SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (date of earliest event reported):
May 13, 1999
XEROX CORPORATION
(Exact name of registrant as specified in its charter)
New York 1-4471 16-0468020
(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification
incorporation) No.)
800 Long Ridge Road
P. O. Box 1600
Stamford, Connecticut 06904-1600
(Address of principal executive offices)(Zip Code)
Registrant's telephone number, including area code:
(203) 968-3000
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits
Exhibit 4(c)(13) --Form of 5.750% Note due May 15, 2002
Exhibit 4(c)(14) --Form of 5.875% Note due May 15, 2004
- -----------------------------------------------------------------------------
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
Registrant has duly authorized this report to be signed on its behalf by the
undersigned duly authorized.
XEROX CORPORATION
/s/ MARTIN S. WAGNER
--------------------------------
By: MARTIN S. WAGNER
Assistant Secretary
Dated: May 13, 1999
2
Exhibit 4(c)(13)
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS HELD BY THE
DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY)
IN CUSTODY FOR THE BENEFICIAL OWNERS HEREOF. THIS NOTE IS NOT
EXCHANGEABLE IN WHOLE OR IN PART OR TRANSFERRABLE IN WHOLE OR IN
PART EXCEPT IN THE CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
No. B-1 U.S.$500,000,000
CUSIP NO.: 98411MAB4
COMMON CODE NO.: 9764836
ISIN NO.: US98411MAB46
5.75% Notes due May 15, 2002
Xerox Capital (Europe) plc, a public limited company
organized under the laws of England and Wales (the "Company"),
promises to pay to the bearer upon surrender hereof the principal
sum of U.S.$500,000,000 (FIVE HUNDRED MILLION UNITED STATES
DOLLARS) on May 15, 2002.
Interest Payment Dates: May 15 and November 15.
Additional provisions of this Security are set forth on
the other side of this Security.
Dated: May 13, 1999 XEROX CAPITAL (EUROPE) PLC
By: __________________
___________________
GUARANTEE
XEROX CORPORATION, a New York corporation (the "Guarantor",
which term includes any successor thereto under the Indenture)
has unconditionally guaranteed, pursuant to the terms of the
Guarantee contained in Article Fourteen of the Indenture, the due
and punctual payment of the principal of and any premium and
interest on this Note, when and as the same shall become due and
payable, whether at the Stated Maturity, by declaration of
acceleration, call for redemption, early repayment or otherwise,
in accordance with the terms of this Note and the Indenture.
The obligations of the Guarantor to the Holders hereof and
to the Trustee pursuant to the Guarantee and the Indenture are
expressly set forth in Article fourteen of the Indenture and,
reference is hereby made to such Article and Indenture for the
precise terms of the Guarantee.
The Guarantee shall not be valid or obligatory for any
purpose unless and until the certificate of authentication on
this Note upon which this notation of the Guarantee is endorsed
shall have been executed by Citibank, N.A., or its successor, as
Trustee under the Indenture referred to on the reverse hereof, by
the manual signature of one of its authorized signatories.
DATED: May 13, 1999 XEROX CORPORATION,
as Guarantor
By:___________________________
Vice President, Treasurer
and Secretary
___________________________
Assistant Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of
the Securities of the
series designated herein,
described in the within
mentioned Indenture.
CITIBANK, N.A., AS TRUSTEE
By
_____________________________
Authorized Signatory
XEROX CAPITAL (EUROPE) PLC
5.75% Note due May 15, 2002
1. Indenture; Defined Terms and Limitations.
This Note is one of a duly authorized issue of
debentures, notes, bonds or other evidences of indebtedness of
the Company (herein called the "Securities") of a series
hereinafter specified, as issued and to be issued under an
indenture dated as of October 21, 1997 (as amended, supplemented
or modified from time to time, the "Indenture"), among Xerox
Corporation, Xerox Overseas Holdings Limited (formerly Xerox
Overseas Holdings PLC), Xerox Capital (Europe) plc (formerly Rank
Xerox Capital (Europe) plc), Xerox Corporation, as Guarantor (in
such capacity, the "Guarantor"), and Citibank, N.A., 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 and obligations thereunder of
the Company, the Guarantor, the Trustee and the Holders of the
Securities, and the terms upon which the Securities are, and are
to be, authenticated and delivered. All capitalized terms used
herein without definition shall have the meanings assigned to
such terms in the Indenture.
The terms of this Note include those stated in the
Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"). This Note is subject to all such terms, and Holders are
referred to the Indenture and the Trust Indenture Act for a
statement of all such terms. To the extent permitted by
applicable law, in the event of any inconsistency between the
terms of this Note and the terms of the Indenture, the terms of
the Indenture shall control.
This Note is an unsecured, unsubordinated obligation of
the Company. The Guarantee is an unsecured, unsubordinated
obligation of the Guarantor.
"Business Day" with respect to any place of payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which
is neither a legal holiday nor a day on which banking
institutions in the City of New York and such place of payment
are authorized or obligated by law, regulation or executive order
to close.
2. Principal and Interest.
The Company will pay the principal of this Note on May 15, 2002 (the "Maturity
Date").
