Exhibit 99(c)
THIS NOTE IS A GLOBAL NOTE 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 NOTES IN CERTIFICATED
FORM, THIS NOTE 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 NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
TO XXXXXXX XXXXX XXXXXX HOLDINGS INC. 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 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-1 INITIAL PRINCIPAL AMOUNT
CUSIP 79549C 64 2 REPRESENTED $[ ]
representing [ ] ELKS
($10 per ELKS)
XXXXXXX XXXXX XXXXXX HOLDINGS INC.
Equity Linked Securities (ELKS(SM)) based upon
the Common Stock of The Xxxx Disney Company due [ ], 2003
Xxxxxxx Xxxxx Xxxxxx Holdings Inc., a New York corporation (hereinafter
referred to as the "Company", which term includes any successor corporation
under the Indenture herein referred to), for value received and on condition
that this Note is not redeemed by the Company prior to [ ], 2003 (the "Stated
Maturity Date"), hereby promises to pay to CEDE & CO., or its registered
assigns, the Maturity Payment (as defined below), on the Stated Maturity Date.
This Note will bear semi-annual payments of interest, is not subject to any
sinking fund, is not subject to redemption at the option of the Holder thereof
prior to the Stated Maturity Date and is not subject to the defeasance
provisions of the Indenture.
Payment of the Maturity Payment with respect to this Note shall be made
upon presentation and surrender of this Note at the corporate trust office of
the Trustee in the Borough of Manhattan, The City and State of New York, in such
coin or currency of the United States as at the time of payment is legal tender
for payment of public and private debts or, if applicable, in the common stock
of The Xxxx Disney Company ("Xxxx Disney").
This Note is one of the series of Equity Linked Securities based upon the
common stock of The Xxxx Disney Company due [ ], 2003 (the "ELKS").
COUPON
A coupon of $[ ] per ELKS will be paid in cash on [ ], 2003 and a coupon
of $[ ] per ELKS will be paid in cash on [ ], 2003. The [ ], 2003 coupon will be
composed of $[ ] of interest and a partial payment of an option premium in the
amount of $[ ]. The [ ], 2003 coupon will be composed of $[ ] of interest and a
partial payment of an option premium in the amount of $[ ]. Coupon payments will
be payable to the persons in whose names the ELKS are registered at the close of
business on the Business Day preceding each Interest Payment Date. If an
Interest Payment Date falls on a day that is not a Business Day, the coupon
payment to be made on such Interest Payment Date will be made on the next
succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment.
"Business Day" means any day that is not a Saturday, a Sunday or a day on
which the AMEX or banking institutions or trust companies in the City of New
York are authorized or obligated by law or executive order to close.
The interest portion of the coupon will represent interest accruing at a
rate of [ ]% per annum from [ ], 2002 or from the most recent Interest Payment
Date to which the interest portion of the coupon has been paid or provided for
until Maturity. The interest portion of the coupon will be computed on the basis
of a 360-day year of twelve 30-day months.
PAYMENT AT MATURITY
On the Stated Maturity Date, Holders of the ELKS will receive for each
ELKS the Maturity Payment described below.
DETERMINATION OF THE MATURITY PAYMENT
The Maturity Payment for each ELKS equals either:
- a number of shares of Xxxx Disney common stock equal to the Exchange
Rate, if the Closing Price of Xxxx Disney common stock on the third
Trading Day before the Stated Maturity Date is less than its Initial
Share Price, or
- $10 in cash.
In lieu of any fractional share of Xxxx Disney common stock otherwise
payable in respect of any ELKS, at the Stated Maturity Date, the Holder of this
Note will receive an amount in cash equal to the value of such fractional share.
The number of full shares of Xxxx Disney common stock, and any cash in lieu of a
fractional share, to be delivered at the Stated Maturity Date to the Holder of
this Note will be calculated based on the aggregate number of ELKS held by such
Holder.
