EXHIBIT 99 (B)
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO A NOMINEE OF DTC OR BY DTC OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
TO XXXXXXX XXXXX & CO., INC. OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF 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.
REGISTERED PRINCIPAL AMOUNT
NO. R- CUSIP No. 590188 A24 $
XXXXXXX XXXXX & CO., INC.
MEDIUM-TERM NOTE,
SERIES B
0.50% Callable and Exchangeable Notes due February , 2005
(Linked to the performance of a Specified Portfolio of common stocks)
(the "Notes")
XXXXXXX XXXXX & CO., INC., a Delaware corporation (hereinafter referred
to as the "Company", which term includes any successor corporation under the
Indenture herein referred to), for value received, hereby promises to pay and
discharge each Note evidenced hereby on February , 2005 (the "Maturity Date") by
delivering to CEDE & CO., or registered assigns with respect to the principal
amount hereof,
DOLLARS ($ ), an amount equal to the greater of (i) the Portfolio Value
(as defined below) on the third scheduled Trading Day (as defined below)
immediately prior to the Maturity Date; provided, however, that if (a) a Market
Disruption Event (as defined below) occurs on the third scheduled Trading Day
immediately prior to the Maturity Date, the Portfolio Value shall be determined
on the second scheduled Trading Day immediately prior to the Maturity Date
unless a Market Disruption Event occurs on such second Trading Day, in which
case the Portfolio Value shall be determined on the first scheduled Trading Day
immediately prior to the Maturity Date regardless of whether a Market Disruption
Event occurs on such date, and (b) that if the delivery at maturity is based on
the foregoing formula, the Holder of the Notes
will not receive accrued interest from and including August , 2004 through the
Maturity Date, or (ii) $1,000 in cash plus accrued and unpaid interest through
but excluding the Maturity Date, or as such terms are defined below, and
determined in accordance with the provisions set forth below, and to pay
interest on the principal amount hereof from February , 2000, or from the most
recent date in respect of which interest has been paid or duly provided for,
semiannually in arrears on February and August , in each year (each an "Interest
Payment Date"), commencing August , 2000, at the rate of 0.50% per annum (the
"Interest Rate"), until the principal amount is paid or duly made available for
payment. The interest so payable and punctually paid or duly provided for on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest, which shall
be the fifteenth day (whether or not a Business Day) next preceding such
Interest Payment Date. Any such interest which is payable, but is not punctually
paid or duly provided for on any Interest Payment Date, shall forthwith cease to
be payable to the registered Holder on such Regular Record Date, and may be paid
to the Person in whose name this Note (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 the Notes not less than ten days prior to such Special
Record Date, or may be paid at any time in any other lawful manner, as more
fully provided in such Indenture. If the value of (i) above is greater than (ii)
above, the Company will deliver to the Holder of the Notes on the Maturity Date
the contents of the Portfolio (as defined below) which will equal the number of
shares of Portfolio Common Stocks, other securities, cash and/or other property,
as applicable, equal to the respective Share Multiplier (as defined below) for
each of the portfolio securities or each such unit; provided, however, that the
Company will pay the Holder of the Notes cash in lieu of delivering fractional
shares, in an amount as determined by the Calculation Agent (as defined below).
However, if in the opinion of the Calculation Agent there occurs a Market
Disruption Event on either the third or the second scheduled Trading Day prior
to the Maturity Date and the value of (i) is being calculated on either such
date, then at maturity the Company will have the option, but not the obligation,
to pay the Holder of the Notes the U.S. dollar equivalent of the Portfolio Value
as determined by the Calculation Agent according to the formula set forth above;
provided, further, that if in the opinion of the Calculation Agent there occurs
a Market Disruption Event occurred on the first scheduled Trading Day prior to
the Maturity Date and the value of (i) is being calculated on such date, then at
maturity the Company will deliver the U.S. dollar equivalent of the Portfolio
Value as determined by the Calculation Agent according to the formula set forth
above. Alternatively, if the value of (ii) above is greater than (i) above, the
Company will pay the Holder of the Notes the value of (ii) in U.S. dollars. The
Notes will be issued in minimum denominations of U.S.$1,000 and integral
multiples thereof.
