EXHIBIT 4(b)
FORM OF NOTE
THIS SECURITY IS A GLOBAL SECURITY 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
SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE
"DEPOSITARY"), TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY TO XXXXXXX XXXXX & CO., INC. OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY), 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.
XXXXXXX XXXXX & CO., INC.
6.050% Subordinated Notes Due May 16, 2016
No. R- Aggregate Principal Amount:
CUSIP: 000000X0 $500,000,000
XXXXXXX XXXXX & CO., INC., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of FIVE HUNDRED MILLION DOLLARS
($500,000,000) on March 16, 2016 and to pay interest on said principal sum
semi-annually in arrears on May 16 and November 16 of each year, commencing
November 16, 2006 (each such date, an "Interest Payment Date"). Interest will
accrue at the rate of 6.050% per annum from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for,
or, if no interest has been paid or duly provided for, from and including May
16, 2006, to but excluding the next Interest Payment Date or the date on which
the principal is paid or duly made available for payment. The amount of
interest paid for any period will be computed on the basis of a 360-day year
of twelve 30-day months. In the event that any date on which interest or
principal is payable on this Security is not a Business Day, then a payment of
the interest or principal payable on such date will be made on the next
succeeding day which is a Business Day (and no interest will accrue on the
amount payable from such scheduled payment date to the next succeeding
Business Day) with the same force and
effect as if made on the date the payment was originally payable. A "Business
Day" shall mean any day other than a Saturday or Sunday that is neither a
legal holiday nor a day on which banking institutions in The City of New York
are authorized or required by law, regulation or executive order to close. The
interest installment so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities, as
defined in the Indenture) is registered at the close of business on the
Regular Record Date for such interest installment, which shall be the close of
business on the fifteenth calendar day immediately preceding such Interest
Payment Date. Any such interest installment not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be
fixed by the Trustee, notice whereof shall be given to Holders of Securities
not less than 10 days prior to such Special Record Date, or be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in said
Indenture.
Payment of the principal of and interest on this Security will be
made at the office or agency of the Company maintained for that purpose in New
York, 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.
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and this Security is issued
subject to the provisions of the Indenture with respect thereto. Each Holder
of this Security, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the subordination
so provided and (c) appoints the Trustee his attorney-in-fact for any and all
such purposes. Each Holder hereof, by his acceptance hereof, waives all notice
of the acceptance of the subordination provisions contained herein and in the
indenture of each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
Reference is hereby made to the further provisions of the
Indenture summarized on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
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IN WITNESS WHEREOF, Xxxxxxx Xxxxx & Co., Inc. has caused this
instrument to be duly executed under its corporate seal.
Dated: May 16, 2006
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:
-----------------------------------------
Treasurer
By: Attest:
----------------------------------------- -------------------------------------
Authorized Officer Secretary
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Reverse of Security
This Security is one of a duly authorized issue of Securities of
the Company, designated as its 6.050% Subordinated Notes Due May 16, 2016
(herein called the "Securities"), initially limited in aggregate principal
amount to $2,000,000,000 issued under an indenture, dated as of December 17,
1996 (the "Principal Indenture"), as amended by a supplemental indenture,
dated as of May 16, 2006, (the "Supplemental Indenture" and, together with the
Principal Indenture, the "Indenture"), between the Company and JPMorgan Chase
Bank, N.A., successor to The Chase Manhattan Bank, as Trustee (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, limitations of rights, duties
and immunities thereunder of the Trustee, the Company and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
All terms used in this Security which are defined in the Indenture
but not in this Security shall have the meanings assigned to them in the
Indenture.
Redemption
Optional Redemption
The Company may elect to redeem the outstanding Securities, in
whole or in part, at any time, upon not less than 30 or more than 60 days'
notice, at a Redemption Price equal to the greater of (1) 100% of the
principal amount of the Securities to be redeemed or (2) as determined by the
Quotation Agent (as defined below), the sum of the present values of the
remaining scheduled payments of principal and interest on the Securities to be
redeemed, not including any portion of these payments of interest accrued as
of the applicable Redemption Date, discounted to the applicable Redemption
Date on a semi-annual basis assuming a 360-day year consisting of twelve
30-day months, at the Adjusted Treasury Rate (as defined below) plus 20 basis
points, plus, in either case, accrued interest on the Securities to be
redeemed to the applicable Redemption Date.
"Adjusted Treasury Rate" means the semi-annual equivalent yield to
maturity of a Reference Security whose price, expressed as a percentage of its
principal amount, is equal to the Comparable Treasury Price.