The Company promises to pay interest on the principal
amount of this Note on each Interest Payment Date, as set forth
below, at the rate per annum shown above.
Interest on the Notes will accrue at the rate shown
above from and including May 13, 1999 or from the most recent
interest payment date to which interest has been paid or provided
for, and will be payable semiannually in arrears (to the bearer
hereof) on May 15 and November 15 of each year (each, an
"Interest Payment Date"), commencing November 15, 1999, and on
the Maturity Date. Interest will be computed on the basis of a
360-day year of twelve 30-day months. Each payment of interest
will include interest accrued from and including the last
Interest Payment Date to which interest was paid or provided for
to but excluding the Interest Payment Date or the Maturity Date,
as the case may be.
The Company shall pay interest on overdue principal and
premium, if any, and interest on overdue installments of
interest, to the extent lawful, at a rate per annum equal to the
interest rate payable on the Notes.
3. Method of Payment.
The Company will pay interest (except defaulted
interest) on the principal amount of the Notes as provided above
on each May 15 and November 15 to the bearer hereof, in each
case, even if the Note is canceled on registration of transfer or
registration of exchange after such record date; provided that,
with respect to the payment of principal, the Company will make
payment to the Holder that surrenders this Note to a Paying Agent
on or after May 15, 2002.
The Company will pay principal, premium, if any, and as
provided above, interest in money of the United States that at
the time of payment is legal tender for payment of public and
private debts. Payments in respect of Notes represented by
global securities (including principal, premium, interest and
defaulted interest, if any) will be made by wire transfer of
immediately available funds to the accounts specified by the
bearer hereof. In the event that any Interest Payment Date or the
Maturity Date or any other payment date is a day that is not a
Business Day, the payment of principal of (and premium, if any)
and interest, if any, on this Note will be postponed to the first
following day that is a Business Day and no interest shall accrue
for the intervening period.
4. Paying Agent and Registrar.
Initially, the Trustee will act as authenticating
agent, Paying Agent and Registrar. The Company may change any
authenticating agent, Paying Agent or Registrar without notice.
Kredietbank S.A. Luxembourgeoise also has been appointed as a
Paying Agent in Luxembourg. The Company, or any Subsidiary or
any Affiliate of the Company, may act as Paying Agent, Registrar
or co-Registrar.
5. Payment of Additional Amounts and Redemption For
Tax Reasons.
All payments made in respect of this Note, including
payments of principal and interest, shall be made without
withholding or deduction for, or on account of, any present or
future taxes, duties, levies, assessment or governmental charges
of whatever nature imposed or levied by or on behalf of the
United Kingdom or the United States or any political subdivision
or taxing authority thereof or therein (any of the aforementioned
being a "Taxing Jurisdiction"), unless such taxes are required to
be withheld by the law of the Taxing Jurisdiction. In the event
that the Company (or, if applicable, the Guarantor) is required
by law to deduct or withhold any such taxes from payments on this
Note, the Company (or, if applicable, the Guarantor) will,
subject to the exceptions and limitations set forth below, pay as
additional interest on this Note, such additional amounts
("Additional Amounts") as are necessary in order that the net
payment of the principal of and interest on this Note to each
Holder, after deduction for any present or future tax, assessment
or other governmental charge of the relevant Taxing Jurisdiction
imposed by withholding with respect to the payment, will not be
less than the amount provided in this Note to be then due and
payable; provided, however, that the foregoing obligation to pay
Additional Amounts shall not apply:
(1) to any tax, assessment or other governmental charge
that is imposed or withheld solely by reason of the Holder,
or a fiduciary, settlor, beneficiary, member or shareholder
of the Holder if the Holder is an estate, trust, partnership
or corporation, or a person holding a power over an estate
or trust administered by a fiduciary holder, being
considered as:
(a) being or having been present or engaged in a
trade or business in the relevant Taxing Jurisdiction
or having had a permanent establishment in the relevant
Taxing Jurisdiction;
(b) having a current or former relationship with
the relevant Taxing Jurisdiction (other than the mere
receipt of payments in respect of this Note or the
ownership or holding of this Note), including a
relationship as a citizen or resident thereof;
(c) being or having been a foreign or domestic
personal holding company, a passive foreign investment
company (including a qualified electing fund) or a
controlled foreign corporation with respect to the
United States or a corporation that has accumulated
earnings to avoid United States federal income tax; or
(d) having or having been a "10-percent
shareholder" of Xerox Corporation as defined in
Section 871(h)(3) of the United States Internal Revenue
Code of 1986, as amended (the "Code"), or any successor
provision;
(2) to any Holder that is not the sole beneficial
owner of this Note, or a portion thereof, or that is a
fiduciary or partnership, but only to the extent that a
beneficiary or settlor with respect to the fiduciary or a
beneficial owner or member of the partnership would not have
been entitled to the payment of additional amounts had the
beneficiary, settlor, beneficial owner or member received
directly its beneficial or distributive share of the
payment;
(3) to any tax, assessment or other governmental
charge that is imposed or withheld solely by reason of the
failure of the Holder or any other person to comply with
certification, identification or information reporting
requirements encompassing the nationality, residence,
identity or connection with the relevant Taxing Jurisdiction
of the Holder or beneficial owner of this Note, if
compliance is required by statute, treaty or regulation of
the relevant Taxing Jurisdiction as a precondition to
exemption from such tax, assessment or other governmental
charge;
(4) to any tax, assessment or other governmental
charge that is payable otherwise than by the Company, Xerox
Corporation or a paying agent from the payment;
(5) to any tax, assessment or other governmental
charge that is imposed or withheld solely by reason of a
change in law, regulation, or administrative or judicial
interpretation that becomes effective more than 15 days
after the payment becomes due or is duly provided for,
whichever occurs later;
(6) to any estate, inheritance, gift, sales, excise,
transfer, wealth or personal property tax or similar tax,
assessment or other governmental charge;
(7) to any tax, assessment or other governmental
charge required to be withheld by any paying agent from any
payment of principal of or interest on this Note, if such
payment can be made without such withholding by any other
paying agent; or
(8) in the case of any combination of the items listed
above.