Payment of interest and the amounts payable or deliverable, as the
case may be, upon exchange, redemption or at maturity (as described below) with
respect to this Note shall be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
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. The Company
shall,
or shall cause the Calculation Agent to, pay U.S. Dollars or deliver the
Portfolio Common Stocks, or other securities and/or property, if any, as
applicable at the Maturity Date or upon early redemption or exchange to the
Trustee for delivery to the Holder of the Notes in respect of such payments or
deliveries.
The Company may redeem all of the Notes, at any time, on any Business
Day after February , 2002, upon not more than 30 nor fewer than 15 calendar days
notice to the Holder of the Notes. Any date upon which the Company gives the
Holder of the Notes notice that it is redeeming the Notes is referred to herein
as the "Redemption Notice Date". Unless the Holder has exchanged his or her
Notes prior to February , 2002, the Holder will receive interest through and
including February , 2002 regardless of whether the Company redeems all of the
Notes after February , 2002. If the Company redeems the Notes, for each $1,000
principal amount of Notes owned by a Holder, the Company shall deliver or pay
such an amount to the Holder equal to the greater of: (i) the Portfolio Value on
the first Trading Day immediately following the applicable Redemption Notice
Date; provided, however, that if a Market Disruption Event occurs on the first
Trading Day following the applicable Redemption Notice Date, the Portfolio Value
shall be determined on the second Trading Day following the applicable
Redemption Notice Date unless a Market Disruption Event occurs on such second
Trading Day, in which case the Portfolio Value shall be determined on the third
Trading Day following the applicable Redemption Notice Date regardless of
whether a Market Disruption Event occurs on such date; and that if the amount
the Holder of the Notes receives is based upon the foregoing formula, no
interest shall accrue on the Notes from and including the immediately preceding
Interest Payment Date through the date of early redemption; or (ii) $1,000 in
cash plus accrued and unpaid interest through but excluding the date of early
redemption. If the value of (i) above is greater than (ii) above, the Company
will deliver to the Holders of the Notes on the applicable settlement date the
contents of the Portfolio which will equal the number of shares of Portfolio
Common Stocks, other securities, cash and/or property, as applicable equal to
the respective Share Multiplier for each of the portfolio securities or for each
such unit; provided, however, that the Company will pay the Holder of the Notes
cash in lieu of delivering fractional shares, in an amount as determined by the
Calculation Agent. However, if in the opinion of the Calculation Agent there
occurs a Market Disruption Event on the third Trading Day following the
applicable Redemption Notice Date, then upon early redemption, the Company will
have the option, but not the obligation, to pay the Holder of the Notes the U.S.
dollar equivalent of the Portfolio Value as determined by the Calculation Agent
based upon the foregoing formula. Alternatively, if the value of (ii) above is
greater than (i) above, the Company will pay the Holder of the Notes the value
of (ii) in U.S. dollars. If the Company redeems the Notes, the Holder is
precluded as of the Redemption Notice Date from exercising his or her exchange
right.
