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 DEPOSITORY 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 DEPOSITORY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITORY. 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. 59018Y KD2 $40,000,000
XXXXXXX XXXXX & CO., INC.
MEDIUM-TERM NOTE,
SERIES B
0.25% Callable and Exchangeable Notes due June 27, 2008
(Linked to the performance of the common stock of
Marriott International, Inc. ("Marriott")) (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 June 27, 2008 (the
"Maturity Date") (provided that the Notes previously have been neither
redeemed nor exchanged), by paying to CEDE & CO., or registered assigns, the
principal amount of FORTY MILLION DOLLARS ($40,000,000) and to pay interest
thereon at a rate of 0.25% per annum (the "Interest Rate") from June 27, 2001,
or from the most recent date in respect of which interest has been paid or
duly provided for, semiannually in arrears on June 27 and December 27, in each
year (each an "Interest Payment Date"), commencing June 27, 2001, and at the
Maturity Date, until the principal amount hereof is paid or duly made
available for payment. The interest so payable and punctually paid or duly
provided for on any Interest Payment Date shall, 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.
Except as otherwise set forth below, payment of interest and the
amounts payable 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, pay U.S. Dollars to the
Trustee for delivery to the Holder of this Note in respect of such payments.
Interest on the Notes will be computed and paid on the basis of a
360-day year of twelve 30-day months.
Company's Right to Early Redemption
The Company may redeem all of the Notes outstanding, at any time, on
any Business Day on or after June 28, 2004, 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". If the Company
redeems the Notes (including as a result of acceleration), for each $1,000
principal amount of Notes owned by a Holder of the Notes, the Company shall
pay such an amount in cash equal to the greater of (i) the product of the
Exchange Ratio and the average Market Price of the Marriott Common Stock on
the first two Calculation Days during the Calculation Period immediately
following the 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 on the Notes through but excluding the date of
early redemption. However, if there is only one Calculation Day during the
Calculation Period with respect to the Marriott Common Stock, then the amount
payable upon early redemption shall be calculated using the Market Price of
Marriott Common Stock on such Calculation Day, and if no Calculation Days
occur during the Calculation Period with respect to Marriott Common Stock,
then the amount payable upon early redemption shall be calculated using the
Market Price on the fourth scheduled Trading Day following the Redemption
Notice Date regardless of whether a Market Disruption Event occurs on such
date. The Company shall make cash payments to the Holder in U.S. dollars. Once
the Company has given notice that it will redeem the Notes, the Holder shall
be precluded from exercising the holder exchange right.
Xxxxxx's Right to Exchange the Notes
On any Trading Day during the period beginning June 27, 2001 and
ending the earlier of (i) 5 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 shall consider such notice as received on the following
Trading Day. The date the Calculation Agent is deemed to have received the
Holder's notice is referred to as the "Exchange Receipt Date". 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, the Exchange Amount shall be an amount in cash equal to the product
of the Exchange Ratio and the average Market Price for Marriott Common Stock
on the first two Calculation Days during the Calculation Period immediately
following the Exchange Receipt Date; provided, however, that the Holder shall
not receive accrued interest from and including the immediately preceding
interest payment date through the date of exchange. The Company shall pay cash
to the Holder no more than 5 Business Days after the date of determination.
However, if there is only one Calculation Day during the Calculation Period
with respect to the Marriott Common Stock, then the amount payable upon
exchange shall be calculated using the Market Price of Marriott Common Stock
on such Calculation Day, and if no Calculation Days occur during the
Calculation Period with respect to Marriott Common Stock, then the amount
payable upon exchange shall be calculated using the Market Price on the fourth
scheduled Trading Day following the applicable Exchange Receipt Date
regardless of whether a Market Disruption Event occurs on such date.
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, regulation or executive order 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.
All percentages resulting from any calculation on the Notes shall be
rounded to the nearest one hundredth-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 this calculation shall be rounded to the nearest
cent with one-half cent being rounded upwards, and all adjustments to the
Share Multiplier shall be rounded to the nearest one thousandth with five
ten-thousandths being rounded upward.
"Calculation Day" means any Trading Day during the Calculation Period
on which a Market Disruption Event has not occurred with respect to Marriott
Common Stock.
"Calculation Period" means the period from and including the first
scheduled Calculation Day immediately following the Redemption Notice Date, in
the event the Company redeems the Notes, or the Exchange Receipt Date, in the
event the Holder elects to exchange its Notes, to and including the fourth
scheduled Calculation Day following the Redemption Notice Date or the Exchange
Receipt Date, as applicable.
