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. 59018S 2T0 $20,687,000
XXXXXXX XXXXX & CO., INC.
MEDIUM-TERM NOTE,
SERIES B
0.25% Callable and Exchangeable Stock Portfolio-Linked Notes due April 27, 2006
(Linked to the performance of the Common Stock of Pfizer Inc., Sepracor Inc. and
Xxxxxx-Xxxxxxx Co.)
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 April 27, 2006 (the "Maturity Date") by
delivering to CEDE & CO., or registered assigns with respect to the principal
amount hereof, TWENTY MILLION SIX HUNDRED EIGHTY SEVEN THOUSAND DOLLARS
($20,687,000), an amount in U.S. dollars equal to the greater of (i) the sum of
the products, for each of the Portfolio Securities, of the applicable Share
Multiplier multiplied by the applicable average Market Price of each of the
Portfolio Securities for the five scheduled Trading Days ending on and including
the third scheduled Trading Day immediately prior to maturity (provided,
however, that if the payment on the Maturity Date is based on the foregoing
formula, no interest shall accrue on the Notes from and including October 27,
2003 through the Maturity Date) or (ii) $1,000 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 April 27,
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1999, or from the most recent date in respect of which interest has been paid or
duly provided for, semiannually in arrears on April 27 and October 27, in each
year (each an "Interest Payment Date"), commencing October 27, 1999, at the rate
of 0.25% per annum (the "Interest Rate"), until the principal amount is paid or
duly made available for payment. The Notes will be issued in minimum
denominations of U.S.$1,000 and integral multiples thereof. 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 this Note 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.
Payment of interest and the amounts payable at maturity or upon exchange or
redemption (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,
deliver U.S. Dollars to the Trustee for delivery to the Holder of this Note in
respect of such payments.
The Company may redeem all of the Notes, at any time, on a Business Day
beginning on April 27, 2002, upon not more than 30 nor fewer than 15 calendar
days notice to the Holders of the Notes. Any date upon which the Company gives
the Holders of the Notes notice that it is redeeming the Notes is referred to
herein as the "Redemption Notice Date". If the Company redeems the Notes, for
each $1,000 principal amount of Notes owned by a Holder of the Notes, the
Company shall pay such Holder the Company Redemption Amount (as defined herein).
The "Company Redemption Amount" means, for each $1,000 principal amount of the
Notes, an amount in U.S. dollars equal to the greater of: (i) the sum of the
products, for each of the Portfolio Securities, of the applicable Share
Multiplier multiplied by the applicable average Market Price of each of the
Portfolio Securities for the five Trading Days immediately following the
Redemption Notice Date; provided, however, that if the Company Redemption Amount
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 redemption; or (ii) $1,000 plus accrued and unpaid interest through but
excluding the date of redemption. If the Company redeems the Notes, the Holder
is precluded as of the Redemption Notice Date from exercising its exchange
right.
At any time beginning June 30, 1999 and ending 15 scheduled Trading Days
before the Maturity Date, upon written notice to the Calculation Agent and the
Trustee (in the form of
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Annex A attached hereto), the Holder of this Note may exchange the Notes that
the Holder holds 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. 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, an
amount in U.S. dollars equal to the sum of the products for each of the
Portfolio Securities, of the applicable Share Multiplier multiplied by the
applicable Market Price of each of the Portfolio Securities; provided, however,
no interest will accrue from and including the immediately preceding Interest
Payment Date through the date of exchange. The Company will pay such amount to
the Holder on the applicable settlement date; provided, however, that the
Company will pay you cash in lieu of delivering fractional shares in an amount
as determined by the calculation agent. In the event of certain Market
Disruption Events, as provided below, the delivery of such shares may be
delayed. In the event of certain Reorganization Events, as provided below, the
Exchange Amount may be adjusted to include certain securities in addition to, or
in lieu of, the Portfolio Securities. Once the Holder has elected to cause the
Company to exchange the Notes, the Company is precluded as of the date of the
Holder's notice from exercising its option to redeem the Note.
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 Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated. 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.
"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,
NASDAQ Stock Market or other relevant securities exchange for more than two
hours of trading or during the one-half hour period preceding or at the close of
trading in such market; 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
8
affiliates to unwind all or a material portion of the hedge with respect to the
Notes or to purchase the Portfolio Securities for the purpose of delivering the
Exchange Amount.
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 NASDAQ Stock Market (or other regulatory
organization with jurisdiction over the NYSE, NASDAQ or other relevant
securities exchange) on trading during significant market fluctuations will
constitute a suspension or material limitation of trading in the Portfolio
Securities, (4) a suspension of trading in an options contract on the Portfolio
Securities by the primary securities market trading in such options, if
available, by reason of (x) a price change exceeding limits set by such
securities exchange or market, (y) an imbalance of orders relating to such
contracts or (z) 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 the Portfolio Securities and (5) a suspension, absence or
material limitation of trading on the primary securities market on which options
contracts related to the Portfolio Securities are traded will not include any
time when such securities market is itself closed for trading under ordinary
circumstances.
"Market Price" means, for any date of determination, 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 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.
"NASDAQ" means the NASDAQ Stock Exchange.
"NYSE" means the New York Stock Exchange.
"Portfolio Securities" means the common stock of Pfizer Inc., par value of
$.10, the common stock of Sepracor Inc., par value $.10 and common stock of
Xxxxxx-Xxxxxxx Co., par value of $1.00.