On any Trading Day after February , 2000 and ending the earlier of
(i) 15 scheduled Trading Days before the Maturity Date or (ii) the Redemption
Notice Date, upon written notice to the Calculation Agent and the Trustee (in
the form of Annex A attached hereto), the Holder of the Notes may exchange the
Notes for the Exchange Amount (as defined herein). Any date on which the Holder
provides notice to cause the Company to exchange the Notes is referred to as the
"Exchange Notice Date". If the Calculation Agent receives the Holder's notice
after 3:00
p.m. on any Trading Day, the Calculation Agent will consider such notice as
received on the following Trading Day. The date the Calculation Agent is deemed
to have received the Holder's notice is referred to as the "Exchange Receipt
Date". If the Holder chooses to exercise its Holder exchange right, the Company
may no longer redeem the Notes as of the applicable Exchange Notice Date. The
"Exchange Amount" means, for each $1,000 principal amount of the Notes the
Holder exchanges, the contents of the Portfolio which will equal a number of
shares of the Portfolio Common Stocks, other securities, cash and/or property
equal to the respective Share Multiplier for each of the portfolio securities or
for each such unit on the first Trading Day following the Exchange Receipt Date;
provided, however, that no interest will accrue from and including the
immediately preceding Interest Payment Date through the date of exchange. The
Company will deliver such shares, other securities, cash and/or property to the
Holder no more than 15 calendar days after the Exchange Receipt Date; provided,
however, that the Company will pay the Holder of the Notes cash in lieu of
delivering fractional shares in an amount as determined by the Calculation
Agent. However, if a Market Disruption Event occurs on the first Trading Day
following the applicable Exchange Receipt Date, the date of determination for
the Exchange Amount will be the second Trading Day following the applicable
Exchange Receipt Date unless a Market Disruption Event occurs on such second
Trading Day, in which case the date of determination for the Exchange Amount
shall be the third Trading Day following the applicable Exchange Receipt Date
regardless of whether a Market Disruption Event occurs on such date; provided,
further, that if in the opinion of the Calculation Agent there occurs a Market
Disruption Event on the third Trading Day following the applicable Exchange
Receipt Date, then upon exchange, the Company will have the option, but not the
obligation, to pay the Holder of the Notes the U.S. dollar equivalent of the
Exchange Amount as determined by the Calculation Agent.
As used herein:
"Business Day" means any day other than a Saturday or Sunday that is
neither a legal holiday nor a day on which banking institutions are authorized
or required by law or regulation to close in The City of New York.
"Calculation Agent" means Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated ("MLPF&S"). All determinations made by the Calculation Agent shall
be at the sole discretion of the Calculation Agent and, absent a manifest error,
shall be conclusive for all purposes and binding on the Company and beneficial
owners of the Notes.
"Lucent" means Lucent Technologies Inc., a Delaware corporation.
"Lucent Common Stock" means the common stock of Lucent.
"Market Disruption Event" means:
(i) a suspension, absence (including the absence of an
official closing price) or material limitation of trading of any
Portfolio Security on the NYSE or the Nasdaq Stock Market for more
than two hours of trading or during the one-half hour period
preceding or at the close of trading in such market, as determined by
the Calculation Agent in its sole discretion; or the suspension or
material limitation on the primary market for trading in options
contracts related to any Portfolio Security, if available, during the
one-half hour period preceding or at the close of trading in the
applicable market, in each case as determined by the Calculation
Agent in its sole discretion; and
(ii) a determination by the Calculation Agent in its sole
discretion that the event described in clause (i) above materially
interfered with the ability of the Company or any of its affiliates
or MLPF&S to unwind all or a material portion of the hedge with
respect to the Notes or to purchase shares of the Portfolio Common
Stocks for the purpose of delivering either the Exchange Amount, an
amount due upon early redemption or an amount due at maturity.
For purposes of determining whether a Market Disruption
Event has occurred: (1) 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, (2) a decision to permanently discontinue trading
in the relevant options contract will not constitute a Market
Disruption Event, (3) limitations pursuant to any rule or regulation
enacted or promulgated by the NYSE or the Nasdaq Stock Market (or
other regulatory organization with jurisdiction over the NYSE or the
Nasdaq Stock Market) on trading during significant market
fluctuations will constitute a suspension or material limitation of
trading in any Portfolio Security, (4) a suspension of trading in an
options contract on any Portfolio Security Common Stock by the
primary securities market trading in such options, if available, by
reason of (a) a price change exceeding limits set by such securities
exchange or market, (b) an imbalance of orders relating to such
contracts or (c) a disparity in bid and ask quotes relating to such
contracts will constitute a suspension or material limitation of
trading in options contracts related to such Portfolio Security, and
(5) a suspension, absence or material limitation of trading on the
primary securities market on which options contracts related to any
Portfolio Security are traded will not include any time when such
securities market is itself closed for trading under ordinary
circumstances.
