Exhibit 99 (B)
THIS PROGROS 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. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
PROGROS SECURITIES IN CERTIFICATED FORM, THIS PROGROS 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 DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
PROGROS 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 PROGROS 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 ___ (Each Unit representing $10
principal amount of Securities)
XXXXXXX XXXXX & CO., INC.
Oracle Corporation Indexed
Callable Protected Growth-SM- Securities
due March 31, 2003
("ProGroS-SM- Securities")
Xxxxxxx Xxxxx & Co., Inc., a Delaware corporation (hereinafter referred to
as the "Company", which term includes any successor corporation under the
Indenture herein referred to), for value received, hereby promises to pay to
CEDE & CO., or registered assigns, the principal sum of DOLLARS
($ ) (the "Principal Amount") plus the Supplemental Redemption Amount, as
defined below, on March 31, 2003 (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 ProGroS 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 ProGroS Security is one of the series of Oracle Corporation Indexed
Callable Protected Growth-SM- Securities due March 31, 2003 (the "ProGroS
Securities").
SUPPLEMENTAL REDEMPTION AMOUNT
The "Supplemental Redemption Amount" with respect to this ProGroS Security
equals:
(Ending Value - Starting Value)
Principal Amount X -----------------------------
Starting Value
PROVIDED, HOWEVER, that in no event will the Supplemental Redemption Amount be
less than zero. The "Starting Value" equals _______________. The "Ending
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 Last Prices as defined herein of
Oracle Corporation common stock (the "Underlying Stock") determined on each of
the first five Calculation Days during the Calculation Period. If there are
fewer than five Calculation Days, then the Ending Value will equal the average
(arithmetic mean) of the Last Prices of the Underlying Stock on such Calculation
Days, and if there is only one Calculation Day, then the Ending Value will equal
the Last Price of the Underlying Stock on such Calculation Day. If no
Calculation Days occur during the Calculation Period because of Market
Disruption Events as defined below, then the Ending Value will equal the Last
Price of the Underlying Stock determined on the last scheduled Calculation Day
in the Calculation Period, regardless of the occurrence of a Market Disruption
Event on such day.
The "Calculation Period" means the period from and including the seventh
scheduled Calculation Day prior to the Stated Maturity to and including the
second scheduled Calculation Day prior to the Stated Maturity.
"Calculation Day" means any Trading Day during the Calculation Period on
which a Market Disruption Event has not occurred. For purposes of determining
the Ending Value, a "Trading Day" is a day on which the Underlying Stock (A) is
not suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (B) has
traded at least once on a national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Underlying Stock.
"Last Price" means, with respect to any security on any date of
determination, the last sales price (or, the closing price if the last reported
sale price is not reported) of such security on
2
such date or, if such security is not listed for trading on the National
Association of Securities Dealers, Inc. Automated Quotation System (the "NASDAQ
NMS") on any such date, as reported in the composite transactions for the
principal United States securities exchange on which such security is so listed,
or if such security is not so listed on a United States national or regional
securities exchange, the last quoted bid price for such security in the over-
the-counter market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the market value of such
security on such date as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Calculation Agent.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in The City of New York are
authorized or obligated by law to close and that is a trading day on the NYSE.
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 ProGroS Securities.
MARKET DISRUPTION EVENT
"Market Disruption Event" means the occurrence or existence on any Trading
Day during the one-half hour period that ends when the Last Price is determined
of any suspension of or material limitation imposed on the Underlying Stock on
the NASDAQ NMS (or other market or exchange if applicable).
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.
EARLY CALL
This ProGroS Security may be called, in whole, but not in part, at the
option of the Company prior to the Stated Maturity of the ProGroS Securities by
giving notice to the Trustee on any Business Day within the month of April in
1999, 2000, 2001 or 2002 (each such month, a "Call Period") at the related Call
Price (each such price, a "Call Price") as set forth below:
3
CALL PERIOD CALL PRICE
----------- ----------
April, 1999 % of principal amount
April, 2000 % of principal amount
April, 2001 % of principal amount
April, 2002 % of principal amount
The Company may elect to call the ProGroS Securities on any Business Day
during a Call Period by giving notice to the Trustee and specifying the date on
which the Call Price shall be paid. The Call Date shall be no later than the
20th Business Day after such election. The Trustee will provide notice of such
call election to the Holders of the ProGroS Securities, specifying the Call
Date, no later than 15, nor more than 30, days prior to the Call Date.
