EXHIBIT (4)(e)
[FORM OF SERIES A AND SERIES B NOTES]
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 Company 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
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or 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.
CUSIP NO. _____________ PRINCIPAL AMOUNT: $__________
REGISTERED NO. 1
POPULAR, INC.
NOTES LINKED TO THE S&P 500 INDEX(R)DUE SEPTEMBER 30, 2008, SERIES [A] [ B]
POPULAR, INC., a corporation duly organized and existing under the laws
of the Commonwealth of Puerto Rico (hereinafter called the "Company," which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to CEDE & Co., or registered assigns,
an amount equal to the Payment at Stated Maturity (as defined below), 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, on the Stated Maturity
Date (as defined below). This Security shall not bear any interest.
Any payments on this Security on the Stated Maturity will be made
against presentation of this Security at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York.
"Standard & Poor's(R)," "S&P(R)," "S&P 500(R)," "Standard & Poor's
500(R)," and "500(R)" are trademarks of The McGraw-Hill Companies, Inc. and have
been licensed for use by the Company. This Security, based on the performance of
the S&P 500 Index, is not sponsored, endorsed, sold or promoted by Standard &
Poor's, a division of The McGraw-Hill Companies, Inc. ("S&P," which term, as
used herein, includes its successors), and S&P makes no representation regarding
the advisability of investing in this Security.
Determination of Payment at Stated Maturity
"Payment at Stated Maturity" shall mean, for each $1,000 principal
amount of this Security, the sum of (i) $1,000 and (ii) the greater of (x) $140
and (y) the Contingent Additional Amount.
Set forth below are certain defined terms used in this Security in
connection with the determination of the Payment at Stated Maturity
"Contingent Additional Amount" means for each $1,000 principal amount
of this Security, an amount equal to the greater of (i) zero and (ii) the
product of $1,000 and the sum of the 20 Adjusted Quarterly Index Returns over
the term of this Security.
"Adjusted Quarterly Index Return" means for each quarterly period,
commencing on October 1, 2003 a percentage equal to the lesser of:
- 7.25%; and
- the actual quarterly percentage change (increase or decrease)
in the S&P 500 Index return for such quarterly period.
The actual quarterly percentage change in any quarterly period is
calculated as follows:
Index Level at
Index Level at Current Prior Quarterly
actual quarterly Quarterly Determination Date - Determination Date
percentage change = --------------------------------------------------------
Index Level at Prior Quarterly
Determination Date
"Index Level at Current Quarterly Determination Date" means, with
respect to any Quarterly Determination Date, the Closing Level of the S&P 500
Index at the end of trading on the New York Stock Exchange on such date.
"Index Level at Prior Quarterly Determination Date" means (i) with
respect to the first Quarterly Determination Date, the Initial Index Level, and
(ii) with respect to each subsequent Quarterly Determination Date, the Closing
Level of the S&P 500 Index on the immediately preceding Quarterly Determination
Date.
"Quarterly Determination Date" means the last Calculation Day of each
quarter, except for the final Quarterly Determination Date which will be the
fifth Calculation Day immediately preceding the Stated Maturity Date. The
Adjusted Quarterly Index Returns will be computed on each Quarterly
Determination Date. If a Market Disruption Event occurs on any Quarterly
Determination Date such that one or more of such days is not a Calculation Day,
the determination of the index level will be delayed until the next Trading Day
on which there is no Market Disruption Event, unless there is a market
disruption event on each of the eight immediately following trading days. If
there is a Market Disruption Event on each of such dates, then the eighth
Trading Day following the originally scheduled Quarterly Determination Date
shall be used to determine the level of the S&P 500 Index notwithstanding the
fact that there is a Market Disruption Event on such day. In any such event the
Calculation Agent may take into account any quantifiable effect the Market
Disruption Event has had on the value of the S&P 500 Index.
"Calculation Agency Agreement" shall mean the Calculation Agency
Agreement dated as of September 30, 2003 between the Company and the Calculation
Agent, as amended from time to time.
"Calculation Agent" shall mean the Person that has entered into the
Calculation Agency Agreement with the Company providing for, among other things,
the determination of the Contingent Additional Amount, if any, and the Payment
at Stated Maturity, which term shall, unless the context otherwise requires,
include its successors under such Calculation Agency Agreement. The initial
Calculation Agent shall be Popular Securities, Inc. Pursuant to the Calculation
Agency Agreement, the Company may appoint a different Calculation Agent from
time to time after the initial issuance of the Securities of this series without
the consent of the Holders of the Securities of this series and without
notifying the Holders of the Securities of this series.
