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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
MORGAN STANLEY GROUP INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-2838811
(State of incorporation) (I.R.S. employer
identification number)
1585 BROADWAY
NEW YORK, NEW YORK
(Address of principal 10036
executive offices) (Zip code)
If this Form relates to the If this Form relates to the
registration of a class of registration of a class of debt
debt securities and is securities and is to become
effective upon filing pur- effective simultaneously with
suant to General Instruction the effectiveness of a
A(c)(1) please check the concurrent registration
following box. [ ] statement under the Securities Act of
1933 pursuant to General Instruction
A(c)(2) please check the following box.
[ ]
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each Class Name of each Exchange on which
to be so registered each Class is to be registered
___% Performance Equity- THE AMERICAN STOCK EXCHANGE
linked Redemption Quarterly-
pay Securities Due 1999
Securities to be registered pursuant to Section 12(g) of the Act:
None
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Item 1. Description of the Registrant's Securities to be Registered.
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The title of the class of securities to be registered
hereunder is: "___% Performance Equity-linked Redemption
Quarterly-pay Securities Due 1999" (the "PERQS"). A
description of the PERQS is set forth under the caption
"Description of Debt Securities" in the prospectus included
within the Registration Statement of the Company on Form S-3
(registration no. 33-57833) (the "Registration Statement"), as
supplemented by the information under the caption "Description
of Securities" in the registrant's preliminary prospectus
supplement filed on January 31, 1996, pursuant to Rule
424(b)(2) under the Securities Act of 1933, as amended (the
"Act"), which description is incorporated herein by reference.
The description of the PERQS contained in the final prospectus
supplement to be filed pursuant to Rule 424(b) under the Act,
which will contain the final terms and provisions of the PERQS,
is hereby deemed to be incorporated by reference into this
Registration Statement and to be a part hereof.
Item 2. Exhibits.
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The following documents are filed as exhibits hereto:
4.2 Proposed form of Certificated Note evidencing the PERQS.
4.3 Proposed form of Global Note evidencing the PERQS.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
MORGAN STANLEY GROUP INC.
(Registrant)
Date: February 2, 1996 By: /s/ Patricia A. Kurtz
-----------------------
Name: Patricia A. Kurtz
Title: Assistant Secretary
INDEX TO EXHIBITS
Exhibit No. Page No.
- --------------------------------------------------------- ----------
4.2 Proposed form of Certificated Note
evidencing the PERQS.
4.3 Proposed form of Global Note evidencing the
PERQS.
DRAFT CERTIFICATED NOTE EXHIBIT 4.2
PERFORMANCE EQUITY-LINKED REDEMPTION QUARTERLY-PAY SECURITY (PERQS)
NUMBER OF PERQS REPRESENTED
BY THIS NOTE:
REGISTERED REGISTERED
No. R- CUSIP: 617446646
MORGAN STANLEY GROUP INC.
PERFORMANCE EQUITY-LINKED REDEMPTION QUARTERLY-PAY SECURITIES (PERQS)
As used herein, the following terms shall have the following
meanings:
ORIGINAL ISSUE DATE: ISSUE PRICE:
February , 1996 $ times the number of PERQS
represented by this Note
MATURITY DATE:
The earlier of (i) the Stated Maturity INTEREST ACCRUAL DATE:
Date (subject to extension upon the February , 1996
occurrence of certain Non-Trading Days)
and (ii) the Business Day immediately INTEREST PAYMENT DATES:
preceding any Delisting Date, but in no Payable quarterly on each of
event later than the Final Maturity February , May , August , and
Date. November commencing May , 1996
STATED MATURITY DATE: INTEREST RATE:
February , 1999 % of the Issue Price per annum
FINAL MATURITY DATE: AMOUNT PAYABLE AT MATURITY:
February , 1999 The lesser of (A) % of the Issue
Price and (B) the product of
INITIAL EQUITY ISSUER: (i) the number of PERQS represented
Telecomunicacoes Brasileiras S.A. - by this Note and (ii) the average
Telebras ("Telebras") Closing Price of the Initial
American Depositary Shares for the
10 Trading Days ending on the
INITIAL AMERICAN DEPOSITARY SHARES: second Business Day prior to
American Depositary Shares of Telebras, maturity, in each case subject to
each representing 1,000 Preferred adjustment as a result of certain
Shares, without par value, of Telebras dilution events as set forth on the
reverse hereof.
INITIAL UNDERLYING STOCK: PRICING DATE:
A Preferred Share, without par value, February , 1996
issued by Telebras
APPLICABLE FOREIGN CURRENCY:
Brazilian real
PERQS:
A PERQS is a Performance Equity-linked
Redemption Quarterly-pay Security
having an issue price of $ .
Morgan Stanley Group Inc., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to , or registered assigns, on the Maturity Date
the Amount Payable at Maturity determined in accordance with the procedures
described herein and to pay interest on the Issue Price hereof at the Interest
Rate from the Interest Accrual Date until the Amount Payable at Maturity is
paid or duly made available for payment, quarterly in arrears on each Interest
Payment Date, commencing on the Interest Payment Date next succeeding the
Interest Accrual Date, and on the Maturity Date, except as provided herein.
The Amount Payable at Maturity shall be determined by the
Issuer and written notice thereof shall be provided to the Trustee and the
Paying Agent on the Business Day prior to the maturity hereof. The Issuer's
determination of the Amount Payable at Maturity shall be conclusive and
binding absent manifest error.
Interest on this Note will accrue from 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 the Interest Accrual Date,
until the principal in respect of this Note has been paid or duly made
available for payment (except as provided below). 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 in U.S. Dollars to the
person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the date 15 calendar days prior to such
Interest Payment Date (whether or not a Business Day, as defined on the
reverse hereof) (each such date a "Record Date"); provided that interest
payable on the Maturity Date will be payable to the person to whom the
principal hereof shall be payable. Payments of interest hereon, other than
the interest payment due on the Maturity Date, will be made by check payable
in U.S. Dollars, mailed to the address of the person entitled thereto as such
address shall appear in the Note register. Notwithstanding the above, holders
of $100,000 or more in aggregate Issue Price of Notes shall be entitled to
receive payments of interest by wire transfer of immediately available funds,
upon written request to the Paying Agent (as defined on the reverse hereof)
not later than 15 calendar days prior to the applicable Interest Payment Date.
Subject to certain exceptions described herein, payment of the
principal in respect of this Note will be made in immediately available funds
and payment of the interest due hereon on the Maturity Date will be made in
immediately available funds, in each case, upon presentation and surrender of
this Note at the office or agency of the Paying Agent maintained for that
purpose in the Borough of Manhattan, The City of New York, if this Note is
presented to the Paying Agent in time for it to make such payments in
accordance with its normal procedures.
Reference is hereby made to the further provisions of this Note
set forth 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 Note shall not be entitled to any benefit under the Senior Indenture, as
defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed under its corporate seal.
