EXHIBIT 4
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 DEPOSITORY OR A NOMINEE
THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TRUST COMPANY (THE "DEPOSITORY") TO A NOMINEE OF THE DEPOSITORY
OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS GLOBAL NOTE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TO THE COMPANY 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 THE DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY), 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.
PRINCIPAL AMOUNT:
REGISTERED No.: R- CUSIP No.: $
XXXXXXX XXXXX & CO., INC.
Medium-Term Notes, Series C
50/150 Index Basket Notes
(the "Notes")
ORIGINAL ISSUE DATE: STATED MATURITY: INDEX:
Value of the Basket
comprised of
(each, a "Basket
Index") calculated
as specified below.
INDEX PUBLISHER: STARTING VALUE: MINIMUM REDEMPTION
AMOUNT:
CALCULATION AGENT: DENOMINATIONS: SPECIFIED CURRENCY:
Xxxxxxx Xxxxx, Xxxxxx, Integral multiples of $10 United States dollar
Xxxxxx & Xxxxx Incorporated (unless otherwise (unless otherwise
(unless otherwise specified) specified) specified)
DEFAULT RATE:
1
THE BASKET:
The Calculation Agent will calculate the value of the Basket by summing
the products of the closing level of each Basket Index on a Calculation Day and
the Multiplier specified below applicable to each Basket Index.
Basket Index Multiplier
------------------------------- ----------
2
Xxxxxxx Xxxxx & Co., 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
CEDE & CO., or its registered assigns, the Redemption Amount (as defined below)
at the Stated Maturity.
Payment or delivery of the Redemption Amount and any interest on any
overdue amount thereof with respect to this Global Note shall be made at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts.
Payment at Stated Maturity
At the Stated Maturity, a Holder shall receive a cash payment equal to the
Redemption Amount. The "Redemption Amount" with respect to each $10 principal
amount of this Global Note shall be determined by the Calculation Agent and
shall equal:
(i) If the Ending Value (as defined below) is equal or greater than the
Starting Value:
( (Ending Value - Starting Value))
$10 + ($10x150%x(-----------------------------))
( ( Starting Value ))
(ii) If the Ending Value is less than the Starting Value:
( (Ending Value - Starting Value))
$10 + ($10x50%x(-----------------------------))
( ( Starting Value ))
(iii) In no event shall the Redemption Amount be less than the Minimum
Redemption Amount.
The "Ending Value" shall be determined by the Calculation Agent and shall
equal the average of the closing levels of the Index determined on each of the
first five Calculation Days (as defined below) during the Calculation Period (as
defined below). If there are fewer than five Calculation Days during the
Calculation Period, then the Ending Value shall equal the average of the closing
levels of the Index on those Calculation Days. If there is only one Calculation
Day during the Calculation Period, then the Ending Value shall equal the closing
level of the Index on that Calculation Day. If no Calculation Days occur during
the Calculation Period, then the Ending Value shall equal the closing level of
the Index determined on the last scheduled Basket Business Day (as defined
below) in the Calculation Period, regardless of the occurrence of a Market
Disruption Event (as defined below) on that scheduled Basket Business Day.
The "Calculation Period" means the period from and including the seventh
scheduled Basket Business Day before the Stated Maturity to and including the
second scheduled Basket Business Day before the Stated Maturity.
A "Calculation Day" means any Basket Business Day during the Calculation
Period on which a Market Disruption Event has not occurred.
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A "Basket Business Day" means any day on which the Basket Indices or any
Successor Indices (as defined below) are calculated and published.
All determinations made by the Calculation Agent, absent a determination
of a manifest error, shall be conclusive for all purposes and binding on the
Company and the Holders and beneficial owners of this Global Note.
Adjustments to the Basket; Market Disruption Events
If at any time any Index Publisher makes a material change in the formula
for or the method of calculating its respective Basket Index or in any other way
materially modifies its respective Basket Index so that the Basket Index does
not, in the opinion of the Calculation Agent, fairly represent the level of the
Basket Index had those changes or modifications not been made, then, from and
after that time, the Calculation Agent shall, at the close of business in New
York, New York, on each date that the closing level of the Index is to be
calculated, make any adjustments as, in the good faith judgment of the
Calculation Agent, may be necessary in order to arrive at a calculation of a
level of a stock index comparable to that Basket Index as if those changes or
modifications had not been made, and calculate the closing level with reference
to the Basket Index, as so adjusted.
