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Exhibit 4.01
(FORM OF NOTE)
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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. PRINCIPAL AMOUNT
CUSIP 79549B 74 3 REPRESENTED $
representing Units
($10 per Unit)
XXXXXXX XXXXX BARNEY HOLDINGS INC.
Principal-Protected Equity Linked Notes based upon the S&P 500(R) Index
due December 30, 2005
Xxxxxxx Xxxxx Xxxxxx Holdings Inc., a Delaware corporation (hereinafter
referred to as the "Company" which term includes any successor corporation under
the Indenture herein referred to), for value received, hereby promises to pay to
, or registered assigns, the principal sum of Dollars
($ ) (the "Principal Amount") plus the Supplemental Redemption Amount,
as defined below, if any, on December 30, 2005 (the "Stated Maturity"). This
Note will not bear periodic payments of interest, is not subject to any sinking
fund, is not subject to redemption by the Company or at the option of the Holder
prior to the Stated Maturity, and is not subject to the defeasance provisions of
the Indenture.
Payment of the Principal Amount and the Supplemental Redemption Amount
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.
This Note is one of the series of Principal-Protected Equity Linked Notes
based upon the S&P 500(R) Index (the "Index") due December 30, 2005 (the
"Notes").
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SUPPLEMENTAL REDEMPTION AMOUNT
The "Supplemental Redemption Amount" with respect to this Note equals:
Adjusted Ending Value - Starting Value
Principal Amount x --------------------------------------
Starting Value
provided, however, that in no event will the Supplemental Redemption Amount be
less than zero.
The "Adjusted Ending Value" will be determined by Xxxxxxx Xxxxx Barney
Inc. (the "Calculation Agent", which term includes any successor thereto) and
will equal the average (arithmetic mean) of the closing values of the Index on
each of the 42 Calculation Days during the Calculation Period, multiplied by the
Adjustment Factor. If the 28th of any month during the Calculation Period is not
a Calculation Day because it is not an Index Business Day or due to the
occurrence of one or more Market Disruption Events, then the Index value for
that month of the Calculation Period will equal the closing value of the Index
determined on the next Index Business Day on which no Market Disruption Event
exists, except that if December 28, 2005 is not a Calculation Day for any
reason, then the Index value for December 2005 will equal the closing value of
the Index determined on the immediately preceding Index Business Day on which no
Market Disruption Event exists.
The "Adjustment Factor" equals 1.45% per annum, and will be applied pro
rata on a daily basis to reduce the value of the Index during the term of the
Notes. If the Adjusted Ending Value is calculated with respect to a date earlier
than the Stated Maturity of the Notes, the Adjustment Factor will be reduced pro
rata to reflect the number of days elapsed between October 27, 1998 and such
date.
The "Starting Value" equals 1065.34, which was the closing value of the
Index on October 27, 1998.
The "Calculation Period" means the period from and including the date 42
months prior to the maturity date to but excluding the maturity date. A
"Calculation Day" means the 28th of each month during the Calculation Period,
provided that such day is an Index Business Day and no Market Disruption Event
has occurred on such day.
For purposes of determining the Adjusted Ending Value, an "Index Business
Day" is a day on which the New York Stock Exchange (the "NYSE") and the Chicago
Board Options Exchange are open for trading and the Index or any Successor
Index, as defined below, is calculated and published. The Calculation Agent may,
in its discretion, add to (or delete from) the definition of Index Business Day
any other major U.S. exchange which commences to serve (or ceases to serve) as
the primary exchange upon which a stock underlying the Index trades or as an
exchange upon which a futures contract, an option on a futures contract or an
option contract relating to the Index trades. All determinations made by the
Calculation Agent shall be at the sole discretion of the Calculation Agent and
shall be conclusive for all purposes and binding on the Company and Holders of
the Notes, absent manifest error.
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MARKET DISRUPTION EVENTS
"Market Disruption Event" means any of the following events, as
determined by the Calculation Agent:
(a) The suspension or material limitation of trading in 20% or more
of the underlying stocks which then comprise the Index or any Successor
Index, in each case, for more than two hours of trading or during the
one-half hour period preceding the close of trading on the NYSE or any
other applicable organized U.S. exchange. For purposes of this definition,
limitations on trading during significant market fluctuations imposed
pursuant to NYSE Rule 80B (or any applicable rule or regulation enacted or
promulgated by the NYSE, any other self regulatory organization or the
Securities and Exchange Commission (the "SEC") of similar scope or as a
replacement for Rule 80B, as determined by the Calculation Agent) shall be
considered "material".
(b) The suspension or material limitation, in each case, for more
than two hours of trading or during the one-half hour period preceding the
close of trading (whether by reason of movements in price exceeding levels
permitted by the relevant exchange or otherwise) in (A) futures contracts
related to the Index or any Successor Index or options on such futures
contracts which are traded on the Chicago Mercantile Exchange or any other
major U.S. exchange or (B) options contracts related to the Index or any
Successor Index which are traded on any major U.S. exchange.
(c) The unavailability, through a recognized system of public
dissemination of transaction information, for more than two hours of
trading or during the one-half hour period preceding the close of trading,
of accurate price, volume or related information in respect of 20% or more
of the underlying stocks which then comprise the Index or any Successor
Index or in respect of futures contracts related to the Index or any
Successor Index, options on such futures contracts or options contracts
related to the Index or any Successor Index, in each case traded on any
major U.S. exchange.
