SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
THE GOLDMAN SACHS GROUP, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-4019460
(State of incorporation or organization) (I.R.S. Employer Identification No.)
85 BROAD STREET, NEW YORK, NEW YORK 10004
(Address of Principal Executive Offices) (Zip Code)
If this form relates to the If this form relates to the
registration of a class of securities registration of a class of securities
pursuant to Section 12(b) of the pursuant to Section 12(g) of the
Exchange Act and is effective Exchange Act and is effective
pursuant to General Instruction pursuant to General Instruction
A.(c), check the following box. [X] A.(d), check the following box. [_]
Securities Act registration statement file number to which this form
relates: 333-30288
(If applicable)
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
0.25% EXCHANGEABLE NOTES DUE 2007 AMERICAN STOCK EXCHANGE, INC.
(EXCHANGEABLE FOR COMMON STOCK OF EMC
CORPORATION)
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The material set forth in (i) the section captioned "Description of
Notes We May Offer" in the registrant's registration statement on Form S-1 (No.
333-30288) and (ii) the section "Specific Terms of Your Note" in the Prospectus
Supplement No. 90, dated March 15, 2000 to the registrant's Prospectus, dated
February 16, 2000, are each incorporated herein by reference.
ITEM 2. EXHIBITS.
1. Indenture, dated as of May 19, 1999, between The Goldman Sachs Group,
Inc. and The Bank of New York, as trustee, incorporated herein by
reference to Exhibit 6 to the registrant's registration statement on
Form 8-A (No. 001-14965).
2. Form of The Goldman Sachs Group, Inc.'s 0.25% Exchangeable Notes due
2007 (Exchangeable for Common Stock of EMC Corporation).
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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, thereto duly authorized.
Date: March 21, 2000 THE GOLDMAN SACHS GROUP, INC.
By: /s/ Dan H. Jester
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Name: Dan H. Jester
Title: Vice President and Treasurer
(Face of Security)
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE GOLDMAN
SACHS GROUP, INC. OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(Face of Security continued on next page)
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CUSIP NO. 38141GAM6
THE GOLDMAN SACHS GROUP, INC.
MEDIUM-TERM NOTES, SERIES B
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0.25% Exchangeable Note due 2007
(Exchangeable for Common Stock of EMC Corporation)
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The following terms apply to this Security. Capitalized terms
that are not defined the first time they are used in this Security shall have
the meanings indicated elsewhere in this Security.
FACE AMOUNT: $30,525,000
PRINCIPAL AMOUNT: on the Stated Maturity Date, the Company will pay the Holder
cash equal to 100% of the Outstanding Face Amount, unless (i) the Holder
exercises the Exchange Right, (ii) the Company exercises the Call Right or
(iii) an Automatic Exchange occurs, all as provided on the face of this
Security.
EXCHANGE RIGHT: the Holder may elect to exchange this Security for Stock at the
Exchange Rate, provided that the Company may elect to pay the Holder the
cash value of the Stock otherwise deliverable in any such exchange instead
of delivering such Stock, all as provided in section 5 on the face of this
Security.
EXCHANGE RATE: 6.5434 shares of Stock for each $1,000 of the Outstanding Face
Amount exchanged, subject to adjustment as provided on the face of this
Security.
CALL RIGHT: the Company may redeem this Security as provided in section 6 on the
face of this Security.
STOCK and STOCK ISSUER: common stock of EMC Corporation, subject to adjustment
as provided on the face of this Security.
AUTOMATIC EXCHANGE: an Automatic Exchange of this Security may occur on the
Stated Maturity Date or on any Call Date, as provided in section 7 on the
face of this Security.
(Face of Security continued on next page)
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CALCULATION AGENT: Goldman, Sachs & Co.
DEFEASANCE: neither full defeasance nor covenant defeasance applies to this
Security.
OTHER TERMS:
All terms used in this Security that are not defined in this Security
but are defined in the Indenture referred to on the reverse of this Security
shall have the meanings assigned to them in the Indenture. References in this
Security to numbered sections are to numbered sections on the face of this
Security, unless the context requires otherwise. Section headings on the face of
this Security are for convenience only and shall not affect the construction of
this Security.
"Authorized Denomination" means, with respect to this security, a Face
Amount of $10,000 or a multiple of $1,000 in excess of $10,000.
"Automatic Exchange" means an exchange of the Outstanding Face Amount
of this Security for cash, Stock or other property, as provided in section 7.
"Business Day" means any day that is not a Saturday, a Sunday or a day
on which the New York Stock Exchange (or, if different, the principal securities
market in which the Stock is then quoted or traded), or on which banking
institutions in The City of New York generally, are authorized or obligated by
law, regulation or executive order to close.
"Call Date" means the day specified by the Company in a Call Notice for
redemption of the Outstanding Face Amount of this Security, unless the Call Date
is postponed to a later date as provided in section 7(c), in which case the Call
Date shall be such later date; provided, however, that a Call Date shall in all
cases be after March 22, 2002.
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As applied to this Security, the term "Redemption Date" as used in the Indenture
shall mean the Call Date, if any.
"Call Notice" means a notice of redemption given by the Company to the
Holder of this Security as provided in section 6.
"Call Notice Date" means any Business Day on which the Company gives a
Call Notice.
"Closing Price" means, with respect to any security on any day, the
closing sale price or last reported sale price, regular way, for the security on
a per-share or other unit basis (i) on the principal national securities
exchange on which such security is listed for trading on such day, (ii) in the
event such security is not listed on any national securities exchange, on the
Nasdaq National Market System on such day or (iii) in the event such security is
not quoted in the Nasdaq National Market System on such day, on such other U.S.
national market system that is the primary market for the trading of such
security; provided, however, that, in the event such security is not listed or
quoted as described in clause (i), (ii) or (iii) above, the Closing Price with
respect to such security will be the average, as determined by the Calculation
Agent, of the bid prices for such security obtained from as many dealers in such
security selected by the Calculation Agent (which may include the Calculation
Agent or any affiliate of such agent or of the Company) as will make such bid
prices available to the Calculation Agent (provided that the number of such
dealers need not exceed three).