"Calculation Day" means any Trading Day on the New York Stock Exchange
on which a Market Disruption Event has not occurred.
"Closing Level" shall mean, on any date, the last reported level of the
S&P 500 Index at 4:00 p.m., New York City time, on such date as reported by S&P;
provided, however, that in the event that S&P discontinues publication of the
S&P 500 Index, the Closing Level will be determined in the manner set forth in
this Security under "Discontinuance of The S&P 500 Index; Alteration Of Method
Of Calculation."
"Initial Index Level" shall mean 1,003.27.
A "Market Disruption Event" with respect to the S&P 500 Index will
occur on any day if the Calculation Agent determines any of the following:
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- A material suspension or material limitation of trading in 20%
or more of the underlying stocks which then comprise the S&P
500 Index or any successor index has occurred on that day, in
each case, during the one hour period preceding the close of
trading on the primary organized U.S. exchange or trading
system on which those stocks are traded or, if in the case of
a common stock not listed or quoted in the United States, on
the primary exchange, trading system or market for that
security. Limitations on trading during significant market
fluctuations imposed pursuant to New York Stock Exchange Rule
80B or any applicable rule or regulation enacted or
promulgated by The New York Stock Exchange, any other
exchange, trading system or market, any other self regulatory
organization or the Securities and Exchange Commission of
similar scope or as a replacement for Rule 80B, may be
considered material. A "trading system" includes bulletin
board services.
- A material suspension or material limitation has occurred on
that day, in each case, during the one hour period preceding
the close of trading in options or futures contracts related
to the S&P 500 Index or any successor index, whether by reason
of movements in price exceeding levels permitted by an
exchange, trading system or market on which those options or
futures contracts are traded or otherwise.
- Information is unavailable on that date, through a recognized
system of public dissemination of transaction information,
during the one hour period preceding the close of trading, of
accurate price, volume or related information in respect of
20% or more of the underlying stocks which then comprise the
S&P 500 Index or any successor index or in respect of options
or futures contracts related to the S&P 500 Index or any
successor index, in each case traded on any major U.S.
exchange or trading system or, in the case of securities of a
non-U.S. issuer, traded on the primary non-U.S. exchange,
trading system or market for that security.
For purposes of determining whether a Market Disruption Event has occurred:
- a limitation on the hours or number of days of trading will
not constitute a Market Disruption Event if it results from an
announced change in the regular business hours of the relevant
exchange, trading system or market; and
- close of trading means 4:00 p.m., New York City time.
"S&P 500 Index" shall mean the S&P 500 Index as calculated by S&P.
"Stated Maturity Date" shall mean September 30, 2008, subject to
postponement if, as a result of a Market Disruption Event, the level of the S&P
500 Index on the final Quarterly Determination Date cannot be determined. If
such a postponement occurs, the Stated Maturity Date will be postponed until
five business days after the final Quarterly Determination Date has been
determined.
"Trading Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday that is a day on which The New York Stock Exchange, The Nasdaq National
Market, The American Stock Exchange, the Chicago Mercantile Exchange and the
Chicago Board of Options Exchange are open for trading.
Discontinuance Of The S&P 500 Index; Alteration Of Method Of Calculation
If S&P discontinues publication of the S&P 500 Index and S&P or another
entity publishes a successor or substitute index that the Calculation Agent
determines, in its sole discretion, to be comparable to the discontinued S&P 500
Index, then any subsequent Closing Level will be determined by reference to the
level of such successor or substitute index (in any such case, a "successor
index") at 4:00 p.m., New York City time, on the date that any such subsequent
Closing Level is to be determined.
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Upon any selection by the Calculation Agent of a successor index, the
Company will promptly give notice to the Holders of the Securities of this
series.