DATED: February , 1996 MORGAN STANLEY GROUP INC.
By _______________________
Name: ________________
Title: ________________
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
CHEMICAL BANK,
as Trustee
By________________________
Authorized Officer
This Note is issuable under a Senior Indenture, dated as of
April 15, 1989, as supplemented by a First Supplemental Indenture dated as of
May 15, 1991 (as so supplemented, the "Senior Indenture"), between the Issuer
and Chemical Bank, as Trustee (the "Trustee," which term includes any
successor trustee under the Senior Indenture), to which Senior Indenture and
all indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limitations of rights, duties and immunities of the
Issuer, the Trustee and holders of the Notes and the terms upon which the
Notes are, and are to be, authenticated and delivered. The Issuer has
appointed Chemical Bank at its corporate trust office in The City of New York
as the paying agent (the "Paying Agent," which term includes any additional or
successor Paying Agent appointed by the Issuer) with respect to the Notes. To
the extent not inconsistent herewith, the terms of the Senior Indenture are
hereby incorporated by reference herein. This Note is one of a series of debt
securities having the designation and terms as set forth on the face hereof
(the "Notes").
This Note will not be subject to any sinking fund, will not be
redeemable by the Issuer or subject to repayment at the option of the holder
prior to maturity and will not be subject to the defeasance provisions set
forth in the Senior Indenture.
Interest payments on this Note will include interest accrued
to but excluding the Interest Payment Dates or the Maturity Date, as the case
may be. Interest payments for this Note will be computed and paid on the
basis of a 360-day year of twelve 30-day months.
If an Interest Payment Date or the Maturity Date does not fall
on a Business Day, payment of interest or principal otherwise payable on such
date need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on such Interest
Payment Date or on the Maturity Date, and no interest on such payment shall
accrue for the period from and after the Interest Payment Date or the Maturity
Date to such next succeeding Business Day.
If not previously repaid, this Note will mature on the Business
Day immediately preceding any Delisting Date. The "Delisting Date" will be
the first date on which the Initial American Depositary Shares or the American
depositary shares or the shares of capital stock of any Surviving Entity (as
defined below), as the case may be, are not listed on any U.S. national
securities exchange or traded through the facilities of a U.S. national
securities system subject to last sale reporting or is permanently suspended
from trading (within the meaning of the Securities and Exchange Act of 1934,
as amended, and the rules and regulations thereunder) on each U.S. securities
exchange and U.S. securities system on which it is then listed. The Issuer
shall promptly notify the holder of this Note and the Trustee, by first-class
mail, of such Delisting Date and will contemporaneously publish notice of such
Delisting Date in a United States newspaper with a national circulation
(currently expected to be The Wall Street Journal).
In the event that any of the 10 Business Days ending on the
second Business Day prior to the Stated Maturity Date is not a Trading Day (a
"Non-Trading Day"), this Note will not mature on the Stated Maturity Date, but
the maturity of this Note will be extended one Trading Day for each such
Non-Trading Day; provided, however, that this Note will mature in any event
not later than the Final Maturity Date. This Note will continue to accrue
interest until the principal amount hereof is paid at maturity, which, in the
event that the maturity of this Note is extended as a result of a Non-Trading
Day, will be payable to the holder of this Note on the date of such extended
maturity. The Issuer shall promptly notify the holder of this Note and the
Trustee, by first-class mail, of such extension of maturity and will
contemporaneously publish notice of such extension of maturity in a United
States newspaper with a national circulation (currently expected to be The
Wall Street Journal).
The Closing Price of the Initial American Depositary Shares on
any of the 10 Trading Days (the "10 Trading Days") used to calculate the
Amount Payable at Maturity shall be subject to adjustment as described below
to the extent that any of the events requiring such adjustment occur during
the period commencing on the Pricing Date and ending on the second Business
Day prior to the Maturity Date:
(i) INITIAL EQUITY ISSUER STOCK DIVIDENDS, EXTRAORDINARY CASH
DIVIDENDS AND OTHER DISTRIBUTIONS. In the event that a dividend or other
distribution (A) is declared on any class of the Initial Equity Issuer's
capital stock (or on the capital stock of any Surviving Entity, as defined in
clause (iv) below) payable in Initial Underlying Stock (or the applicable
class of capital stock of any Surviving Entity) or (B) is to be paid to
holders of the Initial American Depositary Shares (or the applicable class of
capital stock of any Surviving Entity) in U.S. dollars (the U.S. dollar amount
of each payment to be determined, if necessary, using the Commercial Market
Rate on the Distribution Record Date (as defined below)) in an amount greater
than 10% of the Closing Price of the Initial American Depositary Shares (or
the applicable class of capital stock of any Surviving Entity) on the
Distribution Record Date (an "Extraordinary Cash Dividend"), any Closing Price
of the Initial American Depositary Shares (or the applicable class of capital
stock of any Surviving Entity) used to calculate the Amount Payable at
Maturity on any Trading Day that follows the date (the "Distribution Record
Date") fixed for the determination of the shareholders of Initial Underlying
Stock (or of shares of the applicable class of capital stock of any Surviving
Entity), or in the case of an Extraordinary Cash Dividend, the holders of the
Initial American Depositary Shares (or the applicable class of capital stock
of any Surviving Entity) entitled to receive such distribution shall be
increased by multiplying such Closing Price by the Dividend Adjustment Factor.
The "Dividend Adjustment Factor" with respect to any Closing Price will be a
fraction (A) the numerator of which shall be the number of shares of the
Initial American Depositary Shares (or the number of shares of the applicable
class of capital stock of any Surviving Entity) outstanding on the
Distribution Record Date plus (x) the number of Initial American Depositary
Shares (or the number of shares of the applicable class of capital stock of
any Surviving Entity) to be issued as a result of such distribution or (y) in
the case of an Extraordinary Cash Dividend, the number of Initial American
Depositary Shares (or the number of shares of the applicable class of capital
stock of any Surviving Entity) that could be purchased with the amount of the
applicable Extraordinary Cash Dividend (determined as described above) at the
Closing Price of such securities on the Trading Day immediately subsequent to
such Distribution Record Date, and (B) the denominator of which shall be the
number of shares of Initial American Depositary Shares (or the number of
shares of the applicable class of capital stock of any Surviving Entity)
outstanding on the Distribution Record Date; provided, however that, in the
case of a stock dividend, if the Initial Equity Issuer (or any Surviving
Entity) and the depositary for its American depositary shares shall have
adjusted the number of shares of capital stock represented by each American
depositary share so that the price of such American depositary shares would
not be affected by such stock dividend, no adjustment of any such Closing Price
shall be made.
