EXHIBIT 99 (B)
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN CERTIFICATED FORM, THIS SECURITY 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 DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS SECURITY 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 SECURITY 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.
No. R- Units
CUSIP 590188 660 (Each Unit representing $10
principal amount of Securities)
XXXXXXX XXXXX & CO., INC.
Market Index Target-Term Securities(SM) based upon the
Dow Xxxxx Industrial Average(SM) due November , 2002
Xxxxxxx Xxxxx & Co., Inc., a Delaware corporation (herein after referred to
as the "Company", which term includes any successor corporation under the
Indenture herein referred to), for value received, hereby promises to pay to
CEDE & CO., or registered assigns, the principal sum of
DOLLARS ($ )(the "Principal Amount") plus the Supplemental Redemption
Amount, as defined below, on November , 2002 (the "Stated Maturity").
Payment of the Principal Amount and the Supplemental Redemption Amount and
any interest on any overdue amount thereof with respect to this Security 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.
This Security is one of the series of Market Index Target-Term
Securities(SM) based upon the Dow Xxxxx Industrial Average(SM) due November ,
2002 (the "Securities").
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(SM) "Market Index Target-Term Securities" is a service mark owned by Xxxxxxx
Xxxxx & Co., Inc.
"Dow Xxxxx" and "Dow Xxxxx Industrial Average(SM)" are service marks of Dow
Xxxxx & Company, Inc. and have been licensed for use for certain purposes
by Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated. The MITTS based
upon the Dow Xxxxx Industrial Average are not sponsored, endorsed, sold or
promoted by Xxx Xxxxx, and Xxx Xxxxx makes no representation regarding the
advisability of investing in such product.
SUPPLEMENTAL REDEMPTION AMOUNT
The "Supplemental Redemption Amount" with respect to this Security equals:
Ending Index Value - Benchmark Index Value
Principal Amount X ------------------------------------------
Benchmark Index Value
provided, however, that in no event will the Supplemental Redemption Amount be
less than zero. The "Benchmark Index Value" equals ______. The Ending Index
Value will be determined by Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
(the "Calculation Agent", which term includes any successor thereto) and will
equal the average (arithmetic mean) of the closing values of the Dow Xxxxx
Industrial Average (the "Index") determined on each of the first five
Calculation Days during the Calculation Period. If there are fewer than five
Calculation Days, then the Ending Index Value will equal the average (arithmetic
mean) of the closing values of the Index on such Calculation Days, and if there
is only one Calculation Day, then the Ending Index Value will equal the closing
value of the Index on such Calculation Day. If no Calculation Days occur during
the Calculation Period because of Market Disruption Events as defined below,
then the Ending Index Value will equal the closing value of the Index determined
on the last scheduled Index Business Day in the Calculation Period, regardless
of the occurrences of a Market Disruption Event on such day. The "Calculation
Period" means the period from and including the seventh scheduled Index Business
Day prior to the Stated Maturity to and including the second scheduled Index
Business Day prior to the Stated Maturity. "Calculation Day" means any Index
Business Day during the Calculation Period on which a Market Disruption Event
has not occurred. For purposes of determining the Ending Index Value, an "Index
Business Day" is a day on which The New York Stock Exchange (the "NYSE") and the
American Stock Exchange (the "AMEX") are open for trading and the Index or any
successor index is calculated and published. All determinations made by the
Calculation Agent shall be at the sole discretion of the Calculation Agent and,
absent a determination by the Calculation Agent of a manifest error, shall be
conclusive for all purposes and binding on the Company and beneficial owners of
the Securities.
ADJUSTMENTS TO THE INDEX; MARKET DISRUPTION EVENTS
If at any time the method of calculating the Index, or the value
thereof, is changed in any material respect, or if the 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 Index had such changes or modifications not
been
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made, then, from and after such time, the Calculation Agent shall, at the close
of business in New York, New York, on each date that the closing value with
respect to the Ending Index Value is to be calculated, make such adjustments as,
in the good faith judgment of the Calculation Agent, may be necessary in order
to arrive at a calculation of a value of a stock index comparable to the Index
as if such changes or modifications had not been made, and calculate such
closing value with reference to the Index, as adjusted. Accordingly, if the
method of calculating the Index is modified so that the value of such Index is a
fraction or a multiple of what it would have been if it had not been modified
(e.g., due to a split in the Index), then the Calculation Agent shall adjust
such Index in order to arrive at a value of the Index as if it had not been
modified (e.g., as if such split had not occurred).
"Market Disruption Event" means either of the following events, as
determined by the Calculation Agent:
(i) the suspension or material limitation (limitations pursuant to
NYSE Rule 80A (or any applicable rule or regulation enacted or promulgated
by the NYSE or any other self regulatory organization or the Securities and
Exchange Commission of similar scope as determined by the Calculation
Agent) on trading during significant market fluctuations shall be
considered "material" for purposes of this definition), in each case, for
more than two hours of trading, or during the one-half hour period
preceding the close of trading on the applicable exchange, in 20% or more
of the stocks which then comprise the Index, or
(ii) the suspension or material limitation, in each case, for more
than two hours of trading (whether by reason of movements in price
otherwise exceeding levels permitted by the relevant exchange or otherwise)
in (A) futures contracts related to the Index, or options on such futures
contracts, which are traded on any major U.S. exchange or (B) option
contracts related to the Index which are traded on any major U.S. exchange.
For the purposes of this definition, a limitation on the hours in a trading
day and/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.