If S&P discontinues publication of the S&P 500 Index prior to, and such
discontinuance is continuing on, the date that any Closing Level is to be
determined and the Calculation Agent determines that no successor index is
available at such time, then, on such date, the Calculation Agent will determine
each subsequent Closing Level to be used in computing the Contingent Additional
Amount. Each such Closing Level will be computed by the Calculation Agent in
accordance with the formula for and method of calculating the S&P 500 Index last
in effect prior to such discontinuance, using the Closing Price (or, if trading
in the relevant security has been materially suspended or materially limited,
its good faith estimate of the Closing Price that would have prevailed but for
such suspension or limitation) at the close of the principal trading session on
such date of each security most recently comprising the S&P 500 Index on the
primary organized U.S. exchange or trading system. "Closing Price" means, with
respect to any security on any date, the last reported sales price regular way
on such date or, in case no such reported sale takes place on such date, the
average of the reported closing bid and asked prices regular way on such date,
in either case on the primary organized U.S. exchange or trading system on which
such security is then listed or admitted to trading.
If a successor index is selected or the Calculation Agent calculates an
Adjusted Quarterly Index Return as a substitute for the S&P 500 Index, such
successor index will be used as a substitute for the S&P 500 Index for all
purposes, including for purposes of determining whether a Market Disruption
Event exists.
If at any time the method of calculating the S&P 500 Index or a
successor index is changed in a material respect, or if the S&P 500 Index or a
successor index is in any other way modified so that such index does not, in the
opinion of the Calculation Agent, fairly represent the value of the S&P 500
Index or such successor index had such changes or modifications not been made,
then the Calculation Agent will, at the close of business in New York City on
the date that any quarterly index return is to be determined, make such
calculations and adjustments as, in the good faith judgment of the Calculation
Agent, may be necessary in order to arrive at a value of a stock index
comparable to the S&P 500 Index or such successor index, as the case may be, as
if such changes or modifications had not been made, and calculate the Adjusted
Quarterly Index Return and the Contingent Additional Amount with reference to
the S&P 500 Index or such successor index, as adjusted.
Calculation Agent
The Calculation Agent will determine the Contingent Additional Amount,
if any, to be paid in connection with this Security. In addition, the
Calculation Agent will:
- determine if adjustments are required to the Adjusted
Quarterly Index Returns under the circumstances described in
this Security;
- if publication of the S&P 500 Index is discontinued, select a
successor index or, if no successor index is available,
determine the final index level; and
- determine whether a Market Disruption Event has occurred and
whether the Stated Maturity Date will be postponed.
The Company covenants that, so long as any of the Securities of this
series are Outstanding, there shall at all times be a Calculation Agent (which
shall be a broker-dealer, bank or other financial institution) with respect to
the Securities of this series.
All determinations made by the Calculation Agent with respect to the
Securities of this series will be at the sole discretion of the Calculation
Agent and, in the absence of manifest error, will be conclusive for all purposes
and binding on the Company and the Holders of the Securities of this series. All
percentages and other amounts resulting from any calculation with respect to the
Securities of this series will be rounded at the Calculation Agent's discretion.
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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.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature or its duly
authorized agent under the Indenture 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.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
DATED:
POPULAR, INC.
By: ________________________________
Its: _______________________________
[SEAL]
Attest: ____________________________
Its: _______________________________
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities of the
series designated therein described
in the within-mentioned Indenture.
BANK ONE, N.A.,
as Trustee
By: ______________________________________
Authorized Signature
5
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the
series designated therein described
in the within-mentioned Indenture.
BANCO POPULAR DE PUERTO RICO,
as Authenticating Agent, Paying Agent and
Security Registrar
By: ______________________________________
Name: Luis R. Cintron, Esq.
Title: Senior Vice President and Trust Officer
Date: September 30, 2003
5-A
6
[Reverse of Note]
POPULAR, INC.
NOTES LINKED TO THE S&P 500 INDEX(R)DUE SEPTEMBER 30, 2008, SERIES [A] [B]
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 February 15, 1995, as supplemented by a first
supplemental indenture dated as of May 8, 1997 and a second supplemental
indenture dated as of August 5, 1999, as amended or supplemented from time to
time (herein called the "Indenture"), between the Company and Bank One, N.A.
(formerly known as The First National Bank of Chicago), as Trustee (herein
called the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $31,152,000, which
together with the series designated as Series [A][B] will constitute a single
series of securities under the Indenture; provided, however, that the Company
may, so long as no Event of Default has occurred and is continuing, without the
consent of the Holders of the Securities of this series, issue additional
Securities with the same terms as the Securities of this series, and such
additional Securities shall be considered part of the same series under the
Indenture as the Securities of this series. The Series A securities will be
freely exchangeable at any time for the Series B securities in like
denominations.
The Securities of this series are not subject to repayment at the option of the
Holder hereof prior to the Stated Maturity Date. The Securities of this series
will not be entitled to any sinking fund.