"Exchange Ratio" is equal to the product of 18.6598 and the Share
Multiplier.
"Market Disruption Event" means
(1) a suspension, absence, including the absence of an official
closing price, or material limitation of trading of
Marriott Common Stock on the NYSE or the Nasdaq Stock
Market for more than two hours of trading or during the
one-half hour period preceding or at the close of trading,
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
Marriott Common Stock, 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
(2) a determination by the Calculation Agent in its sole
discretion that the event described in clause (1) above
materially interfered with the ability of ML&Co. or any of
its affiliates or MLPF&S to unwind all or a material
portion of the hedge with respect to the Notes.
For purposes of determining whether a Market Disruption Event has
occurred:
(1) a limitation on the hours or number of days of trading
shall 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 shall not constitute a Market
Disruption Event,
(3) limitations pursuant to any rule or regulation enacted or
promulgated by the NYSE or the Nasdaq Stock Market or other
regulatory organization with jurisdiction over the NYSE or
the Nasdaq Stock Market on trading during significant
market fluctuations shall constitute a suspension or
material limitation of trading in Marriott Common Stock,
(4) a suspension of trading in an options contract on Marriott
Common Stock by the primary securities market trading in
the options, if available, by reason of (i) a price change
exceeding limits set by the securities exchange or market,
(ii) an imbalance of orders relating to the contracts or
(iii) a disparity in bid and ask quotes relating to the
contracts shall constitute a suspension or material
limitation of trading in options contracts related to
Marriott Common Stock, and
(5) a suspension, absence or material limitation of trading on
the primary securities market on which options contracts
related to Marriott Common Stock are traded shall not
include any time when that securities market is itself
closed for trading under ordinary circumstances.
If the Reorganization Event Amount includes the Market Price of
securities other than Marriott Common Stock, then the above definition shall
be revised to include each such security in the same manner as Marriott Common
Stock is considered in determining whether a Market Disruption Event exists.
"Market Price" means, for any date of determination on any Trading
Day, for one share of Marriott Common Stock (or any other security the price
for which a Market Price must be determined for purposes of the Notes) which
is listed on a national securities exchange in the United States, is a Nasdaq
NMS security or is included in the OTC Bulletin Board Service operated by the
NASD:
(1) the last reported sale price, regular way, on that day on
the principal United States securities exchange registered
under the Securities Exchange Act of 1934 on which that
security is listed or admitted to trading (without taking
into account any extended or after-hours trading session),
or
(2) if not listed or admitted to trading on any such
securities exchange or if the last reported sale price is
not obtainable, the last reported sale price on the
over-the-counter market as reported on the Nasdaq Stock
Market or OTC Bulletin Board on that day (without taking
into account any extended or after-hours trading session),
or
(3) if the last reported sale price is not available for any
reason, including, without limitation, the occurrence of a
Market Disruption Event, pursuant to (1) and (2) above,
the mean of the last reported bid and offer price of the
principal trading session on the over-the-counter market
as reported on the Nasdaq Stock Market or OTC Bulletin
Board on that day as determined by the Calculation Agent
or from as many dealers in such security, but not
exceeding three, as have made the bid prices available to
the Calculation Agent after 3:00 p.m., local time in the
principal market, on that date (without taking into
account any extended or after-hours trading session).
If Marriott Common Stock (or any other security for which a Market
Price must be determined for purposes of the Notes) is not listed on a
national securities exchange in the United States, is not a Nasdaq NMS
security or included in the OTC Bulletin Board Service operated by the NASD,
then the market price for any date of determination on any Trading Day means
for one share of Marriott Common Stock (or any other security for which a
Market Price must be determined for purposes of the Notes) the last reported
sale price on that day on the securities exchange on which that security is
listed or admitted to trading with the greatest volume of trading for the
calendar month preceding such Trading Day as determined by the Calculation
Agent; provided that if such last reported sale price is for a transaction
which occurred more than four hours prior to the close of that exchange, then
the Market Price shall mean the average (mean) of the last available bid and
offer price on that exchange.
If Marriott Common Stock (or any other security for which a Market
Price must be determined for purposes of the Notes) is not listed or admitted
to trading on any such securities exchange or if such last reported sale price
or bid and offer are not obtainable, then the Market Price shall mean the
average (mean) of the last available bid and offer prices in such market of
the three dealers which have the highest volume of transactions in that
security in the immediately preceding calendar month as determined by the
Calculation Agent based on information that is reasonably available to it.