"Market Disruption Event" means either of the following events as
determined by the Calculation Agent:
(A) the suspension of or material limitation on trading for more than
two hours of trading, or during the one-half hour period preceding
the close of trading, on the applicable exchange (without taking
into account any extended or after-hours trading session), in 20% or
more of the stocks which then comprise a Basket Index or any
Successor Index; or
(B) the suspension of or material limitation on trading for more than
two hours of trading, or during the one-half hour period preceding
the close of trading, on the applicable exchange (without taking
into account any extended or after-hours trading session), whether
by reason of movements in price otherwise exceeding levels permitted
by the relevant exchange or otherwise, in options contracts or
futures contracts related to a Basket Index, or any Successor Index.
For the purpose of determining whether a Market Disruption Event has
occurred:
(1) a limitation on the hours in a trading day and/or number of days of
trading shall not constitute a Market Disruption Event if it results
from an announced change in the regular business hours of the
relevant exchange;
(2) a decision to permanently discontinue trading in the relevant
futures or options contracts related to the applicable Basket Index,
or any Successor Index, will not constitute a Market Disruption
Event;
(3) a suspension in trading in a futures or options contracts on the
applicable Basket Index, or any Successor Index, by a major
securities market by reason of (a) a price change violating limits
set by that securities market, (b) an imbalance of orders relating
to those contracts or (c) a disparity in bid and ask quotes relating
4
to those contracts shall constitute a suspension of or material
limitation on trading in futures or options contracts related to
that Basket Index; and
(4) a suspension of or material limitation on trading on the relevant
exchange shall not include any time when that exchange is closed for
trading under ordinary circumstances.
Discontinuance of a Basket Index
If an Index Publisher discontinues publication of its respective Basket
Index and the Index Publisher or another entity publishes a successor or
substitute index that the Calculation Agent determines, in its sole discretion,
to be comparable to that Basket Index (a "Successor Index"), then, upon the
Calculation Agent's notification of that determination to the Trustee (as
defined below) and the Company, the Calculation Agent shall substitute such
Successor Index as calculated by the relevant Index Publisher or any other
entity for that Basket Index and calculate the Ending Value as described above
under "Payment at Stated Maturity". Upon any selection by the Calculation Agent
of a Successor Index, the Company shall cause notice to be given to Holders of
this Global Note.
In the event that the Index Publisher discontinues publication of its
respective Basket Index and:
o the Calculation Agent does not select a Successor Index; or
o the Successor Index is not published on any of the Calculation Days,
the Calculation Agent shall compute a substitute level for that Basket Index in
accordance with the procedures last used to calculate that Basket Index before
any discontinuance. If a Successor Index is selected or the Calculation Agent
calculates a level as a substitute for a Basket Index as described below, the
Successor Index or level shall be used as a substitute for that Basket Index for
all purposes, including the purpose of determining whether a Market Disruption
Event exists.
If an Index Publisher discontinues publication of its Basket Index before
the Calculation Period and the Calculation Agent determines that no Successor
Index is available at that time, then on each Business Day (as defined below)
until the earlier to occur of:
o the determination of the Ending Value; or
o 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 Redemption Amount as described in the preceding paragraph as if
that day were a Calculation Day. The Calculation Agent shall cause notice of
each 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 these values to be made available by telephone.
A "Business Day" means a day that is either (i) a Basket Business Day or
(ii) a day on which the applicable exchanges listing the stocks of companies
used to calculate a substitute level for a Basket Index following a
discontinuance, pursuant to the above, are open for trading.
5
General
All percentages resulting from any calculation on the Notes shall be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards. For example, 9.876545% (or
..09876545) would be rounded to 9.87655% (or .0987655). All dollar amounts used
in or resulting from any calculation shall be rounded to the nearest cent with
one-half cent being rounded upward.
This Global Note is one of a duly authorized issue of the Company's
Medium-Term Notes, Series C, Due Nine Months or More from Date of Issue and
designated as 50/150 Index Basket Notes which are due at the Stated Maturity.
