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. R- CUSIP No. 590188 A24 $
XXXXXXX XXXXX & CO., INC.
MEDIUM-TERM NOTE,
SERIES B
0.50% Callable and Exchangeable Notes due February , 2005
(Linked to the performance of a specified portfolio of common stocks) (the
"Notes")
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 February , 2005 (the "Maturity
Date") by delivering to CEDE & CO., or registered assigns with respect to the
principal amount hereof, DOLLARS ($ ), an amount equal to
the greater of (i) the value of the Portfolio which is equal to the sum of the
products, for each of the Portfolio Securities, of (a) the Market Price of the
Portfolio Common Stock, for each of the Portfolio Securities, multiplied by (b)
the applicable Share Multiplier for each of the Portfolio Securities for the
third scheduled Trading Day immediately prior to maturity (provided, however,
that if the delivery on the Maturity Date is based on the foregoing formula, no
interest shall accrue on the Notes from and including August , 2004 through
the Maturity Date) or (ii) $1,000 in cash plus accrued and unpaid interest
through but excluding the Maturity Date, or 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 February , 2000, or from the
most
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recent date in respect of which interest has been paid or duly provided
for, semiannually in arrears on February and August , in each year (each
an "Interest Payment Date"), commencing August , 2000, at the rate of 0.50%
per annum (the "Interest Rate"), until the principal amount is paid or duly made
available for payment. If the value of (i) above is less than (ii) above on the
third scheduled Trading Day prior to the Maturity Date, we will pay you the
value of (ii) in U.S. dollars. If the value of (i) above is greater than (ii)
above on the third scheduled Trading Day prior to the Maturity Date, the Company
will deliver to you on the applicable settlement date the number of shares of
Portfolio Common Stock equal to the respective Share Multiplier for each of the
Portfolio Securities as of the third scheduled Trading Day prior to the
Maturity; provided, however, that the Company will pay the Holder of the Notes
cash in lieu of delivering fractional shares, in an amount as determined by the
Calculation Agent. The Notes will be issued in minimum 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 ten 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.
Payment of interest and the amounts payable or deliverable, as the case may
be, upon exchange, redemption or at maturity (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 (or the Portfolio Common
Stock, or other securities or property, if any, if the Holder of this Note
exercises its Exchange Right (as defined below) or the amount due at maturity is
satisfied in shares of the Portfolio Common Stock) to the Trustee for delivery
to the Holder of this Note in respect of such payments or deliveries.
The Company may redeem all of the Notes, at any time, on any Business Day
after February , 2002, upon not more than 30 nor fewer than 15 calendar days
notice to the Holders of the Notes. Any date upon which the Company gives the
Holders of the Notes notice that it is redeeming the Notes is referred to herein
as the "Redemption Notice Date". Unless the Holder has exchanged Notes prior to
February , 2002, the Holder will receive interest through and including
February , 2002 regardless of whether we redeem all of the Notes after
February , 2002. If the Company redeems the Notes, for each $1,000 principal
amount of Notes owned by a Holder of the Notes, the Company shall deliver or pay
such an amount equal to the greater of: (i)
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the value of the Portfolio which is equal to the sum of the products, for each
of the Portfolio Securities, of (a) the Market Price of the Portfolio Common
Stock, for each of the Portfolio Securities, multiplied by (b) the applicable
Share Multiplier for each of the Portfolio Securities on the Trading Day
immediately following the applicable Redemption Notice Date; provided, however,
that if the amount the Holder receives is based upon the foregoing formula, no
interest shall accrue on the Notes from and including the immediately preceding
Interest Payment Date through the date of early redemption; or (ii) $1,000 in
cash plus accrued and unpaid interest through but excluding the date of early
redemption. If the value of (i) above is greater than (ii) above on the Trading
Day following the applicable Redemption Notice Date, the Company will deliver to
you on the applicable settlement date the number of shares of Portfolio Common
Stock equal to the respective Share Multiplier for each of the Portfolio
Securities as of the Trading Day following the applicable Redemption Notice
Date; provided, however, that the Company will pay the Holder of the Notes cash
in lieu of delivering fractional shares, in an amount as determined by the
Calculation Agent. If the Company redeems the Notes, the Holder is precluded as
of the Redemption Notice Date from exercising its exchange right.
