Exhibit (4)
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS
A WHOLE BY THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO A
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC TO XXXXXXX XXXXX & CO., INC. OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF 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 INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
No. R- 3,100,000 Units
CUSIP 590188 637 (Each Unit representing $10
principal amount of Securities)
XXXXXXX XXXXX & CO., INC.
Oracle Corporation Indexed
Callable Protected Growth-SM- Securities
due March 31, 2003
("ProGroS-SM- Securities")
Xxxxxxx Xxxxx & Co., Inc., a Delaware corporation (hereinafter referred to
as the "Company", which term includes any successor corporation under the
Indenture herein referred to), for value received, hereby promises to pay to
CEDE & CO., or registered assigns, the principal sum of THIRTY-ONE MILLION
DOLLARS ($31,000,000) (the "Principal Amount") plus the Supplemental Redemption
Amount, as defined below, on March 31, 2003 (the "Stated Maturity").
Payment of the Principal Amount and the Supplemental Redemption Amount and
any interest on any overdue amount thereof with respect to this Security shall
be made at the office or agency of the Company maintained for that purpose in
the Borough of Manhattan, The City of New York, 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.
This Security is one of the series of Oracle Corporation Indexed Callable
Protected Growth-SM- Securities due March 31,
2003.
---------------
-SM-"Protected Growth" and "ProGroS" are service marks of Xxxxxxx Xxxxx & Co.,
Inc.
SUPPLEMENTAL REDEMPTION AMOUNT
The "Supplemental Redemption Amount" with respect to this Security shall be
determined by Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated (the
"Calculation Agent", which term includes any successor thereto) equals:
Principal Amount X (ENDING VALUE - STARTING VALUE)
-----------------------------
Starting Value
PROVIDED, HOWEVER, that in no event will the Supplemental Redemption Amount be
less than zero. The "Starting Value" equals $29.1875. The "Ending Value" will
be determined by the Calculation Agent and will equal the average (arithmetic
mean) of the Last Prices as defined herein of the common stock of Oracle
Corporation (the "Underlying Stock") determined on each of the first five
Calculation Days during the Calculation Period. If there are fewer than five
Calculation Days in the Calculation Period, then the Ending Value will equal the
average (arithmetic mean) of the Last Prices of the Underlying Stock on such
Calculation Days, and if there is only one Calculation Day, then the Ending
Value will equal the Last Price of the Underlying Stock on such Calculation Day.
If no Calculation Days occur during the Calculation Period because of Market
Disruption Events as defined below, then the Ending Value will equal the Last
Price of the Underlying Stock determined on the last scheduled Calculation Day
in the Calculation Period, regardless of the occurrence of a Market Disruption
Event on such day.
The "Calculation Period" means the period from and including the seventh
scheduled Calculation Day prior to the Stated Maturity to and including the
second scheduled Calculation Day prior to the Stated Maturity.
"Calculation Day" means any Trading Day during the Calculation Period on
which a Market Disruption Event has not occurred. "Trading Day" is a day on
which the Underlying Stock (A) is not suspended from trading on any national or
regional securities exchange or association or over-the-counter market at the
close of business and (B) has traded at least once on a national or regional
securities exchange or association or over-the-counter market that is the
primary market for the trading of the Underlying Stock.
"Last Price" means the last sales price of the Underlying Stock as reported
by the National Association of Securities Dealers, Inc. Automated Quotation
System (the "NASDAQ NMS") or, if such security is not trading on the NASDAQ NMS
on any such date, as reported in the composite transactions for the principal
United States securities exchange on which such security is so
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listed, or if such security is not so listed on a United States national or
regional securities exchange, the last quoted bid price for such security in the
over-the-counter market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the market value of such
security on such date as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Calculation Agent.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in The City of New York are
authorized or obligated by law to close and that is a trading day on the New
York Stock Exchange.
All determinations made by the Calculation Agent shall be at the sole
discretion of the Calculation Agent and, absent a determination by the
Calculation Agent of a manifest error, shall be conclusive for all purposes and
binding on the Company and beneficial owners of the Securities.
MARKET DISRUPTION EVENT
"Market Disruption Event" means the occurrence or existence on any Trading
Day during the one-half hour period that ends when the Last Price is determined
of any suspension of, or limitation imposed on, trading in the Underlying Stock
on the NASDAQ NMS (or other market or exchange, if applicable).