To the extent the Company (or, if applicable, the Guarantor)
is required to withhold or deduct, the Company (or, if
applicable, the Guarantor) will (i) make such withholding or
deduction, (ii) remit the full amount withheld or deducted to the
relevant authority in accordance with applicable law and (iii)
furnish Holders within 30 days after the date of the payment of
any such taxes with certified copies of tax receipts or
certificates of deduction of tax evidencing payment of such
taxes.
The Company (or, if applicable, the Guarantor) will pay any
present or future stamp, court or documentary or any other excise
or property taxes, charges or similar levies that arise in any
jurisdiction from the execution, delivery, enforcement or
registration of this Note, or the Guarantee or any other document
or instrument in relation thereto. Further, the Company (or, if
applicable, the Guarantor) will indemnify and hold harmless each
Holder and upon written request will promptly reimburse the
Holder for the amount of (i) any taxes described above (including
penalties, interest and expenses arising therefrom or with
respect thereto) imposed or levied and paid by the Holder as a
result of payments made hereunder and (ii) any taxes imposed with
respect to any reimbursement under (i), but excluding any taxes
based on the Holder's net income.
Except as set forth in this Section 5, the Notes will
not be redeemable at the option of the Company.
This Note may be redeemed, at the option of the
Company, at any time as a whole but not in part at 100% of the
principal amount hereof, plus accrued and unpaid interest, if
any, to the Redemption Date, in the event that (i) as a result of
a change in or an amendment to the laws (including any
regulations or rulings promulgated thereunder) of a Taxing
Jurisdiction, or any change in or amendment to any official
position regarding the application or interpretation of such laws
or regulations or rulings, which change or amendment is announced
or becomes effective on or after May 6, 1999, the Company (or, if
applicable, the Guarantor) becomes or, based upon a written
opinion of independent counsel selected by the Company, the
Company (or, if applicable, the Guarantor) will become obligated
to pay, on the next date on which any amount would be payable
with respect to the Notes, any Additional Amounts or (ii) the
Company (or, if applicable, the Guarantor) becomes or, based upon
a written opinion of independent counsel selected by the Company
(or, if applicable, the Guarantor) will become, obligated to pay
Additional Amounts because the Company or the Guarantor, as the
case may be, is required to exchange this Note for definitive
notes in registered form due to (A) DTC notifying the Company or
the Depositary in writing that it (or its nominee) is unwilling
or unable to continue to act as Depositary and no successor
Depositary registered as a clearing agency under the Exchange Act
is appointed within 90 days or (B) the Company's determination
that this Global Security should be exchanged for certificated
Notes because such exchange is required by law or an event beyond
the Company's control, and the Company's determination is
confirmed by a written opinion of counsel selected by the Company
or (C) the Depositary being at any time unwilling or unable to
continue as a Book-Entry Depositary and a successor Book-Entry
Depositary not being appointed by the Company within 90 days;
provided, that, the payment of such Additional Amounts arising
under (ii) above cannot be avoided by the use of any reasonable
measures available to the Company (or, if applicable, the
Guarantor).
Notice of redemption will be given at least 30 days but
not more than 60 days before the Redemption Date by publishing in
a leading newspaper having a general circulation in New York
(which is expected to be the Wall Street Journal) (and, so long
as the Notes are listed on the Luxembourg Stock Exchange and the
rules of such Stock Exchange shall so require, a newspaper having
a general circulation in Luxembourg (which is expected to be the
Luxembourger Wort).
On and after the Redemption Date, interest ceases to
accrue on Notes called for redemption, unless the Company
defaults in the payment of the Redemption Price.
6. Subscription.
In the event of a default by the Company in the
performance of its obligations to pay the principal of, premium,
if any, and interest, if any, on this Note, any Holder hereof
shall have the right to serve upon the Company a demand and, upon
receipt of any such demand from any Holder hereof, the Company
shall, if and to the extent that it shall have rights to call for
the subscription of further shares under the Novated and Restated
Agreement dated October 31, 1997, between Xerox Overseas Holdings
and the Company (the "Subscription Agreement"), serve upon Xerox
Overseas a written demand for the subscription of additional
shares in the share capital of the Company pursuant to and
subject to the provisions of the Subscription Agreement.
