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 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-
CUSIP 000000XX0 $
XXXXXXX XXXXX & CO., INC.
AMEX Hong Kong 30 Index/SM/
Equity Participation Notes
due February __, 1999
Xxxxxxx Xxxxx & Co., Inc., a Delaware corporation (hereinafter referred to
as the "Company", which term includes any successor corporation under the
Indenture herein referred to), for value received, hereby promises to pay to
CEDE & CO., or registered assigns, the principal sum of
DOLLARS ($ )(the "Principal Amount") plus the Supplemental Redemption
Amount as defined below, on February __, 1999 (the "Stated Maturity").
Payment of the Principal Amount and the Supplemental Redemption Amount and
any interest on any overdue amount thereof with respect to this 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 of AMEX Hong Kong 30 Index/SM/ Equity
Participation Notes due February __, 1999 (the "Notes").
-----------------
/SM/ "AMEX Hong Kong 30 Index" is a service mark of The American Stock Exchange.
SUPPLEMENTAL REDEMPTION AMOUNT
The "Supplemental Redemption Amount" with respect to this Note equals:
Ending Index Value - Benchmark Index Value
Principal Amount X ------------------------------------------
Benchmark Index Value
provided, however, that in no event will the Supplemental Redemption Amount be
less than zero or more than $1,000 per $1,000 principal amount of Notes. The
AMEX Hong Kong 30 Index (herein referred to as the "Index") is disseminated by
The American Stock Exchange (the "AMEX"). The "Benchmark Index Value" equals
___. The Ending Index Value will be determined by Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx
& Xxxxx Incorporated (the "Calculation Agent", which term includes any successor
thereto) and will equal the average (arithmetic mean) of the closing values of
the Index determined on each of the first five Calculation Days during the
Calculation Period. If there are fewer than five Calculation Days, then the
Ending Index Value will equal the average (arithmetic mean) of the closing
values of the Index on such Calculation Days, and if there is only one
Calculation Day, then the Ending Index Value will equal the closing value of the
Index on such Calculation Day. If no Calculation Days occur during the
Calculation Period because of Market Disruption Events, then the Ending Index
Value will equal the closing value of the Index determined on the last scheduled
Index Business Day in the Calculation Period, regardless of the occurrences of a
Market Disruption Event on such day. The "Calculation Period" means the period
from and including the seventh scheduled Index Business Day prior to the
maturity date to and including the second scheduled Index Business Day prior to
the maturity date. "Calculation Day" means any Index Business Day during the
Calculation Period on which a Market Disruption Event has not occurred. For
purposes of determining the Ending Index Value, an "Index Business Day" is a day
on which The Stock Exchange of Hong Kong Ltd. (the "Hong Kong Stock Exchange" or
"HKSE") is open for trading and the Index or any Successor Index 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 beneficial owners of the Notes.
ADJUSTMENTS TO THE INDEX; MARKET DISRUPTION EVENTS
If at any time the method of calculating the Index, or the value
thereof, is changed in any material respect, or if the Index is in any other way
modified so that such Index does not, in the opinion of the Calculation Agent,
fairly represent the
2
value of the Index had such changes or modifications not been made, then, from
and after such time, the Calculation Agent shall, at the close of business in
New York, New York, on each date that the closing value with respect to the
Ending Index Value is to be calculated, make such 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 Index as if such
changes or modifications had not been made, and calculate such closing value
with reference to the Index, as adjusted. Accordingly, if the method of
calculating the Index is modified so that the value of such 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 in the Index), then the Calculation Agent shall adjust such Index in
order to arrive at a value of the Index as if it had not been modified (e.g., as
if such split had not occurred).
"Market Disruption Event" means either of the following
events, as determined by the Calculation Agent:
(i) a suspension or absence of trading on the HKSE of (a) 20% or more
of the Underlying Stocks and/or (b) the stocks of any three of the four
most highly capitalized companies included in the Underlying Stocks which
then comprise the Index or a Successor Index (as defined below); or
(ii) the suspension or material limitation on the Hong Kong Futures
Exchange (the "HK Futures Exchange") or any other major futures or
securities market of trading in futures or options contracts related to the
Hang Seng Index, the Index or a Successor Index.