If the Reorganization Event Amount includes securities
other than the original portfolio securities, then the above
definition shall be revised to include each such security in the same
manner as each Portfolio Security is considered in determining
whether a Market Disruption Event exists. The definition of Market
Disruption Event shall only consider those securities included in
determining the Reorganization Event Amount, and thus if such
Portfolio Security is not included in the determination of the
Reorganization Event Amount, then the Portfolio Security shall not be
considered in determining whether a Market Disruption Event exists.
"Market Price" means, for any date of determination on any Trading
Day, the official closing price, in the afternoon session, as applicable, of one
share of any Portfolio Security as reported by the principal exchange on which
each of the portfolio securities is traded on such
date. If the official closing price is not available for any reason, including,
without limitation, the occurrence of a Market Disruption Event, the Market
Price for any Portfolio Security for any date shall be the arithmetic mean, as
determined by the Calculation Agent, of the bid prices for the security obtained
from as many dealers in the security, but not exceeding three, as will make the
bid prices available to the Calculation Agent after 3:00 p.m., local time in
such principal market, on such date.
"Nortel" means Nortel Networks Corporation, a Canadian corporation.
"Nortel Common Stock" means the common stock of Nortel.
"NYSE" means the New York Stock Exchange.
"Portfolio" means initially the Portfolio Common Stocks, but remains
subject to adjustment from time to time to reflect the addition and/or
substitution of any cash, securities and/or other property as provided herein.
"Portfolio Common Stocks" means the common stock of Lucent, Nortel
and Texas Instruments.
"Portfolio Value" Portfolio Value means the sum of the following: (i)
the products, for each of the portfolio securities, of the Market Price of the
common stock for each of the portfolio securities multiplied by the applicable
Share Multiplier for each of the portfolio securities, (ii) for any cash
received in a Reorganization Event (as defined below), an amount equal to the
amount of cash received per share of the common stock of the applicable
Portfolio Security multiplied by the Share Multiplier in effect on the date all
of the holders of shares of such Portfolio Security irrevocably receive such
cash, plus accrued interest from the date of the payment or delivery of the
consideration, if any, received in connection with the Reorganization Event
until the Maturity Date, date of early redemption or date of exchange, as the
case may be, at a fixed interest rate determined on the date of the payment or
delivery equal to the interest rate that would be paid on a standard senior
non-callable debt security of the Company with a term equal to the remaining
term of this Note, and (iii) for any property other than cash or securities
received in a Reorganization Event, the market value, as determined by the
Calculation Agent, of the property received for each share of the applicable
Portfolio Security at the date of the receipt of the property multiplied by the
then current Share Multiplier.
"Share Multiplier" initially means for Lucent Common Stock, for
Nortel Common Stock and for Texas Instruments Common Stock, but shall
be subject to adjustment by the Calculation Agent, as provided herein, through
and including the Maturity Date.
"Texas Instruments" means Texas Instruments Incorporated, a Delaware
corporation.
"Texas Instruments Common Stock" means the common stock of Texas
Instruments.
"Trading Day" means a day on which the NYSE, the American Stock
Exchange and the Nasdaq Stock Market are open for trading as determined by the
Calculation Agent.
Dilution and Reorganization Adjustments
The Share Multiplier with respect to any component of the Portfolio
used to calculate the amount deliverable or payable to the Holder on any date of
determination is subject to adjustment by the Calculation Agent as a result of
the dilution and reorganization adjustments described below.
1. If a Portfolio Security is subject to a stock split or reverse stock split,
then once such split has become effective, the Share Multiplier relating to such
Portfolio Security shall be adjusted to equal the product of the prior Share
Multiplier and the number of shares which a holder of one share of the Portfolio
Common Stock, prior to the effective date of such stock split or reverse stock
split, would have owned or been entitled to receive immediately following the
applicable effective date.