(ii) SUBDIVISIONS AND COMBINATIONS OF INITIAL UNDERLYING
STOCK. In the event that the outstanding Initial Underlying Stock (or the
applicable class of capital stock of any Surviving Entity) are subdivided into
a greater number of shares, the Closing Price of the Initial American
Depositary Shares (or the applicable class of capital stock of any Surviving
Entity) used to calculate the Amount Payable at Maturity on any Trading Day
that follows the date on which such subdivision becomes effective will be
proportionately decreased, and, conversely, in the event that the outstanding
shares of Initial Underlying Stock (or the applicable class of capital stock
of any Surviving Entity) are combined into a smaller number of shares, such
Closing Price will be proportionately increased; provided, however, that if
the Initial Equity Issuer (or any Surviving Entity) and the depositary for its
American depositary shares shall have adjusted the number of shares of capital
stock represented by each American depositary share so that the price of such
American depositary shares would not be affected by such subdivision or
combination, no adjustment of any such Closing Price shall be made.
(iii) CHANGE IN NUMBER OF SHARES OF INITIAL UNDERLYING STOCK
REPRESENTED BY INITIAL AMERICAN DEPOSITARY SHARES. In the event that the
Initial Equity Issuer (or any Surviving Entity) and the depositary for its
American depositary shares elect, in the absence of any of the events
described in clause (i) or (ii) above, to change the number of shares of
capital stock that are represented by each American depositary share, the
Closing Price of such American depositary shares used to calculate the Amount
Payable at Maturity on any Trading Day after the change becomes effective will
be proportionately adjusted.
(iv) DISSOLUTION OF THE INITIAL EQUITY ISSUER; MERGERS,
CONSOLIDATIONS OR SALES OF ASSETS IN WHICH THE INITIAL EQUITY ISSUER IS NOT
THE SURVIVING ENTITY; SPIN-OFFS. In the event of any (A) consolidation or
merger of the Initial Equity Issuer, or any surviving entity or subsequent
surviving entity of the Initial Equity Issuer (a "Surviving Entity") with or
into another entity (other than a consolidation or merger in which the Initial
Equity Issuer is the surviving entity), (B) sale, transfer, lease or
conveyance of all or substantially all of the assets of the Initial Equity
Issuer or any Surviving Entity, (C) liquidation, dissolution or winding up of
the Initial Equity Issuer or any Surviving Entity or (D) any declaration of a
distribution on the Initial Underlying Stock of the common stock of any
subsidiary of the Initial Equity Issuer (an "Initial Equity Issuer Spin-Off")
(any of the events described in (A), (B), (C) or (D), being a "Reorganization
Event"), for purposes of determining the Amount Payable at Maturity, the
Closing Price of Initial American Depositary Shares on any Trading Day
subsequent to the effective time of any Reorganization Event will be deemed to
be the amount equal to (a) the value of the cash and other property (including
securities) received by a holder of Initial American Depositary Shares in any
such Reorganization Event (plus, in the case of an Initial Equity Issuer
Spin-Off, the value of an Initial American Depositary Share), and (b) to the
extent that such holder obtains securities in any Reorganization Event, the
value of the cash and other property received by the holder of such securities
in any subsequent Reorganization Event; provided, however, that in the case of
a Reorganization Event described in clause (A) above, no adjustment in the
method of determining the Closing Price of the Initial American Depositary
Shares (or the American depositary shares of any Surviving Entity) shall be
made, if the depositary for such American depositary shares shall have
adjusted such American depositary shares so that each such American depositary
share represents the securities and any other consideration received with
respect to the Initial Underlying Stock (or the applicable capital stock of
any Surviving Entity) in such Reorganization event. For purposes of
determining any such Closing Prices, the value of (A) any cash and other
property (other than securities) received in any such Reorganization Event
will be an amount equal to the value of such cash and other property at the
effective time of such Reorganization Event and (B) any property consisting of
securities received in any such Reorganization Event will be an amount equal
to the Closing Prices of such securities. The depositary for the Initial
American Depositary Shares (or the American depositary shares of any Surviving
Entity) may sell securities distributed to the depositary (as a holder of
shares of the underlying capital stock) as a result of the events described in
(A) through (D) above and distribute the net cash proceeds of such sales to
the holders of Initial American Depositary Shares (or the American depositary
shares of any Surviving Entity). In such event, the cash received by the
holders of such American depositary shares, rather than the Closing Prices of
the securities distributed to holders of the underlying shares of capital
stock, shall be used in any determination of the Closing Price of such
American depositary shares.
(v) RECLASSIFICATION OF INITIAL UNDERLYING STOCK. In the
event that the shares of Initial Underlying Stock are changed into the same or
a different number of shares of any class or classes of stock, whether by
capital reorganization, reclassification or otherwise (except to the extent
otherwise provided in clause (i), (ii) or (iv) above), no adjustment shall be
made to the Closing Prices of the Initial American Depositary Shares used to
calculate the Amount Payable at Maturity; provided, however that if as a
result of or in connection with such an event, the Initial Equity Issuer and
the depositary for Initial American Depositary Shares change the number of
shares of Initial Underlying Stock that are represented by an Initial American
Depositary Share, such Closing Prices will be proportionately adjusted with
respect to any Trading Day that follows the effectiveness of such change. (No
such adjustment to Closing Prices shall be necessary (except in the
circumstances described in the proviso above) because Initial American
Depositary Shares provide that they will, upon such a reorganization,
reclassification or other event, automatically represent appropriate numbers
of shares of any such different class of classes of capital stock into which
the Initial Underlying Stock have been changed.) In the event that shares of
the applicable class of capital stock of any Surviving Entity are changed into
the same or a different number of shares of any class or classes of capital
stock, whether by capital reorganization, reclassification or otherwise
(except to the extent otherwise provided in clause (i), (ii) or (iv) above),
the Amount Payable at Maturity shall be calculated by using Closing Prices of
the shares of stock into which a share of the applicable class of capital
stock of the Surviving Entity was changed on any Trading Day that follows the
effectiveness of such change, except that no such adjustment shall be made if
the American depositary shares of such Surviving Entity provide that they
will, upon such a reorganization, reclassification or other event,
automatically represent appropriate numbers of shares of any such different
class or classes of capital stock into which the applicable class of stock of
any Surviving Entity has been changed.
The Issuer shall promptly notify the holder of this Note and
the Trustee, by first-class mail, of any event requiring an adjustment as
described above and of the method of calculation to be used to make such
adjustment. The Issuer will also contemporaneously publish notice of any
event requiring such an adjustment and of the method of calculation to be used
to make any such adjustment in a United States newspaper with a national
circulation (currently expected to be The Wall Street Journal).
Neither the Trustee nor any Paying Agent shall at any time be
under any duty or responsibility to any holder of this Note to determine
whether any facts exist which may require any adjustment of the Closing Price
or with respect to the nature or extent of any such adjustment when made or
with respect to the method employed in making the same.
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without coupons,
and, is issuable only in denominations representing a whole number of PERQS.