The "Closing Price" of Xxxx Disney common stock (or any other security for
which a Closing Price must be determined) on any date of determination will be
(1) if the common stock (or that other security) is listed on a national
securities exchange on that date of determination,
2
the closing sale price or, if no closing sale price is reported, the last
reported sale price on that date on the principal U.S. exchange on which the
common stock (or that other security) is listed or admitted to trading, (2) if
the common stock (or that other security) is not listed on a national securities
exchange on that date of determination, or if the closing sale price or last
reported sale price is not obtainable (even if the common stock or that other
security is listed or admitted to trading on such exchange), and the common
stock (or that other security) is quoted on the Nasdaq National Market, the
closing sale price or, if no closing sale price is reported, the last reported
sale price on that date as reported on the Nasdaq, and (3) if the common stock
(or that other security) is not quoted on the Nasdaq on that date of
determination or, if the closing sale price or last reported sale price is not
obtainable (even if the common stock or that other security is quoted on the
Nasdaq), the last quoted bid price for the common stock (or that other security)
in the over-the-counter market on that date as reported by the OTC Bulletin
Board, the National Quotation Bureau or a similar organization. The
determination of the Closing Price by the calculation agent in the event of a
Market Disruption Event may be deferred by the calculation agent for up to two
consecutive Trading Days on which a Market Disruption Event is occurring. If no
closing sale price or last reported sale price is available pursuant to clauses
(1), (2) or (3) above or if there is a Market Disruption Event, the Closing
Price on any date of determination, unless deferred by the calculation agent as
described in the preceding sentence, will be the arithmetic mean, as determined
by the calculation agent, of the bid prices of the common stock (or that other
security) obtained from as many dealers in such stock or security (which may
include Xxxxxxx Xxxxx Xxxxxx Inc. or any of its other subsidiaries or
affiliates), but not exceeding three such dealers, as will make such bid prices
available to the calculation agent. A security "quoted on the Nasdaq National
Market" will include a security included for listing or quotation in any
successor to such system and the term "OTC Bulletin Board" will include any
successor to such service.
The "Initial Share Price" will equal $[ ], the price per share of Xxxx
Disney common stock at the market close on September 24, 2002.
The "Exchange Rate" will equal [ ].
A "Market Disruption Event" means the occurrence or existence of any
suspension of or limitation imposed on trading (by reason of movements in price
exceeding limits permitted by any exchange or market or otherwise) of, or the
unavailability, through a recognized system of public dissemination of
transaction information, of accurate price, volume or related information in
respect of, (1) the shares of Xxxx Disney common stock on any exchange or
market, or (2) any options contracts or futures contracts relating to the shares
of Xxxx Disney common stock, or any options on such futures contracts, on any
exchange or market if, in each case, in the determination of the calculation
agent, any such suspension, limitation or unavailability is material.
A "Trading Day" means a day, as determined by the calculation agent, on
which trading is generally conducted (or was scheduled to have been generally
conducted, but for the occurrence of a Market Disruption Event) on the New York
Stock Exchange, the AMEX, the Nasdaq National Market, the Chicago Mercantile
Exchange and the Chicago Board Options Exchange, and in the over-the-counter
market for equity securities in the United States.
3
DILUTION ADJUSTMENTS
If Xxxx Xxxxxx, after the closing date of the offering of the ELKS,
(1) pays a stock dividend or makes a distribution with respect to its
common stock in shares of the stock,
(2) subdivides or splits the outstanding shares of its common stock into
a greater number of shares,
(3) combines the outstanding shares of its common stock into a smaller
number of shares, or
(4) issues by reclassification of shares of its common stock any shares
of other common stock of Xxxx Xxxxxx,
then, in each of these cases, the Exchange Rate will be multiplied by a dilution
adjustment equal to a fraction, the numerator of which will be the number of
shares of common stock outstanding immediately after the event, plus, in the
case of a reclassification referred to in (4) above, the number of shares of
other common stock of Xxxx Xxxxxx, and the denominator of which will be the
number of shares of common stock outstanding immediately before the event. The
Initial Share Price will also be adjusted in that case in the manner described
below.
If Xxxx Xxxxxx, after the closing date, issues, or declares a record date
in respect of an issuance of, rights or warrants to all holders of its common
stock entitling them to subscribe for or purchase shares of its common stock at
a price per share less than the Then-Current Market Price of the common stock,
other than rights to purchase common stock pursuant to a plan for the
reinvestment of dividends or interest, then, in each of these cases, the
Exchange Rate will be multiplied by a dilution adjustment equal to a fraction,
the numerator of which will be the number of shares of common stock outstanding
immediately before the adjustment is effected, plus the number of additional
shares of common stock offered for subscription or purchase pursuant to the
rights or warrants, and the denominator of which will be the number of shares of
common stock outstanding immediately before the adjustment is effected by reason
of the issuance of the rights or warrants, plus the number of additional shares
of common stock which the aggregate offering price of the total number of shares
of common stock offered for subscription or purchase pursuant to the rights or
warrants would purchase at the Then-Current Market Price of the common stock,
which will be determined by multiplying the total number of shares so offered
for subscription or purchase by the exercise price of the rights or warrants and
dividing the product obtained by the Then-Current Market Price. To the extent
that, after the expiration of the rights or warrants, the shares of common stock
offered thereby have not been delivered, the Exchange Rate will be further
adjusted to equal the Exchange Rate which would have been in effect had the
adjustment for the issuance of the rights or warrants been made upon the basis
of delivery of only the number of shares of common stock actually delivered. The
Initial Share Price will also be adjusted in that case in the manner described
below.
