Exhibit (99)(B)
THIS CALLABLE MITTS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY
OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
CALLABLE MITTS SECURITIES IN CERTIFICATED FORM, THIS CALLABLE MITTS SECURITY MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO A NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
CALLABLE MITTS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO
XXXXXXX XXXXX & CO., INC. OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CALLABLE MITTS SECURITY ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. R- 00,000 Units
CUSIP 590188 (Each Unit representing $10 principal
amount of Callable MITTS Securities)
XXXXXXX XXXXX & CO., INC.
Callable Market Index Target-Term Securities(R)
due March 5, 2007
based upon Internet HOLDRs
(Callable "MITTS(R) Securities")
Xxxxxxx Xxxxx & Co., Inc., a Delaware corporation (hereinafter
referred to as the "Company", which term includes any successor corporation
under the Indenture herein referred to), for value received, hereby promises to
pay to CEDE & CO., or its registered assigns, the principal sum of
MILLION DOLLARS ($ ,000,000) (the "Principal Amount") plus the Supplemental
Redemption Amount, as defined below, if any, on March 5, 2007 (the "Stated
Maturity").
Payment or delivery of the Principal Amount and the Supplemental
Redemption Amount, if any, and any interest on any overdue amount thereof with
respect to this Security shall be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
This Callable MITTS Security is one of the series of Callable Market
Index Target-Term Securities due March 5, 2007 based upon Internet
HOLDRs.
Supplemental Redemption Amount
The "Supplemental Redemption Amount" with respect to this Callable
MITTS Security equals:
(Ending Value - Starting Value)
Principal Amount x (-----------------------------)
( Starting Value )
provided, however, that in no event will the Supplemental Redemption Amount be
less than zero. The Starting Value equals . The Ending Value will be
determined by Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the
"Calculation Agent") and will equal the value of the Reference Property (as
defined below) determined as follows: (A) for any portion of the Reference
Property consisting of cash, that cash, plus interest on the amount accruing
from and including the date of the payment of that cash to holders of the
Reference Property for which that cash was paid to but excluding the Stated
Maturity at a fixed interest rate determined on the date of the payment equal to
the interest rate that would be paid on a fixed rate senior non-callable debt
security of the Company with a term equal to the remaining term for the Callable
MITTS Securities as determined by the Calculation Agent; (B) for any portion of
the Reference Property consisting of property other than cash or Reference
Securities (as defined below),the market value of that property, as determined
by the Calculation Agent on the date that the property was delivered to holders
of the relevant Reference Property for which the property was distributed plus
interest on the amount accruing from and including the date of delivery to but
excluding the Stated Maturity at a fixed interest rate determined as described
in (A) above; and (C) for any portion of the Reference Property consisting of
Reference Securities, the average (arithmetic mean) of the Closing Prices (as
defined below) of each such Reference Security determined on each of the first
five Calculation Days (as defined below) during the Calculation Period (as
defined below). If there are fewer than five Calculation Days in the Calculation
Period with respect to any Reference Security, then the Ending Value shall be
calculated using the average (arithmetic mean) of the Closing Prices of that
Reference Security on those Calculation Days, and if there is only one
Calculation Day, then the Ending Value shall be calculated using the Closing
Price of that Reference Security on such Calculation Day. If no Calculation Days
occur during the Calculation Period with respect to that Reference Security,
then the Ending Value shall be calculated using the Closing Price of that
Reference Security determined on the last scheduled Calculation Day in the
Calculation Period, regardless of the occurrence of a Market Disruption Event
(as defined below) on that day.
"Reference Property" initially shall mean one depositary receipt
issued by the Internet HOLDRs Trust (one unit of "Internet HOLDRs"), and shall
be subject to adjustment from time to time to reflect the distribution of cash,
securities and/or other property in accordance with the adjustment provisions
described below under "--Dilution and Reorganization Adjustments".
"Reference Securities" shall mean any securities included in the
Reference Property.
The "Calculation Period" means the period from and including the
seventh scheduled Calculation Day prior to the Stated Maturity to and including
the second scheduled Calculation Day prior to the Stated Maturity.