On any Trading Day during the period beginning February , 2000 and ending
the earlier of (i) 15 scheduled Trading Days before the Maturity Date or (ii)
the Redemption Notice Date, upon written notice to the Calculation Agent and the
Trustee (in the form of Annex A attached hereto), the Holder of this Note may
exchange the Notes for the "Exchange Amount" (as defined herein). Any date on
which the Holder provides notice to cause the Company to exchange the Notes is
referred to as the "Exchange Notice Date". If the Calculation Agent receives
the Holder's notice after 3:00 p.m. on any Trading Day, the Calculation Agent
will consider such notice as received on the following Trading Day. If the
Holder chooses to exercise its Holder exchange right, the Company may no longer
redeem the Notes as of the applicable Exchange Notice Date. The "Exchange
Amount" means, for each $1,000 principal amount of the Notes the Holder
exchanges, a number of shares of the Portfolio Common Stock equal to the
applicable Share Multiplier for each of the Portfolio Securities on the Trading
Day following the day the Calculation Agent receives written notice of the
Holder's intention to exchange his Notes; provided, however, no interest will
accrue from and including the immediately preceding Interest Payment Date
through the date of exchange. The Company will deliver such shares to the
Holder on the applicable settlement date; provided, however, that the Company
will pay you cash in lieu of delivering fractional shares in an amount as
determined by the Calculation Agent.
As used herein:
"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.
"Calculation Agent" means Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated ("MLPF&S"). All determinations made by the Calculation Agent shall
be at the sole discretion of the Calculation Agent and, absent a manifest error,
shall be conclusive for all purposes and binding on the Company and beneficial
owners of the Notes.
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"Lucent" means Lucent Technologies, Inc., a Delaware corporation.
"Lucent Common Stock" means the common stock of Lucent.
"Market Disruption Event" means
(i) a suspension, absence (including the absence of an official
closing price) or material limitation of trading of any Portfolio Security
on the NYSE for more than two hours of trading or during the one-half hour
period preceding or at the close of trading in such market, as determined
by the Calculation Agent in its sole discretion; or the suspension or
material limitation on the primary market for trading in options contracts
related to any Portfolio Security, if available, during the one-half hour
period preceding or at the close of trading in the applicable market, in
each case as determined by the Calculation Agent in its sole discretion;
and
(ii) a determination by the Calculation Agent in its sole discretion
that the event described in clause (i) above materially interfered with the
ability of the Company or any of its affiliates or MLPF&S to unwind all or
a material portion of the hedge with respect to the Notes or to purchase
shares of the Portfolio Common Stock for the purpose of delivering either
the Exchange Amount or an amount due at maturity.
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 options contract will not constitute a
Market Disruption Event, (3) limitations pursuant to any rule or regulation
enacted or promulgated by the NYSE (or other regulatory organization with
jurisdiction over the NYSE) on trading during significant market fluctuations
will constitute a suspension or material limitation of trading in any Portfolio
Security, (4) a suspension of trading in an options contract on any Portfolio
Security Common Stock by the primary securities market trading in such options,
if available, by reason of (x) a price change exceeding limits set by such
securities exchange or 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 options
contracts related to such Portfolio Security and (5) a suspension, absence or
material limitation of trading on the primary securities market on which options
contracts related to any Portfolio Security are traded will not include any time
when such securities market is itself closed for trading under ordinary
circumstances.
If the Transaction Value includes securities other than the Portfolio
Security, then the above definition shall be revised to include each such
security in the same manner as the Portfolio Security is considered in
determining whether a Market Disruption Event exists. The definition of Market
Disruption Event shall only consider those securities included in determining
the Transaction Value, and thus if such Portfolio Security is not included in
the determination of the Transaction Value, then the Portfolio Security shall
not be considered in determining whether a Market Disruption Event exists.