The Trustee has been appointed registrar for the Notes, and the
Trustee will maintain at its office in The City of New York a register for the
registration and transfer of the Notes. This Note may be transferred at the
aforesaid office of the Trustee by surrendering this Note for cancellation,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and duly executed by the registered holder hereof in person or by the
holder's attorney duly authorized in writing, and thereupon the Trustee shall
issue in the name of the transferee or transferees, in exchange herefor, a new
Note or Notes having identical terms and provisions and having an aggregate
Issue Price and Amount Payable at Maturity in U.S. Dollars, equal to the
amounts set forth on the face of this Note, subject to the terms and
conditions set forth herein. Notes are exchangeable at said office for other
Notes of other authorized denominations having an aggregate Issue Price and
Amount Payable at Maturity equal to the amounts set forth on the face of this
Note and having otherwise identical terms and provisions. All such exchanges
and transfers of Notes will be free of charge, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge in
connection therewith. All Notes surrendered for exchange shall be accompanied
by a written instrument of transfer in form satisfactory to the Trustee and
executed by the registered holder in person or by the holder's attorney duly
authorized in writing. The date of registration of any Note delivered upon
any exchange or transfer of Notes shall be such that no gain or loss of
interest results from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen and such Note or evidence of the loss, theft
or destruction thereof (together with the indemnity hereinafter referred to
and such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, a new Note of like tenor will be issued by the
Issuer in exchange for the Note so mutilated or defaced, or in lieu of the
Note so destroyed or lost or stolen, but, in the case of any destroyed or lost
or stolen Note, only upon receipt of evidence satisfactory to the Trustee and
the Issuer that such Note was destroyed or lost or stolen and, if required,
upon receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Issuer may, at its option, elect to make Notes available
in book-entry form. If the Issuer makes such an election, the holder hereof
will have the option (the "Conversion Option") to convert the form in which
such holder holds his Note from definitive to book-entry form. The Conversion
Option will be available for a period of 45 calendar days (the "Conversion
Option Period") commencing on a date designated by the Issuer and notified to
the Trustee and the holder hereof by first class mail. After the last date of
the Conversion Option Period, the Depositary (as defined below) will not be
required to accept delivery of Notes in exchange for book-entry Notes, but the
Depositary may permit such Notes to be exchanged on a case by case basis.
In order to be exchanged for a Note in book-entry form, this
Note must be delivered in proper form for deposit to The Depository Trust
Company (the "Depositary") by a participant. Accordingly, if the holder
hereof is not a participant, such holder must deliver this Note, in proper
form for deposit, to a participant, either directly or through an indirect
participant (such as a bank, brokerage firm, dealer or trust company that
clears through, or maintains a custodial relationship with, a participant) or
brokerage firm which maintains an account with a participant, in order to have
its Note exchanged for a Note in book-entry form.
Notes received by the Depositary for exchange during the
Conversion Option Period will be exchanged for a Note in book-entry form by
the close of business on the Business Day that such Notes are received by the
Depositary (if received by the Depositary by its then applicable cut-off time
for same day credit) or on the following Business Day (if received by the
Depositary by its then applicable cut-off time for next day credit). Notes
surrendered at any time for exchange for book-entry Notes may not be
transferred until such exchange has been effected.
The Senior Indenture provides that, (a) if an Event of Default
(as defined in the Senior Indenture) due to the default in payment of
principal of, premium, if any, or interest on, any series of debt securities
issued under the Senior Indenture or due to the default in the performance or
breach of any other covenant or warranty of the Issuer applicable to the debt
securities of such series but not applicable to all outstanding debt
securities issued under the Senior Indenture shall have occurred and be
continuing, either the Trustee or the holders of not less than 25% in
principal amount of the debt securities of each affected series (voting as a
single class) may then declare the principal of all debt securities of all
such series and interest accrued thereon to be due and payable immediately and
(b) if an Event of Default due to a default in the performance of any other of
the covenants or agreements in the Senior Indenture applicable to all
outstanding debt securities issued thereunder, including this Note, or due to
certain events of bankruptcy, insolvency and reorganization of the Issuer,
shall have occurred and be continuing, either the Trustee or the holders of
not less than 25% in principal amount of all debt securities issued under the
Senior Indenture then outstanding (treated as one class) may declare the
principal of all such debt securities and interest accrued thereon to be due
and payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt securities)
by the holders of a majority in principal amount of the debt securities of all
affected series then outstanding.
If the principal of this Note is declared to be due and payable
prior to the Maturity Date, then (i) the amount payable with respect to this
Note shall equal the Amount Payable at Maturity hereof (calculated as of the
date of such declaration) plus accrued interest to but excluding the date of
payment, (ii) for the purpose of any vote of securityholders taken pursuant to
the Senior Indenture prior to the acceleration of payment of this Note, the
principal amount hereof shall equal the amount that would be due and payable
hereon, calculated as set forth in clause (i) above, if this Note were
declared to be due and payable on the date of any such vote and (iii) for the
purpose of any vote of securityholders taken pursuant to the Senior Indenture
following the acceleration of payment of this Note, the principal amount
hereof shall equal the Amount Payable at Maturity hereof, calculated as set
forth in clause (i) above.
The Senior Indenture permits the Issuer and the Trustee, with
the consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of
the holders of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the holder of each outstanding debt
security affected thereby, (a) extend the final maturity of any such debt
security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption or repayment thereof, or change the currency of payment thereof, or
impair or affect the rights of any holder to institute suit for the payment
thereof without the consent of the holder of each debt security so affected;
or (b) reduce the aforesaid percentage in principal amount of debt securities
the consent of the holders of which is required for any such supplemental
indenture, without the consent of the holders of each debt security so
affected.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and interest on this Note as herein provided in the Borough of Manhattan, The
City of New York, and an office or agency in said Borough of Manhattan for the
registration, transfer and exchange as aforesaid of the Notes. The Issuer may
designate other agencies for the payment of said principal and interest at
such place or places (subject to applicable laws and regulations) as the
Issuer may decide. So long as there shall be such an agency, the Issuer shall
keep the Trustee advised of the names and locations of such agencies, if any
are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest on any
Notes that remain unclaimed at the end of two years after such principal or
interest shall have become due and payable (whether at maturity or otherwise),
(i) the Trustee or such Paying Agent shall notify the holders of such Notes
that such moneys shall be repaid to the Issuer and any person claiming such
moneys shall thereafter look only to the Issuer for payment thereof and (ii)
such moneys shall be so repaid to the Issuer. Upon such repayment all
liability of the Trustee or such Paying Agent with respect to such moneys
shall thereupon cease, without, however, limiting in any way any obligation
that the Issuer may have to pay the principal of or interest on this Note as
the same shall become due.