"Default Amount" means, on any day, an amount, in U.S. dollars, equal
to the cost of having a Qualified Financial Institution expressly assume, as of
such day, the due and punctual payment of the principal of and interest on this
Security, and the performance or observance of every covenant hereof and of the
Indenture on the part of the Company to be performed or observed with respect to
this Security (or to undertake other obligations providing substantially
equivalent economic value to the Holder of
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this Security as the Company's obligations hereunder). Such cost will equal (i)
the lowest amount that a Qualified Financial Institution (selected as provided
below) would charge to effect such assumption (or undertaking) plus (ii) the
reasonable expenses (including reasonable attorneys' fees) incurred by the
Holder of this Security in preparing any documentation necessary for such
assumption (or undertaking). During the Default Quotation Period, each of the
Holder of this Security and the Company may request a Qualified Financial
Institution to provide a quotation of the amount it would charge to effect such
assumption (or undertaking) and notify the other in writing of such quotation.
The amount referred to in clause (i) of this paragraph will equal the lowest
(or, if there is only one, the only) quotation so obtained, and as to which
notice is so given, during the Default Quotation Period; provided that, with
respect to any quotation, the party not obtaining such quotation may object, on
reasonable and significant grounds, to the effectuation of such assumption (or
undertaking) by the Qualified Financial Institution providing such quotation and
notify the other party in writing of such grounds within two Business Days after
the last day of the Default Quotation Period, in which case such quotation will
be disregarded in determining the Default Amount. The "Default Quotation Period"
will be the period beginning on the day the Default Amount first becomes due and
payable and ending on the third Business Day after such due day, unless no such
quotation is so obtained, or unless every such quotation so obtained is objected
to within five Business Days after such due day as provided above, in which case
the Default Quotation Period will continue until the third Business Day after
the first Business Day on which prompt notice is given of such a quotation as
provided above, unless such quotation is objected to as provided above within
five Business Days after such first Business Day, in which case the Default
Quotation Period will continue as provided in this sentence. Notwithstanding the
foregoing, if the Default Quotation Period (and the subsequent two Business Day
objection period) has not ended prior to the Determination Date, then the
Default Amount will equal the Principal Amount.
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"Determination Date" means the fifth Business Day prior to March 22,
2007; provided, however, that if a Market Disruption Event occurs or is
continuing on that fifth prior Business Day, the Determination Date will be the
next succeeding Business Day on which a Market Disruption Event does not occur
and is not continuing; provided, further, that in no event will the
Determination Date be later than March 22, 2007 or, if March 22, 2007 is not a
Business Day, later than the first Business Day after March 22, 2007.
"Distribution Property" means securities, cash and/or other property
distributed in any Reorganization Event in respect of the relevant Reference
Amount and, in the case of a Spin-Off Event, includes such Reference Amount.
"Exercise Requirements" means, with respect to any exchange of this
Security pursuant to section 5, all the following requirements that apply to
such exchange:
(i) Both the Trustee and the Calculation Agent must receive a properly
completed and signed Notice of Exchange specifying the Outstanding Face
Amount of this Security to be exchanged. In each case, such notice must be
delivered by facsimile to the applicable number and location specified in
the Notice of Exchange (or to such other number and location, or in such
other manner, as the Trustee or Calculation Agent, as applicable, may
specify to the Holder).
(ii) If this Security is not a Global Security, the Trustee must
receive the certificate representing this Security. In each case, such
delivery must be made by mail, by hand or by reputable commercial courier,
to the office of the Trustee, and to the attention of its representative,
specified in the Notice of Exchange (or to such other location, or in such
other manner, as the Trustee may specify to the Holder).
(Face of Security continued on next page)
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(iii) If this Security is not a Global Security and the Exchange Date
occurs after a Regular Record Date and before the related Interest Payment
Date, the Trustee must receive cash in an amount equal to the interest
payable on the portion of this Security to be exchanged, as provided in
clause (iv) of section 5. In each case, such delivery must be made by
check, as provided in clause (ii) above, or by wire transfer to an account
specified by the Trustee (or in such other manner as the Trustee may
specify).
(iv) If this Security is a Global Security, the beneficial interest in
the portion of the Security to be exchanged must be transferred on the
books of the Depositary to the account of the Trustee at the Depositary and
the Trustee must receive and accept the transfer, all in accordance with
the applicable procedures of the Depositary. If the Trustee receives and
accepts the transfer by 3:00 P.M., New York City time, on any Business Day,
the requirement in this clause (iv) will be deemed satisfied as of 11:00
A.M. on the same Business Day.
The Calculation Agent will, in its sole discretion, resolve any questions that
may arise as to the validity of a Notice of Exchange or as to whether and when
the Exercise Requirements have been satisfied in respect of any exchange.
"Exchange Date" means, with respect to any exchange of this Security
pursuant to section 5, the fifth Business Day after the Exchange Notice Date for
such exchange. Notwithstanding the foregoing, the Exchange Date may be postponed
as provided in section 5, in which case the Exchange Date shall be the date to
which it is so postponed.
"Exchange Notice Date" means, with respect to any exchange of this
Security pursuant to section 5, the first Business Day on which all Exercise
Requirements have been satisfied with respect to such exchange by 11:00 A.M.,
New York City time, on such day, provided that such first Business Day must
occur no later than the earlier of (i) the
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Business Day prior to the Determination date and (ii) any Call Notice Date. If
the Exercise Requirements have been satisfied with respect to an exchange on a
Business Day but after 11:00 A.M., New York City time, the next Business Day
will be the Exchange Notice Date for such exchange, subject to the proviso in
the prior sentence. Notwithstanding the foregoing, the Exchange Notice Date may
be postponed as provided in section 5, in which case the Exchange Notice Date
shall be the date to which it is so postponed.
"Ex-Dividend Date" for any dividend or other distribution in respect of
the Stock shall mean the first day on which the Stock trades without the right
to receive such dividend or other distribution.
"Market Disruption Event" means, with respect to the Stock, (i) a
suspension, absence or material limitation of trading of the Stock in the
primary market for the Stock for more than two hours of trading or during the
one-half hour period preceding the close of trading in such market, (ii) a
suspension, absence or material limitation of trading in option contracts
related to the Stock, if available, in the primary market for such contracts for
more than two hours of trading or during the one-half hour period preceding the
close of trading in such market or (iii) the Stock does not trade in what was
the primary market for the Stock, in each case (i), (ii) and (iii) as determined
by the Calculation Agent; provided, however, that no such event described in
clause (i), (ii) or (iii) will be a Market Disruption Event unless the
Calculation Agent also determines that such event materially interferes with the
ability of the Company or any of its affiliates to unwind all or a material
portion of any hedge that any of them effects with respect to this Security. For
purposes of determining whether a Market Disruption Event has occurred, (a) a
limitation on the hours or numbers of days of trading in the relevant market
will not constitute a Market Disruption Event if it results from an announced
change in the regular business hours of such market, (b) a decision to
permanently discontinue trading in the relevant option contracts will not
constitute a Market Disruption Event, (c)
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a suspension or limitation of trading in option contracts related to the Stock,
if available, in the primary market for such contracts, by reason of (1) a price
change exceeding limits set by such market, (2) an imbalance of orders relating
to such contracts or (3) a disparity in bid and ask quotes relating to such
contracts, will, in each case (1), (2) and (3), constitute a suspension or
material limitation of trading in option contracts related to the Stock and (d)
an "absence of trading" in the primary market on which option contracts related
to the Stock are traded will not include any time when such market is itself
closed for trading under ordinary circumstances. References to the Stock in this
paragraph will also be deemed to refer to any Distribution Property consisting
of securities.