The Notes are issued and to be issued under an indenture dated as of April 1,
1983, as amended and restated (the "Indenture"), between the Company and
JPMorgan Chase Bank, N.A. (herein called the "Trustee", which term includes any
successor Trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights thereunder of the Company, the Trustee and the Holders of the Notes and
the terms upon which the Notes are to be authenticated and delivered.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee with respect to the Notes under the Indenture, or its
successor thereunder, by the manual signature of one of its authorized officers,
this Global Note shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
The Notes are issuable only in registered form without coupons in the
Denominations specified above. As provided in the Indenture and subject to
certain limitations therein set forth, this Global Note is exchangeable for
certificates representing notes of like tenor and of an equal Principal Xxxxxx
as requested by the Holder surrendering the same. If (x) the Depository is at
any time unwilling or unable to continue as depository and a successor
depository is not appointed by the Company within 60 days, (y) the Company
executes and delivers to the Trustee a Company Order to the effect that this
Global Note shall be exchangeable or (z) an Event of Default has occurred and is
continuing with respect to this Global Note, this Global Note shall be
exchangeable for certificates representing the Notes in definitive form of like
tenor and of an equal Principal Amount, in authorized denominations. Such
definitive Notes shall be registered in such name or names as the Depository
shall instruct the Trustee. If definitive Notes are so delivered, the Company
may make such changes to the form of this Global Note as are necessary or
appropriate to allow for the issuance of such definitive Notes.
In case an Event of Default with respect to this Global Note shall have
occurred and be continuing, the amount payable to a Holder of this Global Note
upon any acceleration permitted by the Notes, with respect to each $10 Principal
Amount of this Global Note, shall be equal to the Redemption Amount, calculated
as though the date of acceleration were the Stated Maturity.
In case of default in payment of this Global Note, whether at the Stated
Maturity or upon acceleration, from and after such date this Global Note shall
bear interest, payable upon demand of the Holders thereof, at the Default Rate,
to the extent that payment of interest shall be legally enforceable on the
unpaid amount due and payable on such date in accordance with the terms of this
Global Note to the date 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
6
Securities of each series to be affected under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than 66 2/3%
in aggregate principal amount of the Securities at the time Outstanding of each
series affected thereby. Holders of specified percentages in aggregate principal
amount of the Securities of each series at the time Outstanding, on behalf of
the Holders of all Securities of each series, are permitted 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 Global Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Global 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
Global Note.
No reference herein to the Indenture and no provision of this Global Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the Redemption Amount hereof and interest
on this Global Note, if any, at the time, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations set forth
therein and on the face hereof, the transfer of this Global Note may be
registered on the Security Register of the Company, upon surrender of this
Global Note for registration of transfer at the office or agency of the Company
in the Borough of Manhattan, The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company duly executed by, the Holder hereof or by his attorney duly authorized
in writing, and thereupon one or more new certificates representing the Notes of
authorized denominations of like tenor and for the same Principal Amount shall
be issued to the designated transferee or transferees.
Prior to due presentment of this Global Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Global Note is registered as the owner hereof for
all purposes, whether or not this Global Note be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company and each Holder and beneficial owner by acceptance hereof
hereby agree (in the absence of an administrative determination, judicial ruling
or other authoritative guidance to the contrary) to characterize and treat this
Global Note for all tax purposes as a pre-paid cash-settled forward contract
linked to the level of the Index.
The Indenture and this Global Note shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Global Note which are defined in the Indenture but
not in this Global Note shall have the meanings assigned to them in the
Indenture.
7
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
CERTIFICATE OF AUTHENTICATION Xxxxxxx Xxxxx & Co., Inc.
This is one of the Securities of the series
designated therein referred to in the [Copy of Seal]
within-mentioned Indenture.
JPMorgan Chase Bank, N.A., as Trustee By:
-----------------------------------------
Assistant Treasurer
By: Attest:
----------------------------------------- -------------------------------------
Authorized Officer Secretary
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto (insert Taxpayer Identification No.)____________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
_______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _______________________________________ attorney to transfer said
Note on the books of the Company with full power of substitution in the
premises.
Date:
-------------------- --------------------------------------
NOTICE: The signature of the
registered Holder to this assignment
must correspond with the name as
written upon the face of the within
instrument in every particular,
without alteration or enlargement or
any change whatsoever.