DILUTION ADJUSTMENTS
The Last Prices used to determine the Ending Value are subject to
adjustment if Oracle Corporation shall: (i) pay a stock dividend or make a
distribution with respect to the Underlying Stock in shares of such stock; (ii)
subdivide or split the outstanding shares of the Underlying Stock into a greater
number of shares; (iii) combine the outstanding shares of the Underlying Stock
into a smaller number of shares; (iv) issue by reclassification of shares of the
Underlying Stock any shares of common stock of Oracle Corporation; (v) issue
rights or warrants to all holders of the Underlying Stock entitling them to
subscribe for or purchase shares of the Underlying Stock at a price per share
less than the then current market price of the Underlying Stock (other than
rights to purchase the Underlying Stock pursuant to a plan for the reinvestment
of dividends or interest); or (vi) pay a dividend or make a distribution to all
holders of the Underlying Stock of evidences of its indebtedness or other assets
(excluding any stock dividends or distributions referred to in clause (i) above
or any cash dividends other than any Extraordinary Cash Dividend (as defined
below)) or issue to all holders of the Underlying Stock rights or warrants to
subscribe for or purchase any of its securities (other than those referred to in
clause (v) above) (any of the foregoing are referred to as the "Distributed
Assets"). The effect of the foregoing is that there will not be any adjustments
to the Ending Value for the issuance by Oracle Corporation of options, warrants,
stock purchase rights or securities in connection with the employee benefit
plans of Oracle Corporation.
All adjustments will be calculated to the nearest 1/10,000th of a share of
the Underlying Stock (or if there is not a nearest 1/10,000th of a share to the
next lower 1/10,000th of a share). No adjustment shall be required unless such
adjustment would require an increase or decrease of at least one percent in the
4
Last Price; PROVIDED, HOWEVER, that any adjustments which by reason of the
foregoing are not required to be made shall be carried forward and taken into
account in any subsequent adjustment.
(a) In the event of payment of a stock dividend or the event of
distributions, subdivisions, splits, combinations or reclassification (as
described in clauses (i) through (iv) above), the Last Price shall be adjusted
by multiplying the Last Price by a fraction, the numerator of which shall be the
number of shares of the Underlying Stock (or, in the case of a reclassification
referred to in clause (iv) above, the number of shares of other common stock of
Oracle Corporation issued pursuant thereto) held by a holder of one share of the
Underlying Stock on the record date with respect to such event immediately
following any event described above and the denominator of which shall be one
share of the Underlying Stock. Each such adjustment shall become effective at
the opening of business on the Business Day next following the record date and
shall become effective immediately after the effective date in the case of a
subdivision, split, combination or reclassification. Each such adjustment shall
be made successively.
(b) In the event of the issuance of certain rights or warrants (as
described in clause (v) above), if Oracle Corporation shall issue rights or
warrants to all holders of the Underlying Stock entitling them to subscribe for
or purchase shares of the Underlying Stock (other than rights to purchase the
Underlying Stock pursuant to a plan for the reinvestment of dividends or
interest) at a price per share less than the then current market price of the
Underlying Stock, then in each case the Last Price shall be adjusted by
multiplying the Last Price by a fraction, the numerator of which shall be the
number of shares of the Underlying Stock outstanding on the date of issuance of
such rights or warrants, immediately prior to such issuance, plus the number of
additional shares of the Underlying Stock offered for subscription or purchase
pursuant to such rights or warrants, and the denominator of which shall be the
number of shares of the Underlying Stock outstanding on the date of issuance of
such rights or warrants, immediately prior to such issuance, plus the number of
additional shares of the Underlying Stock which the aggregate offering price of
the total number of shares of the Underlying Stock so offered for subscription
or purchase pursuant to such rights or warrants would purchase at such current
market price, which shall be determined by multiplying such total number of
shares by the exercise price of such rights or warrants and dividing the product
so obtained by such current market price. Such adjustment shall become
effective at the opening of business on the Business Day next following the
record date for determination of stockholders entitled to receive such rights or
warrants. To the extent that shares of the Underlying Stock are not delivered
on all such rights or warrants after the expiration
5
of such rights or warrants, the Last Price shall be adjusted by instead
multiplying the Last Price as described above by a fraction calculated assuming
the issuance of such rights or warrants had been made upon the basis of delivery
of only the number of shares of the Underlying Stock actually delivered. Each
such adjustment shall be made successively. For purposes of this paragraph, the
term "current market price" shall mean the average Last Price (as defined below)
per share of the Underlying Stock on the 20 Trading Days immediately prior to
the date such rights or warrants are issued; PROVIDED, HOWEVER, if any event
that would result in another adjustment of the Last Price pursuant to this
section occurs during such 20-day period, the current market price as determined
pursuant to the foregoing shall be appropriately adjusted to reflect the
occurrence of such event.