7. Denominations; Transfer; Exchange.
The Notes are issuable only in bearer form without
coupons in denominations of $1,000 of principal amount at
maturity and multiples of $1,000 in excess thereof. This Note
will be deposited with the Book-Entry Depositary, which shall
initially be The Chase Manhattan Bank (the "Book-Entry
Depositary"), pursuant to a Note Depositary Agreement dated as of
May 13, 1999 among the Book-Entry Depositary, the Company and the
Guarantor. The Book-Entry Depositary will issue a
certificateless interest herein to the Depository Trust Company
("DTC") by recording such interest in the Book-Entry Depositary's
books and records in the name of Cede & Co., as nominee of DTC.
Beneficial interests in this Note will be represented through
book-entry accounts of financial institutions acting on behalf of
beneficial owners as direct and indirect participants in DTC.
Definitive, certificated Notes, which shall be issuable only in
registered form, will only be issued in the following limited
circumstances: (i) if DTC notifies the Company or the Book-Entry
Depositary in writing that it (or its nominee) is unwilling or
unable to continue to act as depositary and the Company does not
appoint a successor depositary within 90 days, (ii) at any time,
if the Company determines that this Note (in whole but not in
part) should be exchanged for definitive registered notes,
provided that (x) such exchange is required by (A) applicable law
or (B) any event beyond the Company's control or (y) payments of
interest on this Note, depositary interest or book-entry interest
are, or would become, subject to any deduction or withholding for
taxes; or (iii) the Book-Entry Depositary is at any time
unwilling or unable to continue as Book-Entry Depositary and the
Company does not appoint a successor Book-Entry Depositary within
90 days. In addition to the foregoing, during the continuance of
an Event of Default, holders of book-entry interests in this Note
will be entitled to request and receive definitive registered
notes. Such definitive registered notes will be issued to and
registered in the name of, or as directed by, such person only
upon the request in writing by the Book-Entry Depositary (based
on the instructions of DTC).
8. Persons Deemed Owners.
The bearer of this Note shall be treated as the
absolute owner of this Note for all purposes.
9. Purchase of Interest in Note by Company and Guarantor.
The Company and/or the Guarantor may at any time and
from time to time purchase a beneficial interest in this Note at
any price in the open market or otherwise. Interests in this
Note so purchased by the Company and/or the Guarantor may, at
its discretion, be held, resold or surrendered to the Trustee for
cancellation.
10. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the
Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the Notes
then outstanding, and any existing default or compliance with any
provision may be waived with the consent of the Holders of at
least a majority in principal amount of the Notes then
outstanding. Without notice to or the consent of any Holder, the
parties thereto may amend or supplement the Indenture or the
Notes to, among other things, cure any ambiguity, defect or
inconsistency and make any change that does not materially and
adversely affect the rights of any Holder.
11. No Recourse Against Others.
No recourse under or upon any obligation, covenant or
agreement of the Indenture, or of this Note, or for any claim
based thereon or hereon or otherwise in respect thereof or
hereof, shall be had against any incorporator, stockholder,
officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or
through the Company, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise, all such personal liability, either at
common law or in equity or by constitution or statute, of, and
any and all such rights and claims against every such person
being, by the acceptance hereof and as part of the consideration
for the issue hereof, expressly waived and released.
12. Authentication.
This Note shall not be valid until the Trustee or
authenticating agent manually signs the certificate of
authentication on the other side of this Note.
13. Abbreviations.
Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common),
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants
with right of survivorship and not as tenants in common), CUST (=
Custodian) and U/G/M/A (= Uniform Gifts to Minors Act).
14. Governing Law.
THIS NOTE AND THE GUARANTEE ENDORSED HEREON SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE PRINCIPLES
THEREOF RELATING TO CONFLICTS OF LAW (OTHER THAN SECTION 5-1401
OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, AND ANY
SUCCESSOR STATUTE OR STATUTES) PROVIDED, HOWEVER, THAT ALL
MATTERS GOVERNING THE AUTHORIZATION AND EXECUTION OF THIS NOTE BY
THE COMPANY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE JURISDICTION OF ORGANIZATION OF THE COMPANY.
The Company submits for the exclusive benefit of the
Holders hereof to the nonexclusive jurisdiction of any United
States Federal or New York State court sitting in New York City,
the Borough of Manhattan solely for the purpose of any legal
action or proceeding brought to enforce rights hereunder. As
long as this Note remains Outstanding (unless all payments are
then being made by the Guarantor), the Company shall either have
an authorized agent or maintain an office in New York State upon
whom process may be served in any such legal action or
proceeding. Service of process upon the Company at its office or
upon its agent with written notice of such service mailed or
delivered to the Company shall to the fullest extent permitted by
applicable law be deemed in every respect effective service of
process upon the Company in any such legal action or proceeding.
The Company hereby appoints Xerox Corporation, Xerox Square, 100
Clinton Avenue South, Rochester, New York, 14644, U.S.A.,
Attention: General Counsel, as its agent in New York State for
such purpose, and Xerox Corporation accepts such appointment.
