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. CUSIP No. 59018 SU 36 $35,550,000
XXXXXXX XXXXX & CO., INC.
MEDIUM-TERM NOTE,
SERIES B
1.5% Principal Protected Notes due December 15, 2005
(Linked to the performance of the Dow Xxxxx EURO STOXX 50SM INDEX)
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 December 15, 2005 (the "Maturity Date")
by delivering to CEDE & CO., or registered assigns with respect to the principal
amount hereof, THIRTY-FIVE MILLION FIVE HUNDRED FIFTY THOUSAND DOLLARS
($35,550,000), an amount in U.S. dollars equal to the greater of (1) Par plus
accrued but unpaid interest or (2) Parity as calculated on the applicable
Determination Date), 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 December 3, 1998, or from the most recent date in
respect of which interest has been paid or duly provided for, semiannually in
arrears on June 15 and December 15, in each year (each an "Interest Payment
Date"), commencing June 15, 1999, at the rate of 1.5% per annum (the "Interest
Rate"), until the principal amount is paid or duly made available for payment.
The Notes will be issued in 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
10 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.
For purposes of calculating redemption at maturity of this Note, the
Determination Date shall be the fifth scheduled Trading Day preceding the
Maturity Date or, if there is a Market Disruption Event on such day, the
Determination Date will be the immediately succeeding Trading Day on which no
Market Disruption Event shall have occurred; provided that the Determination
Date will be no later than the third Trading Day preceding the Maturity Date,
notwithstanding the occurrence of a Market Disruption Event on such Trading Day.
Payment of interest and the amounts payable at maturity or upon redemption
(as described below) with respect to this Note shall be made at the office or
agency of the Company maintained for that purpose in the Borough of Manhattan,
The City of New York, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts. The Company shall, or shall cause the Calculation Agent to, deliver U.S.
Dollars to the Trustee for delivery to the Holder of this Note in respect of
such payments.
On any Business Day prior to the fifth scheduled Trading Day preceding the
Maturity Date, the Holder of this Note may redeem this Note for Parity (the
"Holder's Optional Redemption"); provided that the Holder of this Note may not
redeem this Note at its option if (i) the Company has exercised the Company's
Optional Redemption or (ii) Par is greater than or equal to Parity. The Holder
must provide a written Official Notice (in the form of Annex A attached hereto)
to the Company of its intention to exercise its redemption right. The Official
Notice must be received by the Company by 4:00 P.M. New York time on a Business
Day to be effective on such Business Day. If such notice is received after 4:00
P.M. New York time on any Business Day or on a day that is not a Business Day,
such notice shall be effective on the next day that is a Business Day. For the
purposes of calculating Parity with respect to the Holder's Optional Redemption,
the Determination Date shall be the second Trading Day immediately following
effective notice to the Company of such Holder's Optional Redemption; provided,
however, that if a Market Disruption Event should occur on such second Trading
Day, then the Determination Date shall be the next succeeding Trading Day on
which no Market Disruption Event shall have occurred; and provided, further,
that if (i) a Market Disruption Event shall have occurred for two consecutive
Trading Days or (ii) on the applicable Determination Date, Parity is less than
or equal to Par, the notice shall lapse and be of no effect and the Holder shall
provide a new Official Notice to the Company if it intends to exercise its
redemption right at any time after such lapse. On the third Business Day
following the applicable Determination Date, or on such other day as agreed to
between the Company and the Holder hereof in writing, the Company shall pay an
amount equal to Parity to the Holder upon delivery to the Company of this Note
(or that portion hereof to be redeemed).
On any Business Day on or after December 15, 2001 (the "Call Period"), the
Company, in its sole discretion, may elect to call the Notes in whole but not in
part (the "Company's Optional Redemption") at the greater of (i) Par plus
accrued but unpaid interest on the Notes or (ii) Parity by giving notice or
causing notice to be given at least 15 (but no more than 30) Business Days prior
to the intended Call Date (as defined below) (the "Call Notice Date") to the
Holders of the Notes and to the Trustee on any Business Day during the Call
Period. For the purposes of calculating Parity with respect to the Company's
Optional Redemption, the Determination Date shall be the next succeeding Trading
Day on which no Market Disruption Event shall have occurred following the Call
Notice Date. The "Call Date" means the date on which payment with respect to
the Notes is made by the Company to the Holders of the Notes upon delivery of
the Notes by the Holders thereof.
As used herein:
"Par" is $1,000 (the "Issue Price").
"Parity" means the product of (A) the Issue Price multiplied by (B) a
fraction, the numerator of which is the Closing USD Index Value, as determined
on the Determination Date, and the denominator of which is the Benchmark USD
Index Value (as such terms are defined herein). For purposes of redemption at
maturity, the Determination Date will be the fifth scheduled Trading Day
preceding the Maturity Date, subject to certain Market Disruption Events (as
defined herein).
"Benchmark USD Index Value" is $4,661.
"Index" means the Dow Xxxxx EURO STOXX 50sm, which is a capitalization-
weighted index of 50 European blue chip stocks from those countries
participating in the European Monetary Union stated in ECU initially, and after
the introduction of the euro pursuant to the Treaty (as defined herein), in
euro, and calculated on a price-return basis. The value of the Index is
available under the Bloomberg L.P. symbol "SX5E Index Go."
"Treaty" means the Treaty establishing the European Community, as amended
by the Treaty on European Union.
"Closing Index Value" for any Trading Day shall be the value of the Index
at the close of the Frankfurt Stock Exchange ("FSE") as determined by STOXX Ltd.
("STOXX").