If any prices are quoted in a currency other than in U.S. dollars,
the Calculation Agent shall translate such prices into U.S. dollars in order
to calculate the Market Price by using the spot rate on the same calendar day
as the date of determination for any price. The Calculation Agent shall
determine the "spot rate" for any date of calculation equal to the spot rate
of such currency per U.S. $1.00 on such date at approximately 3:00 p.m., New
York City time, as reported by a recognized reporting service for such spot
rate, provided that if the Calculation Agent shall determine that such
reported rate is not indicative of actual rates of exchange that may be
obtained in the currency exchange rate market, then the spot rate shall equal
the spot rate of such currency per U.S. $1.00 on such date at approximately
3:00 p.m., New York City time at which the Calculation Agent is able to
convert such currency into U.S. dollars.
References above to the Nasdaq Stock Market or DTC Bulletin Board
shall include any successors to such systems.
"NYSE" means the New York Stock Exchange.
"Share Multiplier" initially shall be set at 1.0, but shall be
subject to adjustment upon the occurrence of certain corporate events
described herein in the section entitled "Dilution and Reorganization
Adjustments".
"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.
"Marriott" means Marriott International, Inc.
"Marriott Common Stock" means the common stock of Marriott
International, Inc.
Dilution and Reorganization Adjustments
The Share Multiplier used to calculate the Exchange Ratio on any date
of determination shall be subject to adjustment by the Calculation Agent as a
result of the dilution and reorganization adjustments described in this
section.
Stock splits and reverse stock splits
If Marriott Common Stock is subject to a stock split or reverse stock
split, then once any split has become effective, the Share Multiplier relating
to Marriott Common Stock shall be adjusted to equal the product of the prior
Share Multiplier and the number of shares which a holder of one share of
Marriott Common Stock before the effective date of that stock split or reverse
stock split would have owned or been entitled to receive immediately following
the applicable effective date.
Stock dividends
If Marriott Common Stock is subject (i) to a stock dividend, i.e.,
issuance of additional shares of Marriott Common Stock, that is given ratably
to all holders of shares of Marriott Common Stock or (ii) to a distribution of
such shares of Marriott Common Stock as a result of the triggering of any
provision of the corporate charter of Marriott, then once the dividend has
become effective and the shares are trading ex-dividend, then the Share
Multiplier shall be adjusted so that the new Share Multiplier shall equal the
prior Share Multiplier plus the product of:
o the number of shares of Marriott Common Stock issued with respect to
one share of Marriott Common Stock and
o the prior Share Multiplier.
Extraordinary Dividends
There shall be no adjustments to the Share Multiplier to reflect cash
dividends or distributions paid, if any, with respect to Marriott Common Stock
other than distributions described under clause (e) of the section entitled
"--Reorganization Events" herein and Extraordinary Dividends as described
herein.
An "Extraordinary Dividend" means, with respect to a cash dividend or
other distribution with respect to Marriott Common Stock, the extent to which
a dividend or other distribution exceeds the immediately preceding
non-Extraordinary Dividend for Marriott Common Stock (as adjusted for any
subsequent corporate event requiring an adjustment hereunder, such as a stock
split or a reverse stock split) by an amount equal to at least 10% of the
Market Price of Marriott Common Stock on the Trading Day preceding the
ex-dividend date with respect to the Extraordinary Dividend (the "ex-dividend
date"). If an Extraordinary Dividend occurs with respect to Marriott Common
Stock, the Share Multiplier shall be adjusted on the ex-dividend date with
respect to the Extraordinary Dividend so that the new Share Multiplier shall
equal the product of:
o the prior Share Multiplier and
o a fraction, the numerator of which is the Market Price per share of
Marriott Common Stock on the Trading Day preceding the ex-dividend
date, and the denominator of which is the amount by which the Market
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 Marriott Common Stock shall equal:
o in the case of cash dividends or other distributions that constitute
quarterly dividends, the amount per share of that Extraordinary
Dividend minus the amount per share of the immediately preceding
non-Extraordinary Dividend for such shares of Marriott Common Stock,
or
o in the case of cash dividends or other distributions that do not
constitute quarterly dividends, the amount per share of that
Extraordinary Dividend.