"Share Multiplier" initially means 2.2352 in the case of Pfizer Inc.
common stock, 2.8383 in the case of Sepracor Inc. common stock and 4.1433 in the
case of Xxxxxx-Xxxxxxx common stock, but shall be subject to adjustment by the
Calculation Agent, as provided herein, through and including the Maturity Date.
9
"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.
10
Dilution and Reorganization Adjustments
The Share Multiplier with respect to any Portfolio Security used to
calculate the amount payable to the Holders of the Notes 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 common
stock of the issuer of such Portfolio Security, prior to the effective date of
such stock split or reverse stock split, would have owned or been entitled to
receive immediately following such effective date.
2. If a Portfolio Security is subject to a stock dividend (i.e., issuance
of additional shares of Portfolio Security) that is given ratably to all holders
of shares of shares 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 such Portfolio Security issued with respect to
one share of such Portfolio Security and (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 for the payment of such
Extraordinary Dividend. If an Extraordinary Dividend occurs with respect to a
Portfolio Security, the Share Multiplier will be adjusted on the Trading Day
preceding the payment of any dividend, the payment of which caused an
Extraordinary Dividend to be paid (the "ex-dividend date"), 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 common stock 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 a 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
11
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 shareholders rights plan or arrangement,
once a triggering event shall have occurred thereunder, at an exercise price per
share less that 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 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 secuirty, or any surviving entity or subsequent surviving entity 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 Security 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"), the Market Price shall be equal to 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) in the event described
in clause (1) below only, 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 or upon
earlier redemption or exchange 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. "Transaction Value" means the sum of the
following: (1) for any cash received in any such Reorganization Event, an
amount equal to the amount of cash received per share of the common stock of
such Portfolio Security
12
multiplied by the Share Multiplier in effect on the date all of the holders of
shares of such Portfolio Securities have agreed or have become irrevocably
obligated to exchange such shares, (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, (3) for any security received in any such
Reorganization Event, an amount equal to (a) the quantity of such security
received for each share of such Portfolio Security multiplied by the then
current Share Multiplier multiplied by (b) the average Market Price of such
security for the five scheduled Trading Days ending on and including the third
scheduled Trading Day immediately prior to the maturity date or date of early
redemption; provided however, in the event a Holder of the Notes elects to
exchange his or her Notes, the Market Price for such security will be on the
Business Day following the day the Calculation Agent receives written notice of
the Holder's intention to exchange his or her Notes and (4) for any security
received in the case of a Spin-off Event, in addition the shares of such
Portfolio Security, an amount equal to (a) the quantity of each such security
received for each share of such Portfolio Security multiplied by the then
current Share Multiplier applicable to such Portfolio Security multiplied by (b)
the average Market Price per share of such security for the five scheduled
Trading Days immediately prior to the maturity date or date of early redemption;
provided however, in the event a Holder of the Notes elects to exchange his or
her Notes, the Market Price for such security will be on the Business Day
following the day the Calculation Agent receives written notice of the Holder's
intention to exchange his or her Notes. The Share Multiplier of any such
securities will equal the product of the Share Multiplier in effect for the
relevant Portfolio Security at the time of 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. "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.
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.
13
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 of 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.
No adjustments shall be made for certain other events, such as offerings of
the common stock of the issuer of such Portfolio Security by the issuers of such
Portfolio Security for cash or in connection with acquisitions or the occurrence
of a partial tender or exchange offer for the common stock of the issuer of such
Portfolio Security by such issuer or any third party.
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.
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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 Holders 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 (x) 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, (y) the Company executes and delivers to the Trustee a Company Order to
the effect that this Note shall be exchangeable or (z) 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 principal of all the Notes may be
declared due and payable in the manner and with the effect provided in the
Indenture; provided, however, that in case an Event of Default with respect to
any Notes shall have occurred and be continuing, the amount payable to a
beneficial owner of a Note upon any acceleration permitted by the Notes will be
determined by the Calculation Agent and will be equal to the principal amount of
the Note plus accrued but unpaid interest thereon to but excluding the date of
early repayment, if applicable, calculated as though the date of early repayment
were the stated maturity date of the Notes.
15
In case of default in payment of the Notes (whether at their stated
maturity or upon acceleration), from and after the maturity date the Notes shall
bear interest, payable upon demand of the beneficial owners thereof, at the rate
of 0.25% 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 Notes to the date payment of such amount has been made or
duly provided for.
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 this Note 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 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.
16
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: April 27, 1999
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
17
ANNEX A
OFFICIAL NOTICE OF EXERCISE OF XXXXXX'S EXCHANGE RIGHT
0.25% Callable and Exchangeable Stock Portfolio-Linked Medium-Term Notes due
April 27, 2006
(Linked to the performance of the Common Stock of Pfizer Inc., Sepracor Inc. and
Xxxxxx-Xxxxxxx Co.)
Dated: [On or prior to the fifteenth scheduled Trading Day prior to April
27, 2006]
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 0.25% Callable and Exchangeable Stock
Portfolio-Linked Medium-term Notes due April 27, 2006 of Xxxxxxx Xxxxx & Co.,
Inc. (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 April 27, 2006, the
Holder's Exchange Right as described in Pricing Supplement dated April 15, 1999
(the
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"Pricing Supplement") to the Prospectus Supplement dated February 17, 1999
and the Prospectus dated June 30, 1998. Capitalized terms not defined herein
have the meanings given to such terms in the Pricing Supplement. 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
pay an amount in U.S. dollars, in accordance with the terms of the Notes
described in the Pricing Supplement.
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
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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 ____________________
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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.
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