1
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 PRINCIPAL AMOUNT
CUSIP {SPACE} REPRESENTED ${SPACE}
representing {SPACE} Units
($10 per Unit)
XXXXXXX XXXXX XXXXXX HOLDINGS INC.
Callable Principal-Protected Equity Linked Notes based upon the S&P 500(R) Index
due {SPACE}, 2006
Xxxxxxx Xxxxx Xxxxxx Holdings Inc., a Delaware corporation (hereinafter
referred to as the "Company", which term includes any successor corporation
under the Indenture herein referred to), for value received and on condition
that this Note is not redeemed by the Company prior to {SPACE}, 2006 (the
"Stated Maturity Date"), hereby promises to pay to CEDE & CO., or its registered
assigns, the principal sum of {SPACE} Dollars (${SPACE}) (the "Principal
Amount") plus the Supplemental Redemption Amount (as defined below), if any, on
the Stated Maturity Date. This Note may be redeemed, in whole but not in part,
at the option of the Company during certain specified periods prior to the
Stated Maturity Date, as described more fully below under "Redemption of the
Notes at the Option of the Company". If the Company elects to redeem the Notes
prior to the Stated Maturity Date, the Holder of this Note will receive only the
relevant Call Price (as defined below) and will not receive the Supplemental
Redemption Amount. This Note will not bear periodic 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.
2
If this Note is not redeemed by the Company prior to the Stated Maturity
Date, payment of the Principal Amount and the Supplemental Redemption Amount, if
any, 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 Callable Principal-Protected Equity
Linked Notes based upon the S&P 500(R) Index (the "Index") due {SPACE}, 2006
(the "Notes").
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 Xxxxxx
Inc. (the "Calculation Agent", which term includes any successor thereto) and
will equal the average (arithmetic mean) of the closing values of the Index as
adjusted by the Adjustment Factor (the "Adjusted Index Value") on each of the
first five Calculation Days. If there are fewer than five Calculation Days, then
the Adjusted Ending Value will equal the average (arithmetic mean) of the
closing values of the Adjusted Index Value on such Calculation Days, and if
there is only one Calculation Day, then the Adjusted Ending Value will equal the
closing value of the Adjusted Index Value on such Calculation Day. If no
Calculation Days occur during the Calculation Period, then the Adjusted Ending
Value will equal the Adjusted Index Value on the last scheduled Index Business
Day in the Calculation Period, regardless of the occurrence of a Market
Disruption Event on such day.
The "Adjustment Factor" equals {SPACE}% 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 Date, the Adjustment Factor will be reduced pro rata to
reflect the number of days elapsed between {SPACE}, 1999 and such date.
The "Starting Value" equals {SPACE}, which was the closing value of the
Index on {SPACE}, 1999.
The "Calculation Period" means the period from and including the seventh
scheduled Index Business Day prior to the Stated Maturity Date to and including
the second scheduled Index Business Day prior to the Stated Maturity Date. A
"Calculation Day" means any Index Business Day during the Calculation Period on
which a Market Disruption Event has not occurred.
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
2
3
Exchange ("CBOE") 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.
REDEMPTION OF THE NOTES AT THE OPTION OF THE COMPANY
The Company, in its sole discretion, may elect to redeem the Notes, in
whole but not in part, on any day on which the NYSE and the CBOE are open for
trading during any of the 30-day periods beginning on [February {SPACE}] in each
of 2002, 2003, 2004 or 2005 (each such 30-day period, a "Call Period"), at the
applicable call price per Unit as set forth below (each such price, a "Call
Price"):
CALL PERIOD CALL PRICE
30-day Period Beginning on
[February {SPACE}], 2002 $16.00 per Unit (160% of the principal amount)
30-day Period Beginning on
[February {SPACE}], 2003 $18.00 per Unit (180% of the principal amount)
30-day Period Beginning on
[February {SPACE}], 2004 $20.00 per Unit (200% of the principal amount)
30-day Period Beginning on
[February {SPACE}], 2005 $22.00 per Unit (220% of the principal amount)
The Company must give at least 15 days' advance notice to the Trustee,
specifying the date on which the Company will pay the Call Price (such date, the
"Call Date"), which Call Date shall be no later than the 20th day after such
call notice is given. The Trustee will provide notice of such call election to
the registered holders of the Notes, specifying the Call Date, no later than 15
days prior to the Call Date. If the Company elects to redeem the Notes prior to
the Stated Maturity Date, the Holder of this Note will receive only the relevant
Call Price and will not receive the Supplemental Redemption Amount.
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,
3
4
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 or material
limitation 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 or material limitation 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 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.
4
5
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 the 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
Calculation Agent will cause notice thereof to be furnished to the Company and
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 is
changed in any material respect, or if the Index or a Successor Index is in any
other way modified so that the value of the Index or such Successor Index does
not, in the opinion of the Calculation Agent, fairly represent the value thereof
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 when 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
5
6
Index or such Successor Index as if such changes or modifications had not been
made, and calculate such closing value with reference to the Index or such
Successor Index, as adjusted. Accordingly, if the method of calculating the
Index or such Successor Index is modified so that the value thereof 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
the Index or such Successor Index in order to arrive at a value thereof 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 Date of this Note were
the date of early repayment. In case of default in payment on the maturity date
of this Note (whether on the Stated Maturity Date or upon acceleration), from
and after the maturity date this Note shall bear interest, payable upon demand
of the Holders thereof, at the rate of {SPACE}% per annum on the unpaid amount
due and payable on such date in accordance with the terms of this Note through
the date when payment of such amount has been made or duly provided for.
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
6
7
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 Principal Amount plus
the Supplemental Redemption Amount (if any) with respect to this Note, unless
the Company redeems the Notes prior to the Stated Maturity Date, 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.
7
8
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: , 1999
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
8