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"Market Price" means, for any date of determination on any Trading Day, the
official closing price, in the afternoon session, as applicable, of one share of
any Portfolio Security as reported by the principal exchange on which each of
the Portfolio Securities is traded on such date. If the official closing price
is not available for any reason, including, without limitation, the occurrence
of a Market Disruption Event, the Market Price for any Portfolio Security for
any date shall be the arithmetic mean, as determined by the Calculation Agent,
of the bid prices for the security obtained from as many dealers in the
security, but not exceeding three, as will make the bid prices available to the
Calculation Agent after 3:00 p.m., local time in such principal market, on such
date.
"Nortel" means Nortel Networks Corporation, a Canadian corporation.
"Nortel Common Stock" means the common stock of Nortel.
"NYSE" means the New York Stock Exchange.
"Portfolio" or "Portfolio Common Stock" means the common stock of Lucent,
Nortel and Texas Instruments.
"Share Multiplier" initially means [ ] for Lucent, [ ] for Nortel and
[ ] for Texas Instruments, but shall be subject to adjustment by the
Calculation Agent, as provided herein, through and including the Maturity Date.
"Texas Instruments" means Texas Instruments Incorporated, a Delaware
corporation.
"Texas Instruments Common Stock" means the common stock of Texas
Instruments.
"Trading Day" means a day on which the NYSE, the American Stock Exchange
and the Nasdaq Stock Market are open for trading, as determined by the
Calculation Agent.
Dilution and Reorganization Adjustments
The Share Multiplier with respect to any Portfolio Security used to
calculate the amount deliverable to a Holder on any date of determination is
subject to adjustment by the Calculation Agent as a result of the dilution and
reorganization adjustments described below.
1. If a Portfolio Security is subject to a stock split or reverse stock split,
then once such split has become effective, the Share Multiplier relating to such
Portfolio Security shall be adjusted to equal the product of the prior Share
Multiplier and the number of shares which a holder of one share of the Portfolio
Common Stock, prior to the effective date of such stock split or reverse stock
split, would have owned or been entitled to receive immediately following the
applicable effective date.
2. If a Portfolio Security is subject to a stock dividend (i.e., issuance of
additional shares of the Portfolio Security) that is given ratably to all
holders of shares of the common stock of the
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issuer of such Portfolio Security, then once such shares are trading
ex-dividend, the Share Multiplier will be adjusted so that the new Share
Multiplier shall equal the prior Share Multiplier plus the product of: (a) the
number of shares of the Portfolio Security issued with respect to one share of
such Portfolio Security multiplied by (b) the prior Share Multiplier.
3. There will be no adjustments to the Share Multiplier to reflect cash
dividends or distributions paid, if any, with respect to a Portfolio Security
other than distributions described under clause (e) of paragraph 5 below and
Extraordinary Dividends as described below. An "Extraordinary Dividend" means,
with respect to a cash dividend or other distribution with respect to a
Portfolio Security to the extent such dividend or other distribution exceeds the
immediately preceding non-Extraordinary Dividend for such Portfolio Security by
an amount equal to at least 10% of the Market Price of such Portfolio Security
on the Trading Day preceding the ex-dividend date with respect to such
Extraordinary Dividend (the "ex-dividend date"). If an Extraordinary Dividend
occurs with respect to a Portfolio Security, the Share Multiplier will be
adjusted on the ex-dividend date with respect to such Extraordinary Dividend so
that the new Share Multiplier will equal the product of: (a) the then current
Share Multiplier multiplied by (b) a fraction, the numerator of which is the
closing price per share of the issuer of such Portfolio Security on the Trading
Day preceding the ex-dividend date, and the denominator of which is the amount
by which the closing price on the Trading Day preceding the ex-dividend date
exceeds the Extraordinary Dividend Amount. The "Extraordinary Dividend Amount"
with respect to an Extraordinary Dividend for the Portfolio Security will equal:
(1) in the case of cash dividends or other distributions that constitute
quarterly dividends, the amount per share of such Extraordinary Dividend minus
the amount per share of the immediately preceding non-Extraordinary Dividend, or
(2) in the case of cash dividends or other distributions that do not constitute
quarterly dividends, the amount per share of such Extraordinary Dividend. To
the extent an Extraordinary Dividend is not paid in cash, the value of the non-
cash component will be determined by the Calculation Agent, whose determination
shall be conclusive. A distribution on a Portfolio Security described in clause
(e) of paragraph 5 below that also constitutes an Extraordinary Dividend shall
cause an adjustment to the Share Multiplier pursuant only to clause (3) of
paragraph 5 below.