"Notice of Exchange" means a properly completed and signed notice
substantially in the form attached to the Company's prospectus supplement dated
March 15, 2000 relating to this Security (or such other form as is acceptable to
the Trustee and the Calculation Agent). Once given, a Notice of Exchange may not
be revoked.
"Original Issue Date" means March 22, 2000.
"Qualified Financial Institution" means, at any time, a financial
institution organized under the laws of any jurisdiction in the United States of
America, Europe or Japan that at such time has outstanding debt obligations with
a stated maturity of one year or less from the date of issue and rated A-1 or
higher by Standard & Poor's Ratings Group (or any successor) or P-1 or higher by
Moody's Investors Service, Inc. (or any successor) or, in either case, such
other comparable rating, if any, then used by such rating agency.
"Redemption Price" means the amount payable in respect of this Security
on a Call Date pursuant to section 6. The Redemption Price payable on any Call
Date does not include any accrued interest payable in respect of this Security.
(Face of Security continued on next page)
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"Reference Amount" means, initially, the amount of Stock specified
above under "Exchange Rate" and shall be adjusted, as to the amount(s) and/or
type(s) of property comprising the same, by the Calculation Agent as provided in
sections 8 through 15.
"Stated Maturity Date" means March 22, 2007 or, if such day is not a
Business Day, the next succeeding Business Day; provided, however, that if the
fifth Business Day preceding March 22, 2007 is not the Determination Date, the
Stated Maturity Date will be the fifth Business Day succeeding the Determination
Date; provided, further, that in no event will the Stated Maturity Date be later
than the fifth Business Day after March 22, 2007 or, if March 22, 2007 is not a
Business Day, later than the sixth Business Day after March 22, 2007.
"Trade Date" means March 15, 2000.
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1. Promise to Pay Principal and Interest
The Goldman Sachs Group, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (hereinafter called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co., as nominee for The Depository Trust Company, or registered assigns, as
principal, 100% of the Outstanding Face Amount on the Stated Maturity Date,
subject to the other provisions of this Security, and to pay interest on the
Outstanding Face Amount, from the Original Issue Date or from the most recent
date to which interest has been paid or duly provided for, on March 22 and
September 22 (each an "Interest Payment Date") in each year, commencing on
September 22, 2000, and at the Maturity of the principal at the rate of 0.25%
per annum, until the principal of this Security is paid or made available for
payment. Any such instalment of interest that is overdue at
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any time shall also bear interest, at the rate of 0.25% per annum (to the extent
that payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment.
Notwithstanding the foregoing, (i) if the Stated Maturity Date does not occur on
March 22, 2007, then the Interest Payment Date that would otherwise occur on
March 22, 2007 shall instead occur on the Stated Maturity Date, (ii) interest on
any overdue amount shall be payable on demand and (iii) the accrual and payment
of interest on any portion of the Face Amount exchanged by the Holder pursuant
to section 5 or subject to an Automatic Exchange pursuant to section 7 shall be
subject to the applicable provisions of those sections.
2. Payment of Interest
The interest so payable, and punctually paid or made available for
payment, on any Interest Payment Date will, as provided in the Indenture, be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such Interest Payment Date. If this Security is a Global Security, the
Regular Record Date for an Interest Payment Date shall be the first Business Day
before such Interest Payment Date. If this Security is not a Global Security,
the Regular Record date for an Interest Payment Date shall be the fifteenth
calendar day (whether or not a Business Day) next preceding such Interest
Payment Date. Any interest so payable, but not punctually paid or made available
for payment, on any Interest Payment Date will forthwith cease to be payable to
the Holder on such Regular Record Date and such Defaulted Interest may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to the Holder of this Security not less than 10 days
prior to such Special Record Date, or be paid in any other lawful manner not
inconsistent with the requirements of any securities exchange on which this
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Security may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture.
3. No Fractional Shares
No fractional shares will be delivered in exchange for this Security.
If more than one Security of this series and of like tenor are to be exchanged
for Stock on the same date and by the same Holder pursuant to section 5, 7(a) or
7(b), the number of full shares that will be delivered upon exchange will be
calculated on the basis of the aggregate number of such Securities. If this
Security is a Global Security and two or more portions of this Security are to
be exchanged for Stock on the same date pursuant to two or more Notices of
Exchange, the number of full shares that will be delivered upon exchange will be
calculated separately with respect to each such Notice of Exchange, on the basis
of the Face Amount to be exchanged pursuant to each such Notice of Exchange. In
lieu of any fractional share otherwise deliverable in exchange for this
Security, the Holder shall be entitled to receive an amount in cash equal to the
value of such fractional share based on the following: (i) for an exchange
pursuant to section 5, the Closing Price of the relevant security on the
relevant Exchange Notice Date and (ii) for an exchange pursuant to section 7(a)
or 7(b), the Closing Price of the relevant security on the relevant Pricing
Date, as determined pursuant to such section (or such other price as may apply
in lieu thereof pursuant to section 7(c)). With respect to any security other
than a share of capital stock, a fractional share shall be deemed to mean any
denomination other than an authorized denomination for such security.