2. If a Portfolio Security is subject to a stock dividend (i.e., issuance of
additional shares of the Portfolio Security) that is given ratably to all
holders of shares of the common stock of the issuer of such Portfolio Security,
then once such shares are trading ex-dividend, the Share Multiplier will be
adjusted so that the new Share Multiplier shall equal the prior Share Multiplier
plus the product of: (a) the number of shares of the Portfolio Security issued
with respect to one share of such Portfolio Security multiplied by (b) the prior
Share Multiplier.
3. There will be no adjustments to the Share Multiplier to reflect cash
dividends or distributions paid, if any, with respect to a Portfolio Security
other than distributions described under clause (e) of paragraph 5 below and
Extraordinary Dividends as described below. An "Extraordinary Dividend" means,
with respect to a cash dividend or other distribution with respect to a
Portfolio Security to the extent such dividend or other distribution exceeds the
immediately preceding non-Extraordinary Dividend for such Portfolio Security by
an amount equal to at least 10% of the Market Price of such Portfolio Security
on the Trading Day preceding the ex-dividend date with respect to such
Extraordinary Dividend (the "ex-dividend date"). If an Extraordinary Dividend
occurs with respect to a Portfolio Security, the Share Multiplier will be
adjusted on the ex-dividend date with respect to such Extraordinary Dividend so
that the new Share Multiplier will equal the product of: (a) the then current
Share Multiplier multiplied by (b) a fraction, the numerator of which is the
closing price per share of the issuer of such Portfolio Security on the Trading
Day preceding the ex-dividend date, and the denominator of which is the amount
by which the closing price on the Trading Day preceding the ex-dividend date
exceeds the Extraordinary Dividend Amount. The "Extraordinary Dividend Amount"
with respect to an Extraordinary Dividend for the Portfolio Security will equal:
(1) in the case of cash dividends or other distributions that constitute
quarterly dividends, the amount per share of such Extraordinary Dividend minus
the amount per share of the immediately preceding non-Extraordinary Dividend, or
(2) in the case of cash dividends or other distributions that do not constitute
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, whose determination shall be conclusive.
A distribution on a Portfolio Security described in clause (e) of paragraph 5
below that also constitutes an Extraordinary Dividend shall cause an adjustment
to the Share Multiplier pursuant only to clause (3) of paragraph 5 below.
4. If the issuer of one of the portfolio securities issues transferable rights
or warrants to all holders of such Portfolio Security to subscribe for or
purchase such Portfolio Security, including new or existing rights to purchase
such Portfolio Security pursuant to a shareholder's rights plan or arrangement,
once a triggering event shall have occurred thereunder, at an exercise price per
share less than the closing price of one share of such Portfolio Security on:
(a) the date the exercise price of such rights or warrants is determined and (b)
the expiration date of such rights or warrants, then, in each case, if the
expiration date of such rights or warrants precedes the Maturity Date, then the
Share Multiplier will be adjusted to equal the product of the prior Share
Multiplier and a fraction, the numerator of which shall be the number of shares
of such Portfolio Security outstanding immediately prior to such issuance plus
the number of additional shares of such Portfolio Security so offered for
subscription or purchase pursuant to such rights or warrants and the denominator
of which shall be the number of shares of such Portfolio Security outstanding
immediately prior to such issuance plus the number of additional shares of such
Portfolio Security which the aggregate offering price of the total number of
shares of such Portfolio Security so offered for subscription or purchase
pursuant to such rights or warrants would purchase at the closing price of one
share of such Portfolio Security on the expiration date of such rights or
warrants, which shall be determined by multiplying such total number of shares
offered by the exercise price of such rights or warrants and dividing the
product so obtained by such closing price.