(c) In the event of distributions (as described in clause (vi) above), if
Oracle Corporation shall pay a dividend or make a distribution to all holders of
the Underlying Stock of evidences of its indebtedness or other assets (excluding
any stock dividends or distributions referred to in paragraph (a) above or any
cash dividends that do not constitute Extraordinary Cash Dividends) or shall
issue to all holders of the Underlying Stock rights or warrants to subscribe for
or purchase any of its securities (excluding any rights to purchase shares of
the Underlying Stock pursuant to a plan for the reinvestment of dividends or
interest and any rights or warrants referred to in paragraph (b) above), then in
each such case, the Last Price shall be adjusted by multiplying the Last Price
on the record date referred to below by a fraction, the numerator of which shall
be the market price per share of the Underlying Stock on the record date for the
determination of stockholders entitled to receive such dividend or distribution
or such rights or warrants, and the denominator of which shall be such market
price per share of the Underlying Stock less the fair market value (as
determined by the Calculation Agent, whose determination shall be conclusive) as
of such record date of the portion of the assets or evidences of indebtedness to
be distributed or of such subscription rights or warrants applicable to one
share of the Underlying Stock. Each such adjustment shall become effective at
the opening of business on the Business Day next following the record date for
the determination of stockholders entitled to receive such dividend or
distribution or such rights or warrants. Each such adjustment shall be made
successively. For purposes of this paragraph (c), the term "market price" shall
mean the average Last Price per share of the Underlying Stock on the 20 Trading
Days immediately prior to such record date for the determination of stockholders
entitled to receive such dividend or distribution or such rights or warrants;
PROVIDED, HOWEVER, if any event that would result in another adjustment of the
Last Price pursuant to this section occurs during such 20-day period,
6
the market price as determined pursuant to the foregoing shall be appropriately
adjusted to reflect the occurrence of such event.
(d) Any shares of the Underlying Stock issuable in payment of a dividend
shall be deemed to have been issued immediately prior to the close of business
on the record date for such dividend for purposes of calculating the number of
outstanding shares of the Underlying Stock under (b) above.
An "Extraordinary Cash Dividend" means, with respect to any consecutive
12-month period, all cash dividends on the Underlying Stock during such period
to the extent such dividends exceed on a per share basis 10% of the average Last
Price of the Underlying Stock on the NASDAQ NMS over such period (less any such
dividends for which a prior adjustment was previously made).
In the event of (A) any consolidation or merger of Oracle Corporation, or
any surviving entity or subsequent surviving entity of Oracle Corporation (a
"Successor Company"), with or into another entity (other than a merger or
consolidation in which Oracle Corporation is the continuing corporation and in
which the Underlying Stock outstanding immediately prior to the merger or
consolidation is not exchanged for cash, securities or other property of Oracle
Corporation or another corporation), (B) any sale, transfer, lease or conveyance
to another corporation of the property of Oracle Corporation or any Successor
Company as an entirety or substantially as an entirety, (C) any statutory
exchange of securities of Oracle Corporation or any Successor Company with
another corporation (other than in connection with a merger or acquisition) or
(D) any liquidation, dissolution, winding up or bankruptcy of Oracle Corporation
or any Successor Company (any such event described in clause (A), (B), (C) or
(D), a "Reorganization Event"), the Ending Value shall equal the Reorganization
Event Value. The "Reorganization Event Value" shall be determined by the
Calculation Agent and shall equal (i) the Transaction Value related to the
relevant Reorganization Event, plus (ii) interest on such Transaction Value
accruing from the date of the payment or delivery of the consideration, if any,
received in connection with such Reorganization Event until the stated maturity
date 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
ProGroS Securities. The "Transaction Value" means (i) for any cash received in
any such Reorganization Event, the amount of cash received per share of
Underlying Stock, (ii) for any property other than cash or securities received
in any such Reorganization Event, an amount equal to the market value of such
property received per share on the date that such property is received by
holders of the Underlying Stock as determined by the Calculation Agent, and
(iii) for any securities received in any such Reorganization Event, an amount
equal to the Last Price per
7
unit of such securities on the date such securities are received by holders of
the Underlying Stock multiplied by the number of such securities received for
each share of the Underlying Stock (subject to adjustment on a basis consistent
with the adjustment provisions described above).