4. Principal Amount
The principal of this Security that becomes due and payable on the
Stated Maturity Date shall be 100% of the Outstanding Face Amount unless an
Automatic Exchange is to occur on such date, in which case such principal shall
be the cash, Stock or other property that the Company is
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obligated to deliver (or cause to be delivered) in such Automatic Exchange. The
principal of this Security that becomes due and payable on a Call Date shall be
the Redemption Price unless an Automatic Exchange is to occur on such date, in
which case such principal shall be the cash, Stock or other property that the
Company is obligated to deliver (or cause to be delivered) in such Automatic
Exchange. The principal of this Security that becomes due and payable on any
Exchange Date shall be the cash, Stock or other property that the Company is
obligated to deliver in exchange for this Security (or any portion hereof being
exchanged) on such date. The principal of this Security that becomes due and
payable upon acceleration of the Maturity hereof after an Event of Default has
occurred pursuant to the Indenture shall be the Default Amount. When the cash,
Stock or other property referred to above in this section 4 has been paid or
delivered as provided herein (or such payment or delivery has been made
available), the principal of this Security (or the portion hereof being
exchanged, as the case may be) shall be deemed to have been paid in full,
whether or not this Security shall have been surrendered for payment or
cancellation. References to the payment of the principal of this Security on any
day shall be deemed to mean the delivery or payment of cash, Stock or other
property that is payable or deliverable on such day as provided in this
Security. Notwithstanding the foregoing, solely for the purpose of determining
whether any consent, waiver, notice or other action to be given or taken by
Holders of Securities pursuant to the Indenture has been given or taken by
Holders of Outstanding Securities in the requisite aggregate principal amount,
the principal amount of this Security will be deemed to equal the Face Amount.
This Security shall cease to be Outstanding as provided in the definition of
such term in the Indenture or when the principal of this Security shall be
deemed to have been paid in full as provided above and all interest payable on
this Security has been paid (or such payment of interest has been made
available).
5. Holder's Exchange Right
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The Holder may elect to exchange the Outstanding Face Amount of this
Security, in whole or in part at any time and from time to time, for shares of
Stock at the Exchange Rate, provided that the Exercise Requirements with respect
to such exchange have been satisfied no later than 11:00 A.M., New York City
time, on the earlier of (i) the Business Day before the Determination Date and
(ii) any Call Notice Date. If the Holder makes such an election, the Company may
choose, at its sole option, either to deliver such shares of Stock to the Holder
(subject to section 3 above) or to pay cash to the Holder in an amount equal to
the value of such shares (including any fractional share), which value shall
equal the number of such shares multiplied by the Closing Price of the Stock on
the applicable Exchange Notice Date. The Company shall make (or cause its agent
to make) the delivery or payment due in any such exchange on the applicable
Exchange Date and in the manner provided in section 17 below. No election to
exchange this Security pursuant to this section 5 shall be effective unless the
Exercise Requirements are satisfied with respect to such exchange at or prior to
the date and time specified above. The right of the Holder to exchange the
Security pursuant to this section 5 is herein called the "Exchange Right".
If the Holder exercises the Exchange Right and if the Company chooses
to pay cash instead of delivering Stock on the applicable Exchange Date, the
Company will notify the Holder of its election no later than the Business Day
after the related Exchange Notice Date. If the Holder exercises the Exchange
Right and the Company does not notify the Holder of such election on the
Business Day after the related Exchange Notice Date, the Company will deliver
shares of Stock (subject to section 3) on the Exchange Date, except as provided
below in this section 5. The Company will give any such notice by telephone or
telecopier to the number specified in the applicable Notice of Exchange by the
Person who signs such notice.
If a Market Disruption Event occurs or is continuing on a day that
would otherwise be an Exchange Notice Date, then such Exchange Notice Date will
be
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postponed to the first succeeding Business Day on which a Market Disruption
Event does not occur and is not continuing. In no event, however, will any
Exchange Notice Date be postponed by more than five Business Days. If an
Exchange Notice Date is postponed, the related Exchange Date will also be
postponed, to the fifth Business Day after the day to which such Exchange Notice
Date is postponed. If an Exchange Notice Date is postponed to the last possible
day, and a Market Disruption Event occurs or is continuing on that day, that day
will nevertheless be such Exchange Notice Date.
In the event that a Market Disruption Event occurs or is continuing on
an Exchange Notice Date or on any later day through and including the related
Exchange Date, the Company may choose to pay cash instead of delivering Stock on
such Exchange Date, even if the Company has not notified the Holder of its
election to pay cash as provided above in this section 5.
If the Company elects to pay the cash value of the Stock otherwise
deliverable on an Exchange Date but the Closing Price of the Stock that must be
used to determine such cash value is not available on the related Exchange
Notice Date, either because of a Market Disruption Event or for any other
reason, the Calculation Agent will nevertheless determine that Closing Price
based on its assessment, made in its sole discretion, of the market value of the
Stock on such Exchange Notice Date. This paragraph shall apply whether the
election to pay cash is made pursuant to the prior paragraph or the second
paragraph of this section 5.
Partial exchanges of this Security will be permitted only if the
portion of the Face Amount exchanged is a multiple of $1,000 and only if the
unexchanged portion is an Authorized Denomination. References herein to any
portion of this Security being exchanged shall mean the entire amount of this
Security if the entire amount is being exchanged.
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If the Holder exercises the Exchange Right, the applicable provisions
of this paragraph will apply to the exchanged portion of this Security.
(i) If the applicable Exchange Date occurs on an Interest Payment
Date, interest will accrue on the exchanged portion to, but excluding, such
Interest Payment Date. The interest that accrues on such exchanged portion
to such Interest Payment Date, excluding any part of such interest that
becomes payable prior to such Interest Payment Date, shall be payable on
such Interest Payment Date as provided in section 2 above.
(ii) If the applicable Exchange Date occurs after an Interest Payment
Date but on or before the next Regular Record Date, interest will accrue on
the exchanged portion only to, and excluding, such prior Interest Payment
Date and no interest will accrue or be payable for the later period that
precedes such Exchange Date.
(iii) If the applicable Exchange Date occurs on or before the first
Regular Record Date, interest will not accrue or be payable on such
exchanged portion.
(iv) If this Security is not a Global Security and the applicable
Exchange Date occurs after a Regular Record Date but before the related
Interest Payment Date, interest will accrue on the exchanged portion of
this Security to, but excluding, such Interest Payment Date. The interest
that accrues on such exchanged portion to such Interest Payment Date,
excluding any part of such interest that becomes payable prior to such
Interest Payment Date, will be payable on such Interest Payment Date as
provided in section 2 above; provided, however, that the Holder exercising
the Exchange Right with respect to such portion will be required to pay to
the Trustee (for the benefit of the Company), no later than 11:00 A.M., New
York City time, on the Exchange Notice Date, cash in an amount equal to
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the interest that becomes payable on the exchanged portion of this Security
on such Interest Payment Date.
