EXHIBIT 4
FORM OF NOTE
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE
THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TRUST COMPANY (THE "DEPOSITORY") TO A NOMINEE OF THE DEPOSITORY
OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS GLOBAL NOTE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PRINCIPAL AMOUNT:
REGISTERED No.: R- CUSIP No.: $
XXXXXXX XXXXX & CO., INC.
Medium-Term Notes, Series C
Fixed Rate Capped Appreciation Notes
Linked to the Performance of an Equity Basket
(the "Notes")
BASKET:
Comprised of common stock (each, a "Component Stock") of (each, an
"Underlying Company").
The Calculation Agent shall calculate the value of the Basket by summing the
products of the Closing Market Price (as defined below) of each Component
Stock on the Valuation Date (as defined below) and the Multiplier specified
below applicable to each Component Stock, which may be subject to adjustment
as described under "Multiplier Adjustments" below.
Component Stock Multiplier
----------------------------- --------------
ORIGINAL ISSUE DATE: STATED MATURITY: PAYMENT FACTOR:
VALUATION DATE: CAPPED VALUE: STARTING VALUE:
1
INTEREST RATE: INTEREST PAYMENT DATE: DENOMINATIONS:
% per annum Integral multiples of $
(each a Unit)
(unless otherwise specified)
CALCULATION AGENT: SPECIFIED CURRENCY:
Xxxxxxx Xxxxx, Xxxxxx, United States dollar
Xxxxxx & Xxxxx Incorporated (unless otherwise specified)
(unless otherwise specified)
2
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 its registered assigns, on the Stated Maturity, the Redemption
Amount (as defined below) and to pay interest in arrears at the Interest Rate
on the Principal Amount of this Note on each Interest Payment Date and at the
Stated Maturity.
Payment or delivery of the Redemption Amount, interest and any interest
on any overdue amount thereof with respect to this Global Note 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.
Payment at Stated Maturity
At the Stated Maturity, for each Unit of the Notes a Holder shall
receive, in addition to any accrued and unpaid interest, a cash payment equal
to the Redemption Amount. The "Redemption Amount" shall be determined by the
Calculation Agent and shall equal:
Payment Factor x Ending Value
provided, however, the Redemption Amount shall not exceed the Capped
Value.
The "Ending Value" shall equal the value of the Basket (as defined below)
on the Valuation Date.
If the Valuation Date is not a Basket Business Day, the next Basket
Business Day shall be the Valuation Date, provided that if a Basket Business
Day does not occur by the third succeeding scheduled Basket Business Day, the
Calculation Agent shall determine the Ending Value on that date in a manner
that, in its judgment, is reasonable under the circumstances.
A "Basket Business Day" means any day on which prices for the Component
Stocks are calculated and published.
All determinations made by the Calculation Agent, absent a determination
of a manifest error, shall be conclusive for all purposes and binding on the
Company and the Holders and beneficial owners of the Notes.
Interest
The Notes shall accrue interest at the Interest Rate from and including
the Original Issue Date or from the most recent Interest Payment Date for
which interest has been paid or provided for, to but excluding the succeeding
Interest Payment Date or the Stated Maturity. The Company shall pay this
interest to the persons in whose names the Notes are registered at the close
of business on the fifteenth calendar day preceding each Interest Payment
Date, whether or not a Business Day. Interest on the Notes shall be computed
on the basis of the actual number of days elapsed and a 360-day year. If an
Interest Payment Date falls on a day that is not a Business Day, that interest
payment shall be made on the next succeeding Business Day and no additional
interest shall accrue as a result of the delayed payment.
3
"Business Day" means any day other than a Saturday or a Sunday that is
not a day on which banking institutions in The City of New York and London are
authorized or obligated by law, regulation or executive order to close.