4. If the issuer of one of the Portfolio Securities issues transferable rights
or warrants to all holders of such Portfolio Security to subscribe for or
purchase such Portfolio Security, including new or existing rights to purchase
such Portfolio Security pursuant to a shareholder's rights plan or arrangement,
once a triggering event shall have occurred thereunder, at an exercise price per
share less than the closing price of one share of such Portfolio Security on:
(a) the date the exercise price of such rights or warrants is determined and (b)
the expiration date of such rights or warrants, then, in each case, if the
expiration date of such rights or warrants precedes the Maturity Date, then the
Share Multiplier will be adjusted to equal the product of the prior Share
Multiplier and a fraction, the numerator of which shall be the number of shares
of such Portfolio Security outstanding immediately prior to such issuance plus
the number of additional shares of
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such Portfolio Security so offered for subscription or purchase pursuant to such
rights or warrants and the denominator of which shall be the number of shares of
such Portfolio Security outstanding immediately prior to such issuance plus the
number of additional shares of such Portfolio Security which the aggregate
offering price of the total number of shares of such Portfolio Security so
offered for subscription or purchase pursuant to such rights or warrants would
purchase at the closing price of one share of such Portfolio Security on the
expiration date of such rights or warrants, which shall be determined by
multiplying such total number of shares offered by the exercise price of such
rights or warrants and dividing the product so obtained by such closing price.
5. If before the maturity date of the notes, (a) there occurs any
reclassification or change of any Portfolio Security, (b) the issuer of such
Portfolio Security, or any surviving entity or subsequent surviving entity of
the issuer of such Portfolio Security (a "Successor Entity"), has been subject
to a merger, combination or consolidation and is not the surviving entity, (c)
any statutory exchange of securities of any issuer of the Portfolio Securities
or any Successor Entity with another corporation occurs, other than pursuant to
clause (b) above, (d) any issuer of the Portfolio Securities is liquidated, (e)
any issuer of the Portfolio Securities issues to all of its shareholders equity
securities of an issuer other than such issuer of the Portfolio Securities,
other than in a transaction described in clauses (b), (c) or (d) above (a "Spin-
off Event"), or (f) a tender or exchange offer is consummated for all the
outstanding shares of any issuer of the Portfolio Securities (any such event in
clauses (a) through (f) a "Reorganization Event"), the Market Price for any such
Portfolio Security shall be equal to the Reorganization Event Value. The
"Reorganization Event Value" shall be determined by the Calculation Agent and
shall equal (i) the Transaction Value related to the relevant Reorganization
Event, plus (ii) in the event described in clause (1) below only, interest on
such Transaction Value accruing from the date of the payment or delivery of the
consideration, if any, received in connection with such Reorganization Event
until the Maturity Date or upon earlier redemption or exchange, as the case may
be, at a fixed interest rate determined on the date of such payment or delivery
equal to the interest rate that would be paid on a standard senior non-callable
debt security of the Company with a term equal to the remaining term of the
notes. "Transaction Value" means the sum of the following: (1) for any cash
received in any such Reorganization Event, an amount equal to the amount of cash
received per share of the Portfolio Common Stock multiplied by the Share
Multiplier in effect on the date all of the holders of shares of such Portfolio
Security have agreed or have become irrevocably obligated to exchange such
shares, (2) for any property other than cash or securities received in any such
Reorganization Event, the market value, as determined by the Calculation Agent,
of such property received for each share of such Portfolio Security at the date
of the receipt of such property multiplied by the then current Share Multiplier,
(3) for any security received in any such Reorganization Event, an amount equal
to the Market Price per share of such security for the third scheduled Trading
Day immediately prior to the maturity date or date of early redemption, as the
case may be, multiplied by the quantity of such security received for each share
of such Portfolio Security multiplied by the then current Share Multiplier;
