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 JV1
XXXXXXX XXXXX & CO., INC.
MEDIUM-TERM NOTE,
SERIES B
% Callable and Exchangeable Notes due May , 2006
(Linked to the performance of the Common Stock of Time Warner Inc.)
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 May , 2006 (the "Maturity Date") by
delivering to CEDE & CO., or registered assigns with respect to the principal
amount hereof, , an amount in dollars equal to the greater of (i) the product of
the Exchange Ratio multiplied by the average Market Price of the Time Warner
Common Stock 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 November , 2005 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 May , 1999, or from the most recent date in respect
of which interest has been paid or duly provided for, semiannually in arrears on
May and November , in each year (each an "Interest Payment Date"), commencing
November ,
1999, at the rate of % 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 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, deliver U.S. Dollars (or Time Warner Common
Stock, or other securities, if any, if the Holder of this Note exercises its
Exchange Right (as defined below)) 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 any Business Day
after May , 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 an amount in U.S. dollars equal to the greater of: (i) the product of the
Exchange Ratio multiplied by the average Market Price of the Time Warner Common
Stock for the five Trading Days immediately following the applicable Redemption
Notice Date; provided, however, that if the amount the Holder 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
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.
On any Trading Day during the period beginning May , 1999 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 this Note may
exchange the Notes for a number of shares of Time Warner common stock equal to
the exchange ratio, subject to certain adjustments as described herein in
"Exchange Amount". 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, a number of shares of Time Warner Common Stock
equal to the Exchange Ratio on the Business Day following the day the
Calculation Agent receives written notice of the Holder's intention to exchange
his Notes; provided, however, no interest will accrue from and including the
immediately preceding Interest Payment Date through the date of exchange. The
Company will deliver such shares 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. 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.
"Exchange Ratio" means an amount equal to the product of multiplied
by the Share Multiplier.
"Time Warner" means Time Warner Inc., a Delaware corporation.
"Time Warner Common Stock" means the Common Stock, par value $0.01 per
share, of Time Warner Inc.
"Market Disruption Event" means
(i) a suspension, absence (including the absence of an official closing
price) or material limitation of trading of the Time Warner Common Stock on the
NYSE 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 Time Warner Common Stock, 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 to unwind all or a material portion of
the hedge with respect to the Notes or to purchase the Time Warner Common Stock
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 other regulatory organization with
jurisdiction over the NYSE) on trading during significant market fluctuations
will constitute a suspension or material limitation of trading in the Time
Warner Common Stock, (4) a suspension of trading in an options contract on the
Time Warner Common Stock 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 Time Warner Common Stock and (5) a suspension, absence
or material limitation of trading on the primary securities market on which
options contracts related to the Time Warner Common Stock are traded will not
include any time when such securities market is itself closed for trading under
ordinary circumstances.
If the Transaction Value includes securities other than Time Warner common
stock, then the above definition shall be revised to include each such security
in the same manner as Time Warner common stock 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
Transaction Value, and thus if Time Warner common stock is not included in the
determination of the Transaction Value, then the Time Warner common stock shall
not be considered in determining whether a Market Disruption Event exists.
"Market Price" means, for any date of determination, the official closing
price, in the afternoon session, as applicable, of one share of the Time Warner
Common Stock as reported by the principal exchange on which the Time Warner
Common Stock 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 the 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.
"NYSE" means the New York Stock Exchange.
"Share Multiplier" initially means 1.0, but shall be subject to adjustment
by the Calculation Agent, as provided herein, through and including the Maturity
Date.
"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 used to calculate the Exchange Ratio 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 Time Warner Common Stock is subject to a stock split or reverse stock
split, then once such split has become effective, the Share Multiplier shall be
adjusted to equal the product of the prior Share Multiplier and the number of
shares which a holder of one share of Time Warner 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 such effective date.