"Closing Market Price" means:
If a Component Stock (or any other security for which a Closing Market
Price must be determined for purposes of the Notes) is listed on a national
securities exchange in the United States, is a Nasdaq Global Market System
("Nasdaq GMS") security or is included in the OTC Bulletin Board Service ("OTC
Bulletin Board") operated by the National Association of Securities Dealers,
Inc. (the "NASD"), then the Closing Market Price for any date of determination
on any Trading Day means for one Component Stock (or any other security for
which a Closing Market Price must be determined for purposes of the Notes):
o the last reported sale price, regular way, on that day on the
principal United States securities exchange registered under the
Exchange Act on which that security is listed or admitted to trading
(without taking into account any extended or after-hours trading
session);
o if not listed or admitted to trading on any such securities
exchange or if the last reported sale price is not obtainable, the
last reported sale price on the over-the-counter market as reported
on the Nasdaq GMS or OTC Bulletin Board on that day (without taking
into account any extended or after-hours trading session); or
o if the last reported sale price is not available for any reason,
including, without limitation, the occurrence of a Market Disruption
Event, as described below, the mean of the last reported bid and
offer price of the principal trading session on the over-the-counter
market as reported on the Nasdaq GMS or OTC Bulletin Board on that
day as determined by the Calculation Agent or from as many dealers
in that security, but not exceeding three, as have made the bid
prices available to the Calculation Agent after 3:00 p.m., local
time in the principal market, on that date (without taking into
account any extended or after-hours trading session).
If a Component Stock (or any other security for which a Closing Market
Price must be determined for purposes of the Notes) is not listed on a
national securities exchange in the United States, is not a Nasdaq GMS
security or included in the OTC Bulletin Board, then the Closing Market Price
for any date of determination on any Trading Day means for one Component Stock
(or any other security for which a Closing Market Price must be determined for
purposes of the Notes) the last reported sale price on that day on the
securities exchange on which that security is listed or admitted to trading
with the greatest volume of trading for the calendar month preceding that
Trading Day as determined by the Calculation Agent; provided that if the last
reported sale price is for a transaction which occurred more than four hours
prior to the close of that exchange, then the Closing Market Price shall mean
the average of the last available bid and offer price on that exchange.
If a Component Stock (or any other security for which a Closing Market
Price must be determined for purposes of the Notes) is not listed or admitted
to trading on any of those securities exchanges or if the last reported sale
price or bid and offer are not obtainable, then the
4
Closing Market Price shall mean the average of the last available bid and
offer prices in the market of the three dealers which have the highest volume
of transactions in that security in the immediately preceding calendar month
as determined by the Calculation Agent based on information that is reasonably
available to it.
"Market Disruption Event" means either of the following events as
determined by the Calculation Agent:
(A) the suspension of, absence of, including the absence of an official
closing price, or material limitation on trading for more than two
hours of trading, or during the one-half hour period preceding the
close of trading, on the primary exchange where the Component Stocks
trade as determined by the Calculation Agent (without taking into
account any extended or after-hours trading session), of one or more
of the Component Stocks;
(B) the suspension of, absence of, including the absence of an official
closing price, or material limitation on trading for more than two
hours of trading, or during the one-half hour period preceding the
close of trading, on the primary exchange that trades options
contracts or futures contracts related to a Component Stocks as
determined by the Calculation Agent (without taking into account any
extended or after-hours trading session), whether by reason of
movements in price otherwise exceeding levels permitted by the
relevant exchange or otherwise, in options contracts or futures
contracts related to a Component Stock; or
(C) a determination by the Calculation Agent that the event described in
clauses (A) and (B) above materially interfered with the ability of
the Company, Xxxxxxx Xxxxx Xxxxxx Xxxxxx Xxxxx Incorporated or any
of their affiliates to unwind all or a material portion of the hedge
with respect to the Component Stocks.
For the purpose of determining whether a Market Disruption Event has
occurred:
(1) a limitation on the hours in a trading day and/or number of days of
trading shall not constitute a Market Disruption Event if it results
from an announced change in the regular business hours of the
relevant exchange;
(2) a decision to permanently discontinue trading in the relevant
futures or options contracts related to the applicable Component
Stock, shall not constitute a Market Disruption Event;
(3) limitations pursuant to any rule or regulation enacted or
promulgated by the New York Stock Exchange (the "NYSE") or The
Nasdaq Stock Market or other regulatory organization with
jurisdiction over the NYSE or The Nasdaq Stock Market on trading
during significant market fluctuations shall constitute a suspension
or material limitation of trading in the Component Stocks;
(4) a suspension in trading in a futures or options contracts on the
applicable Component Stock, by a major securities market by reason
of (a) a price change violating limits set by that securities
market, (b) an imbalance of orders relating to
5
those contracts or (c) a disparity in bid and ask quotes relating to
those contracts shall constitute a suspension of or material
limitation on trading in futures or options contracts related to
that Component Stock; and
(5) a suspension of or material limitation on trading on the relevant
exchange shall not include any time when that exchange is closed for
trading under ordinary circumstances.