EARLY CALL
The Company, in its sole discretion, may elect to call this Security, in
whole, but not in part, prior to the Stated Maturity by giving notice to the
Trustee of the Company's election on any Business Day within the month of April
in 1999, 2000, 2001 or 2002 (each such month, a "Call Period") at the related
Call Price (each such price, a "Call Price") as set forth below:
CALL PERIOD CALL PRICE
----------- ----------
April, 1999 116% of Principal Amount
April, 2000 132% of Principal Amount
April, 2001 148% of Principal Amount
April, 2002 164% of Principal Amount
The Company may elect to call the Securities on any Business Day during a
Call Period by giving notice to the Trustee and specifying the date on which the
Call Price shall be paid (the "Call Date"). The Call Date shall be no later
than the 20th Business Day after such call election. The Trustee will provide
notice of such call election to the Holder hereof, specifying the Call Date, no
later than 15, nor more than 30, days prior to the Call Date.
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DILUTION ADJUSTMENTS
The Last Prices used to determine the Ending Value are subject to
adjustment if Oracle Corporation shall: (i) pay a stock dividend or make a
distribution with respect to the Underlying Stock in shares of such stock; (ii)
subdivide or split the outstanding shares of the Underlying Stock into a greater
number of shares; (iii) combine the outstanding shares of the Underlying Stock
into a smaller number of shares; (iv) issue by reclassification of shares of the
Underlying Stock any shares of common stock of Oracle Corporation; (v) issue
rights or warrants to all holders of the Underlying Stock entitling them to
subscribe for or purchase shares of the Underlying Stock at a price per share
less than the then current market price of the Underlying Stock (other than
rights to purchase the Underlying Stock pursuant to a plan for the reinvestment
of dividends or interest); or (vi) pay a dividend or make a distribution to all
holders of the Underlying Stock of evidences of its indebtedness or other assets
(excluding any stock dividends or distributions referred to in clause (i) above
or any cash dividends other than any Extraordinary Cash Dividend (as defined
below)) or issue to all holders of the Underlying Stock rights or warrants to
subscribe for or purchase any of its securities (other than those referred to in
clause (v) above) (any of the foregoing are referred to as the "Distributed
Assets"). There will not be any adjustments to the Ending Value for the issuance
by Oracle Corporation of options, warrants, stock purchase rights or securities
in connection with the employee benefit plans of Oracle Corporation.
All adjustments will be calculated to the nearest 1/10,000th of a share of
the Underlying Stock (or if there is not a nearest 1/10,000th of a share to the
next lower 1/10,000th of a share). No adjustment shall be required unless such
adjustment would require an increase or decrease of at least one percent in the
Last Price; PROVIDED, HOWEVER, that any adjustments which by reason of the
foregoing are not required to be made shall be carried forward and taken into
account in any subsequent adjustment.
(a) In the event of payment of a stock dividend or in the event of
distributions, subdivisions, splits, combinations or reclassification (as
described in clauses (i) through (iv) above), the Last Price shall be adjusted
by multiplying the Last Price by a fraction, the numerator of which shall be the
number of shares of the Underlying Stock (or, in the case of a reclassification
referred to in clause (iv) above, the number of shares of other common stock of
Oracle Corporation issued pursuant thereto) held by a holder of one share of the
Underlying Stock on the record date with respect to such event immediately
following any event described above and the denominator of which shall be one
share of the Underlying Stock. Each such adjustment shall become effective at
the opening of business on the Business Day next following the record date and
shall become effective
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immediately after the effective date in the case of a subdivision, split,
combination or reclassification. Each such adjustment shall be made
successively.
(b) In the event of the issuance of certain rights or warrants (as
described in clause (v) above), if Oracle Corporation shall issue rights or
warrants to all holders of the Underlying Stock entitling them to subscribe for
or purchase shares of the Underlying Stock (other than rights to purchase the
Underlying Stock pursuant to a plan for the reinvestment of dividends or
interest) at a price per share less than the then current market price of the
Underlying Stock, then in each case the Last Price shall be adjusted by
multiplying the Last Price by a fraction, the numerator of which shall be the
number of shares of the Underlying Stock outstanding on the date of issuance of
such rights or warrants, immediately prior to such issuance, plus the number of
additional shares of the Underlying Stock offered for subscription or purchase
pursuant to such rights or warrants, and the denominator of which shall be the
number of shares of the Underlying Stock outstanding on the date of issuance of
such rights or warrants, immediately prior to such issuance, plus the number of
additional shares of the Underlying Stock which the aggregate offering price of
the total number of shares of the Underlying Stock so offered for subscription
or purchase pursuant to such rights or warrants would purchase at such current
market price, which shall be determined by multiplying such total number of
shares by the exercise price of such rights or warrants and dividing the product
so obtained by such current market price. Such adjustment shall become
effective at the opening of business on the Business Day next following the
record date for determination of stockholders entitled to receive such rights or
warrants. To the extent that shares of the Underlying Stock are not delivered
on all such rights or warrants after the expiration of such rights or warrants,
the Last Price shall be adjusted by instead multiplying the Last Price as
described above by a fraction calculated assuming the issuance of such rights or
warrants had been made upon the basis of delivery of only the number of shares
of the Underlying Stock actually delivered. Each such adjustment shall be made
successively. For purposes of this paragraph, the term "current market price"
shall mean the average Last Price (as defined below) per share of the Underlying
Stock on the 20 Trading Days immediately prior to the date such rights or
warrants are issued; PROVIDED, HOWEVER, if any event that would result in
another adjustment of the Last Price pursuant to this section occurs during such
20-day period, the current market price as determined pursuant to the foregoing
shall be appropriately adjusted to reflect the occurrence of such event.