Notwithstanding the foregoing, if the Company defaults on its obligation to make
(or cause to be made) the delivery or payment due in respect of any portion of
this Security on an Exchange Date pursuant to this section 5, interest shall
accrue on such portion from the Exchange Date to the day such delivery or
payment is made or made available and shall be payable on demand of the Holder.
6. Company's Call Right
This Security is subject to redemption upon not less than 15 days' nor
more than 45 days' prior notice, at any time after March 22, 2002, in whole but
not in part, at the election of the Company for cash at a Redemption Price equal
to 100% of the Outstanding Face Amount on the Call Date, plus accrued interest
to the Call Date. Interest instalments whose Stated Maturity is on or prior to a
Call Date will be payable as provided in section 2.
The Company shall not give a Call Notice that results in a Call Date
later than the Stated Maturity Date. A Call Notice, once given, shall be
irrevocable.
If the Company gives a Call Notice, this Security will be subject to
the provisions of section 7(b). If an Automatic Exchange is to occur pursuant to
section 7(b), then, notwithstanding the foregoing, this Security shall not be
subject to redemption pursuant to this section 6. If an Automatic Exchange is
not to occur pursuant to section 7(b), then this Security shall be redeemed on
the Call Date as provided in this section 6 and in the Indenture (as modified by
this section 6).
7. Automatic Exchange
(a) On the Stated Maturity Date. If the Holder does not exercise the
Exchange Right for the entire Outstanding Face Amount of this Security by 11:00
A.M., New
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York City time, on the Business Day before the Determination Date and the
Company does not give a Call Notice, the provisions of this section 7(a) will
apply. On the Determination Date, the Calculation Agent (i) will determine the
number of shares of Stock (including any fractional share) that would be
deliverable in exchange for the Outstanding Face Amount on such date at the
Exchange Rate, if such amount were to be exchanged on such date pursuant to
section 5, and (ii) will multiply such number of shares by the Closing Price of
the Stock on the Determination Date, subject to section 7(c) below. The
resulting amount determined pursuant to the prior sentence and section 7(c), as
applicable, is herein called the "Section 7(a) Amount".
If the Section 7(a) Amount exceeds the sum of (i) 90% of the
Outstanding Face Amount on the Determination Date plus (ii) the amount of the
regular interest instalment that would become due on such Outstanding Face
Amount on the Stated Maturity Date if such Outstanding Face Amount were not
exchanged or redeemed, then, without any action being taken by the Holder, this
Security will automatically be exchanged as follows. On the Stated Maturity
Date, either the Company will deliver to the Holder the shares of Stock
specified in clause (i) of the prior paragraph or, at the Company's option, the
Company will pay to the Holder cash in an amount equal to the Section 7(a)
Amount. The Company will be entitled to select either of these alternatives at
its option and without notifying the Holder or any other Person of its
selection. In determining the amounts specified in this paragraph and the prior
paragraph, the Outstanding Face Amount on the Determination Date shall be deemed
to exclude any portion thereof to be exchanged pursuant to section 5 on an
Exchange Date that occurs on or after the Determination Date. In addition, if
the Outstanding Face Amount on the Stated Maturity Date is lower than the Face
Amount deemed to be Outstanding on the Determination Date, then the number of
shares to be delivered or the amount of cash to be paid on the Stated Maturity
Date pursuant to this section 7(a) will be proportionately reduced.
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If the Section 7(a) Amount does not exceed the sum specified in the
prior paragraph, then this Security shall not be subject to an Automatic
Exchange pursuant to this section 7(a) and the Company will pay the Holder 90%
of the Outstanding Face Amount on the Stated Maturity Date as provided in
section 1.
If any portion of this Security is subject to an Automatic Exchange
pursuant to this section 7(a), no interest will accrue or be payable on such
portion in respect of the period from the Interest Payment Date prior to the
Stated Maturity Date to the Stated Maturity Date. If the Company defaults on its
obligation to make the delivery or payment due in respect of any portion of the
Security in such an Automatic Exchange, interest shall accrue on such portion
from the Stated Maturity Date to the day such delivery or payment is made or
made available and shall be payable on demand of the Holder.
(b) On a Call Date. If the Company gives a Call Notice, the provisions
of this section 7(b) will apply. On the Section 7(b) Calculation Day (as defined
in section 7(c)), the Calculation Agent (i) will determine the number of shares
of Stock (including any fractional share) that would be deliverable in exchange
for the Outstanding Face Amount on such day at the Exchange Rate, if such amount
were to be exchanged on such day pursuant to section 5, and (ii) will multiply
such number of shares by the Closing Price of the Stock on the Call Notice Date,
subject to section 7(c) below. The resulting amount determined pursuant to the
prior sentence and section 7(c), as applicable, is herein called the "Section
7(b) Amount".
If the Section 7(b) Amount exceeds the sum of (i) the Redemption Price
that would be payable on the Call Date in respect of the Outstanding Face Amount
on the Section 7(b) Calculation Day plus (ii) the amount of interest that will
have accrued on such Outstanding Face Amount from and after the last Interest
Payment Date before the Call Date to
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the Call Date, then, without any action being taken by the Holder, this Security
will automatically be exchanged as follows. On the Call Date, either the Company
will deliver to the Holder the shares of Stock specified in clause (i) of the
prior paragraph or, at the Company's option, the Company will pay to the Holder
cash in an amount equal to the Section 7(b) Amount. The Company will be entitled
to select either of these alternatives at its option and without notifying the
Holder or any other Person of its selection. In determining the amounts
specified in this paragraph and the prior paragraph, the Outstanding Face Amount
on the Section 7(b) Calculation Day will be deemed to exclude any portion
thereof to be exchanged pursuant to section 5 on an Exchange Date that occurs on
or after the Section 7(b) Calculation Day. In addition, if the Outstanding Face
Amount on the Call Date is lower than the Face Amount deemed to be Outstanding
on the Section 7(b) Calculation Day, then the number of shares to be delivered
or the amount of cash to be paid on the Call Date pursuant to this section 7(b)
will be proportionately reduced.
If the Section 7(b) Amount does not exceed the sum specified in the
prior paragraph, then this Security shall not be subject to an Automatic
Exchange pursuant to this section 7(b) and the Company will redeem the
Outstanding Face Amount on the Call Date as provided in section 6.
If any portion of this Security is subject to an Automatic Exchange
pursuant to this section 7(b), no interest will accrue or be payable on such
portion in respect of the period from the Interest Payment Date prior to the
Call Date to the Call Date. If the Company defaults on its obligation to make
the delivery or payment due in respect of any portion of this Security in such
an Automatic Exchange, interest shall accrue on such portion from the Call Date
to the day such delivery or payment is made or made available and shall be
payable on demand of the Holder.