4
If Xxxx Disney, after the closing date, declares or pays a dividend or
makes a distribution to all holders of the common stock of any class of its
capital stock, the capital stock of one or more of its subsidiaries, evidences
of its indebtedness or other non-cash assets, excluding any dividends or
distributions referred to in the above paragraph, or issues to all holders of
its common stock rights or warrants to subscribe for or purchase any of its or
one or more of its subsidiaries' securities, other than rights or warrants
referred to in the above paragraph, then, in each of these cases, the Exchange
Rate will be multiplied by a dilution adjustment equal to a fraction, the
numerator of which will be the Then-Current Market Price of one share of the
common stock, and the denominator of which will be the Then-Current Market Price
of one share of the common stock, less the fair market value (as determined by a
nationally recognized independent investment banking firm retained for this
purpose by the Company, whose determination will be final) as of the time the
adjustment is effected of the portion of the capital stock, assets, evidences of
indebtedness, rights or warrants so distributed or issued applicable to one
share of common stock. The Initial Share Price will also be adjusted in that
case in the manner described below.
Notwithstanding the foregoing, in the event that, with respect to any
dividend or distribution to which the above paragraph would otherwise apply, the
denominator in the fraction referred to in the above formula is less than $1.00
or is a negative number, then the Company may, at its option, elect to have the
adjustment provided by the above paragraph not be made and in lieu of this
adjustment, the Closing Price of Xxxx Disney common stock on the third Trading
Day before the Stated Maturity Date will be deemed to be equal to the fair
market value of the capital stock, evidences of indebtedness, assets, rights or
warrants (determined, as of the third Trading Day before the Stated Maturity
Date, by a nationally recognized independent investment banking firm retained
for this purpose by the Company, whose determination will be final) so
distributed or issued applicable to one share of Xxxx Disney common stock and,
if the Closing Price of Xxxx Disney common stock on the third Trading Day before
the Stated Maturity Date is less than its Initial Share Price, each holder of
the ELKS will have the right to receive at the Stated Maturity Date cash in an
amount per ELKS equal to the Exchange Rate multiplied by such fair market
value.
If Xxxx Xxxxxx, after the closing date, declares a record date in respect
of a distribution of cash, other than any Permitted Dividends described below,
any cash distributed in consideration of fractional shares of common stock and
any cash distributed in a Reorganization Event referred to below, by dividend or
otherwise, to all holders of its common stock, or makes an Excess Purchase
Payment, then the Exchange Rate will be multiplied by a dilution adjustment
equal to a fraction, the numerator of which will be the Then-Current Market
Price of the common stock, and the denominator of which will be the Then-Current
Market Price of the common stock on the record date less the amount of the
distribution applicable to one share of common stock which would not be a
Permitted Dividend, or, in the case of an Excess Purchase Payment, less the
aggregate amount of the Excess Purchase Payment for which adjustment is being
made at the time divided by the number of shares of Xxxx Disney common stock
outstanding on the record date. The Initial Share Price will also be adjusted in
that case in the manner described below.
For the purposes of these adjustments:
5
A "Permitted Dividend" is any quarterly cash dividend in respect of Xxxx
Disney common stock, other than a quarterly cash dividend that exceeds the
immediately preceding quarterly cash dividend, and then only to the extent that
the per share amount of this dividend results in an annualized dividend yield on
the common stock in excess of 10%.
An "Excess Purchase Payment" is the excess, if any, of (x) the cash and
the value (as determined by a nationally recognized independent investment
banking firm retained for this purpose by the Company, whose determination will
be final) of all other consideration paid by Xxxx Xxxxxx with respect to one
share of common stock acquired in a tender offer or exchange offer by Xxxx
Xxxxxx, over (y) the Then-Current Market Price of the common stock.