(c) In the event of distributions (as described in clause (vi) above), if
Oracle Corporation shall pay a dividend or make a distribution to all holders of
the Underlying Stock of evidences of its indebtedness or other assets (excluding
any stock dividends or distributions referred to in paragraph (a) above or
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any cash dividends that do not constitute Extraordinary Cash Dividends) or shall
issue to all holders of the Underlying Stock rights or warrants to subscribe for
or purchase any of its securities (excluding any rights to purchase shares of
the Underlying Stock pursuant to a plan for the reinvestment of dividends or
interest and any rights or warrants referred to in paragraph (b) above), then in
each such case, the Last Price shall be adjusted by multiplying the Last Price
on the record date referred to below by a fraction, the numerator of which shall
be the market price per share of the Underlying Stock on the record date for the
determination of stockholders entitled to receive such dividend or distribution
or such rights or warrants, and the denominator of which shall be such market
price per share of the Underlying Stock less the fair market value (as
determined by the Calculation Agent, whose determination shall be conclusive) as
of such record date of the portion of the assets or evidences of indebtedness to
be distributed or of such subscription rights or warrants applicable to one
share of the Underlying Stock. Each such adjustment shall become effective at
the opening of business on the Business Day next following the record date for
the determination of stockholders entitled to receive such dividend or
distribution or such rights or warrants. Each such adjustment shall be made
successively. For purposes of this paragraph (c), the term "market price" shall
mean the average Last Price per share of the Underlying Stock on the 20 Trading
Days immediately prior to such record date for the determination of stockholders
entitled to receive such dividend or distribution or such rights or warrants;
PROVIDED, HOWEVER, if any event that would result in another adjustment of the
Last Price pursuant to this section occurs during such 20-day period, the market
price as determined pursuant to the foregoing shall be appropriately adjusted to
reflect the occurrence of such event.
(d) Any shares of the Underlying Stock issuable in payment of a dividend
shall be deemed to have been issued immediately prior to the close of business
on the record date for such dividend for purposes of calculating the number of
outstanding shares of the Underlying Stock under (b) above.
An "Extraordinary Cash Dividend" means, with respect to any consecutive 12-
month period, all cash dividends on the Underlying Stock during such period to
the extent such dividends exceed on a per share basis 10% of the average Last
Price of the Underlying Stock on the NASDAQ NMS over such period (less any such
dividends for which a prior adjustment was previously made).
In the event of (A) any consolidation or merger of Oracle Corporation, or
any surviving entity or subsequent surviving entity of Oracle Corporation (a
"Successor Company"), with or into another entity (other than a merger or
consolidation in which Oracle Corporation is the continuing corporation and in
which the Underlying Stock outstanding immediately prior to the merger or
consolidation is not exchanged for cash, securities or other property of Oracle
Corporation or another corporation), (B)
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any sale, transfer, lease or conveyance to another corporation of the property
of Oracle Corporation or any Successor Company as an entirety or substantially
as an entirety, (C) any statutory exchange of securities of Oracle Corporation
or any Successor Company with another corporation (other than in connection with
a merger or acquisition) or (D) any liquidation, dissolution, winding up or
bankruptcy of Oracle Corporation or any Successor Company (any such event
described in clause (A), (B), (C) or (D), a "Reorganization Event"), the Ending
Value shall equal the Reorganization Event Value. The "Reorganization Event
Value" shall be determined by the Calculation Agent and shall equal (i) the
Transaction Value related to the relevant Reorganization Event, plus (ii)
interest on such Transaction Value accruing from the date of the payment or
delivery of the consideration, if any, received in connection with such
Reorganization Event until the Stated Maturity at a fixed interest rate
determined on the date of such payment or delivery equal to the interest rate
that would be paid on a standard senior non-callable debt security of the
Company with a term equal to the remaining term of the Securities. The
"Transaction Value" means (i) for any cash received in any such Reorganization
Event, the amount of cash received per share of Underlying Stock, (ii) for any
property other than cash or securities received in any such Reorganization
Event, an amount equal to the market value of such property received per share
on the date that such property is received by holders of the Underlying Stock as
determined by the Calculation Agent, and (iii) for any securities received in
any such Reorganization Event, an amount equal to the Last Price per unit of
such securities on the date such securities are received by holders of the
Underlying Stock multiplied by the number of such securities received for each
share of the Underlying Stock (subject to adjustment on a basis consistent with
the adjustment provisions described above).
