Exhibit 99(B)
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR 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 DEPOSITORY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITORY. 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.
No. R- Units
CUSIP (Each Unit representing $10
original public offering price per Note)
XXXXXXX XXXXX & CO., INC.
Strategic Return Notes Linked to the Select Ten Index
due May 30, 2006
(the "Notes")
Xxxxxxx Xxxxx & Co., Inc., a Delaware corporation (hereinafter referred to
as the "Company", which term includes any successor corporation under the
Indenture herein referred to), for value received, hereby promises to pay to
CEDE & CO., or its registered assigns, a sum equal to the Redemption Amount, if
any, as defined below, on May 30, 2006 (the "Stated Maturity") and a sum equal
to the Exchange Amount, if any, as defined below, on the Exchange Date, as
defined below.
Payment or delivery of the Redemption Amount or Exchange Amount and any
interest on any overdue amount thereof 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.
This Note is one of the series Strategic Return Notes Linked to the Select
Ten Index due May 30, 2006.
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Redemption Amount
The "Redemption Amount" with respect to this Note equals:
(Ending Value )
. $9.90 x (------------ )
(Starting Value)
The Starting Value equals 100. The Ending Value will be determined by Xxxxxxx
Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated (the "Calculation Agent") and will
equal the average (arithmetic mean) of the closing values of the Select Ten
Index determined on each of the first five Calculation Days during the
Calculation Period (as defined below). If there are fewer than five Calculation
Days in the Calculation Period, then the Ending Value will equal the average
(arithmetic mean) of the closing values of the Select Ten Index on those
Calculation Days. If there is only one Calculation Day during the Calculation
Period, then the Ending Value will equal the closing value of the Select Ten
Index on that Calculation Day. If no Calculation Days occur during the
Calculation Period, then the Ending Value shall equal the closing value of the
Select Ten Index determined on the last scheduled Index Business Day (as defined
below) in the Calculation Period regardless of the occurrence of a Market
Disruption Event (as defined below) on that Index Business Day.
This Note may be exchanged at the option of the Holder during any
Exchange Notice Period by giving notice as described below. An "Exchange Notice
Period" means any Business Day (as defined below) from and including the first
calendar day of the month of May to and including 12 noon in The City of New
York on the fifteenth calendar day during the month of May in the years 2002,
2003, 2004 and 2005. If the fifteenth calendar day of the applicable month of
May is not a Business Day, then the Exchange Notice Period will be extended to
12 noon in The City of New York on the next succeeding Business Day. The amount
of the cash payment received upon exchange (the "Exchange Amount") will be equal
to the Redemption Amount, calculated as though the Exchange Date was the Stated
Maturity Date and as though the Ending Value equals the closing value of the
Select Ten Index on the Exchange Date. An "Exchange Date" will be the second
Index Business Day following the end of the applicable Exchange Notice Period.
If a Market Disruption Event, as defined below, occurs on the second Index
Business Day following an Exchange Notice Period, the Exchange Date for that
year will be the next succeeding Index Business Day on which a Market Disruption
Event does not occur. The Holder of the Note will receive the Exchange Amount
three Business Days after the Exchange Date.
The Holder of the Note must exercise the option to exchange this Note
through the depository by delivering notice to the depository during the
applicable Election Notice Period. The Holder must instruct the direct or
indirect participant through which the interest in the Note is held to notify
the depository of the election to exchange the Note prior to 12 noon in The City
of New York on the last day of the applicable Exchange Notice Period, in
accordance with the then applicable operating procedures of the depository.
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The "Calculation Period" means the period from and including the
seventh scheduled Index Business Day prior to the Stated Maturity to and
including the second scheduled Index Business Day prior to the Stated Maturity.
"Calculation Day" means any Index Business Day during the Calculation
Period on which a Market Disruption Event has not occurred.
An "Index Business Day" is any day on which The New York Stock
Exchange (the "NYSE") and the American Stock Exchange (the "AMEX") are open for
trading and the Select Ten Index or any Successor Index (as defined below) is
calculated and published.
All determinations made by the Calculation Agent shall be at the sole
discretion of the Calculation Agent and, absent a determination by the
Calculation Agent of a manifest error, shall be conclusive for all purposes and
binding on the Company and the Holders and beneficial owners of the Notes.
Adjustments to the Select Ten Index; Market Disruption Events
If at any time the AMEX changes its method of calculating the Select Ten
Index, or the value of the Select Ten Index changes, in any material respect, or
if the Select Ten Index is in any other way modified so that the Select Ten
Index does not, in the opinion of the Calculation Agent, fairly represent the
value of the Select Ten Index had those changes or modifications not been made,
then, from and after that time, the Calculation Agent shall, at the close of
business in New York, New York, on each date that the closing value of the
Select Ten Index is to be calculated, make any adjustments as, in the good faith
judgment of the Calculation Agent, may be necessary in order to arrive at a
calculation of a value of a stock index comparable to the Select Ten Index as if
those changes or modifications had not been made, and calculate the closing
value with reference to the Select Ten Index, as so adjusted. Accordingly, if
the method of calculating the Select Ten Index is modified so that the value of
the Select Ten Index is a fraction or a multiple of what it would have been if
it had not been modified, e.g., due to a split, then the Calculation Agent shall
adjust the Select Ten Index in order to arrive at a value of the Select Ten
Index as if it had not been modified, e.g., as if the split had not occurred.