Notwithstanding the foregoing, in the event that, with respect to any
dividend or distribution or Excess Purchase Payment to which the fifth paragraph
in this section would otherwise apply, the denominator in the fraction referred
to in the formula in that paragraph is less than $1.00 or is a negative number,
then the Company may, at its option, elect to have the adjustment provided by
the fifth paragraph in this section not be made and in lieu of this adjustment,
the Closing Price of Xxxx Disney common stock on the third Trading Day before
the Stated Maturity Date will be deemed to be equal to the sum of the amount of
cash and the fair market value of other consideration (determined, as of the
third Trading Day before the Stated Maturity Date, by a nationally recognized
independent investment banking firm retained for this purpose by the Company,
whose determination will be final) so distributed or applied to the acquisition
of the common stock in the tender offer or exchange offer applicable to one
share of Xxxx Disney common stock and, if the Closing Price of Xxxx Disney
common stock on the third Trading Day before the Stated Maturity Date is less
than its Initial Share Price, each holder of the ELKS will have the right to
receive at the Stated Maturity Date cash in an amount per ELKS equal to the
Exchange Rate multiplied by such sum.
If any adjustment is made to the Exchange Rate as set forth above, an
adjustment will also be made to the Initial Share Price. The required adjustment
will be made by dividing the Initial Share Price by the relevant dilution
adjustment. If, during any period of ten Trading Days used to calculate the
Then-Current Market Price, there occurs any event requiring an adjustment to be
effected as described herein, then the Closing Price for each Trading Day in
such period of ten Trading Days occurring prior to the day on which such
adjustment is effected will be adjusted by being divided by the relevant
dilution adjustment.
Each dilution adjustment will be effected as follows:
- in the case of any dividend, distribution or issuance, at the
opening of business on the Business Day next following the record
date for determination of holders of Xxxx Xxxxxx common stock
entitled to receive this dividend, distribution or issuance or, if
the announcement of this dividend, distribution, or issuance is
after this record date, at the time this dividend, distribution or
issuance was announced by Xxxx Xxxxxx,
- in the case of any subdivision, split, combination or
reclassification, on the effective date of the transaction,
6
- in the case of any Excess Purchase Payment for which Xxxx Xxxxxx
announces, at or prior to the time it commences the relevant share
repurchase, the repurchase price per share for shares proposed to be
repurchased, on the date of the announcement, and
- in the case of any other Excess Purchase Payment, on the date that
the holders of the repurchased shares become entitled to payment in
respect thereof.
All dilution adjustments will be rounded upward or downward to the nearest
1/10,000th or, if there is not a nearest 1/10,000th, to the next lower
1/10,000th. No adjustment in the Exchange Rate will be required unless the
adjustment would require an increase or decrease of at least one percent
therein, provided, however, that any adjustments which by reason of this
sentence are not required to be made will be carried forward (on a percentage
basis) and taken into account in any subsequent adjustment. If any announcement
or declaration of a record date in respect of a dividend, distribution, issuance
or repurchase requiring an adjustment as described herein is subsequently
canceled by Xxxx Xxxxxx, or this dividend, distribution, issuance or repurchase
fails to receive requisite approvals or fails to occur for any other reason,
then, upon the cancellation, failure of approval or failure to occur, the
Exchange Rate will be further adjusted to the Exchange Rate which would then
have been in effect had adjustment for the event not been made. If a
Reorganization Event described below occurs after the occurrence of one or more
events requiring an adjustment as described herein, the dilution adjustments
previously applied to the Exchange Rate will not be rescinded but will be
applied to the new Exchange Rate provided for below.
The "Then-Current Market Price" of the common stock, for the purpose of
applying any dilution adjustment, means the average Closing Price per share of
common stock for the 10 Trading Days immediately before this adjustment is
effected or, in the case of an adjustment effected at the opening of business on
the Business Day next following a record date, immediately before the earlier of
the date the adjustment is effected and the related Ex-Date. For purposes of
determining the Then-Current Market Price, the determination of the Closing
Price by the calculation agent in the event of a Market Disruption Event, as
described in the definition of Closing Price, may be deferred by the calculation
agent for up to five consecutive Trading Days on which a Market Disruption Event
is occurring.
The "Ex-Date" with respect to any dividend, distribution or issuance is
the first date on which the shares of the common stock trade in the regular way
on their principal market without the right to receive this dividend,
distribution or issuance.
In the event of any of the following "Reorganization Events":
- any consolidation or merger of Xxxx Disney, or any surviving entity
or subsequent surviving entity of Xxxx Disney, with or into another
entity, other than a merger or consolidation in which Xxxx Disney is
the continuing corporation and in which the common stock outstanding
immediately before the merger or consolidation is not exchanged for
cash, securities or other property of Xxxx Disney or another issuer,
7
- any sale, transfer, lease or conveyance to another corporation of
the property of Xxxx Xxxxxx or any successor as an entirety or
substantially as an entirety,
- any statutory exchange of securities of Xxxx Xxxxxx or any successor
of Xxxx Xxxxxx with another issuer, other than in connection with a
merger or acquisition, or
- any liquidation, dissolution or winding up of Xxxx Xxxxxx or any
successor of Xxxx Xxxxxx,
the Closing Price of Xxxx Disney common stock on the third Trading Day before
the Stated Maturity Date will be deemed to be equal to the Transaction Value (as
defined below).