(c) Deferred Pricing. In determining the Section 7(a) Amount or the
Section 7(b) Amount, the Calculation Agent shall follow the applicable
provisions of clauses (i)
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and (ii) below. If the Calculation Agent is required pursuant to this section 7
to determine the Closing Price of the Stock on a particular day in order to
determine the Section 7(a) Amount or the Section 7(b) Amount, then, for the
purposes of this section 7(c), such day is called a "Pricing Date".
(i) If a Market Disruption Event occurs or is continuing on a day that
would otherwise be a Pricing Date, then the Calculation Agent will use,
instead of the Closing Price on such day, the Closing Price on the first
Business Day after such day on which no Market Disruption Event occurs or
is continuing. Such first Business Day, however, shall not be later than
the Determination Date, in the case of an Automatic Exchange on the Stated
Maturity Date, or later than the fifth Business Day after the Call Notice
Date, in the case of an Automatic Exchange on the Call Date. Such first
Business Day is herein called a "Deferred Pricing Date" and such latest
Business Day on which a Deferred Pricing Date may occur is herein called
the "Latest Possible Pricing Date". (The Pricing Date may occur on a
Deferred Pricing Date and a Deferred Pricing Date may occur on the Latest
Possible Pricing Date.)
(ii) If a Market Disruption Event occurs or is continuing on a day
that would otherwise be a Pricing Date and on each subsequent Business Day
through and including the Latest Possible Pricing Date, the Calculation
Agent will nevertheless determine the Closing Price of the Stock (and the
Deferred Pricing Date will occur) on the Latest Possible Pricing Date. If
the Calculation Agent determines that the Closing Price is not available on
the Latest Possible Pricing Date, either because of a Market Disruption
Event or for any other reason, the Calculation Agent will determine the
Closing Price based on its assessment, made in its sole discretion, of the
market value of the Stock on the Latest Possible Pricing Date and will use
the Closing Price, as so determined, in determining the
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Section 7(a) Amount or the Section 7(b) Amount, as the case may be.
If a Call Notice is given and the Calculation Agent uses the Closing Price
(however determined as aforesaid) on a Deferred Pricing Date as provided in
clause (i) or (ii) above, the Call Date shall be the later of (x) the fifth
Business Day after such Deferred Pricing Date and (y) the original Call Date
specified in the Call Notice. If the date described in clause (x) is later than
the date in clause (y), the Call Date shall automatically be postponed to such
later date, without notice to the Holder or any other Person and whether this
Security is redeemed or an Automatic Exchange occurs on the Call Date. If a Call
Notice is given, the Pricing Date will be the "Section 7(b) Calculation Day".
8. Antidilution Adjustment.
The Calculation Agent shall adjust the Exchange Rate as provided in
this Security in respect of each event for which adjustment is required under
sections 9 through 14 (and not in respect of any other event). (If more than one
such event occurs, the Calculation Agent shall adjust the Exchange Rate as so
provided for each such event, sequentially, in the order in which such events
occur, and on a cumulative basis.) With respect to any portion of this Security
to be exchanged, including any portion subject to an Automatic Exchange, the
Calculation Agent will make the required determinations and adjustments no later
than the related Exchange Notice Date. Solely for this purpose, the Exchange
Notice Date for an Automatic Exchange will be the Business Day for which the
Closing Price or other market value of the Stock is used to determine the amount
of cash payable in such exchange.
Notwithstanding any provision of this Security, if an event for which
adjustment is required under sections 9 through 14 occurs, the Calculation Agent
may make the adjustment and any related determinations and calculations in a
manner that differs from that specified in this
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Security as necessary to achieve an equitable result. Upon written request by
the Holder to the Calculation Agent, the Calculation Agent will provide the
Holder with such information about adjustments made pursuant to this Security as
such agent determines is appropriate.
9. Stock Splits.
If the Stock is subject to a stock split, then at the opening of
business on the first day on which the Stock trades without the right to receive
the stock split, the Calculation Agent will adjust the Exchange Rate to equal
the sum of the Exchange Rate in effect immediately prior to such adjustment plus
the product of (i) the number of new shares issued in the stock split with
respect to one share of the Stock and (ii) the Exchange Rate in effect
immediately prior to such adjustment. The Exchange Rate will not be adjusted,
however, unless such first day occurs after the Trade Date and on or before the
relevant Exchange Notice Date.
10. Reverse Stock Splits.
If the Stock is subject to a reverse stock split, then once the reverse
stock split becomes effective, the Calculation Agent will adjust the Exchange
Rate to equal the product of the Exchange Rate in effect immediately prior to
such adjustment and the quotient of (i) the number of shares of outstanding
Stock resulting from the reverse stock split divided by (ii) the number of
shares of Stock outstanding immediately before the reverse stock split becomes
effective. The Exchange Rate will not be adjusted, however, unless the reverse
stock split becomes effective after the Trade Date and on or before the relevant
Exchange Notice Date.
11. Stock Dividends.
If the Stock is subject to a stock dividend that is given ratably to
all holders of the Stock, then at the opening of business on the Ex-Dividend
Date, the Calculation Agent will adjust the Exchange Rate to equal the Exchange
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Rate in effect immediately prior to such adjustment plus the product of (i) the
number of shares issued in the Stock dividend with respect to one share of the
Stock and (ii) the Exchange Rate in effect immediately prior to such adjustment.
The Exchange Rate will not be adjusted, however, unless such Ex-Dividend Date
occurs after the Trade Date and on or before the relevant Exchange Notice Date.