5. If before the Maturity Date of the notes, (a) there occurs any
reclassification or change of any Portfolio Security, (b) the issuer of such
Portfolio Security, or any surviving entity or subsequent surviving entity of
the issuer of such Portfolio Security (a "Successor Entity"), has been subject
to a merger, combination or consolidation and is not the surviving entity, (c)
any statutory exchange of securities of any issuer of the portfolio securities
or any Successor Entity with another corporation occurs, other than pursuant to
clause (b) above, (d) any issuer of the portfolio securities is liquidated, (e)
any issuer of the portfolio securities issues to all of its shareholders equity
securities of an issuer other than such issuer of the portfolio securities,
other than in a transaction described in clauses (b), (c) or (d) above (a
"Spin-off Event"), or (f) a tender or exchange offer is consummated for all the
outstanding shares of any issuer of the portfolio securities (any such event in
clauses (a) through (f) a "Reorganization Event"), then the Portfolio shall be
adjusted to include the Reorganization Event Amount. The "Reorganization Event
Amount" shall be determined by the Calculation Agent and shall equal (i) for any
cash received in a Reorganization Event, an amount equal to the amount of cash
received per share of the common stock of such Portfolio Security multiplied by
the Share Multiplier in effect on the date all of the holders of shares of such
Portfolio Security irrevocably receive such cash, plus accrued interest on the
Reorganization Event Amount accruing from the date of the payment or delivery of
the consideration, if any, received in connection with such Reorganization Event
until the Maturity Date or upon earlier redemption or exchange, as the case may
be, at a fixed interest rate determined
on the date of such payment or delivery equal to the interest rate that would be
paid on a standard senior non-callable debt security of the Company with a term
equal to the remaining term of the notes, (2) for any property other than cash
or securities received in any such Reorganization Event, the market value, as
determined by the Calculation Agent, of such property received for each share of
such Portfolio Security at the date of the receipt of such property multiplied
by the then current Share Multiplier and payable in cash, (3) for any security
received in any such Reorganization Event, the number of shares of such security
on the applicable date of determination for maturity, the date of early
redemption or the exchange date, as the case may be, equal to the then current
Share Multiplier and (4) for any security received in the case of a Spin-off
Event, in addition to the shares of such portfolio security, the number of
shares of such security on the applicable date of determination for maturity,
the date of early redemption, or the exchange date, as the case may be,
multiplied by the then current Share Multiplier. The Share Multiplier with
respect to any such securities shall equal the product of the Share Multiplier
in effect for the portfolio security at the time of the issuance of such
securities multiplied by the number of shares of such securities issued with
respect to one share of such portfolio security. The Share Multiplier of any
such securities will be subject to the same adjustments as that of the Share
Multiplier of the portfolio security. The amount to be delivered shall be
calculated so as to include any securities received in a Spin-off Event in
addition to the shares of the Portfolio Common Stocks already included in the
amount due at maturity or upon redemption or exchange. "Exchange Property" means
the securities, cash or any other assets distributed in any such Reorganization
Event, including, in the case of a Spin-off Event, the share of the Portfolio
Security with respect to which the spun-off security was issued.
For purposes of paragraph 5 above, in the case of a consummated
tender or exchange offer for all Exchange Property of a particular type,
Exchange Property shall be deemed to include the amount of cash or other
property paid by the offeror in the tender or exchange offer with respect to
such Exchange Property, in an amount determined on the basis of the rate of
exchange in such tender or exchange offer. In the event of a tender or exchange
offer with respect to Exchange Property in which an offeree may elect to receive
cash or other property, Exchange Property shall be deemed to include the kind
and amount of cash and other property received by offerees who elect to receive
cash.
If the issuer of such Portfolio Security, or any Successor Entity,
has been subject to a merger, combination or consolidation and is not the
surviving entity, or a tender or exchange offer is consummated for all the
outstanding shares of such issuer, then the amount to be delivered shall be
calculated to include securities, if any, received in any such event instead of
such Portfolio Common Stock. The Share Multiplier with respect to any such
securities shall equal the product of the Share Multiplier in effect for such
Portfolio Common Stock at the time of the issuance of such securities multiplied
by the number of shares of such securities issued with respect to one share of
the Portfolio Common Stock. The Share Multiplier of any such securities will be
subject to the same adjustments as that of the Share Multiplier of the Portfolio
Common Stock.