provided, however, in the event the Holder elects to exchange his Notes, the
Market Price per share of that security will be on the Trading Day following the
day the Calculation Agent receives written notice of the Holder's intention to
exchange such notes, and (4) for any security received in the case of a Spin-off
Event, in addition to the shares such Portfolio Security, an amount equal to (a)
the Market Price per share of such security for the third scheduled Trading Day
immediately prior to the Maturity Date or date of early redemption, as the case
may be, multiplied by (b) the quantity of
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such security received for each share of such Portfolio Security multiplied by
the then current Share Multiplier; provided, however, in the event the Holder of
the Notes elects to exchange his notes, the Market Price per share of that
security will be on the Trading Day following the day the Calculation Agent
receives written notice of the Holder's intention to exchange his notes. The
Share Multiplier with respect to any such securities shall equal the product of
the Share Multiplier in effect for the Portfolio Security at the time of the
issuance of such securities multiplied by the number of shares of such
securities issued with respect to one share of such Portfolio Security. The
Share Multiplier of any such securities will be subject to the same adjustments
as that of the Share Multiplier of the Portfolio Security. "Exchange Property"
means the securities, cash or any other assets distributed in any such
Reorganization Event, including, in the case of a Spin- off Event, the share of
the Portfolio Security with respect to which the spun- off security was issued.
For purposes of paragraph 5 above, in the case of a consummated tender or
exchange offer for all Exchange Property of a particular type, Exchange Property
shall be deemed to include the amount of cash or other property paid by the
offeror in the tender or exchange offer with respect to such Exchange Property,
in an amount determined on the basis of the rate of exchange in such tender or
exchange offer. In the event of a tender or exchange offer with respect to
Exchange Property in which an offeree may elect to receive cash or other
property, Exchange Property shall be deemed to include the kind and amount of
cash and other property received by offerees who elect to receive cash.
Notwithstanding anything to the contrary in this Note, if the Holder elects
to exchange the Notes or if the Portfolio Common Stock is delivered at maturity,
the Exchange Amount or amount due at maturity, as applicable, will be adjusted
in the following manner: (1) In the case of a Spin-off Event, the amount to be
delivered shall be calculated so as to include any securities received in any
such Spin-off Event in addition to the shares of the Portfolio Common Stock
already included in the amount due at maturity or the Exchange Amount. The
Share Multiplier with respect to any such securities shall equal the product of
the Share Multiplier in effect for the applicable Portfolio Security at the time
of the issuance of such securities multiplied by the number of shares of such
securities issued with respect to one share of such Portfolio Common Stock. The
Share Multiplier of any such securities will be subject to the same adjustments
as that of the Share Multiplier of the applicable Portfolio Security, and (2)
if the issuer of such Portfolio Security, or any Successor Entity, has been
subject to a merger, combination or consolidation and is not the surviving
entity, or a tender or exchange offer is consummated for all the outstanding
shares of such issuer, then the amount to be delivered shall be calculated to
include securities, if any, received in any such event instead of such Portfolio
Common Stock. The Share Multiplier with respect to any such securities shall
equal the product of the Share Multiplier in effect for such Portfolio Common
Stock at the time of the issuance of such securities multiplied by the number of
shares of such securities issued with respect to one share of the Portfolio
Common Stock. The Share Multiplier of any such securities will be subject to
the same adjustments as that of the Share Multiplier of the Portfolio Common
Stock.
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No adjustments to the Share Multiplier will be required unless such Share
Multiplier adjustment would require a change of at least 0.1% in the Share
Multiplier then in effect. The Share Multiplier resulting from any of the
adjustments specified above will be rounded to the nearest one thousandth with
five ten-thousandths being rounded upward.