If the Exchange Property, as defined below under "Reorganization Events"
in this pricing supplement, includes securities other than the Component
Stocks, then the above definition shall be revised to include each of those
securities in the same manner as the Component Stocks are considered in
determining whether a Market Disruption Event exists.
A "Trading Day" means a day on which the NYSE, the American Stock
Exchange and The Nasdaq Stock Market are open for trading.
Multiplier Adjustments
Each Multiplier is subject to adjustment by the Calculation Agent as
described in this section.
No adjustments to a Multiplier shall be required unless the Multiplier
adjustment would require a change of at least 0.1% in the Multiplier then in
effect. The Multiplier resulting from any of the adjustments specified below
shall be rounded to the eighth decimal place with five one-billionths being
rounded upward. The Calculation Agent shall not be required to make any
adjustments to a Multiplier after the close of business on the fourth Business
Day immediately prior to the Stated Maturity.
No adjustments to a Multiplier shall be required other than those
specified below. However, the Calculation Agent may, at its sole discretion,
make additional adjustments to a Multiplier to reflect changes occurring in
relation to the Component Stocks or any other security received in a
reorganization event in other circumstances where the Calculation Agent
determines that it is appropriate to reflect those changes to ensure an
equitable result.
The Calculation Agent shall be solely responsible for the determination
and calculation of any adjustments to a Multiplier and of any related
determinations and calculations with respect to any distributions of stock,
other securities or other property or assets, including cash, in connection
with any corporate event described below; and its determinations and
calculations shall be conclusive absent a determination of a manifest error.
No adjustments shall be made for certain other events, such as offerings
of common stock by the relevant Underlying Company for cash or in connection
with the occurrence of a partial tender or exchange offer for the Component
Stocks by the relevant Underlying Company.
The Company shall, within ten Business Days following the occurrence of
an event that requires an adjustment to a Multiplier, or, if later, within ten
Business Days following the date on which the Company becomes aware of this
occurrence, provide written notice to the Trustee (as
6
defined below), which shall provide notice to the Holders of the occurrence of
this event and a statement in reasonable detail setting forth the adjusted
Multiplier.
Stock splits and reverse stock splits
If a Component Stock is subject to a stock split or reverse stock split,
then once any split has become effective, its Multiplier shall be adjusted to
equal the product of its prior Multiplier and the number of shares which a
holder of record of that Component Stock before the effective date of that
stock split or reverse stock split would have owned or been entitled to
receive immediately following the applicable effective date.
Stock dividends
If a Component Stock is subject to a (i) stock dividend, i.e., issuance
of additional shares of that Component Stock, that is given ratably to all
holders of record of that Component Stock or (ii) distribution of shares of
that Component Stock as a result of the triggering of any provision of the
corporate charter of the related Underlying Company, then, once the dividend
has become effective and the Component Stock is trading ex-dividend, its
Multiplier shall be adjusted so that its new Multiplier shall equal its prior
Multiplier plus the product of:
o its prior Multiplier; and
o the number of shares of that Component Stock which a holder of
one Component Stock before the date the dividend became effective
and the Component Stock traded ex-dividend would have owned or been
entitled to receive immediately following that date.
Extraordinary Dividends
There shall be no adjustments to a Multiplier to reflect any cash
dividends or cash distributions paid with respect to the Component Stocks
other than Extraordinary Dividends, as described below, and distributions
described under the section entitled "Reorganization Events" below.
An "Extraordinary Dividend" means, with respect to a cash dividend or
other distribution with respect to a Component Stock, a dividend or other
distribution which exceeds the immediately preceding non-Extraordinary
Dividend on the Component Stock (as adjusted for any subsequent corporate
event requiring an adjustment hereunder, such as a stock split or reverse
stock split) by an amount equal to at least 10% of the Closing Market Price of
the Component Stock on the Trading Day preceding the ex-dividend date with
respect to the Extraordinary Dividend (the "ex-dividend date"). If an
Extraordinary Dividend occurs with respect to a Component Stock, its
Multiplier shall be adjusted on the ex-dividend date with respect to the
Extraordinary Dividend so that the new Multiplier shall equal the product of:
o its prior Multiplier; and
o a fraction, the numerator of which is the Closing Market Price per
Component Stock on the Trading Day preceding the ex-dividend date,
and the denominator of which is
7
the amount by which the Closing Market Price per Component Stock on
the Trading Day preceding the ex-dividend date exceeds the
Extraordinary Dividend Amount.