"Transaction Value" means, with respect to any Reorganization Event, the
sum of (x) for any cash received in such Reorganization Event, the amount of
cash received per share of the Underlying Stock, (y) for any property other than
cash or securities received in such Reorganization Event, an amount equal to the
market value on the third Business Day preceding the Stated Maturity of such
property received per share of the Underlying Stock as determined by the
Calculation Agent and (z) for any securities received in such Reorganization
Event, an amount equal to the average Last Price per unit of such securities on
the 20 Trading Days immediately prior to, but not including, the second Trading
Day preceding the Stated Maturity multiplied by the number of such securities
(subject to adjustment on a basis consistent with the provisions above received
for each share of the Underlying Stock; PROVIDED, HOWEVER, if one or more
adjustments to the Last Price shall have become effective prior to the effective
date for such Reorganization Event, then the Transaction Value determined in
accordance with the foregoing shall be adjusted in accordance therewith.
The foregoing adjustments shall be made by the Calculation Agent, and all
such adjustments shall be final.
No adjustments will be made for certain other events, such as offerings of
the Underlying Stock by Oracle Corporation for cash or in connection with
acquisitions.
The Company will, within ten Business Days following the occurrence of an
event that requires an adjustment (or if the Company is not aware of such
occurrence, as soon as practicable after becoming so aware), provide written
notice to the Trustee and to the holders of the ProGroS Securities of the
occurrence of such event and, if applicable, a statement in reasonable detail
setting forth the adjusted Last Price used in determining the Ending Value, once
such value is determined.
GENERAL
This ProGroS 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 as Trustee (herein referred to as the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental
8
thereto reference is xxxxxx made for a statement of the respective rights
thereunder of the Company, the Trustee and the Holders of the ProGroS
Securities, and the terms upon which the ProGroS Securities are, and are to be,
authenticated and delivered.
The Company hereby covenants for the benefit of the Holders of the ProGroS
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 ProGroS Securities.
Upon the occurrence of an Event of Default with respect to the ProGroS
Securities, the Trustee or the Holders of the ProGroS Securities may accelerate
the maturity of the ProGroS Securities in the manner and with the effect
provided in the Indenture. The amount payable to a Holder of this ProGroS
Security upon any acceleration permitted by the ProGroS 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 ProGroS Securities.
In case of default in payment at the maturity date of the ProGroS
Securities (whether at their Stated Maturity or upon acceleration), from and
after the maturity date the ProGroS 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 ProGroS
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 ProGroS 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 ProGroS 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 ProGroS Securities of each series at the time
Outstanding, on behalf of the Holders of all ProGroS 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 ProGroS Security shall be conclusive and
binding upon such Holder
9
and upon all future Holders of this ProGroS Security and of any ProGroS 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
ProGroS Security.
No reference herein to the Indenture and no provision of this ProGroS
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 ProGroS 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 ProGroS Security may
be registered on the ProGroS Security Register of the Company, upon surrender of
this ProGroS 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 ProGroS Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The ProGroS 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 ProGroS Securities are exchangeable for a like aggregate
principal amount of ProGroS Securities in authorized denominations, as requested
by the Holder surrendering the same. If (x) any Depositary is at any time
unwilling or unable to continue as Depositary and a successor depositary 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 ProGroS Security shall be
exchangeable or (z) an Event of Default has occurred and is continuing with
respect to the ProGroS Securities, this ProGroS Security shall be exchangeable
for ProGroS Securities in definitive form of like tenor and of an equal
aggregate principal amount, in denominations of $10 and integral multiples
thereof. Such definitive ProGroS Securities shall be registered in such name or
names as the Depositary shall instruct the Trustee. If definitive ProGroS
Securities are so delivered, the Company may make such changes to the form of
this ProGroS Security as are necessary or appropriate to allow for the issuance
of such definitive ProGroS Securities.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a
10
sum sufficient to cover any tax or governmental charge payable in connection
therewith.
Prior to due presentment of this ProGroS 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 ProGroS Security is registered as the
owner hereof for all purposes, whether or not this ProGroS Security is overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
All terms used in this ProGroS Security which are defined in the Indenture
but not in this ProGroS 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
ProGroS 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: March , 1998
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
11