The foregoing adjustments shall be made by the Calculation Agent, and all
such adjustments shall be final.
No adjustments will be made for certain other events, such as offerings of
the Underlying Stock by Oracle Corporation for cash or in connection with
acquisitions.
The Company will, within ten Business Days following the occurrence of an
event that requires an adjustment (or if the Company is not aware of such
occurrence, as soon as practicable after becoming so aware), provide written
notice to the Trustee, which shall provide such notice to the Holders of the
Securities, of the occurrence of such event and, if applicable, a statement in
reasonable detail setting forth the adjusted Last Price to be used in
determining the Ending Value, once such value is determined.
GENERAL
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This Security is one of a duly authorized issue of securities of the
Company, issued and to be issued under an Indenture, dated as of April 1, 1983,
as amended and restated (herein referred to as the "Indenture"), between the
Company and The Chase Manhattan Bank as Trustee (herein referred to as the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights thereunder of the Company, the Trustee
and the Holders of the Securities, and the terms upon which the Securities are,
and are to be, authenticated and delivered.
The Company hereby covenants for the benefit of the Holders of the
Securities, to the extent permitted by applicable law, not to claim voluntarily
the benefits of any laws concerning usurious rates of interest against a Holder
of the Securities.
Upon the occurrence of an Event of Default with respect to the Securities,
the Trustee or the Holders of the Securities may accelerate the maturity of the
Securities in the manner and with the effect provided in the Indenture. The
amount payable to a Holder of this Security upon any acceleration permitted by
the Securities, with respect to each $10 principal amount thereof, will be equal
to: (i) $10, plus (ii) an additional amount of contingent interest calculated as
though the date of early repayment were the Stated Maturity of the Securities.
In case of default in payment at the maturity date of the Securities
(whether at their Stated Maturity or the Call Date or upon acceleration), from
and after the maturity date the Securities shall bear interest, payable upon
demand of the beneficial owners thereof, at the rate of 5.96% per annum (to the
extent that payment of such interest shall be legally enforceable) on the unpaid
amount due and payable on such date in accordance with the terms of the
Securities to the date payment of such amount has been made or duly provided
for. Interest on any overdue Principal Amount or Supplemental Redemption
Amount, as the case may be, shall be payable on demand.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than 66 2/3% in aggregate principal amount of
the Securities at the time Outstanding, as defined in the Indenture, of each
series affected thereby. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Securities
of each series at the time Outstanding, on behalf of the Holders of all
Securities of each series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall
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be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the Principal Amount plus the Supplemental
Redemption Amount with respect to this Security and any interest on any overdue
amount thereof at the time, place, and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations set forth
therein and on the first page hereof, the transfer of this Security may be
registered on the Security Register of the Company, upon surrender of this
Security for registration of transfer at the office or agency of the Company in
the Borough of Manhattan, The City of New York, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company duly
executed by, the Holder hereof or by his attorney duly authorized in writing,
and thereupon one or more new Securities, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated transferee
or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $10 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations set forth therein and on the first
page hereof, the Securities are exchangeable for a like aggregate principal
amount of Securities in authorized denominations, as requested by the Holder
surrendering the same. If (x) any Depository is at any time unwilling or unable
to continue as Depository and a successor depositary is not appointed by the
Company within 60 days, (y) the Company executes and delivers to the Trustee a
Company Order to the effect that this Security shall be exchangeable or (z) an
Event of Default has occurred and is continuing with respect to the Securities,
this Security shall be exchangeable for Securities in definitive form of like
tenor and of an equal aggregate principal amount, in denominations of $10 and
integral multiples thereof. Such definitive Securities shall be registered in
such name or names as the Depository shall instruct the Trustee. If definitive
Securities are so delivered, the Company may make such changes to the form of
this Security as are necessary or appropriate to allow for the issuance of such
definitive Securities.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or governmental charge payable in connection therewith.
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Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture but not
in this Security shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by The
Chase Manhattan Bank, the Trustee under the Indenture, or its successor
thereunder, by the manual signature of one of its authorized officers, this
Security shall not be entitled to any benefits under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: March 19, 1998
CERTIFICATE OF AUTHENTICATION Xxxxxxx Xxxxx & Co., Inc.
This is one of the Securities of the series [Copy of Seal]
designated therein referred to in the
within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee By:
Treasurer
By: Attest:
Authorized Officer Secretary
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