The "Transaction Value" will be the sum of:
(1) for any cash received in a Reorganization Event, the amount of cash
received per share of common stock,
(2) for any property other than cash or Marketable Securities received
in a Reorganization Event, an amount equal to the market value on
the third Trading Day before the Stated Maturity Date of that
property received per share of common stock, as determined by a
nationally recognized independent investment banking firm retained
for this purpose by the Company, whose determination will be final,
and
(3) for any Marketable Securities received in a Reorganization Event, an
amount equal to the Closing Price per share of these Marketable
Securities on the third Trading Day before the Stated Maturity Date
multiplied by the number of these Marketable Securities received for
each share of common stock.
"Marketable Securities" are any perpetual equity securities or debt
securities with a stated maturity after the maturity date, in each case that are
listed on a U.S. national securities exchange or reported by the Nasdaq Stock
Market. The number of shares of any equity securities constituting Marketable
Securities included in the calculation of Transaction Value pursuant to clause
(3) above will be adjusted if any event occurs with respect to the Marketable
Securities or the issuer of the Marketable Securities between the time of the
Reorganization Event and maturity that would have required an adjustment as
described above, had it occurred with respect to the Xxxx Disney common stock or
Xxxx Disney. Adjustment for these subsequent events will be as nearly equivalent
as practicable to the adjustments described above.
If Xxxx Disney common stock has been subject to a Reorganization Event and
the Closing Price of Xxxx Disney common stock on the third Trading Day before
the Stated Maturity Date is less than its Initial Share Price, then each holder
of the ELKS will have the right to receive cash in an amount per $10 principal
amount of ELKS equal to the Exchange Rate multiplied by the Transaction Value.
8
GENERAL
This Note is one of a duly authorized issue of Debt Securities of the
Company, issued and to be issued in one or more series under a Senior Debt
Indenture, dated as of October 27, 1993, as supplemented by a First Supplemental
Indenture, dated as of November 28, 1997, a Second Supplemental Indenture, dated
as of July 1, 1999, and as further supplemented from time to time (the
"Indenture"), between the Company and The Bank of New York, as Trustee (the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the ELKS, and the terms upon which the ELKS are,
and are to be, authenticated and delivered.
If an Event of Default with respect to the ELKS shall have occurred and be
continuing, the principal of the ELKS may be declared due and payable in the
manner and with the effect provided in the Indenture. In such case, the amount
declared due and payable upon any acceleration permitted by the Indenture will
be determined by the calculation agent and will be equal to, with respect to
this Note, the Maturity Payment calculated as though the Stated Maturity Date of
this Note were the date of early repayment. In case of default at Maturity of
this Note, this Note shall bear interest, payable upon demand of the beneficial
owners of this Note in accordance with the terms of the ELKS, from and after
Maturity through the date when payment of such amount has been made or duly
provided for, at the rate of [ ]% per annum on the unpaid amount (or the cash
equivalent of such unpaid amount) due.
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 Debt Securities of each series to
be affected under the Indenture at any time by the Company and a majority in
aggregate principal amount of the Debt Securities at the time Outstanding of
each series affected thereby. The Indenture also contains provisions permitting
the Holders of specified percentages in aggregate principal amount of the Debt
Securities of any series at the time Outstanding, on behalf of the Holders of
all Debt Securities of such 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 Note shall be conclusive and binding upon such Holder and upon all future
Holders of this 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 Note.
The Holder of this Note may not enforce such Xxxxxx's rights pursuant to
the Indenture or the Notes except as provided in the Indenture. No reference
herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company to pay the Maturity Payment with
respect to this Note, and to pay any interest on any overdue amount thereof at
the time, place and rate, and in the coin or currency, herein prescribed.
All terms used in this Note which are defined in the Indenture but not in
this Note shall have the meanings assigned to them in the Indenture.
9
Unless the certificate of authentication hereon has been executed by the
Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purposes.
10
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
XXXXXXX XXXXX XXXXXX HOLDINGS INC.
By:
---------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President and Treasurer
Corporate Seal
Attest:
By:
----------------------------------
Name:
Title:
Dated: [ ], 2002
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Indenture.
The Bank of New York,
as Trustee
By:
----------------------------------
Authorized Signatory
11