The "Extraordinary Dividend Amount" with respect to an Extraordinary
Dividend for a Component Stock shall equal:
o in the case of cash dividends or other distributions that constitute
quarterly dividends, the amount per Component Stock of that
Extraordinary Dividend minus the amount per share of the immediately
preceding non-Extraordinary Dividend for that Component Stock; or
o in the case of cash dividends or other distributions that do not
constitute quarterly dividends, the amount per Component Stock of
that Extraordinary Dividend.
To the extent an Extraordinary Dividend is not paid in cash, the value of
the non-cash component shall be determined by the Calculation Agent, whose
determination shall be conclusive. A distribution on a Component Stock
described in clause (a), (d) or (e) of the section entitled "Reorganization
Events" below that also constitutes an Extraordinary Dividend shall only cause
an adjustment pursuant to clause (a), (d) or (e) under the section entitled
"Reorganization Events". A distribution on a Component Stock described in the
section entitled "Issuance of transferable rights or warrants" that also
constitutes an Extraordinary Dividend shall only cause an adjustment pursuant
to that section.
Issuance of transferable rights or warrants
If an Underlying Company issues transferable rights or warrants to all
holders of record of its related Component Stock to subscribe for or purchase
that Component Stock, including new or existing rights to purchase the
Component Stock pursuant to a shareholder's rights plan or arrangement, then
its Multiplier shall be adjusted on the Business Day immediately following the
issuance of those transferable rights or warrants so that its new Multiplier
shall equal its prior Multiplier plus the product of:
o its prior Multiplier; and
o the number of shares of that Component Stocks that can be purchased
with the cash value of those warrants or rights distributed on one
share of that Component Stock.
The number of shares that can be purchased shall be based on the Closing
Market Price of a Component Stock on the date its new Multiplier is
determined. The cash value of those warrants or rights, if the warrants or
rights are traded on a national securities exchange, shall equal the closing
price of that warrant or right, or, if the warrants or rights are not traded
on a national securities exchange, shall be determined by the Calculation
Agent and shall equal the average of the bid prices obtained from three
dealers at 3 p.m. on the date the new Multiplier is determined, provided that
if only two of those bid prices are available, then the cash value of those
warrants or rights shall equal the average of those bids and if only one of
those bids is available, then the cash value of those warrants or rights shall
equal that bid.
8
Reorganization Events
If prior to the Stated Maturity of the Notes:
(a) there occurs any reclassification or change of a Component Stock,
including, without limitation, as a result of the issuance of
tracking stock by the related Underlying Company;
(b) an Underlying Company, or any surviving entity or subsequent
surviving entity of the Underlying Company (a "Successor Entity"),
has been subject to a merger, combination or consolidation and is
not the surviving entity;
(c) any statutory exchange of securities of an Underlying Company or any
Successor Entity with another corporation occurs, other than
pursuant to clause (b) above;
(d) an Underlying Company is liquidated or is subject to a proceeding
under any applicable bankruptcy, insolvency or other similar law;
(e) an Underlying Company issues to all of its shareholders equity
securities of an issuer other than the Underlying Company, other
than in a transaction described in clauses (b), (c) or (d) above;
(f) a tender or exchange offer or going-private transaction is
consummated for all the outstanding shares of an Underlying Company;
or
(g) an Underlying Company ceases to file the financial and other
information with the SEC in accordance with Section 13(a) of the
Securities Exchange Act of 1934 (an event in clauses (a) through (g)
a "Reorganization Event"),
then the method of determining the amount payable on this Note shall be
adjusted as set forth below.
"Exchange Property" shall consist of the securities, cash or any other assets
distributed to holders of record of the Component Stocks in or as a result of
the Reorganization Event, and where Component Stocks continue to be held by
the holders receiving such distribution, the Component Stocks.
If the Exchange Property received in a Reorganization Event:
o consists only of cash or if the Calculation Agent exercises its
option to liquidate the Exchange Property following its distribution,
then, (i) in the case where the Exchange Property delivered to the
holders of record of the Component Stocks consists of cash only, on
the third Business Day succeeding the day on which that cash is
distributed to holders of record of the Component Stocks, or (ii) in
the case where the Exchange Property is liquidated, on the date
specified by the Company as described below, the Basket will be
adjusted by the Calculation Agent to include the product of (a) the
amount of cash received with respect to one Component Stock and the
then current applicable Multiplier or (b) the value of the Exchange
Property
9
liquidated with respect to one Component Stock and the then current
applicable Multiplier, as applicable.
