of Control or a Key Executive Change occurs (a
“ Notice ”). In order to exercise the
Change of Control Put Option with respect to any Change of Control
or Key Executive Change, the Holder must deliver a written notice
of its election to exercise to GAMCO within 30 days after it
has received the Notice relating thereto and the closing of any
exercise of the Change of Control Put Option will be held at 10:00
A.M. at the principal executive offices of the Holder on the
30 th
day after GAMCO receives such
written notice, or at such other time and place upon which the
Holder and GAMCO shall agree (the “ Change of Control
Exercise Date ”).
“ Change of Control ” means
the occurrence of any of the following: (i) the
sale, lease, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or more related
transactions, of all or substantially all of the properties and
assets of GAMCO and its Subsidiaries, taken as a whole, to any
Person or group (as such term is defined for purposes of
Rule 13d-5 under the Securities Exchange Act of 1934, as
amended (the “ 1934 Act ”) or any successor
rule), (ii) the adoption of a plan relating to the liquidation
or dissolution of GAMCO, (iii) the consummation of any
transaction or other event (including, without limitation, any
merger or consolidation) the result of which is that any
“person” (as defined above), other than Mario J.
Gabelli and the Gabelli Entities (considered as a single Person
solely for this purpose), becomes the “beneficial
owner” (as such term is defined in Rule 13d-3 and
Rule 13d-5 under the 1934 Act), directly or indirectly, of
more than 40% of the total voting power of all the then outstanding
shares of Voting Stock of GAMCO or any Person with which GAMCO
consolidates or into which GAMCO merges, and more of the total
voting power of all such shares than is beneficially owned at such
time by Mario J. Gabelli and the Gabelli Entities (considered
as a single Person solely for this purpose), or (iv) the first
day on which a majority of the members of the Board of Directors of
GAMCO are not Continuing Directors.
“ Continuing Directors ”
means, as of any date of determination, any member of the Board of
Directors of GAMCO who (i) was a member of such Board of
Directors on the Issue Date or (ii) was nominated for election
or elected to such Board of Directors with the approval,
recommendation or endorsement of a majority of the Continuing
Directors who were members of such Board of Directors at the time
of such nomination or election.
“ Key Executive Change ”
shall be deemed to have occurred at any time that (for any reason)
Mario J. Gabelli ceases to provide the predominant executive
leadership to GAMCO and its Subsidiaries, taken as a
whole.
Fundamental Change Put Option
If a Fundamental Change (as defined below)
occurs prior to October 2, 2013, then the Holder shall have the
right and option, but not the obligation, to cause GAMCO to
purchase on the Fundamental Change Exercise Date (as defined below)
all or any portion of the Unpaid Principal Amount of this Note (the
“ Fundamental Change Option ”) for a purchase
price in cash (the “ Fundamental Change Put
Consideration ”) equal to (i) the Fundamental Change
Value (as defined below) of the principal amount of this Note to be
purchased plus accrued and unpaid interest thereon to but excluding
the Fundamental Change Exercise Date minus (ii) the Teton
Deduction. The Fundamental Change Put Consideration shall be
payable to the Holder by wire transfer of immediately available
funds on the Fundamental Change Exercise Date against the delivery
to GAMCO of this Note duly endorsed to it or in blank; provided,
however, that if only a portion of the principal amount of this
Note is being purchased, then concurrently with such delivery GAMCO
shall duly execute and deliver to the Holder a new Note of the same
tenor as this Note but with a principal amount equal to the
principal amount of this Note not being purchased. GAMCO shall give
the Holder prompt written notice if a Fundamental Change occurs (a
“ Fundamental Change Notice ”). In order to
exercise the Fundamental Change Put Option with respect to any
Fundamental Change, the Holder must deliver a written notice of its
election to exercise to GAMCO within 30 days after it has received
the Fundamental Change Notice relating thereto and the closing of
any exercise of such Fundamental Change Option will be held at
10:00 A.M. at the principal executive offices of the Holder on the
30th day after GAMCO receives such written notice, or at such other
time and place upon which the Holder and GAMCO shall agree (the
“ Fundamental Change Exercise Date ”). If the
Holder does not exercise the Fundamental Change Put Option, this
Note shall remain outstanding as adjusted pursuant to the
provisions of Section 6 of Exhibit A to this Note.
“ Fundamental Change ” means
(i) the occurrence of any of the events described in clauses (i),
(ii) or (iii) of the definition of Change of Control, (ii) any
recapitalization, reclassification or other transaction in which
all or substantially all of the Common Stock is converted into, or
exchanged for cash, securities or other property and (iii) any
merger or consolidation of GAMCO with or into any other Person or
other than any such merger or consolidation (a) pursuant to which
the holders of 50% or more of the total voting power of all of the
shares of capital stock of GAMCO entitled to vote generally in
elections of directors immediately prior to such transaction have
the right to exercise, directly or indirectly, 50% or more of the
total voting power of all shares of capital stock entitled to vote
generally in the election of directors of the continuing or
surviving corporation immediately after such transaction, (b) that
does not result in a reclassification, conversion, exchange or
cancellation of the Common Stock, (c) which is effected solely to
change our jurisdiction of incorporation and results in a
reclassification, conversion or exchange of the Common Stock solely
into shares of common stock of the surviving entity, or (d) in
which more of the 90% or more of the consideration payable for the
Common Stock (excluding cash payments for fractional shares and
cash payments made pursuant to dissenters’ appraisal rights)
in such transaction consists of shares of common stock or American
Depositary Receipts in respect of shares of common stock that are
listed and publicly traded on any of The New York Stock Exchange,
the NASDAQ Global Market or the NASDAQ Global Select Market (or any
of their respective successors) or that will be so traded or quoted
immediately f