2. If Time Warner Common Stock is subject to a stock dividend (i.e.,
issuance of additional shares of Time Warner Common Stock) that is given ratably
to all holders of shares of Time Warner Common Stock, 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 Time Warner Common Stock issued with respect to one share of
Time Warner Common Stock 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 Time Warner Common
Stock 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
Time Warner Common Stock to the extent such dividend or other distribution
exceeds the immediately preceding non-Extraordinary Dividend for Time Warner
Common Stock by an amount equal to at least 10% of the Market Price of Time
Warner Common Stock 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 Time Warner Common Stock, 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 Time Warner Common Stock 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 Time Warner
Common Stock 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
the Time Warner Common Stock 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 Time Warner issues transferable rights or warrants to all holders of
Time Warner Common Stock to subscribe for or purchase Time Warner Common Stock,
including new or existing rights to purchase Time Warner Common Stock 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 Time Warner Common Stock 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 Time Warner Common Stock
outstanding immediately prior to such issuance plus the number of additional
shares of Time Warner Common Stock offered for subscription or purchase pursuant
to such rights or warrants and the denominator of which shall be the number of
shares of Time Warner Common Stock outstanding immediately prior to such
issuance plus the number of additional shares of Time Warner Common Stock which
the aggregate offering price of the total number of shares of Time Warner Common
Stock so offered for subscription or purchase pursuant to such rights or
warrants would purchase at the closing price of one share of Time Warner Common
Stock 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 Time Warner Common Stock, (b) Time Warner, or any
surviving entity or subsequent surviving entity of Time Warner (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 Time Warner or
any Successor Entity with another corporation occurs, other than pursuant to
clause (b) above, (d) Time Warner is liquidated, (e) Time Warner issues to all
of its shareholders equity securities of an issuer other than Time Warner, 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 Time Warner (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 Time Warner Common Stock multiplied by
the Share Multiplier in effect on the date all of the holders of shares of Time
Warner Common Stock 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 Time Warner Common Stock 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 the average Market
Price per share 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, as the case may be, multiplied by the quantity
of such security received for each share of Time Warner Common Stock multiplied
by 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 Time Warner Common Stock,
an amount equal to the average Market Price per share 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, as the
case may be, multiplied by the quantity of such security received for each share
of Time Warner Common Stock 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 Time Warner 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 Time Warner Common Stock. The
Share Multiplier of any such securities will be subject to the same adjustments
as that of the Share Multiplier of the Time Warner Common Stock. "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
Time Warner Common Stock 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.
Notwithstanding anything to the contrary in this Note, if the Holder elects
to exchange the Notes, the Exchange Amount will be adjusted in the following
manner: (1) In the case of a Spin-off Event, the Exchange Amount shall be
calculated so as to include any securities received in any such Spin-off Event
in addition to the shares of Time Warner Common Stock already included in the
Exchange Amount. The Share Multiplier with respect to any such securities shall
equal the product of the Share Multiplier in effect for the Time Warner 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 Time Warner Common
Stock. The Share Multiplier of any such securities will be subject to the same
adjustments as that of the Share Multiplier of the Time Warner Common Stock, and
(2) If Time Warner, 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 Time Warner,
then the Exchange Amount
shall be calculated to include securities, if any, received in any such event
instead of the Time Warner Common Stock. The Share Multiplier with respect to
any such securities shall equal the product of the Share Multiplier in effect
for the Time Warner 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 Time Warner Common Stock. The Share Multiplier of any such securities
will be subject to the same adjustments as that of the Share Multiplier of the
Time Warner 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 Time Warner Common Stock 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 the Time Warner
Common Stock, including, without limitation, a partial tender or exchange offer
for Time Warner Common Stock.
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
Time Warner Common Stock by Time Warner for cash or in connection with
acquisitions or the occurrence of a partial tender or exchange offer for the
Time Warner Common Stock by Time Warner 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.
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.
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 % 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.
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: May , 1999
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
% Callable and Exchangeable Medium-Term Notes due May , 2006 (Linked to the
performance of the Common Stock of Time Warner Inc.)
Dated: [On or prior to the fifteenth scheduled Trading Day prior to May , 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 % Callable and Exchangeable Medium-Term Notes
due May , 2006 of Xxxxxxx Xxxxx & Co., Inc. (Linked to the performance of Time
Warner 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 May 10,
2006, the Holder's Exchange Right as described in Pricing Supplement dated April
30, 1999 (the "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
deliver Time Warner Stock, in accordance with the terms of the Notes described
in the Pricing Supplement.
Very truly yours,
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[Name of Holder]
By:
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[Title]
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[Fax No.]
$
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Number of Notes surrendered for exercise of the Right to Receive the
Equivalent Share Amount
If you want the Time Warner Stock made out in another person's name,
fill in the form:
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(Insert person's soc. sec. or tax ID no.)
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(Print or type person's name, address and zip code)
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Date:
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Your Signature:
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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:
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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:
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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.