If the Calculation Agent exercises the option to liquidate the
Exchange Property, the Company will give Notice to the Trustee as to
the election to liquidate the Exchange Property, which notice will
specify the method by which the Exchange Property will be sold; and
o consists of more than one type of property and the Calculation Agent
has not exercised its option to liquidate the Exchange Property,
then the Calculation Agent shall adjust the Basket to include a pro
rata share of each such type of Exchange Property based on the then
current applicable Multiplier.
In the event Exchange Property consists of securities, those securities
shall, in turn, be subject to the antidilution adjustments set forth in this
pricing supplement.
In the case of a consummated tender or exchange offer or going-private
transaction involving Exchange Property of a particular type, Exchange
Property shall be deemed to include the amount of cash or other property paid
by the offeror in the tender or exchange offer with respect to that Exchange
Property (in an amount determined on the basis of the rate of exchange in that
tender or exchange offer or going-private transaction). In the event of a
tender or exchange offer or a going-private transaction with respect to
Exchange Property in which an offeree may elect to receive cash or other
property, Exchange Property shall be deemed to include the kind and amount of
cash and other property received by offerees who elect to receive cash.
The Calculation Agent shall be solely responsible for determination and
calculation of the Exchange Property if a Reorganization Event occurs and the
amount due upon early redemption, including the determination of the cash
value of any Exchange Property, if necessary, and its determinations and
calculations shall be conclusive absent a determination of a manifest error.
Alternative Dilution and Reorganization Adjustments
The Calculation Agent may elect at its discretion to not make any of the
adjustments to a Multiplier or to the method of determining the amount payable
on this Note described above under "Multiplier Factor Adjustments" and
"Reorganization Events", but may instead make adjustments in its discretion to
a Multiplier or the method of determining the amount payable on this Note that
shall reflect the adjustments to the extent practicable made by the Options
Clearing Corporation on options contracts on the Component Stocks or any
successor common stock. The Company shall provide notice of that election to
the Trustee not more than two Business Days following the date that the
Options Clearing Corporation publishes notice of its adjustments relating to
the Component Stocks and shall detail in that notice the actual adjustment
made to that Multiplier or to the method of determining the amount payable on
this Note.
10
General
All percentages resulting from any calculation on the Notes shall be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards. For example, 9.876545%
(or .09876545) would be rounded to 9.87655% (or .0987655). All dollar amounts
used in or resulting from any calculation shall be rounded to the nearest cent
with one-half cent being rounded upward.
This Global Note is one of a duly authorized issue of the Company's
Medium-Term Notes, Series C, Due Nine Months or More from Date of Issue and
designated as Fixed Rate Capped Appreciation Notes which are due at the Stated
Maturity. The Notes are issued and to be issued under an indenture dated as of
April 1, 1983, as amended and restated (the "Indenture"), between the Company
and JPMorgan Chase Bank, N.A. (herein called 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 Notes and the terms upon which the Notes are to be
authenticated and delivered.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee with respect to the Notes under the Indenture, or its
successor thereunder, by the manual signature of one of its authorized
officers, this Global Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
The Notes are issuable only in registered form with coupons in the
Denominations specified above. As provided in the Indenture and subject to
certain limitations therein set forth, this Global Note is exchangeable for
certificates representing notes of like tenor and of an equal Principal Xxxxxx
as requested by the Holder surrendering the same. If (x) the Depository is at
any time unwilling or unable to continue as depository and a successor
depository 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
Global Note shall be exchangeable or (z) an Event of Default has occurred and
is continuing with respect to this Global Note, this Global Note shall be
exchangeable for certificates representing the Notes in definitive form of
like tenor and of an equal Principal Amount, in authorized denominations. Such
definitive Notes shall be registered in such name or names as the Depository
shall instruct the Trustee. If definitive Notes are so delivered, the Company
may make such changes to the form of this Global Note as are necessary or
appropriate to allow for the issuance of such definitive Notes.