No adjustments to the Share Multiplier will be required unless such
Share Multiplier adjustment would require a change of at least 0.1% in the Share
Multiplier then in effect. The Share Multiplier resulting from any of the
adjustments specified above will be rounded to the nearest one thousandth with
five ten-thousandths being rounded upward.
No adjustments to the Share Multiplier will be required other than
those specified above. However, the Company may, at its sole discretion, cause
the Calculation Agent to make additional adjustments to the Share Multiplier to
reflect changes occurring in relation to any Portfolio Security or any other
Exchange Property in other circumstances where the Company determines that it is
appropriate to reflect such changes. The required adjustments specified above do
not cover all events that could affect the closing price as applicable to such
Portfolio Security, including, without limitation, a partial tender or exchange
offer for such Portfolio Security.
The Calculation Agent shall be solely responsible for the
determination and calculation of any adjustments to the Share Multiplier and of
any related determinations and calculations with respect to any distributions of
stock, other securities or other property or assets, including cash, in
connection with any corporate event described above, and its determinations and
calculations with respect thereto shall be conclusive absent manifest error.
All percentages resulting from any calculation on the Notes will be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards (e.g., 9.876545% (or
.09876545) would be rounded to 9.87655% (or .0987655)) and all dollar amounts
used in or resulting from such calculation will be rounded to the nearest cent
with one-half cent being rounded upwards.
The Company shall, within ten Business Days following the occurrence
of an event that requires an adjustment to the Share Multiplier, or if the
Company is not aware of such occurrence, as soon as practicable after becoming
so aware, provide written notice to the Trustee, which shall provide notice to
the holders of the notes of the occurrence of such event and, if applicable, a
statement in reasonable detail setting forth the adjusted Share Multiplier.
General
Unless the certificate of authentication hereon has been executed by
or on behalf of The Chase Manhattan Bank, the Trustee for this Note under the
Indenture, or its successor thereunder, by the manual signature of one of its
authorized officers, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
This Note is one of a duly authorized issue of Securities
(hereinafter called the "Securities") of the Company designated as its
Medium-Term Notes, Series B (the "Notes"). The Securities are issued and to be
issued under an indenture (the "Indenture") dated as of October 1, 1993, between
the Company and The Chase Manhattan Bank, 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 thereunder of the Company, the Trustee
and the Holder of the Notes and the terms upon which the Notes are to be
authenticated and delivered. The terms of individual Notes may vary with respect
to interest rates or interest rate formulas, issue dates, maturity, redemption,
repayment, currency of payment and otherwise as provided in the Indenture.
The Notes are issuable only in registered form without coupons in
denominations, unless otherwise specified above, of $1,000 and integral
multiples thereof. References to payment "per Note" refer to each $1,000
principal amount of this Note. As provided in the Indenture and subject to
certain limitations therein set forth, the Notes are exchangeable for a like
aggregate principal amount of Notes as requested by the Holder surrendering the
same. If (a) the Depository is at any time unwilling or unable to continue as
depository and a successor depository is not appointed by the Company within 60
days, (b) the Company executes and delivers to the Trustee a Company Order to
the effect that this Note shall be exchangeable or (c) an Event of Default has
occurred and is continuing with respect to the Notes, this Note shall be
exchangeable for Notes in definitive form of like tenor and of an equal
aggregate principal amount, in authorized denominations. Such definitive Notes
shall be registered in such name or names as the Depository shall instruct the
Trustee. If definitive Notes are so delivered, the Company may make such changes
to the form of this Note as are necessary or appropriate to allow for the
issuance of such definitive Notes.
This Note is not subject to any sinking fund.
