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 $10 principal
amount of MITTS Securities)
XXXXXXX XXXXX & CO., INC.
Market Index Target-Term Securities(R)
based upon the Xxxxxxx 2000(R) Index
due March , 2009
("MITTS Securities")
Xxxxxxx Xxxxx & Co., Inc., a Delaware corporation (hereinafter referred to
as the "Company", which term includes any successor corporation under the
Indenture herein referred to), for value received, hereby promises to pay to
CEDE & CO., or its registered assigns, the principal sum of ($ ) (the "Principal
Amount") plus the Supplemental Redemption Amount, as defined below, if any, on
March , 2009 (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 Market Index Target-Term
Securities(R) based upon the Xxxxxxx 2000(R) Index due March , 2009.
Supplemental Redemption Amount
The "Supplemental Redemption Amount" with respect to this MITTS Security
equals:
(Adjusted Ending Value - Starting Value)
Principal Amount x (--------------------------------------)
( Starting Value )
provided, however, that in no event will the Supplemental
Redemption Amount be less than zero. The Starting Value equals . The
Adjusted Ending Value will be determined by Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx &
Xxxxx Incorporated (the "Calculation Agent") and will equal the average
(arithmetic mean) of the closing values of the Xxxxxxx 2000 Index as reduced by
the application of the Adjustment Factor on each Calculation Day (as defined
below), 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 Adjusted Ending Value will equal the
average (arithmetic mean) of the closing values of the Xxxxxxx 2000 Index on
those Calculation Days, as reduced by the application of the Adjustment Factor
on each Calculation Day. If there is only one Calculation Day during the
Calculation Period, then the Adjusted Ending Value will equal the closing value
of the Xxxxxxx 2000 Index on that Calculation Day as reduced by the application
of the Adjustment Factor on that Calculation Day. If no Calculation Days occur
during the Calculation Period, then the Adjusted Ending Value shall equal the
closing value of the Xxxxxxx 2000 Index determined on the last scheduled Index
Business Day (as defined below) in the Calculation Period, as reduced by the
application of the Adjustment Factor on that day, regardless of the occurrence
of a Market Disruption Event (as defined below) on that Index Business Day.
The "Adjustment Factor" equals % per year and will be applied over the
entire term of the MITTS Securities. For each calendar day during the term of
the MITTS Securities, the Adjustment Factor will be applied on a pro-rated basis
based on a 365-day year to reduce the values of the Xxxxxxx 2000 Index used to
calculate the Supplemental Redemption Amount on each Calculation Day during the
Calculation Period.
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 American Stock Exchange and
The New York Stock Exchange (the "NYSE") are open for trading and the Xxxxxxx
2000 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
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be conclusive for all purposes and binding on the Company and the Holders and
beneficial owners of the MITTS Securities.
Adjustments to the Xxxxxxx 2000 Index; Market Disruption Events
If at any time Xxxxx Xxxxxxx Company ("FRC") changes its method of
calculating the Xxxxxxx 2000 Index, or the value of the Xxxxxxx 2000 Index
changes, in any material respect, or if the Xxxxxxx 2000 Index is in any other
way modified so that the Xxxxxxx 2000 Index does not, in the opinion of the
Calculation Agent, fairly represent the value of the Xxxxxxx 2000 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 Xxxxxxx 2000 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 Xxxxxxx 2000 Index as if those changes or modifications had
not been made, and calculate the closing value with reference to the Xxxxxxx
2000 Index, as adjusted. Accordingly, if the method of calculating the Xxxxxxx
2000 Index is modified so that the value of the Xxxxxxx 2000 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 Xxxxxxx 2000 Index in
order to arrive at a value of the Xxxxxxx 2000 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) the suspension or material limitation on trading 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 of the
stocks which then comprise the Xxxxxxx 2000 Index; or
(B) the suspension or material limitation, in each case, for more than two
hours of trading, or during the one-half hour period preceding the
close of trading on the applicable exchange, whether by reason of
movements in price otherwise exceeding levels permitted by the
relevant exchange or otherwise, in option contracts or futures
contracts related to the Xxxxxxx 2000 Index, or any Successor Index,
which are traded on any major U.S. exchange.
For the purpose of the above definition:
(1) 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, and
(2) for the purpose of clause (A) above, any limitations on trading during
significant market fluctuations under NYSE Rule 80A, or any applicable
rule or regulation enacted or promulgated by the NYSE or any other
self regulatory organization or
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the Securities Exchange Commission of similar scope as determined
by the Calculation Agent, will be considered "material".
Discontinuance of the Xxxxxxx 2000 Index
If FRC discontinues publication of the Xxxxxxx 2000 Index and FRC or
another entity publishes a successor or substitute index that the Calculation
Agent determines, in its sole discretion, to be comparable to the Xxxxxxx 2000
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 FRC or
any other entity for the Xxxxxxx 2000 Index and calculate the Adjusted Ending
Value as described above under "Supplemental Redemption Amount". Upon any
selection by the Calculation Agent of a Successor Index, the Company shall
promptly give notice to the beneficial owners of the MITTS Securities by
publication in a United States newspaper with a national circulation.
In the event that FRC discontinues publication of the Xxxxxxx 2000 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 Xxxxxxx 2000 Index
in accordance with the procedures last used to calculate the Xxxxxxx 2000 Index
before any discontinuance. If a Successor Index is selected or the Calculation
Agent calculates a value as a substitute for the Xxxxxxx 2000 Index as described
below, the Successor Index or value will be used as a substitute for the Xxxxxxx
2000 Index for all purposes, including for purposes of determining whether a
Market Disruption Event exists.
If FRC discontinues publication of the Xxxxxxx 2000 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 Adjusted 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 Nasdaq Stock Market
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 JPMorgan Chase 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 were the Stated Maturity of the MITTS Securities, provided, however,
the Adjustment Factor will be applied to the values used to calculate the
Supplemental Redemption Amount as if the MITTS Securities had not been
accelerated and had remained outstanding to the Stated Maturity.
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 original public
offering price or principal amount, as the case may be, of the Securities at the
time Outstanding of each series affected thereby. Holders of specified
percentages in aggregate public offering price or principal amount, as the case
may be, of the Securities of each series at the time Outstanding, on behalf of
the Holders of all Securities of each series, are permitted 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
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Holders of this MITTS Security and of any MITTS 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 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
JPMorgan Chase 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.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: March , 2002
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.
JPMorgan Chase Bank, as Trustee By:
Treasurer
By: Attest:
Authorized Officer Secretary
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