EXHIBIT (4)
THIS NOTE IS A GLOBAL SECURITY 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 NOTES IN
CERTIFICATED FORM, THIS NOTE 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 DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
NOTE 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 NOTE 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.
No. R-1 5,600,000 Units
CUSIP 00000X000 (Each Unit representing $10
original principal amount per Note)
XXXXXXX XXXXX & CO., INC.
Leveraged Index Return Notes
Linked to the Dow Xxxxx Industrial AverageSM
due September 28, 2009
(the "Notes")
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, a sum for each Unit equal to the
Redemption Amount (as defined below), if any, on September 28, 2009 (the
"Stated Maturity").
Payment or delivery of the Redemption Amount and any interest on any
overdue amount thereof with respect to this 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.
This Note is one of the series of Leveraged Index Return Notes Linked to
the Dow Xxxxx Industrial AverageSM due September 28, 2009.
Payment at Maturity
The "Redemption Amount" with respect to each Unit of this Note shall be
determined by the Calculation Agent (as defined below) as described below:
(i) if the Ending Value (as defined below) is equal to or greater than
the Starting Value (as defined below), the Redemption Amount per
Unit shall equal:
[ ]
[ [ Ending Value - Starting Value ] ]
$10 + [ $10 x [------------------------------ ] x 110% ];
[ [ Starting Value ] ]
(ii) if the Ending Value is less than the Starting Value but is equal
to or greater than 8,087.34 (the "Threshold Value"), the
Redemption Amount per Unit shall equal $10; or
(iii) if the Ending Value is less than the Threshold Value, the
Redemption Amount per Unit shall equal:
[ Ending Value ]
$10 x [ -------------- ] x 125%
[ Starting Value ]
The "Starting Value" equals 10,109.18. The "Ending Value" shall be
determined by Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the
"Calculation Agent") and shall equal the average, arithmetic mean, of the
closing levels of the Dow Xxxxx Industrial Average (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, arithmetic mean, 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 Index Business Day (as defined below)
in the Calculation Period, regardless of the occurrence of a Market Disruption
Event (as defined below) on that scheduled Index Business Day.
The "Calculation Period" means the period from and including the seventh
scheduled Index Business Day prior to the Stated Maturity to and including the
second scheduled Index Business Day prior to the Stated Maturity.
"Calculation Day" means any Index Business Day during the Calculation
Period on which a Market Disruption Event has not occurred.
An "Index Business Day" means a day on which the New York Stock Exchange
(the "NYSE"), the American Stock Exchange (the "AMEX") and The Nasdaq Stock
Market (the "Nasdaq") are open for trading and the Index or any Successor
Index (as defined below) is calculated and published.
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All determinations made by the Calculation Agent shall be at the sole
discretion of the Calculation Agent and, 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 the Notes.
Adjustments to the Index; Market Disruption Events
If at any time Dow Xxxxx & Company, Inc. ("Dow Xxxxx") makes a material
change in the formula for or the method of calculating the Index or in any
other way materially modifies the Index so that the Index does not, in the
opinion of the Calculation Agent, fairly represent the value of the 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 the Index as if those changes or modifications had not been
made, and calculate the closing level with reference to the 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 the Index or any Successor
Index; or
(B) the suspension of or material limitation on trading, in each case,
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 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 the Index, or any
Successor Index, which are traded on any major U.S. exchange.
For the purposes 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) for the purpose of clause (A) above, any limitations on trading
during significant market fluctuations under NYSE Rule 80A, or any
applicable rule or regulation enacted or promulgated by the NYSE or
any other self regulatory organization or the Securities and
Exchange Commission of similar scope as determined by the
Calculation Agent, shall be considered "material".