No provision of this Note or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of and interest on this Note at the time,
place, and rate, and in the coin or currency, herein prescribed unless
otherwise agreed between the Issuer and the registered holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the holder in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and none of the Issuer,
the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Note, for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Senior Indenture or any
indenture supplemental thereto, against any incorporator, shareholder, officer
or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
As used herein:
(a) the term "Business Day" means any day that is not a
Saturday, a Sunday or a day on which the New York Stock Exchange (the "NYSE"),
the American Stock Exchange or banking institutions or trust companies in The
City of New York are authorized or obligated by law or executive order to
close;
(b) the term "Closing Price" of any security on any date means
the closing sale price or last reported sale price of such security on the
NYSE on such date or, if such security is not listed for trading on the NYSE
on any such date, on such other U.S. national securities exchange or U.S.
national securities system that is the primary market for the trading of such
security;
(c) the term "Trading Day" for any security means a Business
Day on which the security the Closing Price of which is being determined (A)
is not suspended from trading on any U.S. national securities exchange or U.S.
national securities system at the close of business on such Business Day and
(B) has traded at least once on such Business Day on the U.S. national
securities exchange or U.S. national securities system that is the primary
market for the trading of such security;
(d) the term "Commercial Market Rate" means the commercial
buying rate for the purchase of U.S. dollars as reported by the Banco Central
do Brasil; and
(e) all other terms used in this Note which are defined in the
Senior Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Senior Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian..............
(Cust) (Minor)
Under Uniform Gifts to Minors Act...................
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_______________________________________!
!
_______________________________________!_____________________________________
_____________________________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING
ZIP CODE, OF ASSIGNEE]
_____________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
_____________________________________________________________________________
such person attorney to transfer such Note on the books of the Issuer, with
full power of substitution in the premises.
Dated:_____________________
_____________________________________________________________________________
NOTICE: The signature to this assignment must correspond
with the name as written upon the face of the within Note
in every particular without alteration or enlargement or
any change whatsoever.
DRAFT GLOBAL NOTE EXHIBIT 4.3
PERFORMANCE EQUITY-LINKED REDEMPTION QUARTERLY-PAY SECURITY (PERQS)
REGISTERED REGISTERED
No. R- CUSIP: 617446646
Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) to the
issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name
as requested by an authorized representative of The Depository Trust Company
and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.
MORGAN STANLEY GROUP INC.
PERFORMANCE EQUITY-LINKED REDEMPTION QUARTERLY-PAY SECURITIES (PERQS)
As used herein, the following terms shall have the following
meanings:
ORIGINAL ISSUE DATE: ISSUE PRICE:
February , 1996 Amount stated under the caption
"Total Issue Price" on Schedule A
MATURITY DATE: on the reverse hereof
The earlier of (i) the Stated Maturity
Date (subject to extension upon the INTEREST ACCRUAL DATE:
occurrence of certain Non-Trading Days) February , 1996
and (ii) the Business Day immediately
preceding any Delisting Date, but in no INTEREST PAYMENT DATES:
event later than the Final Maturity Payable quarterly on each of
Date. February , May , August , and
November commencing May , 1996
STATED MATURITY DATE:
February , 1999 INTEREST RATE:
% of the Issue Price per annum
FINAL MATURITY DATE:
February , 1999 AMOUNT PAYABLE AT MATURITY:
The lesser of (A) % of the Issue
INITIAL EQUITY ISSUER: Price and (B) the product of
Telecomunicacoes Brasileiras S.A. - (i) the number of PERQS represented
Telebras ("Telebras") by this Note and (ii) the average
Closing Price of the Initial
American Depositary Shares for the
INITIAL AMERICAN DEPOSITARY SHARES: 10 Trading Days ending on the
American Depositary Shares of Telebras, second Business Day prior to
each representing 1,000 Preferred maturity, in each case subject to
Shares, without par value, of Telebras adjustment as a result of certain
dilution events as set forth on the
reverse hereof.
INITIAL UNDERLYING STOCK: PRICING DATE:
A Preferred Share, without par value, February , 1996
issued by Telebras
APPLICABLE FOREIGN CURRENCY:
Brazilian real
NUMBER OF PERQS REPRESENTED BY THIS
NOTE:
The number stated under the caption
"Total Number of PERQS Represented by
this Note" on Schedule A on the reverse
hereof
PERQS:
A PERQS is a Performance Equity-linked
Redemption Quarterly-pay Security
having an issue price of $ .
Morgan Stanley Group Inc., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to Cede & Co., or registered assigns, on the Maturity Date the
Amount Payable at Maturity determined in accordance with the procedures
described herein and to pay interest, quarterly in arrears on each Interest
Payment Date, on the Issue Price hereof as of the Record Date (as defined
below) immediately preceding such Interest Payment Date at the Interest Rate
from the Interest Accrual Date until the Amount Payable at Maturity is paid or
duly made available for payment, commencing on the Interest Payment Date next
succeeding the Interest Accrual Date, and on the Maturity Date, except as
provided herein.
The Amount Payable at Maturity shall be determined by the
Issuer and written notice thereof shall be provided to the Trustee and the
Paying Agent on the Business Day prior to the maturity hereof. The Issuer's
determination of the Amount Payable at Maturity shall be conclusive and
binding absent manifest error.
Interest on this Note will accrue from the most recent Interest
Payment Date to which interest hereon or on any predecessor Note has been paid
or duly provided for or, if no interest has been paid or duly provided for,
from the Interest Accrual Date, until the principal in respect of this Note
has been paid or duly made available for payment (except as provided below).
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 in U.S. Dollars to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the date 15
calendar days prior to such Interest Payment Date (whether or not a Business
Day, as defined on the reverse hereof) (each such date a "Record Date");
provided that interest payable on the Maturity Date will be payable to the
person to whom the principal hereof shall be payable. Payments of interest
hereon, other than the interest payment due on the Maturity Date, will be made
by wire transfer of immediately available funds to The Depository Trust Company
(the "Depositary").
Subject to certain exceptions described herein, payment of the
principal in respect of this Note will be made in immediately available funds
and payment of the interest due hereon on the Maturity Date will be made in
immediately available funds, in each case, upon presentation and surrender of
this Note at the office or agency of the Paying Agent maintained for that
purpose in the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of this Note
set forth 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 Note shall not be entitled to any benefit under the Senior Indenture, as
defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed under its corporate seal.
DATED: February , 1996 MORGAN STANLEY GROUP INC.
[SEAL] By:_______________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
CHEMICAL BANK,
as Trustee
By________________________
Authorized Officer
This Note is issuable under a Senior Indenture, dated as of
April 15, 1989, as supplemented by a First Supplemental Indenture dated as of
May 15, 1991 (as so supplemented, the "Senior Indenture"), between the Issuer
and Chemical Bank, as Trustee (the "Trustee," which term includes any
successor trustee under the Senior Indenture), to which Senior Indenture and
all indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limitations of rights, duties and immunities of the
Issuer, the Trustee and holders of the Notes and the terms upon which the
Notes are, and are to be, authenticated and delivered. The Issuer has
appointed Chemical Bank at its corporate trust office in The City of New York
as the paying agent (the "Paying Agent," which term includes any additional or
successor Paying Agent appointed by the Issuer) with respect to the Notes. To
the extent not inconsistent herewith, the terms of the Senior Indenture are
hereby incorporated by reference herein. This Note is one of a series of debt
securities having the designation and terms as set forth on the face hereof
(the "Notes").