If an Event of Default (as defined in the Indenture) with respect to
the Notes shall occur and be continuing, the amount payable or deliverable to a
beneficial owner of a Note upon any acceleration permitted by the Notes will be
determined by the Calculation Agent and will be calculated as though the date of
early repayment were the stated Maturity Date of the Notes.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66-2/3% in aggregate principal amount of the
Securities at the time Outstanding, as defined in the Indenture, of each series
affected thereby. The Indenture also contains provisions permitting the Holders
of specified percentages in aggregate principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all the Securities
of each series, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of the Notes shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof whether or not notation of such consent or waiver is
made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the interest on, and such amounts as are
payable upon redemption or exchange or at maturity (as described above) with
respect to, this Note and any interest on any overdue amount thereof at the
time, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations set
forth therein and on the face hereof, the transfer of this Note may be
registered on the Security Register of the Company, upon surrender of this Note
for registration of transfer at the office or agency of the Company in the
Borough of Manhattan, The City of New York, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company duly
executed by, the Holder hereof or by his or her attorney duly authorized in
writing, and thereupon one or more new Notes of authorized denominations and for
the same aggregate principal amount, will be issued to the designated transferee
or transferees.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: February 2000
CERTIFICATE OF AUTHENTICATION Xxxxxxx Xxxxx & Co., Inc.
This is one of the Securities of the series designated therein [Copy of Seal]
referred to in the within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee By:
Treasurer
By: Attest:
Authorized Officer Secretary
ANNEX A
OFFICIAL NOTICE OF EXERCISE OF XXXXXX'S EXCHANGE RIGHT
0.50% Callable and Exchangeable Medium-Term Notes due February 2005
(Linked to the performance of a specified Portfolio of common stock)
Dated: [On or prior to the fifteenth scheduled Trading Day prior to
February 2005]
Xxxxxxx Xxxxx & Co., Inc.
World Financial Center
South Tower, 5th Floor
New York, New York 00000-0000
Fax No.: (000) 000-0000
(Attn: Treasury)
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated, as Calculation Agent
World Financial Center
North Tower, 5th Floor
New York, New York 00000-0000
Fax No.: (000) 000-0000
(Attn: Operations (Xxxxxxx Xxxxxxxx))
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
(Attn: Corporate Trust Department)
Dear Sirs:
The undersigned holder of the 0.50% Callable and Exchangeable
Medium-Term Notes due February , 2005 of Xxxxxxx Xxxxx & Co., Inc. (Linked to
the performance of a specified Portfolio of common stock) (the "Notes") hereby
irrevocably elects to exercise with respect to the number of Notes indicated
below, as of the date hereof, provided that such day is prior to the fifteenth
scheduled Trading Day prior to February , 2005, the Holder's exchange right as
described in the attached Note. Capitalized terms not defined herein have the
meanings given to such terms in the Note. Please date and acknowledge receipt of
this notice in the place provided
below on the date of receipt, and fax a copy to the fax number indicated,
whereupon the Company will deliver a specified number of common stock, in
accordance with the terms of the Notes.
Very truly yours,
-----------------------------
[Name of Holder]
By:
------------------------------------------
[Title]
---------------------------------------------
[Fax No.]
$
---------------------------------------------
Number of Notes surrendered for exercise of the Right to Receive the
Equivalent Share Amount
If you want the Portfolio stock made out in another person's name,
fill in the form:
-----------------------------
(Insert person's soc. sec. or tax ID no.)
-----------------------------
(Print or type person's name, address and zip code)
-----------------------------
Date:
-------------------------------------------------------------
Your Signature:
---------------------------------------------------
Receipt of the above Official
Notice of Holder's Exchange Right is hereby acknowledged
XXXXXXX XXXXX & CO., INC., as Issuer
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX INCORPORATED,
as Calculation Agent
By THE CHASE MANHATTAN BANK,
as Trustee
By:
------------------------------------------------------------
Title:
Date and time of acknowledgment
-------------------------------
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto
(insert Taxpayer Identification No.)
(Please print or typewrite name and address including postal zip code of
assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _______________________ attorney to transfer said Note on the books
of the Company with full power of substitution in the premises.
Dated: _____________________
NOTICE: The signature of the
registered Holder to this
assignment must correspond
with the name as written
upon the face of the within
instrument in every
particular, without
alteration or enlargement or
any change whatsoever.