"Market Disruption Event" means either of the following events, as
determined by the Calculation Agent:
(A) a suspension or material limitation on trading for more than two hours
of trading, or during the one-half hour period preceding the close of
trading, on the applicable exchange, in one or more of the stocks
which then comprise the Select Ten Index; or
(B) the suspension or material limitation, in each case, for more than two
hours of trading, or during the one-half hour period preceding the
close of trading, on the applicable exchange, whether by reason of
movements in price otherwise exceeding levels permitted by the
relevant exchange or otherwise, in option or
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futures contracts related to the Select Ten Index, or any Successor
Index, which are traded on any major U.S. exchange.
For the purpose of the above definition:
(1) 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; and
(2) For the purpose of clause (A) above, any limitations on trading during
significant market fluctuations under NYSE Rule 80A, or any applicable
rule or regulation enacted or promulgated by the NYSE or any other
self-regulatory organization or the SEC of similar scope as determined
by the Calculation Agent, will be considered "material".
Discontinuance of the Select Ten Index
If the AMEX discontinues publication of the Select Ten Index and the AMEX
or another entity publishes a successor or substitute index that the Calculation
Agent determines, in its sole discretion, to be comparable to the Select Ten
Index (a "Successor Index"), then, upon the Calculation Agent's notification of
its determination to the Trustee (as defined below) and ML&Co., the Calculation
Agent will substitute the Successor Index as calculated by the AMEX or any other
entity for the Select Ten Index and calculate the Ending Value as described
above under "Redemption Amount" or "Exchange Amount", as applicable. Upon any
selection by the Calculation Agent of a Successor Index, ML&Co. shall cause
notice to be given to Holders of the Notes.
In the event that the AMEX discontinues publication of the Select Ten Index
and:
. the Calculation Agent does not select a Successor Index, or
. the Successor Index is no longer published on any of the Calculation Days,
the Calculation Agent will compute a substitute value for the Select Ten Index
in accordance with the procedures last used to calculate the Select Ten Index
before any discontinuance. If a Successor Index is selected or the Calculation
Agent calculates a value as a substitute for the Select Ten Index as described
below, the Successor Index or value will be used as a substitute for the Select
Ten Index for all purposes, including for purposes of determining whether a
Market Disruption Event exists.
If the AMEX discontinues publication of the Select Ten Index before the
Calculation Period and the Calculation Agent determines that no Successor Index
is available at that time, then on each Business Day until the earlier to occur
of:
. the determination of the Ending Value, or
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. a determination by the Calculation Agent that a Successor Index is available,
the Calculation Agent will determine the value that would be used in computing
the Redemption Amount as described in the preceding paragraph as if that day
were a Calculation Day. The Calculation Agent will cause notice of each value to
be published not less often than once each month in The Wall Street Journal or
another newspaper of general circulation, and arrange for information with
respect to these values to be made available by telephone.
A "Business Day" means a day on which the NYSE and the AMEX are open for
trading.
General
This Note 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 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, and are to
be, authenticated and delivered.
The Company hereby covenants for the benefit of the Holders of the Notes,
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 Notes.
The Notes are not subject to redemption by the Company prior to the Stated
Maturity.
In case an Event of Default with respect to any Notes shall have occurred
and be continuing, the amount payable to a Holder of a Note upon any
acceleration permitted by the Notes, with respect to each $10 original public
offering price of each unit, will be equal to the Redemption Amount, calculated
as though the date of early repayment were the Stated Maturity of the Notes.
In case of default in payment of the Notes (whether at the Stated Maturity
or upon exchange or upon acceleration), from and after the maturity date the
Notes shall bear interest, payable upon demand of the Holders 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 Notes 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 original issue price of the
Notes at the time Outstanding, as defined in the Indenture, of each series
affected thereby. The Indenture also contains provisions permitting the Holders
of
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specified percentages in aggregate original issue price of the Notes of each
series at the time Outstanding, on behalf of the Holders of all Notes 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 Redemption Amount 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 first page 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 original public offering price, will be issued to the designated
transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $10 and integral multiples thereof. This Note shall remain in
the form of a global security held by a Depository. Notwithstanding the
foregoing, if (x) any Depository is at any time unwilling or unable to continue
as Depository and a successor depository is not appointed by the Company within
60 days, (y) the Company executes and delivers to the Trustee a Company Order to
the effect that this 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 original public offering price, in denominations of $10 and integral
multiples thereof. 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.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or governmental charge payable in connection therewith.
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.
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All terms used in this Note which are defined in the Indenture but not in
this Note 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 Note
shall not be entitled to any benefits under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: , 2001
CERTIFICATE OF AUTHENTICATION Xxxxxxx Xxxxx & Co., Inc.
This is one of the Securities of the series
designated therein referred to in the [Copy of Seal]
within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee By:
---------------------
Treasurer
By: Attest:
------------------------------- ---------------------
Authorized Officer Secretary
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