DISCONTINUANCE OF THE INDEX
If Dow Xxxxx & Co., Inc. ("Dow Xxxxx") discontinues publication of the
Index and Xxx Xxxxx or another entity publishes a successor or substitute index
that the Calculation Agent determines, in its sole discretion, to be comparable
to
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such Index (any such index being referred to hereinafter as a "Successor
Index"), then, upon the Calculation Agent's notification of such determination
to the Trustee and the Company, the Calculation Agent will substitute the
Successor Index as calculated by Xxx Xxxxx or such other entity for the Index
and calculate the Ending Index Value as described above in the section entitled
"Supplemental Redemption Amount." Upon any selection by the Calculation Agent
of a Successor Index, the Company shall cause notice thereof to be given to
Holders of the Securities.
If Dow Xxxxx discontinues publication of the Index and a Successor Index is
not selected by the Calculation Agent or is no longer published on any of the
Calculation Days, the value to be substituted for the Index for any such
Calculation Day used to calculate the Supplemental Redemption Amount at maturity
will be a value computed by the Calculation Agent for each Calculation Day in
accordance with the procedures last used to calculate the Index prior to any
such discontinuance. If a Successor Index is selected or the Calculation Agent
calculates a value as a substitute for the Index as described below, such
Successor Index or value shall be substituted for the Index for all purposes,
including for purposes of determining whether a Market Disruption Event exists.
If the Calculation Agent calculates a value as a substitute for the Index,
"Index Calculation Day" shall mean any day on which the Calculation Agent is
able to calculate such value.
If Dow Xxxxx discontinues publication of the Index prior to the period
during which the Supplemental Redemption Amount is to be determined and the
Calculation Agent determines that no Successor Index is available at such time,
then on each Business Day until the earlier to occur of (i) the determination of
the Ending Index Value and (ii) a determination by the Calculation Agent that a
Successor Index is available, the Calculation Agent shall determine the value
that would be used in computing the Supplemental Redemption Amount as described
above as if such day were a Calculation Day. The Calculation Agent will cause
notice of each such value to be published not less often than once each month in
The Wall Street Journal (or another newspaper of general circulation), and
arrange for information with respect to such values to be made available by
telephone.
GENERAL
This Security is one of a duly authorized issue of securities of the
Company, issued and to be issued under an Indenture, dated as of April 1, 1983,
as amended and restated (herein referred to as the "Indenture"), between the
Company and The Chase Manhattan Bank (successor by merger to Manufacturers
Hanover Trust Company), as Trustee (herein referred to as the "Trustee", which
term includes any successor trustee under the
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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 Holders of the Securities, and the terms upon which
the Securities are, and are to be, authenticated and delivered.
The Company hereby covenants for the benefit of the Holders of the
Securities, to the extent permitted by applicable law, not to claim voluntarily
the benefits of any laws concerning usurious rates of interest against a Holder
of the Securities.
The Securities are not subject to redemption by the Company or at the
option of the Holder prior to the Stated Maturity.
Upon the occurrence of an Event of Default with respect to the Securities,
Holders of the Securities may accelerate the maturity of the Securities in the
manner and with the effect provided in the Indenture. The amount payable to a
Holder of this Security upon any acceleration permitted by the Securities, with
respect to each $10 principal amount thereof, will be equal to: (i) $10, plus
(ii) an additional amount of contingent interest calculated as though the date
of early repayment were the Stated Maturity of the Securities.
In case of default in payment at the maturity date of the Securities
(whether at their maturity date or upon acceleration), from and after the Stated
Maturity the Securities shall bear interest, payable upon demand of the
beneficial owners thereof, at the rate of ____% per annum (to the extent that
payment of such interest shall be legally enforceable) on the unpaid amount due
and payable on such date in accordance with the terms of the Securities to the
date payment of such amount has been made or duly provided for. Interest on any
overdue Principal Amount or Supplemental Redemption Amount, as the case may be,
shall be payable on demand.
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 not less than 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
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 this Security
shall be conclusive and binding upon such Holder and upon all future
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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.
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 Amount plus the Supplemental
Redemption Amount with respect to this Security 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 first page hereof, the transfer of this Security may be
registered on the Security Register of the Company, upon surrender of this
Security 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 attorney duly authorized in writing,
and thereupon one or more new Securities, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated transferee
or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $10 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations set forth therein and on the first
page hereof, the Securities are exchangeable for a like aggregate principal
amount of Securities in authorized denominations, as requested by the Holder
surrendering the same. If (x) any 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, (y) the Company executes and delivers to the Trustee a
Company Order to the effect that this Security shall be exchangeable or (z) an
Event of Default has occurred and is continuing with respect to the Securities,
this Security shall be exchangeable for Securities in definitive form of like
tenor and of an equal aggregate principal amount, in denominations of $10 and
integral multiples thereof. Such definitive Securities shall be registered in
such name or names as the Depository shall instruct the Trustee. If definitive
Securities are so delivered, the Company may make such changes to the form of
this Security as are necessary or appropriate to allow for the issuance of such
definitive Securities.
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 governmental charge payable in connection therewith.
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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.
All terms used in this Security which are defined in the Indenture but not
in this Security shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by The
Chase Manhattan Bank, the Trustee under the Indenture, or its successor
thereunder, by the manual signature of one of its authorized officers, this
Security shall not be entitled to any benefits 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:
CERTIFICATE OF AUTHENTICATION Xxxxxxx Xxxxx & Co., Inc.
This is one of the Securities of the series [Copy of Seal]
designated therein referred to in the
within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee By:
Treasurer
By: Attest:
Authorized Officer Secretary
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