"Reference Security" means a United States Treasury security which
has a maturity comparable to the remaining maturity of the Securities at the
applicable Redemption Date which would be used in accordance with customary
financial practice to price new issues of corporate debt securities with a
maturity comparable to the remaining maturity of the Securities at the
applicable Redemption Date, all as determined in the sole discretion of the
Quotation Agent.
"Comparable Treasury Price" means the average of the bid and asked
prices for the Reference Security as of 5:00 p.m. on the third Business Day
before the applicable Redemption Date, as provided by the Reference Dealers.
If the Company obtains more than
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three Reference Dealer quotations, the Company will eliminate the highest and
the lowest Reference Dealer quotations and then calculate the average of the
remaining Reference Dealer quotations. If the Company obtains three or fewer
Reference Dealer quotations, the Company will calculate the average of all the
Reference Dealer quotations and not eliminate any quotations.
"Reference Dealers" means the Quotation Agent and two or more
other primary U.S. Government securities dealers in New York City appointed by
the Company. If the Quotation Agent is no longer a primary U.S. Government
securities dealer, the Company shall substitute another primary U.S.
Government securities dealer in its place as a Reference Dealer.
"Quotation Agent" means Xxxxxxx Xxxxx Government Securities Inc.
or its successor.
All determinations made by the Quotation Agent shall be made in
good faith and in a commercially reasonable manner by the Quotation Agent and,
absent a determination of a manifest error, shall be conclusive for all
purposes and binding on the Company, the Holders and beneficial owners of the
Securities.
Tax Redemption
The Company may elect to redeem the outstanding Securities, in
whole and not in part, upon not less than 30 or more than 60 days' notice and
not more than 90 days before the next Interest Payment Date on which the
Company would be obligated to pay Additional Amounts (as defined below), at
any time following the date on which the Company becomes obligated to pay
Additional Amounts on any of those Securities on the next Interest Payment
Date (a "Tax Redemption Event"), but only if the Tax Redemption Event results
from a change in the laws or regulations of any U.S. Taxing Authority (as
defined below), or from a change in any official interpretation or application
of those laws or regulations, that becomes effective or is announced on or
after May 11, 2006. If the Company redeems any Securities pursuant to a Tax
Redemption Event, it shall do so at a Redemption Price equal to 100% of the
principal amount of the Securities redeemed, plus accrued interest to the
Redemption Date.
Payment of Additional Amounts
If the beneficial owner of a Security is a United States Alien (as
defined below), the Company shall pay all Additional Amounts that may be
necessary so that every Net Payment (as defined below) of interest or
principal on such Securities will not be less than the amount provided for in
the Securities (the "Additional Amounts"); provided, however, that the Company
shall not pay Additional Amounts for or on account of any of the following:
(a) any tax, assessment or other governmental charge imposed solely
because at any time there is or was a connection between the beneficial
owner -- or between a fiduciary, settlor, beneficiary or member of the
beneficial owner, if the beneficial owner is an estate, trust or
partnership -- and the United States (as defined below) (other than the
mere receipt of a payment or the ownership or holding of a Security),
including because
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the beneficial owner -- or the fiduciary, settlor, beneficiary or member
-- at any time, for U.S. federal income tax purposes:
(i) is or was a citizen or resident or is or was treated as a
resident of the United States;
(ii) is or was present in the United States;
(iii) is or was engaged in a trade or business in the United
States;
(iv) has or had a permanent establishment in the United States;
(v) is or was a domestic personal holding company, a passive
foreign investment company or a controlled foreign corporation;
(vi) is or was a corporation that accumulates earnings to avoid
U.S. federal income tax; or
(vii) is or was a "ten percent shareholder" of the Company;
(b) any tax, assessment or other governmental charge imposed solely
because of a change in applicable law or regulation, or in any official
interpretation or application of applicable law or regulation, that
becomes effective more than 15 days after the day on which the payment
becomes due or is duly provided for, whichever occurs later;
(c) any estate, inheritance, gift, sales, excise, transfer, wealth or
personal property tax, or any similar tax, assessment or other
governmental charge;
(d) any tax, assessment or other governmental charge imposed solely
because the beneficial owner or any other person fails to comply with
any certification, identification or other reporting requirement
concerning the nationality, residence, identity or connection with the
United States of the holder or any beneficial owner of the Security, if
compliance is required by statute, by regulation of the U.S. Treasury
department or by an applicable income tax treaty to which the United
States is a party, as a precondition to exemption from the tax,
assessment or other governmental charge;
(e) any tax, assessment or other governmental charge that can be paid
other than by deduction or withholding from a payment on the Securities;
(f) any tax, assessment or other governmental charge imposed solely
because the payment is to be made by a particular paying agent (which
term may include the Company) and would not be imposed if made by
another paying agent;
(g) where such withholding or deduction is imposed on a payment to an
individual and is required to be made pursuant to any European Union
Directive on the taxation of
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savings or any law implementing or complying with, or introduced in
order to conform to, such Directive;
(h) by or on behalf of a holder who would be able to avoid withholding
or deduction by presenting the Security to another paying agent in a
Member State of the European Union; or
(i) any combination of the taxes, assessments or other governmental
charges described above.