This Note will not be subject to any sinking fund, will not be
redeemable by the Issuer or subject to repayment at the option of the holder
prior to maturity and will not be subject to the defeasance provisions set
forth in the Senior Indenture.
Interest payments on this Note will include interest accrued
to but excluding the Interest Payment Dates or the Maturity Date, as the case
may be. Interest payments for this Note will be computed and paid on the
basis of a 360-day year of twelve 30-day months.
If an Interest Payment Date or the Maturity Date does not fall
on a Business Day, payment of interest or principal otherwise payable on such
date need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on such Interest
Payment Date or on the Maturity Date, and no interest on such payment shall
accrue for the period from and after the Interest Payment Date or the Maturity
Date to such next succeeding Business Day.
If not previously repaid, this Note will mature on the Business
Day immediately preceding any Delisting Date. The "Delisting Date" will be
the first date on which the Initial American Depositary Shares or the American
depositary shares or the shares of capital stock of any Surviving Entity (as
defined below), as the case may be, are not listed on any U.S. national
securities exchange or traded through the facilities of a U.S. national
securities system subject to last sale reporting or is permanently
suspended from trading (within the meaning of the Securities Exchange Act
of 1934, as amended, and the rules and regulations thereunder) on each U.S.
securities exchange and U.S. securities system on which it is then listed.
The Issuer shall promptly notify the Depositary and the Trustee, by
first-class mail, of such Delisting Date and will contemporaneously publish
notice of such Delisting Date in a United States newspaper with a national
circulation (currently expected to be The Wall Street Journal).
In the event that any of the 10 Business Days ending on the
second Business Day prior to the Stated Maturity Date is not a Trading Day (a
"Non-Trading Day"), this Note will not mature on the Stated Maturity Date, but
the maturity of this Note will be extended one Trading Day for each such
Non-Trading Day; provided, however, that this Note will mature in any event
not later than the Final Maturity Date. This Note will continue to accrue
interest until the principal amount hereof is paid at maturity, which, in the
event that the maturity of this Note is extended as a result of a Non-Trading
Day, will be payable to the holder of this Note on the date of such extended
maturity. The Issuer shall promptly notify the Depositary and the Trustee,
by first-class mail, of such extension of maturity and will contemporaneously
publish notice of such extension of maturity in a United States newspaper with
a national circulation (currently expected to be The Wall Street Journal).
The Closing Price of the Initial American Depositary Shares on
any of the 10 Trading Days (the "10 Trading Days") used to calculate the
Amount Payable at Maturity shall be subject to adjustment as described below
to the extent that any of the events requiring such adjustment occur during
the period commencing on the Pricing Date and ending on the second Business
Day prior to the Maturity Date:
(i) INITIAL EQUITY ISSUER STOCK DIVIDENDS, EXTRAORDINARY CASH
DIVIDENDS AND OTHER DISTRIBUTIONS. In the event that a dividend or other
distribution (A) is declared on any class of the Initial Equity Issuer's
capital stock (or on the capital stock of any Surviving Entity, as defined in
clause (iv) below) payable in Initial Underlying Stock (or the applicable
class of capital stock of any Surviving Entity) or (B) is to be paid to
holders of the Initial American Depositary Shares (or the applicable class of
capital stock of any Surviving Entity) in U.S. dollars (the U.S. dollar amount
of each payment to be determined, if necessary, using the Commercial Market
Rate on the Distribution Record Date (as defined below)) in an amount greater
than 10% of the Closing Price of the Initial American Depositary Shares (or
the applicable class of capital stock of any Surviving Entity) on the
Distribution Record Date (an "Extraordinary Cash Dividend"), any Closing Price
of the Initial American Depositary Shares (or the applicable class of capital
stock of any Surviving Entity) used to calculate the Amount Payable at
Maturity on any Trading Day that follows the date (the "Distribution Record
Date") fixed for the determination of the shareholders of Initial Underlying
Stock (or of shares of the applicable class of capital stock of any Surviving
Entity), or in the case of an Extraordinary Cash Dividend, the holders of the
Initial American Depositary Shares (or the applicable class of capital stock
of any Surviving Entity) entitled to receive such distribution shall be
increased by multiplying such Closing Price by the Dividend Adjustment Factor.
The "Dividend Adjustment Factor" with respect to any Closing Price will be a
fraction (A) the numerator of which shall be the number of shares of the
Initial American Depositary Shares (or the number of shares of the applicable
class of capital stock of any Surviving Entity) outstanding on the
Distribution Record Date plus (x) the number of Initial American Depositary
Shares (or the number of shares of the applicable class of capital stock of
any Surviving Entity) to be issued as a result of such distribution or (y) in
the case of an Extraordinary Cash Dividend, the number of Initial American
Depositary Shares (or the number of shares of the applicable class of capital
stock of any Surviving Entity) that could be purchased with the amount of the
applicable Extraordinary Cash Dividend (determined as described above) at the
Closing Price of such securities on the Trading Day immediately subsequent to
such Distribution Record Date, and (B) the denominator of which shall be the
number of shares of Initial American Depositary Shares (or the number of
shares of the applicable class of capital stock of any Surviving Entity)
outstanding on the Distribution Record Date; provided, however that, in the
case of a stock dividend, if the Initial Equity Issuer (or any Surviving
Entity) and the depositary for its American depositary shares shall have
adjusted the number of shares of capital stock represented by each American
depositary share so that the price of such American depositary shares would
not be affected by such stock dividend, no adjustment of any such Closing Price
shall be made.
(ii) SUBDIVISIONS AND COMBINATIONS OF INITIAL UNDERLYING
STOCK. In the event that the outstanding Initial Underlying Stock (or the
applicable class of capital stock of any Surviving Entity) are subdivided into
a greater number of shares, the Closing Price of the Initial American
Depositary Shares (or the applicable class of capital stock of any Surviving
Entity) used to calculate the Amount Payable at Maturity on any Trading Day
that follows the date on which such subdivision becomes effective will be
proportionately decreased, and, conversely, in the event that the outstanding
shares of Initial Underlying Stock (or the applicable class of capital stock
of any Surviving Entity) are combined into a smaller number of shares, such
Closing Price will be proportionately increased; provided, however, that if
the Initial Equity Issuer (or any Surviving Entity) and the depositary for its
American depositary shares shall have adjusted the number of shares of capital
stock represented by each American depositary share so that the price of such
American depositary shares would not be affected by such subdivision or
combination, no adjustment of any such Closing Price shall be made.
(iii) CHANGE IN NUMBER OF SHARES OF INITIAL UNDERLYING STOCK
REPRESENTED BY INITIAL AMERICAN DEPOSITARY SHARES. In the event that the
Initial Equity Issuer (or any Surviving Entity) and the depositary for its
American depositary shares elect, in the absence of any of the events
described in clause (i) or (ii) above, to change the number of shares of
capital stock that are represented by each American depositary share, the
Closing Price of such American depositary shares used to calculate the Amount
Payable at Maturity on any Trading Day after the change becomes effective will
be proportionately adjusted.