12. Other Dividends and Distributions.
There will be no adjustments to the Exchange Rate to reflect dividends
or other distributions paid with respect to the Stock other than (i) stock
dividends as provided in section 11, (ii) dividends or other distributions
constituting Spin-Off Events as provided in section 14, (iii) issuances of
transferable rights or warrants as provided in section 13 and (iv) Extraordinary
Dividends as provided in this section 12. A dividend or other distribution with
respect to the Stock will be deemed to be an "Extraordinary Dividend" if the per
share value of such dividend or other distribution exceeds the per share value
of the immediately preceding dividend or distribution with respect to the Stock,
if any, that is not an Extraordinary Dividend by an amount equal to at least 10%
of the Closing Price of the Stock on the Business Day immediately preceding the
Ex-Dividend Date for such Extraordinary Dividend. If an Extraordinary Dividend
occurs with respect to the Stock, the Calculation Agent will adjust the Exchange
Rate to equal the product of (a) the Exchange Rate in effect immediately prior
to such adjustment and (b) a fraction, the numerator of which is the Closing
Price of the Stock on the Business Day immediately preceding the Ex-Dividend
Date and the denominator of which is the amount by which such Closing Price
exceeds the Extraordinary Dividend Amount. The "Extraordinary Dividend Amount"
with respect to an Extraordinary Dividend for the Stock will equal (1) in the
case of cash dividends or other distributions that constitute regular quarterly
dividends, the amount per share of such Extraordinary Dividend minus the amount
per share of the immediately preceding dividend or distribution with
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respect to the Stock, if any, that is not an Extraordinary Dividend or (2) in
the case of cash dividends or other distributions that do not constitute regular
quarterly dividends, the amount per share of such Extraordinary Dividend. To the
extent an Extraordinary Dividend is not paid in cash, the value of the non-cash
component will be determined by the Calculation Agent. A distribution on the
Stock that constitutes a stock dividend, an issuance of transferable rights or
warrants or a Spin-Off Event and also constitutes an Extraordinary Dividend will
result only in an adjustment to the Exchange Rate pursuant to section 11, 13 or
14, as applicable. The Exchange Rate will not be adjusted pursuant to this
section 12 unless the Ex-Dividend Date for the Extraordinary Dividend occurs
after the Trade Date and on or before the relevant Exchange Notice Date.
13. Transferable Rights and Warrants.
If the Stock Issuer issues transferable rights or warrants to all
holders of the Stock to subscribe for or purchase the Stock at an exercise price
per share less than the Closing Price of the Stock on the Business Day
immediately before the Ex-Dividend Date for such issuance, then the Calculation
Agent will adjust the Exchange Rate by multiplying the Exchange Rate in effect
immediately prior to such adjustment by a fraction, the numerator of which is
the number of shares of Stock outstanding at the close of business on the day
before such Ex-Dividend Date plus the number of additional shares of Stock
offered for subscription or purchase under such transferable rights or warrants,
and the denominator of which is the number of shares of Stock outstanding at the
close of business on the day before such Ex-Dividend Date plus the number of
additional shares of Stock that the aggregate offering price of the total number
of shares of Stock so offered for subscription or purchase would purchase at the
Closing Price of the Stock on the Business Day immediately before such Ex-
Dividend Date, with such number of additional shares being determined by
multiplying the total number of shares so offered by the exercise price of such
transferable rights or
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warrants and dividing the resulting product by the Closing Price of the Stock on
the Business Day immediately before such Ex-Dividend Date. The Exchange Rate
will not be adjusted, however, unless such Ex-Dividend Date occurs after the
Trade Date and on or before the relevant Exchange Notice Date.
14. Reorganization Events.
If (i) any reclassification or other change of the Stock occurs, (ii)
the Stock Issuer has been subject to a merger, combination or consolidation and
is not the surviving entity or it does survive but all the shares of Stock are
exchanged for or converted into Distribution Property, (iii) any statutory share
exchange involving the outstanding Stock and the securities of another entity
occurs (other than in a transaction described in clause (ii) above), (iv) the
Stock Issuer sells or otherwise transfers its property and assets as an entirety
or substantially as an entirety to another entity, (v) the Stock Issuer issues
to all holders of Stock equity securities of an issuer other than the Stock
Issuer (other than in a transaction described in clause (i), (ii), (iii) or (iv)
above) (a "Spin-Off Event"), (vi) an entity other than the Stock Issuer
completes a tender or exchange offer for all the outstanding Stock or (vii) the
Stock Issuer is liquidated, dissolved or wound up or is subject to a proceeding
under any applicable bankruptcy, insolvency or other similar law (any such event
in clauses (i) through (vii), a "Reorganization Event"), then the Calculation
Agent will adjust the Exchange Rate by adjusting the Reference Amount so that
the Reference Amount consists of the respective amounts of each type of
Distribution Property deemed, for the purposes of this Security, to be
distributed in such Reorganization Event in respect of the Reference Amount as
in effect immediately prior to such adjustment, taken together.
If the Calculation Agent determines that the Distribution Property so
distributed consists of more than one type of property, the Calculation Agent
will determine the respective amounts of such types that will comprise the
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adjusted Reference Amount so that the value of each such amount bears the same
relationship to the total value of all such amounts as the value of the
corresponding component type of Distribution Property so distributed bears to
the total value of all Distribution Property so distributed. The Calculation
Agent will determine the value of each component type of Distribution Property,
using the Closing Price for any such type consisting of securities and such
other method as it considers reasonable for any other type. If a holder of the
Stock may elect to receive different types or combinations of types of
Distribution Property in the Reorganization Event, the Distribution Property
will be deemed to include the types and amounts thereof distributed to a holder
that makes no election. If a Reorganization Event occurs and as a result the
Reference Amount is adjusted to consist of Distribution Property, the
Calculation Agent will make further adjustments for subsequent events that
affect such Distribution Property or any component type thereof, to the same
extent that it would make adjustments if the Stock were outstanding and were
affected by the same kinds of events. Consequently, if the Holder exercises the
Exchange Right or an Automatic Exchange occurs, the Holder will be entitled to
receive, for each $1,000 of the Outstanding Face Amount of this Security being
exchanged, all components of the Reference Amount as in effect on the relevant
Exchange Notice Date, with each component having been adjusted on a sequential
and cumulative basis for all events requiring adjustment on or before the
relevant Exchange Notice Date, unless the Company elects to pay cash in the
exchange.
If the Exchange Right is exercised or an Automatic Exchange occurs and
the Company elects to pay cash in the exchange, the Company will do so based on
the applicable price of the Stock pursuant to section 5, 7(a) or 7(b) as long as
the Reference Amount consists only of Stock. If a Reorganization Event occurs
and the Reference Amount consists of property other than Stock, then the amount
of cash the Company will pay -- for each $1,000 of the Outstanding Face Amount
of this Security being exchanged -- will equal the total value of the adjusted
Reference Amount,
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as in effect on the relevant Exchange Notice Date. The Calculation Agent will
determine the value of each component of the adjusted Reference Amount as
provided in the prior paragraph.