The Company covenants and agrees that service of process in any
legal action or proceeding may be made upon it at its office, or
upon its agent in New York State. The Company irrevocably waives
(and irrevocably agrees not to raise) any objection which it may
now have or hereafter acquire to the laying of venue of any such
actions or proceedings in any such court referred to in this
paragraph and any claim that any such actions or proceedings have
been brought in an inconvenient forum and further irrevocably
agrees that a judgment in any action or proceeding brought in any
court referred to in this paragraph shall be conclusive and
binding upon it and may be enforced in the courts of any other
jurisdiction.
Exhibit 4(c)(14)
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS HELD BY THE
DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY)
IN CUSTODY FOR THE BENEFICIAL OWNERS HEREOF. THIS NOTE IS NOT
EXCHANGEABLE IN WHOLE OR IN PART OR TRANSFERRABLE IN WHOLE OR IN
PART EXCEPT IN THE CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
No. B-1 U.S.$500,000,000
CUSIP NO.: 98411MAA6
COMMON CODE NO.: 9764887
ISIN NO.: US98411MAA62
5.875% Notes due May 15, 2004
Xerox Capital (Europe) plc, a public limited company
organized under the laws of England and Wales (the "Company"),
promises to pay to the bearer upon surrender hereof the principal
sum of $500,000,000 (FIVE HUNDRED MILLION UNITED STATES DOLLARS)
on May 15, 2004.
Interest Payment Dates: May 15 and November 15.
Additional provisions of this Security are set forth on
the other side of this Security.
Dated: May 13, 1999 XEROX CAPITAL (EUROPE) PLC
By:
___________________
____________________
GUARANTEE
XEROX CORPORATION, a New York corporation (the "Guarantor",
which term includes any successor thereto under the Indenture)
has unconditionally guaranteed, pursuant to the terms of the
Guarantee contained in Article Fourteen of the Indenture, the due
and punctual payment of the principal of and any premium and
interest on this Note, when and as the same shall become due and
payable, whether at the Stated Maturity, by declaration of
acceleration, call for redemption, early repayment or otherwise,
in accordance with the terms of this Note and the Indenture.
The obligations of the Guarantor to the Holders hereof and
to the Trustee pursuant to the Guarantee and the Indenture are
expressly set forth in Article fourteen of the Indenture and,
reference is hereby made to such Article and Indenture for the
precise terms of the Guarantee.
The Guarantee shall not be valid or obligatory for any
purpose unless and until the certificate of authentication on
this Note upon which this notation of the Guarantee is endorsed
shall have been executed by Citibank, N.A., or its successor, as
Trustee under the Indenture referred to on the reverse hereof, by
the manual signature of one of its authorized signatories.
DATED: May 13, 1 999 XEROX CORPORATION,
as Guarantor
By:___________________________
Vice President, Treasurer
and Secretary
___________________________
Assistant Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of
the Securities of the
series designated herein,
described in the within
mentioned Indenture.
CITIBANK, N.A., AS TRUSTEE
By
_____________________________
Authorized Signatory
XEROX CAPITAL (EUROPE) PLC
5.875% Note due May 15, 2004
1. Indenture; Defined Terms and Limitations.
This Note is one of a duly authorized issue of
debentures, notes, bonds or other evidences of indebtedness of
the Company (herein called the "Securities") of a series
hereinafter specified, as issued and to be issued under an
indenture dated as of October 21, 1997 (as amended, supplemented
or modified from time to time, the "Indenture"), among Xerox
Corporation, Xerox Overseas Holdings Limited (formerly Xerox
Overseas Holdings PLC), Xerox Capital (Europe) plc (formerly Rank
Xerox Capital (Europe) plc), Xerox Corporation, as Guarantor (in
such capacity, the "Guarantor"), and Citibank, N.A., 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 and obligations thereunder of
the Company, the Guarantor, the Trustee and the Holders of the
Securities, and the terms upon which the Securities are, and are
to be, authenticated and delivered. All capitalized terms used
herein without definition shall have the meanings assigned to
such terms in the Indenture.
The terms of this Note include those stated in the
Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"). This Note is subject to all such terms, and Holders are
referred to the Indenture and the Trust Indenture Act for a
statement of all such terms. To the extent permitted by
applicable law, in the event of any inconsistency between the
terms of this Note and the terms of the Indenture, the terms of
the Indenture shall control.
This Note is an unsecured, unsubordinated obligation of
the Company. The Guarantee is an unsecured, unsubordinated
obligation of the Guarantor.
"Business Day" with respect to any place of payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which
is neither a legal holiday nor a day on which banking
institutions in the City of New York and such place of payment
are authorized or obligated by law, regulation or executive order
to close.
2. Principal and Interest.
The Company will pay the principal of this Note on May
15, 2004 (the "Maturity Date").
The Company promises to pay interest on the principal
amount of this Note on each Interest Payment Date, as set forth
below, at the rate per annum shown above.
Interest on the Notes will accrue at the rate shown
above from and including May 13, 1999 or from the most recent
interest payment date to which interest has been paid or provided
for, and will be payable semiannually in arrears (to the bearer
hereof) on May 15 and November 15 of each year (each, an
"Interest Payment Date"), commencing November 15, 1999, and on
the Maturity Date. Interest will be computed on the basis of a
360-day year of twelve 30-day months. Each payment of interest
will include interest accrued from and including the last
Interest Payment Date to which interest was paid or provided for
to but excluding the Interest Payment Date or the Maturity Date,
as the case may be.