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Discontinuance of the Index
If Dow Xxxxx discontinues publication of the Index and Dow Xxxxx or
another entity publishes a successor or substitute index that the Calculation
Agent determines, in its sole discretion, to be comparable to the 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 the Successor Index as calculated by Dow
Xxxxx or any other entity for the Index and calculate the Ending Value as
described above under "Payment at Maturity". Upon any selection by the
Calculation Agent of a Successor Index, the Company shall cause notice to be
given to Holders of the Notes.
In the event that Dow Xxxxx discontinues publication of the Index and:
o the Calculation Agent does not select a Successor Index; or
o the Successor Index is no longer published on any of the Calculation
Days,
the Calculation Agent shall compute a substitute level for the Index in
accordance with the procedures last used to calculate the Index before any
discontinuance. If a Successor Index is selected or the Calculation Agent
calculates a level as a substitute for the Index as described below, the
Successor Index or level shall be used as a substitute for the Index for all
purposes, including for purposes of determining whether a Market Disruption
Event exists.
If Dow Xxxxx discontinues publication of the Index before the Calculation
Period and the Calculation Agent determines that no Successor Index is
available at that time, then on each Business Day 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 on which the NYSE, the AMEX and the Nasdaq
are open for trading.
General
This Note is one of a duly authorized issue of Securities of the Company,
issued and to be issued under an Indenture, dated as of April 1, 1983, as
amended and restated (herein referred to as the "Indenture"), between the
Company and JPMorgan Chase Bank, as Trustee (herein referred to as 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
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of the respective rights 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.
The Company hereby covenants for the benefit of the Holders of the Notes,
to the extent permitted by applicable law, not to claim voluntarily the
benefits of any laws concerning usurious rates of interest against a Holder of
the Notes.
The Notes are not subject to redemption by the Company prior to the
Stated Maturity.
In case an Event of Default with respect to any Notes shall have occurred
and be continuing, the amount payable to a Holder of a Note upon any
acceleration permitted by the Notes, with respect to each Unit, shall be equal
to the Redemption Amount, if any, calculated as though the date of early
acceleration were the Stated Maturity of the Notes.
In case of default in payment of the Notes, whether at the Stated
Maturity or upon acceleration, from and after such date of default the Notes
shall bear interest, payable upon demand of the Holders thereof, at the rate
of 1.75% per annum to the extent that payment of such interest shall be
legally enforceable on the unpaid amount due and payable on such date in
accordance with the terms of the Notes 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 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 original
principal amount of the Securities at the time Outstanding of each series
affected thereby. Holders of specified percentages in aggregate original
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 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.
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 Redemption Amount, if any, 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.
As provided in the Indenture and subject to certain limitations set forth
therein and on the first page hereof, the transfer of this Note may be
registered on the Security Register of the Company, upon surrender of this
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
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or more new Notes, of authorized denominations and for the same aggregate
original principal amount, shall be issued to the designated transferee or
transferees.
The Notes are issuable only in registered form without coupons in
denominations of a single Unit and integral multiples thereof. This Note shall
remain in the form of a global security held by a Depository. Notwithstanding
the foregoing, if (x) any 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 Note shall be exchangeable or (z) an
Event of Default has occurred and is continuing with respect to the Notes,
this Note shall be exchangeable for Notes in definitive form of like tenor and
of an equal aggregate original principal amount, in denominations of a single
Unit and integral multiples thereof. 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 Note as are necessary or appropriate to allow for the issuance of
such definitive Notes.
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 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 Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Company and the Holder of a Note by acceptance hereof hereby agree
(in the absence of an administrative determination or judicial ruling to the
contrary) to characterize and treat each Note for all tax purposes as a
pre-paid cash-settled forward contract linked to the value of the Index.
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
JPMorgan Chase Bank, the Trustee under the Indenture, or its successor
thereunder, by the manual signature of one of its authorized officers, this
Note shall not be entitled to any benefits under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: September 28, 2004
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, as Trustee By:
---------------------------------------------
Treasurer
By: Attest:
-------------------------------------------------- -----------------------------------------
Authorized Officer Secretary
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