(iv) DISSOLUTION OF THE INITIAL EQUITY ISSUER; MERGERS,
CONSOLIDATIONS OR SALES OF ASSETS IN WHICH THE INITIAL EQUITY ISSUER IS NOT
THE SURVIVING ENTITY; SPIN-OFFS. In the event of any (A) consolidation or
merger of the Initial Equity Issuer, or any surviving entity or subsequent
surviving entity of the Initial Equity Issuer (a "Surviving Entity") with or
into another entity (other than a consolidation or merger in which the Initial
Equity Issuer is the surviving entity), (B) sale, transfer, lease or
conveyance of all or substantially all of the assets of the Initial Equity
Issuer or any Surviving Entity, (C) liquidation, dissolution or winding up of
the Initial Equity Issuer or any Surviving Entity or (D) any declaration of a
distribution on the Initial Underlying Stock of the common stock of any
subsidiary of the Initial Equity Issuer (an "Initial Equity Issuer Spin-Off")
(any of the events described in (A), (B), (C) or (D), being a "Reorganization
Event"), for purposes of determining the Amount Payable at Maturity, the
Closing Price of the Initial American Depositary Shares on any Trading Day
subsequent to the effective time of any Reorganization Event will be deemed to
be the amount equal to (a) the value of the cash and other property (including
securities) received by a holder of Initial American Depositary Shares in any
such Reorganization Event (plus, in the case of an Initial Equity Issuer
Spin-Off, the value of an Initial American Depositary Share), and (b) to the
extent that such holder obtains securities in any Reorganization Event, the
value of the cash and other property received by the holder of such securities
in any subsequent Reorganization Event; provided, however, that in the case of
a Reorganization Event described in clause (A) above, no adjustment in the
method of determining the Closing Price of the Initial American Depositary
Shares (or the American depositary shares of any Surviving Entity) shall be
made, if the depositary for such American depositary shares shall have
adjusted such American depositary shares so that each such American depositary
share represents the securities and any other consideration received with
respect to the Initial Underlying Stock (or the applicable capital stock of
any Surviving Entity) in such Reorganization event. For purposes of
determining any such Closing Prices, the value of (A) any cash and other
property (other than securities) received in any such Reorganization Event
will be an amount equal to the value of such cash and other property at the
effective time of such Reorganization Event and (B) any property consisting of
securities received in any such Reorganization Event will be an amount equal
to the Closing Prices of such securities. The depositary for the Initial
American Depositary Shares (or the American depositary shares of any Surviving
Entity) may sell securities distributed to the depositary (as a holder of
shares of the underlying capital stock) as a result of the events described in
(A) through (D) above and distribute the net cash proceeds of such sales to
the holders of Initial American Depositary Shares (or the American depositary
shares of any Surviving Entity). In such event, the cash received by the
holders of such American depositary shares, rather than the Closing Prices of
the securities distributed to holders of the underlying shares of capital
stock, shall be used in any determination of the Closing Price of such
American depositary shares.
(v) RECLASSIFICATION OF INITIAL UNDERLYING STOCK. In the
event that the shares of Initial Underlying Stock are changed into the same or
a different number of shares of any class or classes of stock, whether by
capital reorganization, reclassification or otherwise (except to the extent
otherwise provided in clause (i), (ii) or (iv) above), no adjustment shall be
made to the Closing Prices of the Initial American Depositary Shares used to
calculate the Amount Payable at Maturity; provided, however that if as a
result of or in connection with such an event, the Initial Equity Issuer and
the depositary for Initial American Depositary Shares change the number of
shares of Initial Underlying Stock that are represented by an Initial American
Depositary Share, such Closing Prices will be proportionately adjusted with
respect to any Trading Day that follows the effectiveness of such change. (No
such adjustment to Closing Prices shall be necessary (except in the
circumstances described in the proviso above) because Initial American
Depositary Shares provide that they will, upon such a reorganization,
reclassification or other event, automatically represent appropriate numbers
of shares of any such different class of classes of capital stock into which
the Initial Underlying Stock have been changed.) In the event that shares of
the applicable class of capital stock of any Surviving Entity are changed into
the same or a different number of shares of any class or classes of capital
stock, whether by capital reorganization, reclassification or otherwise
(except to the extent otherwise provided in clause (i), (ii) or (iv) above),
the Amount Payable at Maturity shall be calculated by using Closing Prices of
the shares of stock into which a share of the applicable class of capital
stock of the Surviving Entity was changed on any Trading Day that follows the
effectiveness of such change, except that no such adjustment shall be made if
the American depositary shares of such Surviving Entity provide that they
will, upon such a reorganization, reclassification or other event,
automatically represent appropriate numbers of shares of any such different
class or classes of capital stock into which the applicable class of stock of
any Surviving Entity has been changed.
The Issuer shall promptly notify the Depositary and the
Trustee, by first-class mail, of any event requiring an adjustment as
described above and of the method of calculation to be used to make such
adjustment. The Issuer will also contemporaneously publish notice of any
event requiring such an adjustment and of the method of calculation to be used
to make any such adjustment in a United States newspaper with a national
circulation (currently expected to be The Wall Street Journal).
Neither the Trustee nor any Paying Agent shall at any time be
under any duty or responsibility to any holder of this Note to determine
whether any facts exist which may require any adjustment of the Closing Price
or with respect to the nature or extent of any such adjustment when made or
with respect to the method employed in making the same.
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without coupons,
and, is issuable only in denominations representing a whole number of PERQS.