The Company shall pay interest on overdue principal and
premium, if any, and interest on overdue installments of
interest, to the extent lawful, at a rate per annum equal to the
interest rate payable on the Notes.
3. Method of Payment.
The Company will pay interest (except defaulted
interest) on the principal amount of the Notes as provided above
on each May 15 and November 15 to the bearer hereof, in each
case, even if the Note is canceled on registration of transfer or
registration of exchange after such record date; provided that,
with respect to the payment of principal, the Company will make
payment to the Holder that surrenders this Note to a Paying Agent
on or after May 15, 2004.
The Company will pay principal, premium, if any, and as
provided above, interest in money of the United States that at
the time of payment is legal tender for payment of public and
private debts. Payments in respect of Notes represented by
global securities (including principal, premium, interest and
defaulted interest, if any) will be made by wire transfer of
immediately available funds to the accounts specified by the
bearer hereof. In the event that any Interest Payment Date or the
Maturity Date or any other payment date is a day that is not a
Business Day, the payment of principal of (and premium, if any)
and interest, if any, on this Note will be postponed to the first
following day that is a Business Day and no interest shall accrue
for the intervening period.
4. Paying Agent and Registrar.
Initially, the Trustee will act as authenticating
agent, Paying Agent and Registrar. The Company may change any
authenticating agent, Paying Agent or Registrar without notice.
Kredietbank S.A. Luxembourgeoise also has been appointed as a
Paying Agent in Luxembourg. The Company, or any Subsidiary or
any Affiliate of the Company, may act as Paying Agent, Registrar
or co-Registrar.
5. Payment of Additional Amounts and Redemption For Tax Reasons.
All payments made in respect of this Note, including
payments of principal and interest, shall be made without
withholding or deduction for, or on account of, any present or
future taxes, duties, levies, assessment or governmental charges
of whatever nature imposed or levied by or on behalf of the
United Kingdom or the United States or any political subdivision
or taxing authority thereof or therein (any of the aforementioned
being a "Taxing Jurisdiction"), unless such taxes are required to
be withheld by the law of the Taxing Jurisdiction. In the event
that the Company (or, if applicable, the Guarantor) is required
by law to deduct or withhold any such taxes from payments on this
Note, the Company (or, if applicable, the Guarantor) will,
subject to the exceptions and limitations set forth below, pay as
additional interest on this Note, such additional amounts
("Additional Amounts") as are necessary in order that the net
payment of the principal of and interest on this Note to each
Holder, after deduction for any present or future tax, assessment
or other governmental charge of the relevant Taxing Jurisdiction
imposed by withholding with respect to the payment, will not be
less than the amount provided in this Note to be then due and
payable; provided, however, that the foregoing obligation to pay
Additional Amounts shall not apply:
(1) to any tax, assessment or other governmental charge
that is imposed or withheld solely by reason of the Holder,
or a fiduciary, settlor, beneficiary, member or shareholder
of the Holder if the Holder is an estate, trust, partnership
or corporation, or a person holding a power over an estate
or trust administered by a fiduciary holder, being
considered as:
(a) being or having been present or engaged in a
trade or business in the relevant Taxing Jurisdiction
or having had a permanent establishment in the relevant
Taxing Jurisdiction;
(b) having a current or former relationship with
the relevant Taxing Jurisdiction (other than the mere
receipt of payments in respect of this Note or the
ownership or holding of this Note), including a
relationship as a citizen or resident thereof;
(c) being or having been a foreign or domestic
personal holding company, a passive foreign investment
company (including a qualified electing fund) or a
controlled foreign corporation with respect to the
United States or a corporation that has accumulated
earnings to avoid United States federal income tax; or
(d) having or having been a "10-percent
shareholder" of Xerox Corporation as defined in
Section 871(h)(3) of the United States Internal Revenue
Code of 1986, as amended (the "Code"), or any successor
provision;
(2) to any Holder that is not the sole beneficial
owner of this Note, or a portion thereof, or that is a
fiduciary or partnership, but only to the extent that a
beneficiary or settlor with respect to the fiduciary or a
beneficial owner or member of the partnership would not have
been entitled to the payment of additional amounts had the
beneficiary, settlor, beneficial owner or member received
directly its beneficial or distributive share of the
payment;
(3) to any tax, assessment or other governmental
charge that is imposed or withheld solely by reason of the
failure of the Holder or any other person to comply with
certification, identification or information reporting
requirements encompassing the nationality, residence,
identity or connection with the relevant Taxing Jurisdiction
of the Holder or beneficial owner of this Note, if
compliance is required by statute, treaty or regulation of
the relevant Taxing Jurisdiction as a precondition to
exemption from such tax, assessment or other governmental
charge;
(4) to any tax, assessment or other governmental
charge that is payable otherwise than by the Company, Xerox
Corporation or a paying agent from the payment;
(5) to any tax, assessment or other governmental
charge that is imposed or withheld solely by reason of a
change in law, regulation, or administrative or judicial
interpretation that becomes effective more than 15 days
after the payment becomes due or is duly provided for,
whichever occurs later;
(6) to any estate, inheritance, gift, sales, excise,
transfer, wealth or personal property tax or similar tax,
assessment or other governmental charge;
(7) to any tax, assessment or other governmental
charge required to be withheld by any paying agent from any
payment of principal of or interest on this Note, if such
payment can be made without such withholding by any other
paying agent; or
(8) in the case of any combination of the items listed
above.