The Securities of this series are not redeemable by the Company at any time.
The Company agrees, to the extent permitted by law, not to voluntarily claim the
benefits of any laws concerning usurious rates of interest against a Holder of
Securities of this series.
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the amount payable under Securities of this series, upon any
acceleration permitted under the Indenture, will be equal to, per $1,000
principal amount of this Security, the sum of $1,000 and the greater of (x)
$140.00 and (y) the Contingent Additional Amount, calculated as though the date
of acceleration was the Stated Maturity Date. If a bankruptcy proceeding is
commenced in respect to the Company, the claims of the beneficial holders of
this Security may be limited under Title 11 of the United States Code. Upon
payment of the amount so declared due and payable, all of the Company's
obligations in respect of payment at Stated Maturity shall terminate. The
Securities of this series will not bear a default rate of interest after the
occurrence of an Event of Default or an acceleration under the Indenture.
The Company agrees, and by acceptance of a beneficial ownership interest in this
Security each beneficial owner of this Security will be deemed to have agreed,
for United States federal income tax purposes (i) to treat this Security as a
single debt instrument subject to the Treasury regulations governing contingent
payment debt instruments, (ii) to report all income (or loss) with respect to
this Security according to those Treasury regulations, and (iii) to be bound by
the Company's determination of the "comparable yield" and the "projected payment
schedule" (within the meaning of such Treasury regulations) for this Security,
unless such beneficial owner timely discloses and justifies in its federal
income tax return the use of a different comparable yield and projected payment
schedule.
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, acting together. The
Indenture also contains provisions permitting the Holders of a majority in
principal amount of the Securities of all series at the time Outstanding
affected by certain provisions of the Indenture, acting together, on behalf of
the Holders of all
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Securities of such series, to waive compliance by the Company with those
provisions of the Indenture. Certain past defaults under the Indenture and their
consequences may be waived under the Indenture by the Holders of a majority in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series. Solely for the purpose
of determining whether any consent, waiver, notice or other action or Act to be
taken or given by the Holders of Securities pursuant to the Indenture has been
given or taken by the Holders of Outstanding Securities in the requisite
aggregate principal amount, the principal amount of this Security will be deemed
to be equal to the amount set forth on the face hereof as the "Principal Amount"
hereof. 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.
Upon due presentment for registration of transfer of this Security at the office
or agency of the Company in a new Security or Securities of this series in
authorized denominations for an equal aggregate principal amount will be issued
to the transferee in exchange herefor, as provided in the Indenture and subject
to the limitations provided therein and to the limitations described below,
without charge except for any tax or other governmental charge imposed in
connection therewith.
This Security is exchangeable for definitive Securities in registered form only
if (x) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for this Security or if at any time the Depositary ceases
to be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, and a successor depositary is not appointed within 90 days after the
Company receives such notice or becomes aware of such ineligibility, (y) the
Company in its sole discretion determines that this Security shall be
exchangeable for definitive Securities in registered form and notifies the
Trustee thereof or (z) an Event of Default with respect to the Securities
represented hereby has occurred and is continuing. If this Security is
exchangeable pursuant to the preceding sentence, it shall be exchangeable for
definitive Securities in registered form, having the same terms and of
authorized denominations aggregating a like amount.
This Security may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor of the Depositary or a nominee of such successor. Except as provided
above, owners of beneficial interests in this Security will not be entitled to
receive physical delivery of Securities in definitive form and will not be
considered the Holders hereof for any purpose under the Indenture.
No reference herein to the Indenture and no provision of the Indenture shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the Payment at Stated Maturity at the times and place, and
in the coin or currency, herein prescribed, except as otherwise provided in this
Security.
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, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the Maturity Payment Amount, or for
any claim based on this Security, or otherwise in respect hereof, or based on or
in respect of the Indenture or any indenture supplemental thereto, against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company 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 issuance hereof, expressly waived and
released.
All terms used in this Security which are defined in the Indenture shall have
the meanings assigned to them in the Indenture unless otherwise defined in this
Security.
This Security shall be governed by and construed in accordance with the laws of
the State of New York.
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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.
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FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
_________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE)
the within Security of POPULAR, INC. and does hereby irrevocably constitute and
appoint ___________________ attorney to transfer the said Security on the books
of the Company, 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 instrument in every particular,
without alteration or enlargement or any change whatever.
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