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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[SM]) based upon
the Common Stock of Intel Corporation due March [ ], 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 March [ ],
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 Intel Corporation ("Intel").
This Note is one of the series of Equity Linked Securities based upon
the common stock of Intel Corporation due March [ ], 2002 (the "ELKS").
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COUPON
A coupon of $[ ] per ELKS will be paid in cash on [ ], 2001 and a
coupon of $[ ] per ELKS will be paid in cash on [ ], 2002. The [ ], 2001
coupon will be composed of $[ ] of interest and a partial payment of an option
premium in the amount of $[ ]. The [ ], 2002 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 March 27, 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:
- $10 in cash, if the Closing Price of Intel common stock on the
third Trading Day before maturity is greater than or equal to
the Initial Share Price, or
- a number of shares of Intel common stock equal to the Exchange
Rate, if the Closing Price of Intel common stock on the third
Trading Day before maturity is less than the Initial Share
Price.
In lieu of any fractional share of Intel 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 Intel common stock, based on the Closing Price of Intel common stock
on the third Trading Day before the Stated Maturity Date. The number of full
shares of Intel 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.
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The "Closing Price" of Intel 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 Intel common stock as reported on
the Nasdaq National Market. If Intel 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 Intel common stock is listed. If Intel 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 Intel 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
Intel common stock at the market close on March 22, 2001.
A "Trading Day" means a day on which (1) Intel 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) Intel 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 Intel, 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 Intel,
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 Intel, and the denominator of which will be
the number of shares of common stock outstanding immediately before the event.
If Intel, 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
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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 Intel, 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
determination will be final) so distributed or issued applicable to one share
of Intel common stock.
If Intel, 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
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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 Intel common stock outstanding on the record date.
For the purposes of these adjustments:
A "Permitted Dividend" is any quarterly cash dividend in respect of
Intel 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 Intel with respect to one
share of common stock acquired in a tender offer or exchange offer by Intel,
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, Holders 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 one share
of Intel common stock.
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 Intel 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 Intel,
- in the case of any subdivision, split, combination or
reclassification, on the effective date of the transaction,
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- in the case of any Excess Purchase Payment for which Intel
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 Intel, 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.
In the event of any of the following "Reorganization Events":
- any consolidation or merger of Intel, or any surviving entity
or subsequent surviving entity of Intel, with or into another
entity, other than a merger or consolidation in which Intel 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 Intel
or another issuer,
- any sale, transfer, lease or conveyance to another corporation
of the property of Intel or any successor as an entirety or
substantially as an entirety,
- any statutory exchange of securities of Intel or any successor
of Intel with another issuer, other than in connection with a
merger or acquisition, or
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- any liquidation, dissolution or winding up of Intel or any
successor of Intel,
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 maturity that would have
required an adjustment as described above, had it occurred with respect to the
Intel common stock or Intel. 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.
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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 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: Maturity calculated as though the Stated
Maturity Date of this Note were the date of early repayment. In case of
default in payment 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 5.0% 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.
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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.
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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:
--------------------------------
Name:
Title:
Corporate Seal
Attest:
By:
-------------------------------------
Name:
Title:
Dated: March 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:
-------------------------------------
Authorized Signatory
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