To the extent the Company (or, if applicable, the Guarantor)
is required to withhold or deduct, the Company (or, if
applicable, the Guarantor) will (i) make such withholding or
deduction, (ii) remit the full amount withheld or deducted to the
relevant authority in accordance with applicable law and (iii)
furnish Holders within 30 days after the date of the payment of
any such taxes with certified copies of tax receipts or
certificates of deduction of tax evidencing payment of such
taxes.
The Company (or, if applicable, the Guarantor) will pay any
present or future stamp, court or documentary or any other excise
or property taxes, charges or similar levies that arise in any
jurisdiction from the execution, delivery, enforcement or
registration of this Note, or the Guarantee or any other document
or instrument in relation thereto. Further, the Company (or, if
applicable, the Guarantor) will indemnify and hold harmless each
Holder and upon written request will promptly reimburse the
Holder for the amount of (i) any taxes described above (including
penalties, interest and expenses arising therefrom or with
respect thereto) imposed or levied and paid by the Holder as a
result of payments made hereunder and (ii) any taxes imposed with
respect to any reimbursement under (i), but excluding any taxes
based on the Holder's net income.
Except as set forth in this Section 5, the Notes will
not be redeemable at the option of the Company.
This Note may be redeemed, at the option of the
Company, at any time as a whole but not in part at 100% of the
principal amount hereof, plus accrued and unpaid interest, if
any, to the Redemption Date, in the event that (i) as a result of
a change in or an amendment to the laws (including any
regulations or rulings promulgated thereunder) of a Taxing
Jurisdiction, or any change in or amendment to any official
position regarding the application or interpretation of such laws
or regulations or rulings, which change or amendment is announced
or becomes effective on or after May 6, 1999, the Company (or, if
applicable, the Guarantor) becomes or, based upon a written
opinion of independent counsel selected by the Company, the
Company (or, if applicable, the Guarantor) will become obligated
to pay, on the next date on which any amount would be payable
with respect to the Notes, any Additional Amounts or (ii) the
Company (or, if applicable, the Guarantor) becomes or, based upon
a written opinion of independent counsel selected by the Company
(or, if applicable, the Guarantor) will become, obligated to pay
Additional Amounts because the Company or the Guarantor, as the
case may be, is required to exchange this Note for definitive
notes in registered form due to (A) DTC notifying the Company or
the Depositary in writing that it (or its nominee) is unwilling
or unable to continue to act as Depositary and no successor
Depositary registered as a clearing agency under the Exchange Act
is appointed within 90 days or (B) the Company's determination
that this Global Security should be exchanged for certificated
Notes because such exchange is required by law or an event beyond
the Company's control, and the Company's determination is
confirmed by a written opinion of counsel selected by the Company
or (C) the Depositary being at any time unwilling or unable to
continue as a Book-Entry Depositary and a successor Book-Entry
Depositary not being appointed by the Company within 90 days;
provided, that, the payment of such Additional Amounts arising
under (ii) above cannot be avoided by the use of any reasonable
measures available to the Company (or, if applicable, the
Guarantor).
Notice of redemption will be given at least 30 days but
not more than 60 days before the Redemption Date by publishing in
a leading newspaper having a general circulation in New York
(which is expected to be the Wall Street Journal) (and, so long
as the Notes are listed on the Luxembourg Stock Exchange and the
rules of such Stock Exchange shall so require, a newspaper having
a general circulation in Luxembourg (which is expected to be the
Luxembourger Wort).
On and after the Redemption Date, interest ceases to
accrue on Notes called for redemption, unless the Company
defaults in the payment of the Redemption Price.
6. Subscription.
In the event of a default by the Company in the
performance of its obligations to pay the principal of, premium,
if any, and interest, if any, on this Note, any Holder hereof
shall have the right to serve upon the Company a demand and, upon
receipt of any such demand from any Holder hereof, the Company
shall, if and to the extent that it shall have rights to call for
the subscription of further shares under the Novated and Restated
Agreement dated October 31, 1997, between Xerox Overseas Holdings
Limited (formerly Xerox Overseas Holdings PLC) ("Xerox Overseas")
and the Company (the "Subscription Agreement"), serve upon Xerox
Overseas a written demand for the subscription of additional
shares in the share capital of the Company pursuant to and
subject to the provisions of the Subscription Agreement.
7. Denominations; Transfer; Exchange.
The Notes are issuable only in bearer form without
coupons in denominations of $1,000 of principal amount at
maturity and multiples of $1,000 in excess thereof. This Note
will be deposited with the Book-Entry Depositary, which shall
initially be The Chase Manhattan Bank (the "Book-Entry
Depositary"), pursuant to a Note Depositary Agreement dated as of
May 13, 1999 among the Book-Entry Depositary, the Company and the
Guarantor. The Book-Entry Depositary will issue a
certificateless interest herein to the Depository Trust Company
("DTC") by recording such interest in the Book-Entry Depositary's
books and records in the name of Cede & Co., as nominee of DTC.