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 contract will not constitute a
Market Disruption Event, (3) a suspension of trading in a futures or options
contract on the Index by the AMEX or another major securities market by reason
of (x) a price change exceeding limits set by the AMEX or such securities
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 futures or options contracts related to the
Index and (4) an "absence of trading" on the HKSE, HK Futures Exchange or a
major securities market on which futures or options contracts related to the
Index are traded will not include any time when the HKSE, HK Futures Exchange or
such securities market, as the case may be, itself is closed for trading under
ordinary circumstances.
3
DISCONTINUANCE OF THE INDEX
If the AMEX discontinues publication of the 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 such Index (any such
index being referred to hereinafter as a "Successor Index"), then, upon the
Calculation Agent's notification of such determination to the Trustee and the
Company, the Calculation Agent will substitute the Successor Index as calculated
by the AMEX or such other entity for the Index and calculate the Ending Index
Value as described above in the first paragraph of the section entitled
"Supplemental Redemption Amount." Upon any selection by the Calculation Agent
of a Successor Index, the Company shall cause notice thereof to be given to
Holders of the Notes.
If the AMEX discontinues publication of the Index and a Successor Index is
not selected by the Calculation Agent or is no longer published on any of the
Calculation Dates, the value to be substituted for the Index for any such
Calculation Date used to calculate the Supplemental Redemption Amount at
maturity will be a value computed by the Calculation Agent for each Calculation
Date in accordance with the procedures last used to calculate the Index prior to
any such discontinuance. If a Successor Index is selected or the Calculation
Agent calculates a value as a substitute for the Index as described below, such
Successor Index or value shall be substituted for the Index for all purposes,
including for purposes of determining whether a Market Disruption Event exists.
If the AMEX discontinues publication of the Index prior to the period
during which the Supplemental Redemption Amount is to be determined and the
Calculation Agent determines that no Successor Index is available at such time,
then on each Business Day until the earlier to occur of (i) the determination of
the Ending Index Value and (ii) a determination by the Calculation Agent that a
Successor Index is available, the Calculation Agent shall determine the value
that would be used in computing the Supplemental Redemption Amount as described
above as if such day were a Calculation Date. The Calculation Agent will cause
notice of each such 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 such values to be made available by
telephone.
GENERAL
This Note is one of a duly authorized issue of Notes 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
Chemical Bank (successor by merger to Manufacturers Hanover Trust Company),
Trustee (herein
4
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 or at the option of
the Holder prior to Stated Maturity.
Upon the occurrence of an Event of Default with respect to the Notes,
Holders of the Notes may accelerate the maturity of the Notes as follows: the
amount payable to a Holder of this Note upon any acceleration permitted by the
Notes, with respect to each $1,000 principal amount thereof, will be equal to:
(i) $1,000, plus (ii) an additional amount of contingent interest calculated as
though the date of early repayment were the Stated Maturity of the Note.
In case of default in payment at the Stated Maturity date of the Notes
(whether at their Stated Maturity or upon acceleration), from and after the
Stated Maturity of the Notes shall bear interest, payable upon demand of the
Holder 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. Interest on any overdue
Principal Amount or Supplemental Redemption Amount, as the case may be, shall be
payable on demand.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the 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 Notes 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 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
5
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 Principal Amount plus the Supplemental
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 principal amount, will be issued to the designated transferee or
transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations set forth therein and on the first
page hereof, the Notes are exchangeable for a like aggregate principal amount of
Notes in authorized denominations, as requested by the Holder surrendering the
same. 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 principal amount, in denominations of $1,000 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.
6
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.
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
Chemical 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.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
CERTIFICATE OF AUTHENTICATION Xxxxxxx Xxxxx & Co., Inc.
This is one of the Notes of the series [Copy of Seal]
designated therein referred to in the
within-mentioned Indenture.
Chemical Bank, as Trustee By:
Treasurer
By: Attest:
Authorized Officer Secretary
7