For purposes of determining whether a Market Disruption Event has
occurred: (1) a limitation on the hours or number of days of trading will not
constitute a Market Disruption Event if it results from an announced change in
the regular business hours of the relevant exchange or market, (2) a decision to
discontinue permanently trading in the relevant futures or options contract will
not constitute a Market Disruption Event, (3) any suspension in trading in a
futures or options contract on the Index or any Successor Index by a major
securities market by reason of (x) a price change violating limits set by such
securities market, (y) an imbalance of orders relating to such contracts or (z)
a disparity in bid and ask quotes relating to such contracts, will constitute a
Market Disruption Event, notwithstanding that such suspension or material
limitation is less than two hours, and (4) a "suspension or material limitation"
on an exchange or in a market will include a suspension or material limitation
of trading by one class of investors provided that such suspension continues for
more than two hours of trading or during the last one-half hour period preceding
the close of trading on the relevant exchange or market (but will not include
limitations imposed on certain types of trading under NYSE Rule 80A or any
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applicable rule or regulation enacted or promulgated by the NYSE, any other
self-regulatory organization or the SEC of a similar scope or as a replacement
for Rule 80A, as determined by the Calculation Agent) and will not include any
time when such exchange or market is closed for trading as part of such
exchange's or market's regularly scheduled business hours.
DISCONTINUANCE OF THE INDEX
If Standard & Poor's, a Division of the XxXxxx-Xxxx Companies, Inc.
("S&P"), discontinues publication of the Index and S&P or another entity
publishes a successor or substitute index that the Calculation Agent determines,
in its sole discretion, to be comparable to such Index (any such index being
referred to herein as a "Successor Index"), then the Adjusted Ending Value shall
be determined by reference to the value of such Successor Index using the
methodology described above under "Supplemental Redemption Amount".
Upon any selection by the Calculation Agent of a Successor Index, the
Company shall cause notice thereof to be furnished to the Trustee, who shall
provide notice thereof to the Holders of the Notes.
If S&P discontinues publication of the Index and a Successor Index is not
selected by the Calculation Agent or is no longer published on any Calculation
Day, the value to be substituted for the Index for any such Calculation Day used
to calculate the Supplemental Redemption Amount at maturity will be a value
computed by the Calculation Agent for such Calculation Day in accordance with
the procedures last used to calculate the Index prior to any such
discontinuance.
If S&P discontinues publication of the Index prior to the period during
which the Supplemental Redemption Amount is to be determined and the Calculation
Agent determines that no Successor Index is available at such time, then on each
Index Business Day until the earlier to occur of (a) the determination of the
Adjusted Ending Value and (b) a determination by the Calculation Agent that a
Successor Index is available, the Calculation Agent shall determine the value
that would be used in computing the Supplemental Redemption Amount as described
in the preceding paragraph as if such day were a Calculation Day. The
Calculation Agent will cause notice of each such value to be published not less
often than once each month in The Wall Street Journal (or another newspaper of
general circulation), and arrange for information with respect to such values to
be made available by telephone.
If a Successor Index is selected or the Calculation Agent calculates a
value as a substitute for the Index as described above, such Successor Index or
value shall be substituted for the Index for all purposes, including for
purposes of determining whether an Index Business Day occurs or a Market
Disruption Event exists.
ALTERATION OF METHOD OF CALCULATION
If at any time the method of calculating the Index or a Successor Index,
or the value thereof, is changed in any material respect, or if the Index or a
Successor Index is in any other way modified so that such Index does not, in the
opinion of the Calculation Agent, fairly
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represent the value of the Index or such Successor Index had such changes or
modifications not been made, then, from and after such time, the Calculation
Agent shall, at the close of business in New York, New York, on each date that
the closing value with respect to the Adjusted Ending Value is to be calculated,
make such adjustments as, in the good faith judgment of the Calculation Agent,
may be necessary in order to arrive at a calculation of a value of a stock index
comparable to the Index or such Successor Index as if changes or modifications
had not been made, and calculate such closing value with reference to the Index,
as adjusted. Accordingly, if the method of calculating the Index or such
Successor Index is modified so that the value of such Index or such Successor
Index is a fraction or a multiple of what it would have been if it had not been
modified (e.g., due to a split in such Index), then the Calculation Agent shall
adjust such Index in order to arrive at a value of such Index as if it had not
been modified (e.g., as if such split had not occurred).
The Trustee shall not at any time be under any duty or responsibility to
any Holder of this Note to determine whether any facts exist which may require
any adjustment to the Adjusted Ending Value or with respect to the nature or
extent of any such adjustment when made or with respect to the method employed
in making the same.
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, 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 Notes, and the terms upon which
the Notes are, and are to be, authenticated and delivered.
If an Event of Default with respect to the Notes shall have occurred and
be continuing, the principal of the Notes 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: (i) the Principal Amount plus (ii) the Supplemental Redemption
Amount, if any, calculated as though the Stated Maturity of this Note were the
date of early repayment.
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
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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 Holder'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, which is absolute and
unconditional, to pay the Principal Amount plus the Supplemental Redemption
Amount with respect to this Note and any interest on any overdue amount thereof
at the time, place, and rate, and in the coin or currency, herein prescribed.
Upon issuance, all Notes will be represented by one or more
fully-registered global securities (the "Global Notes"). Each such Global Note
will be deposited with, or on behalf of, DTC, and registered in the name of DTC
or a nominee thereof.
Unless and until it is exchanged in whole or in part for Notes in
definitive form, no Global Note may be transferred except as a whole by DTC to a
nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC
or any such nominee to a successor of DTC or a nominee of such successor.
Accountholders in the Euroclear or Cedel Bank clearance systems may hold
beneficial interests in the Notes through the accounts each such system
maintains as a participant in DTC.
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.
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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.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
XXXXXXX XXXXX BARNEY HOLDINGS INC.
By:
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Name:
Title:
Corporate Seal
Attest:
By:
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Name:
Title:
Dated: October 30, 1998
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
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