In addition, the Company will not pay Additional Amounts with
respect to any payment of principal or interest to any United States Alien who
is a fiduciary or a partnership, or who is not the sole beneficial owner of
the payment, to the extent that the Company would not have to pay additional
amounts to any beneficiary or settlor of the fiduciary or any member of the
partnership, or to any beneficial owner of the payment, if that person or
entity were treated as the beneficial owner of the Security for this purpose.
References to any payment of interest or principal on a Security
includes any Additional Amount that may be payable as described above in
respect of that payment.
"United States Alien" means any person who, for U.S. federal income tax
purposes, is:
(a) a nonresident alien individual;
(b) a foreign corporation;
(c) a foreign partnership one or more of the members of which is, for
U.S. federal income tax purposes, a foreign corporation, a nonresident
alien individual or a nonresident alien fiduciary of a foreign estate or
trust; or
(d) a nonresident alien fiduciary of an estate or trust that is not
subject to U.S. federal income tax on a net income basis on income or
gain from the Security.
"Net Payment" means the amount the Company or the Company's paying
agent pays after deducting or withholding an amount for or on account of any
present or future tax, assessment or other governmental charge imposed with
respect to that payment by a U.S. Taxing Authority.
"U.S. Taxing Authority" means the United States of America or any
state, other jurisdiction or taxing authority in the United States.
"United States" means the United States of America, including the
states and the District of Columbia, together with the territories,
possessions and all other areas subject to the jurisdiction of the United
States of America.
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Events of Default; Acceleration
If an Event of Default with respect to the Securities shall occur
and be continuing, the principal of the Securities may be declared due and
payable in the manner, with the effect and subject to the conditions provided
in the Indenture.
None of the Events of Default specified in Sections 501(1), (2),
(3), (4), (5) or (6) of the Principal Indenture shall constitute "Events of
Default" for the purposes of the Securities. The following shall be the only
Events of Default for the purposes of the Securities:
(a) the entry of a decree or order by a court having jurisdiction
in the premises for relief in respect of the Company under the United
States federal bankruptcy laws, as now constituted or as hereafter
amended, and the continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; or
(b) the filing by the Company of a petition or answer or consent
seeking relief under the United States federal bankruptcy laws, as now
constituted or hereafter amended, or the consent by it to the
institution of proceedings thereunder or to the filing of any such
petition.
General
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
Notices to Holders of the Securities shall be given by mailing the
notices to each Holder by first class mail, postage prepaid, at the respective
address of each Holder as that address appears upon the Company's books.
The Indenture contains provisions for satisfaction and discharge
at any time of the entire indebtedness of this Security upon compliance by the
Company with certain conditions set forth in the Indenture.
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 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?% in aggregate
issue price of the securities at the time Outstanding of each series affected
thereby. Holders of specified percentages in aggregate issue price 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 Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Securities 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 Security.
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No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in New York, New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without
coupons in minimum denominations of $100,000.00 and integral multiples of
1,000.00 in excess thereof. This Security shall remain in the form of a global
security held by the Depositary. Notwithstanding the foregoing, if (x) any
depositary is at any time unwilling or unable to continue as depositary and a
successor depositary 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 Security shall be exchangeable or (z) an Event of Default has
occurred and is continuing with respect to this Security, this Security shall
be exchangeable for Securities in definitive form of like tenor and of an
equal aggregate principal amount, in minimum denominations of $100,000.00 and
integral multiples of $1,000.00 in excess thereof. Such definitive Securities
shall be registered in such name or names as the Depositary shall instruct the
Trustee. If definitive Securities are so delivered, the Company may make such
changes to the form of this Security as are necessary or appropriate to allow
for the issuance of such definitive Securities.
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 governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any of their respective agents may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security shall be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
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