In case an Event of Default with respect to this Global Note shall have
occurred and be continuing, the amount payable to a Holder of this Global Note
upon any acceleration permitted by the Notes, with respect to each $1,000
Principal Amount of this Global Note, shall be equal to the consideration due
at the Stated Maturity with respect to such Unit, calculated as though the
date of acceleration were the Stated Maturity.
In case of default in payment of this Global Note, whether at any
Interest Payment Date, the Stated Maturity or upon acceleration, from and
after such date this Global Note shall bear interest, payable upon demand of
the Holders thereof, at the Default Rate, to the extent that payment of
interest shall be legally enforceable on the unpaid amount due and payable on
such date in accordance with the terms of this Global Note to the date payment
of such amount has been made or duly provided for.
11
The "Default Rate" shall be the then current Federal Funds Rate. "Federal
Funds Rate" means:
(1) the rate with respect to a particular interest determination date
for United States dollar federal funds as published in H.15(519)
under the caption "Federal Funds (Effective)" and displayed on
Moneyline Telerate or any successor service on page 120 or any other
page as may replace page 120 on that service ("Moneyline Telerate
Page 120"), or
(2) if the rate referred to in clause (1) does not appear on Moneyline
Telerate Page 120 or is not published by 3:00 P.M., New York City
time, on the related calculation date, the rate with respect to a
particular interest determination date for United States dollar
federal funds as published in H.15 Daily Update, or other recognized
electronic source used for the purpose of displaying the applicable
rate, under the caption "Federal Funds (Effective)", or
(3) if the rate referred to in clause (2) is not published by 3:00 P.M.,
New York City time, on the related calculation date, the rate with
respect to a particular interest determination date calculated by
the Calculation Agent as the arithmetic mean of the rates for the
last transaction in overnight United States dollar federal funds
arranged by three leading brokers of United States dollar federal
funds transactions in The City of New York, which may include the
agent or its affiliates, selected by the Calculation Agent prior to
9:00 A.M., New York City time, on the Business Day following that
interest determination date, or
(4) if the brokers selected by the Calculation Agent are not quoting as
mentioned in clause (3), the Federal Funds Rate for the Business Day
preceding the particular interest determination date.
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 of each series affected
thereby. 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, are permitted 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 Global Note shall be conclusive and binding upon such Holder
and upon all future Holders of this Global Note and of any Note 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 Global
Note.
No reference herein to the Indenture and no provision of this Global Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay any consideration due with respect to
this Global Note 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 face hereof, the transfer of this Global Note may be
registered on the Security Register of the
12
Company, upon surrender of this Global Note 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
certificates representing the Notes of authorized denominations of like tenor
and for the same aggregate principal amount shall be issued to the designated
transferee or transferees.
Prior to due presentment of this Global Note 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 Global Note is registered as the owner
hereof for all purposes, whether or not this Global Note be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
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 other governmental charge payable in connection therewith.
The Company and each Holder and beneficial owner by acceptance hereof
hereby agree (in the absence of an administrative determination, judicial
ruling or other authoritative guidance to the contrary) to characterize and
treat this Global Note for all tax purposes as an investment unit consisting
of (i) a debt instrument of the Company (the "Debt Instrument") with a fixed
principal amount equal to the Principal Amount and bearing stated interest at
the Interest Rate and (ii) a forward contract linked to the value of the
Basket pursuant to which each Holder agrees to use the principal amount due on
the Debt Instrument to make a payment to the Company in exchange for the right
to receive the Redemption Amount.
The Indenture and this Global Note shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Global Note which are defined in the Indenture but
not in this Global Note shall have the meanings assigned to them in the
Indenture.
13
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
CERTIFICATE OF AUTHENTICATION Xxxxxxx Xxxxx & Co., Inc.
This is one of the Securities
of the series designated therein
referred to in the [Copy of Seal]
within-mentioned Indenture.
JPMorgan Chase Bank, N.A., as Trustee By:__________________________
Assistant Treasurer
By:_____________________________ Attest:______________________
Authorized Officer Secretary
ASSIGNMENT/TRANSFER FORM
------------------------
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto (insert Taxpayer Identification No.) _________
_____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
_____________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting
and appointing __________________________________________ attorney to transfer
said Note on the books of the Company with full power of substitution in the
premises.
Date: ___________________ _____________________________________
NOTICE: The signature of the
registered Holder to this assignment
must correspond with the name as
written upon the face of the within
instrument in every particular,
without alteration or enlargement or
any change whatsoever.
