EXHIBIT 99 (B)
THIS 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
SECURITIES IN CERTIFICATED FORM, THIS 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 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 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-
CUSIP 590188 686 $
XXXXXXX XXXXX & CO., INC.
S&P 500 Inflation Adjusted Market Index Target-Term Securities(SM)
due August __, 2007
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 Adjusted Principal Amount plus the
Supplemental Redemption Amount, each as defined below, on August __, 2007 (the
"Stated Maturity").
Payment of the Adjusted Principal Amount and the Supplemental Redemption
Amount 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 Security is one of the series of S&P 500 Inflation Adjusted Market
Index Target-Term SecuritiesSM due August __, 2007 (the "Securities").
-----------------
SM "Market Index Target-Term Securities" is a service mark owned by Xxxxxxx
Xxxxx & Co., Inc.
ADJUSTED PRINCIPAL AMOUNT
The "Adjusted Principal Amount" equal the greater of (a)
DOLLARS ($ ) (the "Principal Amount") and (b) the Principal Amount
multiplied by the Final CPI divided by the Initial CPI. The Initial CPI
equals _____________. The Final CPI will be determined by Xxxxxxx Xxxxx,
Xxxxxx, Xxxxxx & Xxxxx Incorporated (the "Calculation Agent", which term also
includes any successor thereto) and will equal the value of the non-seasonally
adjusted U.S. City Average All Items Consumer Price Index for all Urban
Consumers published by the Bureau of Labor Statistics of the Department of Labor
(the "CPI") for the third calendar month prior to August , 2007, as reported on
the seventh calendar day prior to the Stated Maturity.
SUPPLEMENTAL REDEMPTION AMOUNT
The "Supplemental Redemption Amount" with respect to this Security
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 $10 per $10 Principal Amount hereof. The
"Benchmark Index Value" equals ______. The Ending Index Value will be
determined by the Calculation Agent, 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 S&P 500 Composite Stock Price
Index (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 as defined below, 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 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. For purposes of determining the Ending Index Value, an
"Index Business Day" is a day on which The New York Stock Exchange (the "NYSE")
and the American Stock Exchange
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(the "AMEX") are 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
Securities.
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 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) the suspension or material limitation (limitations pursuant to
NYSE Rule 80A (or any applicable rule or regulation enacted or
promulgated by the NYSE or any other self regulatory organization or the
Securities and Exchange Commission of similar scope as determined by the
Calculation Agent) on trading during significant market fluctuations
shall be considered "material" for purposes of this definition), in each
case, for more than two hours of trading in 100 or more of the securities
included in the Index, or
(ii) 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 which are traded
on the Chicago Mercantile Exchange or (B) option contracts related
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to the Index which are traded on the Chicago Board Options Exchange, Inc.
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.
DISCONTINUANCE OF THE INDEX
If Standard & Poor's ("S&P") discontinues publication of the Index and
S&P 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 S&P or such other entity for the Index and calculate the
Ending Index Value as described above in the second 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 Securities.
If S&P 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 Days, the value to be substituted for the Index for any such
Calculation Day used to calculate the Supplemental Redemption Amount at
maturity will be a value computed by the Calculation Agent for each Calculation
Day 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 S&P 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 Day. 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
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circulation), and arrange for information with respect to such values to be
made available by telephone.
GENERAL
This 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 and restated (herein referred to as the "Indenture"), between the
Company and The Chase Manhattan Bank, formerly known as Chemical Bank
(successor by merger to Manufacturers Hanover Trust Company), 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 Securities, and
the terms upon which the Securities are, and are to be, authenticated and
delivered.
The Company hereby covenants for the benefit of the Holders of the
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 Securities.
The Securities are not subject to redemption by the Company or at the
option of the Holder prior to the Stated Maturity.
Upon the occurrence of an Event of Default with respect to the
Securities, Holders of the Securities may accelerate the maturity of the
Securities in the manner and with the effect provided in the Indenture. The
amount payable to a Holder of this Security upon any acceleration permitted by
the Securities, with respect to each $10 principal amount thereof, will be
equal to: (i) $10, plus (ii) an additional amount of contingent interest
calculated as though the date of early repayment were the Stated Maturity of
the Securities.
In case of default in payment at the Stated Maturity of the Securities
(whether at their Stated Maturity or upon acceleration), from and after the
Stated Maturity the Securities 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 Securities 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
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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 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 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 Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and
of any 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 Security.
No reference herein to the Indenture and no provision of this 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 with respect to this 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 Security may be
registered on the Security Register of the Company, upon surrender of this
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 Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $10 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations set forth therein and on the first
page hereof, the Securities are exchangeable for a like aggregate principal
amount of Securities 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 Security shall be exchangeable
or (z) an Event of Default has occurred and is continuing with respect to the
Securities, this Security shall be
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exchangeable for Securities in definitive form of like tenor and of an equal
aggregate principal amount, in denominations of $10 and integral multiples
thereof. Such definitive Securities shall be registered in such name or names
as the Depository shall instruct the Trustee. If definitive Securities are so
delivered, the Company may make such changes to the form of this Security as
are necessary or appropriate to allow for the issuance of such definitive
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 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 Security is registered as the owner hereof for
all purposes, whether or not this 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 Security which are defined in the Indenture but
not in this 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
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:
CERTIFICATE OF AUTHENTICATION Xxxxxxx Xxxxx & Co., Inc.
This is one of the Securities of the series [Copy of Seal]
designated therein referred to in the
within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee By:
Treasurer
By: Attest:
Authorized Officer Secretary
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