If at any time another Person becomes the successor to the Stock
Issuer, as determined by the Calculation Agent, such successor Person shall
thereupon be deemed to be the Stock Issuer for all purposes of this Security. If
at any time the Reference Amount consists of Distribution Property, as
determined by the Calculation Agent, then all references in this Security to the
"Stock" shall thereupon be deemed to mean such Distribution Property and all
references in this Security to a "share of Stock" shall thereupon be deemed to
mean a comparable unit of each type of property comprising such Distribution
Property, as determined by the Calculation Agent.
Notwithstanding the foregoing, however, the Calculation Agent will not
make any adjustment for a Reorganization Event unless the event becomes
effective -- or, if the event is a Spin-Off Event, unless the Ex-Dividend Date
for the Spin-Off Event occurs -- after the Trade Date and on or before the
relevant Exchange Notice Date.
15. Minimum Adjustments.
Notwithstanding the foregoing, no adjustment will be required in
respect of any event specified in sections 9 through 14 unless such adjustment
would result in a change of at least 0.1% in the Exchange Rate. The Exchange
Rate resulting from any adjustment shall be rounded up or down, as appropriate,
to the nearest ten-thousandth, with five hundred-thousandths being rounded
upward -- e.g., 0.12344 will be rounded down to 0.1234 and 0.12345 will be
rounded up to 0.1235.
16. Role of Calculation Agent.
The Calculation Agent will be solely responsible for all determinations
and calculations regarding the
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Default Amount; whether a Market Disruption Event has occurred and whether, and
if so the day to which, the Determination Date, Stated Maturity Date or any
Exchange Notice Date, Exchange Date or Call Date is to be postponed; adjustment
of the Exchange Rate and Reference Amount, including whether any event has
occurred for which adjustment is required and as to the amounts, types and
values of property comprising any Distribution Property and the Reference
Amount; whether an Automatic Exchange is to occur on the Stated Maturity Date or
any Call Date and as to the Section 7(a) Amount or Section 7(b) Amount,
including the relevant Pricing Date and the Closing Price on the Pricing Date
and any alternative price to be used in making this determination; the Closing
Price or other value of the Stock or any other property; as to the Exchange Rate
and the amounts and types of property deliverable or payable in exchange for
this Security on the Stated Maturity Date or any Exchange Date or Call Date; and
all such other matters as may be specified elsewhere herein as matters to be
determined by the Calculation Agent. The Calculation Agent shall make all such
determinations and calculations in its sole discretion, and absent manifest
error all determinations and calculations made by the Calculation Agent shall be
final and binding on the Company, the Holder and all other Persons having an
interest in this Security, without liability on the part of the Calculation
Agent.
The Company shall take such action as shall be necessary to ensure that
there is at all relevant times a financial institution serving as the
Calculation Agent hereunder. The Company may, in its sole discretion at any time
and from time to time, upon written notice to the Trustee, but without notice to
the Holder of this Security, terminate the appointment of any Person serving as
the Calculation Agent and appoint another Person (including any Affiliate of the
Company) to serve as such agent. Insofar as this Security provides for the
Calculation Agent to obtain prices or other information from any institution or
other source, the Calculation Agent may do so from any source or sources of the
kind contemplated or otherwise permitted hereby notwithstanding that any one or
more of
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such sources are such agent, Affiliates of such agent or Affiliates of the
Company.
17. Payment and Delivery.
Payment of any amount payable on this Security in cash will be made in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. Payment or delivery of
any Stock, cash or other property payable or deliverable on this Security will
be made to an account designated by the Holder (in writing to the Company and
the Trustee on or before the Determination Date) and acceptable to the Company
or, if no such account is designated and acceptable as aforesaid, at the office
or agency of the Company maintained for that purpose in The City of New York,
provided, however, that, at the option of the Company, payment of interest may
be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register; and provided, further, that
payment or delivery at Maturity shall be made only upon surrender of this
Security at such office or agency (unless the Company waives surrender).
Notwithstanding the foregoing, if this Security is a Global Security, any
payment or delivery may be made pursuant to the Applicable Procedures of the
Depositary as permitted in said Indenture.
18. Holidays.
Notwithstanding any provision of this Security or of the Indenture, if
any delivery or payment of principal or interest would otherwise be due on this
Security on a day (the "Specified Day") that is not a Business Day, such
delivery or payment may be made (or such principal or interest may be made
available for delivery or payment) on the next succeeding Business Day with the
same force and effect as if such delivery or payment were made on the Specified
Day. The provisions of this section shall apply to this Security in lieu of the
provisions of Section 113 of the Indenture.
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19. Reverse of this Security.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
20. Certificate of Authentication.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
THE GOLDMAN SACHS GROUP, INC.
By
----------------------------
Name:
Title:
Dated: March 22, 2000
This is one of the Securities of the series designated herein and
referred to in the Indenture.
THE BANK OF NEW YORK,
as Trustee
By
----------------------------
Authorized Signatory
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(Reverse of Security)
Reverse
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities") issued and to be issued in one or more
series under an Indenture, dated as of May 19, 1999 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and The Bank of New York, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee, the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. Insofar as
the provisions of the Indenture may conflict with the provisions set forth on
the face of this Security, the latter shall control for purposes of this
Security.
This Security is one of the series designated on the face hereof,
limited to an aggregate initial offering price not to exceed $22,000,000,000 (or
the equivalent thereof in any other currency or currencies or currency units),
which amount may be increased at the option of the Company if in the future it
determines that it may wish to sell additional Securities of this series.
References herein to "this series" mean the series designated on the face
hereof.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected (considered together as one
class for this purpose). The Indenture also contains provisions (i) permitting
the Holders of a majority in principal amount of the Securities at the time
Outstanding
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of all series to be affected under the Indenture (considered together as one
class for this purpose), on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture and (ii) permitting the Holders of a majority in principal amount of
the Securities at the time Outstanding of any series to be affected under the
Indenture (with each such series considered separately for this purpose), on
behalf of the Holders of all Securities of such series, to waive certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Security shall be conclusive and binding upon such Holder
and upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee indemnity reasonably satisfactory to
it, and the Trustee shall not have received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
interest hereon on or after the respective due dates expressed herein.
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No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Security as herein provided.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and interest
on this Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing. Thereupon one or more new Securities of this series and of like tenor,
of authorized denominations and for the same aggregate Face Amount, will be
issued to the designated transferee or transferees.
This Security, and any other Securities of this series and of like
tenor, are issuable only in registered form without coupons in Authorized
Denominations. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different Authorized Denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue,
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and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
THIS SECURITY AND THE INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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