EXHIBIT (4)
MEDIUM-TERM NOTE
THIS NOTE IS A 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 NOTES 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 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.
REGISTERED PRINCIPAL AMOUNT
No. 1 CUSIP No. ▇▇▇▇▇▇▇▇▇ $7,200,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., INC.
MEDIUM-TERM NOTE, SERIES C
2% Notes Linked to the Performance of the
Dow ▇▇▇▇▇ CBOT Treasury Index due July 28, 2008
(the "Notes")
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., INC., a Delaware corporation (hereinafter
referred to as 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 Redemption Amount
(as defined below) on July 28, 2008 (the "Stated Maturity Date"), and to pay
interest on the principal amount hereof, at a rate per annum determined in
accordance with the provisions hereof, until the Redemption Amount is paid or
duly made available for payment in such coin or currency of the United States
of America as at the time of payment is legal tender for public and private
debts.
Payment of the Stated Maturity Date
At the Stated Maturity Date, a Holder shall receive a cash payment
equal to the Redemption Amount. The "Redemption Amount" with respect to each
$1,000 principal amount of this Note shall be determined by the Calculation
Agent (as defined below) and shall equal the greater of:
(i) $1,000 x ( ( [Ending Value) )) x Participation Rate
( 1 - ( --------------- ))
( ( Starting Value ))
or
(ii) $1,000.
The "Starting Value" equals 132.86.
The "Ending Value" will be determined by the Calculation Agent and
will equal the closing level of the Dow ▇▇▇▇▇ CBOT Treasury Index determined
on the Valuation Date (as defined below).
The "Valuation Date" will be the fifth Business Day (as defined
below) prior to the Stated Maturity Date.
The "Participation Rate" equals 100%.
The "Dow ▇▇▇▇▇ CBOT Treasury Index" is published by the Chicago Board
of Trade. The level of the Dow ▇▇▇▇▇ CBOT Treasury Index at any time will be
the level reported on Bloomberg page DJCBTI or any successor service or
successor page thereto. If the relevant level for the Dow ▇▇▇▇▇ CBOT Treasury
Index are not available on Bloomberg page DJCBTI or on a successor page or
successor service on the Valuation Date, such level will be determined in the
sole discretion of the Calculation Agent.
As used herein, the "Calculation Agent" is ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital
Services, Inc. All determinations made by the Calculation Agent, absent a
manifest error, shall be conclusive for all purposes and binding on the
Company and the Holders and beneficial owners of this Note.
Interest
The Company will pay interest in arrears on each Interest Payment
Date (as defined below) commencing with the first Interest Payment Date next
succeeding July 28, 2005, the ("Original Issue Date"), and on the Maturity
Date. The "Interest Payment Dates" for this Note shall be the twenty-eighth
day of each month commencing August 28, 2005. Interest on this Note will be
computed on the basis of a 360-day year of twelve 30-day months.
Interest on this Note will accrue at a rate of 2% per annum from, and
including, the immediately preceding Interest Payment Date to which interest
has been paid or duly provided for (or from, and including, the Original Issue
Date if no interest has been paid or duly provided for) to, but excluding, the
applicable Interest Payment Date or the Maturity Date, as the case may be. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes) is
registered (the "Holder") at the close of business on the fifteenth calendar
day (whether or not a Business Day, as defined below) immediately preceding
the related Interest Payment Date (the "Record Date"); provided, however, that
interest payable on the Maturity Date will be payable to the person to whom
the Redemption Amount shall be payable. Any such interest not so punctually
paid or duly provided for on any Interest Payment Date other than the Maturity
Date ("Defaulted Interest") shall forthwith cease to be payable to the Holder
on the close of business on any Record Date and, instead, shall be paid to the
person in whose name this Note is registered at the close of business on a
special record date (the "Special Record Date") for the payment of such
Defaulted Interest to be fixed by
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the Trustee hereinafter referred to, notice whereof shall be given to the
Holder of this Note by the Trustee not less than 10 calendar days prior to
such Special Record Date or may be paid at any time in any other lawful
manner, all as more fully provided for in the Indenture.
Payment of the Redemption Amount and interest in respect of this Note
due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note at the office or agency maintained by
the Company for that purpose in the Borough of Manhattan, The City of New
York. Payment of interest due on any Interest Payment Date other than the
Maturity Date will be made at the aforementioned office or agency maintained
by the Company or, at the option of the Company, by check mailed to the
address of the person entitled thereto as such address shall appear in the
Security Register maintained by the Trustee on the Record Date; provided,
however, that a Holder of U.S.$10,000,000 or more in aggregate principal
amount of Notes (whether having identical or different terms and provisions)
will be entitled to receive interest payments on such Interest Payment Date by
wire transfer of immediately available funds if such Holder has delivered
appropriate wire transfer instructions in writing to the Trustee not less than
15 calendar days prior to such Interest Payment Date. Any such wire transfer
instructions received by the Trustee shall remain in effect until revoked by
such ▇▇▇▇▇▇.
If any Interest Payment Date or the Maturity Date of this Note falls
on a day that is not a Business Day, the required payment of the Redemption
Amount and/or interest shall be made on the next succeeding Business Day and
no interest shall accrue with respect to the payment for the period from and
after such Interest Payment Date or the Maturity Date, as the case may be, to
the date of such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday
or Sunday, that is neither a legal holiday nor a day on which commercial banks
are authorized or required by law, regulation or executive order to close in
The City of New York.
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 purpose.
This Note is one of a duly authorized issue of Securities
(hereinafter called the "Securities") of the Company designated as its
Medium-Term Notes, Series C. The Securities are issued and to be issued under
an indenture (the "Indenture") dated as of April 1, 1983, as amended and
restated, 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, 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 to be authenticated and
delivered.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes 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
3
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 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 Note as are necessary or appropriate to
allow for the issuance of such definitive Notes.
This Note is not subject to any sinking fund.
In case an Event of Default (as defined in the Indenture) 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 $1,000 principal amount of Notes, will be equal to the amount
payable on the Stated Maturity Date, calculated as though the date of early
repayment were the Stated Maturity Date.
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 66 2/3% in aggregate original public
offering price or principal amount, as the case may be, of the Securities at
any time Outstanding of each series affected thereby. Holders of specified
percentages in aggregate original public offering price or principal amount,
as the case may be, of the Securities of each series at the time Outstanding,
on behalf of the Holders of all the Securities of each 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.
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 and interest on this
Note 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 herein, 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 or more new Notes of authorized denominations and for the same aggregate
principal amount, shall be issued to the designated transferee or transferees.
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.
4
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 each Holder or beneficial owner by acceptance hereof
hereby agree to treat this Note for all tax purposes as a debt instrument that
is subject to U.S. Treasury Regulation section 1.1275-4(b) governing
contingent payment debt instruments, and, where required, the Company shall
file information returns with the Internal Revenue Service in accordance with
this treatment, in the absence of any change or clarification in the law, by
regulation or otherwise, requiring a different characterization of the Notes.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
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.
5
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its
corporate seal to be imprinted hereon.
Dated: July 28, 2005
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., INC.
By:____________________________________
▇▇▇▇ ▇▇▇▇
Assistant Treasurer
[FACSIMILE OF SEAL] Attest:
By:____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Secretary
CERTIFICATE OF AUTHENTICATION This is one of the Securities of the series
designated therein referred to in the within-mentioned Indenture.
JPMORGAN CHASE BANK, N.A.,
as Trustee
By:__________________________________________________
Authorized Officer
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.