Beneficial interests in this Note will be represented through
book-entry accounts of financial institutions acting on behalf of
beneficial owners as direct and indirect participants in DTC.
Definitive, certificated Notes, which shall be issuable only in
registered form, will only be issued in the following limited
circumstances: (i) if DTC notifies the Company or the Book-Entry
Depositary in writing that it (or its nominee) is unwilling or
unable to continue to act as depositary and the Company does not
appoint a successor depositary within 90 days, (ii) at any time,
if the Company determines that this Note (in whole but not in
part) should be exchanged for definitive registered notes,
provided that (x) such exchange is required by (A) applicable law
or (B) any event beyond the Company's control or (y) payments of
interest on this Note, depositary interest or book-entry interest
are, or would become, subject to any deduction or withholding for
taxes; or (iii) the Book-Entry Depositary is at any time
unwilling or unable to continue as Book-Entry Depositary and the
Company does not appoint a successor Book-Entry Depositary within
90 days. In addition to the foregoing, during the continuance of
an Event of Default, holders of book-entry interests in this Note
will be entitled to request and receive definitive registered
notes. Such definitive registered notes will be issued to and
registered in the name of, or as directed by, such person only
upon the request in writing by the Book-Entry Depositary (based
on the instructions of DTC).
8. Persons Deemed Owners.
The bearer of this Note shall be treated as the
absolute owner of this Note for all purposes.
9. Purchase of Interest in Note by Company and
Guarantor.
The Company and/or the Guarantor may at any time and
from time to time purchase a beneficial interest in this Note at
any price in the open market or otherwise. Interests in this
Note so purchased by the Company and/or the Guarantor may, at
its discretion, be held, resold or surrendered to the Trustee for
cancellation.
10. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the
Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the Notes
then outstanding, and any existing default or compliance with any
provision may be waived with the consent of the Holders of at
least a majority in principal amount of the Notes then
outstanding. Without notice to or the consent of any Holder, the
parties thereto may amend or supplement the Indenture or the
Notes to, among other things, cure any ambiguity, defect or
inconsistency and make any change that does not materially and
adversely affect the rights of any Holder.
11. No Recourse Against Others.
No recourse under or upon any obligation, covenant or
agreement of the Indenture, or of this Note, or for any claim
based thereon or hereon or otherwise in respect thereof or
hereof, shall be had against any incorporator, stockholder,
officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or
through the Company, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise, all such personal liability, either at
common law or in equity or by constitution or statute, of, and
any and all such rights and claims against every such person
being, by the acceptance hereof and as part of the consideration
for the issue hereof, expressly waived and released.
12. Authentication.
This Note shall not be valid until the Trustee or
authenticating agent manually signs the certificate of
authentication on the other side of this Note.
13. Abbreviations.
Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common),
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants
with right of survivorship and not as tenants in common), CUST (=
Custodian) and U/G/M/A (= Uniform Gifts to Minors Act).
14. Governing Law.
THIS NOTE AND THE GUARANTEE ENDORSED HEREON SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE PRINCIPLES
THEREOF RELATING TO CONFLICTS OF LAW (OTHER THAN SECTION 5-1401
OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, AND ANY
SUCCESSOR STATUTE OR STATUTES) PROVIDED, HOWEVER, THAT ALL
MATTERS GOVERNING THE AUTHORIZATION AND EXECUTION OF THIS NOTE BY
THE COMPANY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE JURISDICTION OF ORGANIZATION OF THE COMPANY.
The Company submits for the exclusive benefit of the
Holders hereof to the nonexclusive jurisdiction of any United
States Federal or New York State court sitting in New York City,
the Borough of Manhattan solely for the purpose of any legal
action or proceeding brought to enforce rights hereunder. As
long as this Note remains Outstanding (unless all payments are
then being made by the Guarantor), the Company shall either have
an authorized agent or maintain an office in New York State upon
whom process may be served in any such legal action or
proceeding. Service of process upon the Company at its office or
upon its agent with written notice of such service mailed or
delivered to the Company shall to the fullest extent permitted by
applicable law be deemed in every respect effective service of
process upon the Company in any such legal action or proceeding.
The Company hereby appoints Xerox Corporation, Xerox Square, 100
Clinton Avenue South, Rochester, New York, 14644, U.S.A.,
Attention: General Counsel, as its agent in New York State for
such purpose, and Xerox Corporation accepts such appointment.
The Company covenants and agrees that service of process in any
legal action or proceeding may be made upon it at its office, or
upon its agent in New York State. The Company irrevocably waives
(and irrevocably agrees not to raise) any objection which it may
now have or hereafter acquire to the laying of venue of any such
actions or proceedings in any such court referred to in this
paragraph and any claim that any such actions or proceedings have
been brought in an inconvenient forum and further irrevocably
agrees that a judgment in any action or proceeding brought in any
court referred to in this paragraph shall be conclusive and
binding upon it and may be enforced in the courts of any other
jurisdiction.