"Noon Buying Rate" means the rate of U.S. dollars equivalent to one ECU
(and after the introduction of the euro pursuant to the Treaty, one euro) for
the applicable Trading Day as announced by the Federal Reserve Bank of New York
for customs purposes as the rate in the City of New York for cable transfers in
foreign currencies.
"Closing USD Index Value" means the product on any specified Trading Day
(the same day for the determination of both such amounts) of the Closing Index
Value multiplied by the Noon Buying Rate.
"Determination Date" means the date as set forth herein with respect to
redemption at maturity (or in the event of acceleration hereof), the Holder's
Optional Redemption and the Company's Optional Redemption.
"Trading Day" means a day on which trading is generally conducted (i) on
the FSE or its successors and (ii) on at least one exchange on which futures or
options contracts related to the Index are traded, other than a day on which
trading on any such exchange is scheduled to close prior to its regular weekday
closing time, as determined by the Calculation Agent.
"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.
"Market Disruption Event" means either of the following events as
determined by the Calculation Agent:
(a) the suspension or material limitation as determined by the
Calculation Agent for more than two hours of trading, or during the one-
half hour period preceding the close of trading on the applicable exchange,
in 20% or more, by weight, of the Underlying Securities comprising the
Index; or
(b) the suspension or material limitation, in each case, for more than
two hours of trading (whether by reason of movements in price otherwise
exceeding levels permitted by the relevant exchange or otherwise) in (A)
futures contracts related to the Index or options on such futures
contracts, which are traded on any major exchange or (B) option contracts
related to the Index which are traded on any major exchange.
For the purposes of this definition, 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.
"Calculation Agent" means Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated (including any successor thereto). All determinations made by the
Calculation Agent shall be at the sole discretion of the Calculation Agent and,
absent manifest error, shall be conclusive for all purposes and binding on the
Company and beneficial owners of the Notes. 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.
DISCONTINUANCE OF THE INDEX; ADJUSTMENTS TO THE INDEX
If STOXX discontinues publication of the Index and STOXX or another entity
publishes a successor or substitute index that the Calculation Agent determines,
in its sole discretion, to be comparable to the discontinued Index (such index
being referred to herein 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 STOXX or
such other entity for the Index.
Upon any selection by the Calculation Agent of a Successor Index, the
Company will cause written notice thereof to be furnished to the holder of this
Note.
If STOXX discontinues publication of the Index and a Successor Index is not
selected by the Calculation Agent or is no longer published, the value to be
substituted for the value of the Index for use in calculating the Closing Index
Value or Closing USD Index Value at any time will be a value computed by the
Calculation Agent in accordance with the procedures last used to calculate the
value of the Index prior to such discontinuance. If a Successor Index is
selected or the Calculation Agent calculates a value as a substitute for the
value of the Index, such Successor Index or value shall be substituted for the
value of the Index for all purposes, including for purposes of determining
whether a Market Disruption Event exists. 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.
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 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 Closing USD 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).
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 greater of (i) Par
plus accrued but unpaid interest to but not including the date of acceleration
or (ii) Parity, 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 1.5% 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 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: December 3, 1998
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
Dated: [On or after December 3, 1998]
--------------------------------------
Xxxxxxx Xxxxx & Co., Inc.
World Financial Center
South Tower, 5th Floor
New York, New York 10080-6105
Attn: Debt Administration
Fax: 000-000-0000
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated,
as Calculation Agent
World Financial Center
North Tower, 5th Floor
New York, New York 10281-1305
Attn: Operations
Fax: 000-000-0000
Dear Sirs:
The undersigned Holder of the Medium Term Notes, Series B, 1.5% Principal
Protected Notes due December 15, 2005 (Linked to the performance of Dow Xxxxx
EURO STOXX 50sm Index) of Xxxxxxx Xxxxx & Co., Inc. (the "Notes") hereby
irrevocably elects to exercise with respect to the principal amount of the Notes
indicated below, as of the date hereof (or, if this letter is received after
4:00 P.M. on any Business Day or on a day that is not a Business Day, as of the
next Business Day) the Holder's Optional Redemption as described in Pricing
Supplement dated November 24, 1998 (the "Pricing Supplement") to the Prospectus
Supplement and Prospectus dated July 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. The Company will
deliver a cash amount equal to Parity, subject to certain conditions set forth
in the Pricing Supplement, on the third Business Day after the Determination
Date with respect to the Holder's exercise of this Holder's Optional Redemption.
The Holder acknowledges that this Official Notice will lapse and be of no effect
if, with respect to the Determination Date in connection with the calculation of
Parity, (i) a Market Disruption Event shall have occurred for two consecutive
Trading Days or (ii) on the applicable Determination Date, Parity is less than
or equal to Par.
Very truly yours,
-----------------------------------------
[Name of Holder]
By:
-------------------------------------
[Title]
----------------------------------------
[Fax No.]
$
----------------------------------------
Principal Amount of Notes
to be surrendered for redemption
Receipt of the above Official
Notice is hereby acknowledged
XXXXXXX XXXXX & CO., INC., as Issuer
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX INCORPORATED,
as Calculation Agent
BY: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX INCORPORATED,
as Calculation Agent
BY:
----------------------------------------
TITLE:
Date and time of acknowledgement
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ASSIGNMENT/TRANSFER FORM
------------------------
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto
(insert Taxpayer Identification No.)
(Please print or typewrite name and address including postal zip code of
assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _______________________ attorney to transfer said Note on the books
of the Company with full power of substitution in the premises.
Dated: _____________________
NOTICE: The signature of the registered Holder to this
assignment must correspond with the name as written
upon the face of the within instrument in every
particular, without alteration or enlargement or any
change whatsoever.