"Calculation Day" means, with respect to any Reference Security, any
Trading Day (as defined below) during the Calculation Period on which a Market
Disruption Event has not occurred.
"Market Disruption Event" means, for any Reference Security, the
occurrence or existence on any Business Day (as defined below) during the one-
half hour period that ends when the Closing Price is determined, of any
suspension of, or limitation imposed on, trading in that Reference Security on
the New York Stock Exchange (the "NYSE"), or other market or exchange, if
applicable.
"Trading Day" means a day on which the American Stock Exchange (the
"AMEX"), the NYSE and the NASDAQ National Market System ("NASDAQ NMS") are open
for trading.
"Closing Price" of a Reference Security means, for a Calculation Day
the following:
(a) If the Reference Security is listed on a national securities exchange in
the United States, is a NASDAQ NMS security or is included in the OTC
Bulletin Board Service ("OTC Bulletin Board") operated by the National
Association of Securities Dealers, Inc. (the "NASD"), Closing Price means
(i) the last reported sale price, regular way, on that day on the principal
United States securities exchange registered under the Securities Exchange
Act of 1934, as amended on which that Reference Security is listed or
admitted to trading, or (ii) if not listed or admitted to trading on any
such securities exchange or if the last reported sale price is not
obtainable, the last reported sale price on the over-the-counter market as
reported on the NASDAQ NMS or OTC Bulletin Board on that day, or (iii) if
the last reported sale price is not available pursuant to (i) and (ii)
above, the mean of the last reported bid and offer price on the over-the-
counter market as reported on the NASDAQ NMS or OTC Bulletin Board on that
day as determined by the Calculation Agent.
The term "NASDAQ NMS security" shall include a security included in any
successor to that system and the term "OTC Bulletin Board" shall include
any successor service to that service.
(b) If the Reference Security is not listed on a national securities exchange
in the United States or is not a NASDAQ NMS security or included in the OTC
Bulletin Board operated by the NASD, Closing Price means the last reported
sale price on that day on the securities exchange on which the Reference
Security is listed or admitted to trading with the greatest volume of
trading for the calendar month preceding that day as determined by the
Calculation Agent, provided that if the last reported sale price is for a
transaction which occurred more than four hours prior to the close of that
exchange, then the Closing Price shall mean the average,
mean, of the last available bid and offer price on that exchange. If the
Reference Security is not listed or admitted to trading on any such
securities exchange or if the last reported sale price or bid and offer are
not obtainable, the Closing Price shall mean the last reported sale price
for a transaction which occurred more than four hours prior to when trading
in such over-the-counter market typically ends, then the Closing Price
shall mean the average, mean, of the last available bid and offer prices in
such market of the three dealers which have the highest volume of
transactions in the Reference Security in the immediately preceding
calendar month as determined by the Calculation Agent based on information
that is reasonably available to it.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New York
are authorized or obligated by law to close and that is a day on the NYSE and
the AMEX are open for trading.
All determinations made by the Calculation Agent shall be at the sole
discretion of the Calculation Agent and, absent a determination by the
Calculation Agent of a manifest error, shall be conclusive for all purposes and
binding on the Company and beneficial owners of the Callable MITTS Securities.
Early call of the Callable MITTS Securities at the option of the Company
During the month of February 2006 (the "Call Period"), the Company, in
its sole discretion, may elect to call the Callable MITTS Securities, in whole
but not in part, before the Stated Maturity by giving notice to the Trustee of
the Company's election on any Business Day within the month of February 2006, at
which is $ per unit (the "Call Price").
If we elect The Company may elect to call the Callable MITTS
Securities on any Business Day during the Call Period by giving notice to the
Trustee and specifying the date on which the Call Price shall be paid. The
Payment Date shall be no later than the twentieth Business Day after the call
election. The Trustee will provide notice of the call election to the registered
holders of the Callable MITTS Securities, specifying the Payment Date, no less
than 15, nor more than 30, calendar days prior to the Payment Date.