The Trustee has been appointed registrar for the Notes, and the
Trustee will maintain at its office in The City of New York a register for the
registration and transfer of Notes. This Note may be transferred at the
aforesaid office of the Trustee by surrendering this Note for cancellation,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and duly executed by the registered holder hereof in person or by the
holder's attorney duly authorized in writing, and thereupon the Trustee shall
issue in the name of the transferee or transferees, in exchange herefor, a new
Note or Notes having identical terms and provisions and having an aggregate
Issue Price and Amount Payable at Maturity in U.S. Dollars, equal to the
amounts set forth on the face of this Note, subject to the terms and
conditions set forth herein. Notes are exchangeable at said office for other
Notes of other authorized denominations having an aggregate Issue Price and
Amount Payable at Maturity equal to the amounts set forth on the face of this
Note and having otherwise identical terms and provisions. All such exchanges
and transfers of Notes will be free of charge, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge in
connection therewith. All Notes surrendered for exchange shall be accompanied
by a written instrument of transfer in form satisfactory to the Trustee and
executed by the registered holder in person or by the holder's attorney duly
authorized in writing. The date of registration of any Note delivered upon
any exchange or transfer of Notes shall be such that no gain or loss of
interest results from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen and such Note or evidence of the loss, theft
or destruction thereof (together with the indemnity hereinafter referred to
and such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, a new Note of like tenor will be issued by the
Issuer in exchange for the Note so mutilated or defaced, or in lieu of the
Notes so destroyed or lost or stolen, but, in the case of any destroyed or
lost or stolen Note, only upon receipt of evidence satisfactory to the Trustee
and the Issuer that such Note was destroyed or lost or stolen and, if
required, upon receipt also of indemnity satisfactory to each of them. All
expenses and reasonable charges associated with procuring such indemnity and
with the preparation, authentication and delivery of a new Note shall be borne
by the owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default
(as defined in the Senior Indenture) due to the default in payment of
principal of, premium, if any, or interest on, any series of debt securities
issued under the Senior Indenture or due to the default in the performance or
breach of any other covenant or warranty of the Issuer applicable to the debt
securities of such series but not applicable to all outstanding debt
securities issued under the Senior Indenture shall have occurred and be
continuing, either the Trustee or the holders of not less than 25% in
principal amount of the debt securities of each affected series (voting as a
single class) may then declare the principal of all debt securities of all
such series and interest accrued thereon to be due and payable immediately and
(b) if an Event of Default due to a default in the performance of any other of
the covenants or agreements in the Senior Indenture applicable to all
outstanding debt securities issued thereunder, including this Note, or due to
certain events of bankruptcy, insolvency and reorganization of the Issuer,
shall have occurred and be continuing, either the Trustee or the holders of
not less than 25% in principal amount of all debt securities issued under the
Senior Indenture then outstanding (treated as one class) may declare the
principal of all such debt securities and interest accrued thereon to be due
and payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt securities)
by the holders of a majority in principal amount of the debt securities of all
affected series then outstanding.
If the principal of this Note is declared to be due and payable
prior to the Maturity Date, then (i) the amount payable with respect to this
Note shall equal the Amount Payable at Maturity hereof (calculated as of the
date of such declaration) plus accrued interest to but excluding the date of
payment, (ii) for the purpose of any vote of securityholders taken pursuant to
the Senior Indenture prior to the acceleration of payment of this Note, the
principal amount hereof shall equal the amount that would be due and payable
hereon, calculated as set forth in clause (i) above, if this Note were
declared to be due and payable on the date of any such vote and (iii) for the
purpose of any vote of securityholders taken pursuant to the Senior Indenture
following the acceleration of payment of this Note, the principal amount
hereof shall equal the Amount Payable at Maturity hereof, calculated as set
forth in clause (i) above.
The Senior Indenture permits the Issuer and the Trustee, with
the consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of
the holders of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the holder of each outstanding debt
security affected thereby, (a) extend the final maturity of any such debt
security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption or repayment thereof, or change the currency of payment thereof, or
impair or affect the rights of any holder to institute suit for the payment
thereof without the consent of the holder of each debt security so affected;
or (b) reduce the aforesaid percentage in principal amount of debt securities
the consent of the holders of which is required for any such supplemental
indenture, without the consent of the holders of each debt security so
affected.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and interest on this Note as herein provided in the Borough of Manhattan, The
City of New York, and an office or agency in said Borough of Manhattan for the
registration, transfer and exchange as aforesaid of the Notes. The Issuer may
designate other agencies for the payment of said principal and interest at
such place or places (subject to applicable laws and regulations) as the
Issuer may decide. So long as there shall be such an agency, the Issuer shall
keep the Trustee advised of the names and locations of such agencies, if any
are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest on any
Notes that remain unclaimed at the end of two years after such principal or
interest shall have become due and payable (whether at maturity or otherwise),
(i) the Trustee or such Paying Agent shall notify the holders of such Notes
that such moneys shall be repaid to the Issuer and any person claiming such
moneys shall thereafter look only to the Issuer for payment thereof and (ii)
such moneys shall be so repaid to the Issuer. Upon such repayment all
liability of the Trustee or such Paying Agent with respect to such moneys
shall thereupon cease, without, however, limiting in any way any obligation
that the Issuer may have to pay the principal of or interest on this Note as
the same shall become due.
No provision of this Note or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of and interest on this Note at the time,
place, and rate, and in the coin or currency, herein prescribed unless
otherwise agreed between the Issuer and the registered holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the holder in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and none of the Issuer,
the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Note, for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Senior Indenture or any
indenture supplemental thereto, against any incorporator, shareholder, officer
or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
As used herein:
(a) the term "Business Day" means any day that is not a
Saturday, a Sunday or a day on which the New York Stock Exchange (the "NYSE"),
the American Stock Exchange or banking institutions or trust companies in The
City of New York are authorized or obligated by law or executive order to
close;
(b) the term "Closing Price" of any security on any date means
the closing sale price or last reported sale price of such security on the
NYSE on such date or, if such security is not listed for trading on the NYSE
on any such date, on such other U.S. national securities exchange or U.S.
national securities system that is the primary market for the trading of such
security;
(c) the term "Trading Day" for any security means a Business
Day on which the security the Closing Price of which is being determined (A)
is not suspended from trading on any U.S. national securities exchange or U.S.
national securities system at the close of business on such Business Day and
(B) has traded at least once on such Business Day on the U.S. national
securities exchange or U.S. national securities system that is the primary
market for the trading of such security;
(d) the term "Commercial Market Rate" means the commercial
buying rate for the purchase of U.S. dollars as reported by the Banco Central
do Brasil; and
(d) all other terms used in this Note which are defined in the
Senior Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Senior Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian..............
(Cust) (Minor)
Under Uniform Gifts to Minors Act...................
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_______________________________________!
!
_______________________________________!______________________________________
______________________________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING
ZIP CODE, OF ASSIGNEE]
______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
______________________________________________________________________________
such person attorney to transfer such Note on the books of the Issuer, with
full power of substitution in the premises.
Dated:_____________________
______________________________________________________________________________
NOTICE: The signature to this assignment must correspond
with the name as written upon the face of the within Note
in every particular without alteration or enlargement or
any change whatsoever.
Upon presentation to the Trustee of a definitive registered
security having terms identical to the terms hereof (other than the issue
price thereof and the number of PERQS represented thereby) for exchange
for a beneficial interest in this Note, and upon confirmation by the
Depositary that such exchange may be made in compliance with its
procedures, the Trustee shall cancel the security so presented and shall
annotate the schedule set forth below to reflect the increase in the
"Total Number of PERQS Represented by this Note" and the "Total Issue
Price" hereof. The Trustee shall not accept any such Note for exchange
for a beneficial interest in this Note from and including a Record Date to
and including the immediately succeeding Interest Payment Date. The
maximum Amount Payable at Maturity of this Note is $______.
SCHEDULE A
EXCHANGES FOR DEFINITIVE REGISTERED NOTES
Total Number of
PERQS Notation Made by
Date of Represented by Total or on behalf of
Exchange this Note Issue Price Trustee
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