No adjustments to the Share Multiplier will be required other than those
specified above. However, the Company may, at its sole discretion, cause the
Calculation Agent to make additional adjustments to the Share Multiplier to
reflect changes occurring in relation to any Portfolio Security or any other
Exchange Property in other circumstances where the Company determines that it is
appropriate to reflect such changes. The required adjustments specified above
do not cover all events that could affect the closing price as applicable to
such Portfolio Security, including, without limitation, a partial tender or
exchange offer for such Portfolio Security.
The Calculation Agent shall be solely responsible for the determination and
calculation of any adjustments to the Share Multiplier and of any related
determinations and calculations with respect to any distributions of stock,
other securities or other property or assets, including cash, in connection with
any corporate event described above, and its determinations and calculations
with respect thereto shall be conclusive absent manifest error.
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.
No adjustments shall be made for certain other events, such as offerings of
the Portfolio Common Stock by the issuer of such Portfolio Security for cash or
in connection with acquisitions or the occurrence of a partial tender or
exchange offer for the common stock of the issuer of such Portfolio Security by
such issuer or any third party.
The Company shall, within ten Business Days following the occurrence of an
event that requires an adjustment to the Share Multiplier, or if the Company is
not aware of such occurrence, as soon as practicable after becoming so aware,
provide written notice to the Trustee, which shall provide notice to the holders
of the notes of the occurrence of such event and, if applicable, a statement in
reasonable detail setting forth the adjusted Share Multiplier.
9
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 principal amount of
the Note plus accrued but unpaid interest thereon to but excluding the date of
early repayment, if applicable, calculated as though the date of early repayment
were the stated maturity date of the Notes.
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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 % 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 exchange 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.
11
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: February , 2000
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
12
ANNEX A
OFFICIAL NOTICE OF EXERCISE OF XXXXXX'S EXCHANGE RIGHT
0.50% Callable and Exchangeable Medium-Term Notes due February , 2005
(Linked to the performance of a specified portfolio of common stock)
Dated: [On or prior to the fifteenth scheduled Trading Day prior to
February , 2005]
Xxxxxxx Xxxxx & Co., Inc.
World Financial Center
South Tower, 5th Floor
New York, New York 00000-0000
Fax No.: (000) 000-0000
(Attn: Treasury)
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated, as Calculation Agent
World Financial Center
North Tower, 5th Floor
New York, New York 00000-0000
Fax No.: (000) 000-0000
(Attn: Operations (Xxxxxxx Xxxxxxxx))
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
(Attn: Corporate Trust Department)
Dear Sirs:
The undersigned holder of the 0.50% Callable and Exchangeable Medium-Term
Notes due February , 2005 of Xxxxxxx Xxxxx & Co., Inc. (Linked to the
performance of a specified portfolio of common stock) (the "Notes") hereby
irrevocably elects to exercise with respect to the number of Notes indicated
below, as of the date hereof, provided that such day is prior to the fifteenth
scheduled Trading Day prior to February , 2005, the Holder's Exchange Right as
described in Pricing Supplement dated January ,2000 (the "Pricing Supplement")
to the Prospectus Supplement dated May 6, 1999 and the Prospectus dated May 6,
1999. Capitalized
1
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, whereupon the Company will deliver a specified number of common
stock, in accordance with the terms of the Notes described in the Pricing
Supplement.
Very truly yours,
_____________________________
[Name of Holder]
By:_________________________________________
[Title]
_____________________________________________
[Fax No.]
$___________________________________________
Number of Notes surrendered for exercise of the Right to Receive the
Equivalent Share Amount
If you want the portfolio stock made out in another person's name, fill in
the form:
____________________________
(Insert person's soc. sec. or tax ID no.)
_____________________________
(Print or type person's name, address and zip code)
_____________________________
Date: _______________________________
Your Signature:______________________________________
2
Receipt of the above Official
Notice of Holder's Exchange Right is hereby acknowledged
XXXXXXX XXXXX & CO., INC., as Issuer
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX INCORPORATED,
as Calculation Agent
By THE CHASE MANHATTAN BANK,
as Trustee
By:_________________________________________________
Title:
Date and time of acknowledgment ____________________
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.