General
This Callable MITTS Security is one of a duly authorized issue of
securities of the Company, issued and to be issued under an Indenture, dated as
of April 1, 1983, as amended (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 Callable MITTS Securities, and the terms upon which the
Callable MITTS Securities are, and are to be, authenticated and delivered.
The Company hereby covenants for the benefit of the Holders of the
Callable MITTS Securities, to the extent permitted by applicable law, not to
claim voluntarily the benefits
of any laws concerning usurious rates of interest against a Holder of the
Callable MITTS Securities.
The Callable MITTS Securities are not subject to redemption by the
Company or at the option of the Holder prior to the Stated Maturity.
In case an Event of Default with respect to any Callable MITTS
Securities shall have occurred and be continuing, the amount payable to a Holder
of a Callable MITTS Security upon any acceleration permitted by the Callable
MITTS Securities, with respect to each $10 principal amount thereof, will be
equal to the $10 principal amount and the Supplemental Redemption Amount, if
any, calculated assuming (i) the date of early repayment is the Stated Maturity
of the Callable MITTS Securities and (ii) the Adjustment Factor will be applied
to the values used to calculate the Supplemental Redemption Amount as if the
Callable MITTS Securities had not been accelerated and had remained outstanding
to the Stated Maturity.
In case of default in payment of the Callable MITTS Securities
(whether at the Stated Maturity or upon acceleration), from and after the
maturity date the Callable MITTS Securities 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 Callable MITTS
Securities 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 Callable MITTS Securities of each
series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of not less than 66 2/3% in aggregate
principal amount of the Callable MITTS 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 Callable MITTS Securities of each series at the time
Outstanding, on behalf of the Holders of all Callable MITTS 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 Callable MITTS Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Callable MITTS Security and of any Callable MITTS Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent or waiver is made upon this Callable MITTS
Security.
No reference herein to the Indenture and no provision of this Callable
MITTS Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the Principal Amount plus
the Supplemental Redemption Amount, if any, with respect to this Callable MITTS
Security and any interest on any overdue amount thereof at the time, place, and
rate, and in the coin or currency herein prescribed.
As provided in the Indenture and subject to certain limitations set
forth therein and on the first page hereof, the transfer of this Callable MITTS
Security may be registered on the Security Register of the Company, upon
surrender of this Callable MITTS Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The
City of New York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company duly executed by, the Holder hereof
or by his attorney duly authorized in writing, and thereupon one or more new
Callable MITTS Securities, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Callable MITTS Securities are issuable only in registered form
without coupons in denominations of $10 and integral multiples thereof. This
Callable MITTS Security 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 Callable MITTS Security
shall be exchangeable or (z) an Event of Default has occurred and is continuing
with respect to the Callable MITTS Securities, this Callable MITTS Security
shall be exchangeable for Callable MITTS Securities in definitive form of like
tenor and of an equal aggregate Principal Amount, in denominations of $10 and
integral multiples thereof. Such definitive Callable MITTS Securities shall be
registered in such name or names as the Depository shall instruct the Trustee.
If definitive Callable MITTS Securities are so delivered, the Company may make
such changes to the form of this Callable MITTS Security as are necessary or
appropriate to allow for the issuance of such definitive Callable MITTS
Securities.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or governmental charge payable in connection therewith.
Prior to due presentment of this Callable MITTS Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Callable MITTS Security
is registered as the owner hereof for all purposes, whether or not this Callable
MITTS Security be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.
All terms used in this Callable MITTS Security which are defined in
the Indenture but not in this Callable MITTS Security shall have the meanings
assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by
The Chase Manhattan Bank, the Trustee under the Indenture, or its successor
thereunder, by the manual signature of one of its authorized officers, this
Callable MITTS Security shall not be entitled to any benefits under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: March 3, 2000
CERTIFICATE OF AUTHENTICATION Xxxxxxx Xxxxx & Co., Inc.
This is one of the Securities of the series
designated therein referred to in the
within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee [Copy of Seal] By:
Treasurer
By: Attest:
Authorized Officer Secretary
