EXHIBIT 99(B)
THIS 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
MITTS SECURITIES IN CERTIFICATED FORM, THIS 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
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 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- Units
CUSIP (Each Unit representing $10 principal
amount of MITTS Securities)
XXXXXXX XXXXX & CO., INC.
Nikkei 225 Market Index Target-Term Securities(R)
due June , 2007
("MITTS Securities")
Xxxxxxx Xxxxx & Co., Inc., a Delaware corporation (hereinafter
referred to as the "Company", which term includes any successor corporation
under the Indenture herein referred to), for value received, hereby promises to
pay to CEDE & CO., or its registered assigns, the principal sum of
MILLION DOLLARS ($ ) (the "Principal Amount") plus the Supplemental
Redemption Amount, as defined below, if any, on June , 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 MITTS Security is one of the series of Nikkei 225 Market Index
Target-Term Securities due June , 2007.
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Supplemental Redemption Amount
The "Supplemental Redemption Amount" with respect to this MITTS
Security equals:
(Ending Value-Starting Value)
Principal Amount x (---------------------------) x Participation Rate
( 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 Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated (the
"Calculation Agent") and will equal the average or arithmetic mean of the
closing values of the Nikkei 225 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 or arithmetic mean of the closing values of the
Nikkei 225 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 Nikkei 225 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 Nikkei 225 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.
The "Participation Rate" equals ___%.
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 Nikkei 225 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 MITTS
Securities.
Adjustments to the Nikkei 225 Index; Market Disruption Events
If at any time Nihon Keizai Shimbun, Inc. ("NKS") changes its method
of calculating the Nikkei 225 Index, or the value of the Nikkei 225 Index
changes, in any material respect, or if the Nikkei 225 Index is in any other way
modified so that the Nikkei 225 Index
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does not, in the opinion of the Calculation Agent, fairly represent the value of
the Nikkei 225 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 Nikkei 225
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 Nikkei 225 Index as if those
changes or modifications had not been made, and calculate the closing value with
reference to the Nikkei 225 Index, as adjusted. Accordingly, if the method of
calculating the Nikkei 225 Index is modified so that the value of the Nikkei 225
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
Nikkei 225 Index in order to arrive at a value of the Nikkei 225 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, material limitation or absence of trading on the Tokyo
Stock Exchange (the "TSE") of 20% or more of the Underlying Stocks
which then comprise the Nikkei 225 Index or a successor index during
the one-half hour period preceding the close of trading on the
applicable exchange; or
(b) the suspension or material limitation on the Singapore International
Monetary Exchange, Ltd., the Osaka Securities Exchange or any other
major futures or securities market from trading in futures or options
contracts related to the Nikkei 225 Index or a successor index during
the one-half hour period preceding the close of trading on the
applicable exchange.
For the purpose of the above definition:
(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 futures
or options contract will not constitute a Market Disruption Event;
(3) a suspension in trading in a futures or options contract on the Nikkei
225 Index by a major securities market by reason of (a) a price change
violating limits set by that securities market, (b) an imbalance of
orders relating to those contracts, or (c) a disparity in bid and ask
quotes relating to those contracts will constitute a suspension or
material limitation of trading in futures or options contracts related
to the Nikkei 225 Index; and
(4) an absence of trading on the TSE will not include any time when the
TSE is closed for trading under ordinary circumstances.
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Discontinuance of the Nikkei 225 Index
If NKS discontinues publication of the Nikkei 225 Index and NKS or
another entity publishes a successor or substitute index that the Calculation
Agent determines, in its sole discretion, to be comparable to the Nikkei 225
Index (a "Successor Index"), then, upon the Calculation Agent's notification of
its determination to the Trustee (as defined below) and the Company, the
Calculation Agent will substitute the Successor Index as calculated by NKS or
any other entity for the Nikkei 225 Index and calculate the Ending Value as
described above under "Supplemental Redemption Amount". Upon any selection by
the Calculation Agent of a Successor Index, the Company shall cause notice to be
given to holders of the MITTS Securities.
In the event that NKS discontinues publication of the Nikkei 225 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 Nikkei 225 Index
in accordance with the procedures last used to calculate the Nikkei 225 Index
before any discontinuance. If a Successor Index is selected or the Calculation
Agent calculates a value as a substitute for the Nikkei 225 Index as described
below, the Successor Index or value will be used as a substitute for the Nikkei
225 Index for all purposes, including for purposes of determining whether a
Market Disruption Event exists, and the Calculation Period and the Calculation
Days shall be determined as if each Business Day were an Index Business Day.
If the NKS discontinues publication of the Nikkei 225 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, and
. 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 Supplemental 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" is any day on which the NYSE and the AMEX are open
for trading.
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General
This 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 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 MITTS Securities, and the terms upon which the MITTS
Securities are, and are to be, authenticated and delivered.
The Company hereby covenants for the benefit of the Holders of the
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 MITTS Securities.
The 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 MITTS Securities shall
have occurred and be continuing, the amount payable to a Holder of a MITTS
Security upon any acceleration permitted by the 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 as though the date of
early repayment is the Stated Maturity of the MITTS Securities.
In case of default in payment of the MITTS Securities (whether at the
Stated Maturity or upon acceleration), from and after the maturity date the
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 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 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 MITTS
Security shall be conclusive and binding upon such Holder and upon all future
Holders of this MITTS Security and of any MITTS Security issued upon the
registration of transfer hereof
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or in exchange herefor or in lieu hereof whether or not notation of such consent
or waiver is made upon this MITTS Security.
No reference herein to the Indenture and no provision of this 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 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 MITTS Security
may be registered on the Security Register of the Company, upon surrender of
this 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 MITTS Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The MITTS Securities are issuable only in registered form without
coupons in denominations of $10 and integral multiples thereof. This 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 MITTS Security shall be exchangeable or
(z) an Event of Default has occurred and is continuing with respect to the MITTS
Securities, this MITTS Security shall be exchangeable for 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 MITTS
Securities shall be registered in such name or names as the Depository shall
instruct the Trustee. If definitive MITTS Securities are so delivered, the
Company may make such changes to the form of this MITTS Security as are
necessary or appropriate to allow for the issuance of such definitive 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 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 MITTS Security is registered as the
owner hereof for all purposes, whether or not this 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 MITTS Security which are defined in the
Indenture but not in this MITTS Security shall have the meanings assigned to
them in the Indenture.
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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
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: , 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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