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EXHIBIT 99(C)
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 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 [ ] REPRESENTED $[ ]
representing [ ] ELKS
($10 per ELKS)
XXXXXXX XXXXX XXXXXX HOLDINGS INC.
Equity Linked Securities (ELKS) based upon
the Common Stock of Sun Microsystems, Inc. due [ ], 2002
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 [ ], 2002 (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 Sun Microsystems, Inc. ("Sun Microsystems").
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This Note is one of the series of Equity Linked Securities based upon
the common stock of Sun Microsystems, Inc. due [ ], 2002 (the "ELKS").
COUPON
A coupon of $[ ] per ELKS will be paid in cash on [ ] and a coupon of
$[ ] per ELKS will be paid in cash on [ ]. The [ ] coupon will be composed of $[
] of interest and a partial payment of an option premium in the amount of $[ ].
The [ ] 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 September [ ], 2001 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 Sun Microsystems common stock equal to
the Exchange Rate, if the price of Sun Microsystems common
stock at any time after September [ ], 2001 until the third
Trading Day before the Stated Maturity Date (whether intra-day
or at the close of trading on any day) is less than or equal to
$[ ], or
* $10 in cash.
In lieu of any fractional share of Sun Microsystems 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 of Sun Microsystems common stock, based on the Closing Price of
Sun Microsystems common stock on the third Trading Day before the Stated
Maturity Date. The number of full shares of Sun Microsystems common stock, and
any cash in
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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 Sun Microsystems common stock on any date of
determination will be the daily closing sale price or, if no closing sale price
is reported, the last reported sale price of one share of Sun Microsystems
common stock as reported on the Nasdaq National Market. If Sun Microsystems
common stock is not quoted on the Nasdaq on that date of determination, the
Closing Price will be the last reported sale price as reported in the composite
transactions for the principal U.S. exchange on which Sun Microsystems common
stock is listed. If Sun Microsystems common stock is not listed on a U.S.
national or regional securities exchange, the Closing Price will be the last
quoted bid price for Sun Microsystems common stock in the over-the-counter
market as reported by the National Quotation Bureau or a similar organization.
The "Exchange Rate" will equal [ ].
The "Initial Share Price" will equal $[ ], the price per share of Sun
Microsystems common stock at the market close on September [ ], 2001.
A "Trading Day" means a day on which (1) Sun Microsystems common stock
is not suspended from trading on any national or regional securities exchange,
securities market or association or over-the-counter market at the close of
business and (2) Sun Microsystems common stock has traded at least once on the
national or regional securities exchange or association or over-the-counter
market that is the primary market for the trading of the security.
DILUTION ADJUSTMENTS
If Sun Microsystems, 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 the 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 Sun Microsystems,
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 Sun Microsystems, and the denominator of which will be the
number of shares of common stock outstanding immediately before the event.
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If Sun Microsystems, 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.
If Sun Microsystems, 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.
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 this paragraph not be made and in lieu of this
adjustment, at maturity, each Holder of the ELKS will be entitled to receive an
additional amount of cash equal to the product of the number of ELKS held by the
holder multiplied by the fair market value of the capital stock, indebtedness,
assets, rights or warrants (determined, as of the date this dividend or
distribution is made, by a nationally recognized independent investment banking
firm retained for this purpose by the Company, whose
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determination will be final) so distributed or issued applicable to a number of
shares of Sun Microsystems common stock equal to the Exchange Rate.
If Sun Microsystems, 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 Sun Microsystems common
stock outstanding on the record date.
For the purposes of these adjustments:
A "Permitted Dividend" is any quarterly cash dividend in respect of Sun
Microsystems 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 Sun Microsystems with respect to
one share of common stock acquired in a tender offer or exchange offer by Sun
Microsystems, 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,
at maturity, each Holder of the ELKS will be entitled to receive an additional
amount of cash equal to the product of the number of ELKS held by the Holder
multiplied by the sum of the amount of cash plus the fair market value of other
consideration (determined, as of the date this dividend or distribution is made,
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 a number of shares of Sun Microsystems common stock equal to
the Exchange Rate.
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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 Sun Microsystems
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
Sun Microsystems,
* in the case of any subdivision, split, combination or
reclassification, on the effective date of the transaction,
* in the case of any Excess Purchase Payment for which Sun
Microsystems 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 Sun Microsystems, 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.
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.
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In the event of any of the following "Reorganization Events":
* any consolidation or merger of Sun Microsystems, or any
surviving entity or subsequent surviving entity of Sun
Microsystems, with or into another entity, other than a merger
or consolidation in which Sun Microsystems 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 Sun
Microsystems or another issuer,
* any sale, transfer, lease or conveyance to another
corporation of the property of Sun Microsystems or
any successor as an entirety or substantially as an entirety,
* any statutory exchange of securities of Sun Microsystems or
any successor of Sun Microsystems with another issuer, other
than in connection with a merger or acquisition, or
* any liquidation, dissolution or winding up of Sun
Microsystems or any successor of Sun Microsystems,
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 (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 date the Reorganization Event is
consummated 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 Trading Day immediately prior to
the maturity date or Exchange 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
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maturity that would have required an adjustment as described above, had it
occurred with respect to the Sun Microsystems common stock or Sun Microsystems.
Adjustment for these subsequent events will be as nearly equivalent as
practicable to the adjustments described above.
The "Closing Price" of Marketable Securities on any date of
determination will be the daily closing sale price or, if no closing sale price
is reported, the last reported sale price of a share of Marketable Security on
the applicable U.S. securities exchange. If the Marketable Securities are not
quoted on the U.S. securities exchange on that date of determination, the
Closing Price will be the last reported sale price as reported in the composite
transactions for the principal U.S. exchange on which the Marketable Securities
are listed. If the Marketable Securities are not listed on a U.S. national or
regional securities exchange, the Closing Price will be the last quoted bid
price for the Marketable Securities in the over-the-counter market as reported
by the National Quotation Bureau or a similar organization.
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 for the ELKS 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
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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.
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.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
XXXXXXX XXXXX XXXXXX HOLDINGS INC.
By:
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Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President
and Treasurer
Corporate Seal
Attest:
By:
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Name:
Title:
Dated: September 27, 2001
CERTIFICATE OF AUTHENTICATION
This is one of the Notes
referred to in the
within-mentioned Indenture.
The Bank of New York,
as Trustee
By:
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Authorized Signatory