To the extent an Extraordinary Dividend is not paid in cash, the
value of the non-cash component shall be determined by the Calculation Agent,
whose determination shall be conclusive. A distribution on Marriott Common
Stock described in clause (e) of the section entitled "--Reorganization
Events" herein that also constitutes an Extraordinary Dividend shall only
cause an adjustment to the Share Multiplier pursuant to clause (e) under the
section entitled "--Reorganization Events".
Issuance of transferable rights or warrants
If Marriott issues transferable rights or warrants to all holders of
Marriott Common Stock to subscribe for or purchase Marriott Common Stock,
including new or existing rights to purchase Marriott Common Stock 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 Market Price
of one share of Marriott Common Stock on:
o the date the exercise price of those rights or warrants is
determined and
o the expiration date of those rights or warrants,
then, in each case, if the expiration date of those rights or warrants
precedes the Maturity Date of the Notes, then the Share Multiplier shall 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 Marriott Common Stock
outstanding immediately prior to the issuance of such rights or warrants plus
the number of additional shares of Marriott Common Stock offered for
subscription or purchase pursuant to those rights or warrants and the
denominator of which shall be the number of shares of Marriott Common Stock
outstanding immediately prior to the issuance of such rights or warrants plus
the number of additional shares of Marriott Common Stock which the aggregate
offering price of the total number of shares of Marriott Common Stock so
offered for subscription or purchase pursuant to those rights or warrants
would purchase at the Market Price of one share of Marriott Common Stock on
the expiration date of those rights or warrants, which shall be determined by
multiplying the total number of shares offered by the exercise price of those
rights or warrants and dividing the product so obtained by such Market Price.
Reorganization Events
If before the maturity date of the Notes,
(a) there occurs any reclassification or change of Marriott Common
Stock, including, without limitation, as a result of the
issuance of tracking stock by Marriott,
(b) Marriott, or any surviving entity or subsequent surviving
entity of Marriott (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 Marriott or any
Successor Entity with another corporation occurs, other than
pursuant to clause (b) above,
(d) Marriott is liquidated or is subject to a proceeding under any
applicable bankruptcy, insolvency or other similar law,
(e) Marriott issues to all of its shareholders equity securities of
an issuer other than Marriott, other than in a transaction
described in clauses (b), (c) or (d) above (a "Spin-off
Event"), or
(f) a tender or exchange offer or going-private transaction is
consummated for all the outstanding shares of Marriott (an
event in clauses (a) through (f) of a "Reorganization Event"),
then the Market Price shall be adjusted to include the Reorganization Event
Amount so long as a Market Price is available. If a Market Price is no longer
available for any security, including the liquidation of the issuer of such
security or the subjection of such issuer to a proceeding under any applicable
bankruptcy, insolvency or other similar law, then the value of such security
shall equal zero for so long as no Market Price is available.
The "Reorganization Event Amount" shall be determined by the
Calculation Agent and shall equal for each $1,000 principal amount of Notes
the sum of the following:
(1) for any cash received in a Reorganization Event, an amount
equal to the amount of cash received per share of Marriott
Common Stock multiplied by the Share Multiplier in effect on
the date all of the holders of shares of Marriott Common Stock
irrevocably receive such cash,
(2) for any property other than cash or securities received in a
Reorganization Event, the market value, as determined by the
Calculation Agent, of the property received for each share of
Marriott Common Stock at the date of the receipt of the
property multiplied by the Share Multiplier in effect and
payable in cash,
(3) for any security received in a Reorganization Event, an amount
in cash equal to (a) the Market Price for such security
calculated in the same manner as the Market Price of the
Marriott Common Stock is calculated, multiplied by (b) the
number of units of such security received for each share of
Marriott Common Stock multiplied by the Share Multiplier in
effect, and
(4) for any security received in the case of a Spin-off Event, in
addition to the shares of Marriott Common Stock, an amount in
cash equal to (a) the Market Price for such security calculated
in the same manner as the Market Price of Marriott Common Stock
is calculated, multiplied by (b) the number of units of such
security received for each share of Marriott Common Stock
multiplied by the Share Multiplier in effect.
If a security is received in a Reorganization Event, the Market Price
of such security shall be included in determining any amounts due pursuant to
the Notes in the same manner as shares of Marriott Common Stock. The Share
Multiplier with respect to these securities shall equal the product of the
Share Multiplier in effect for Marriott Common Stock at the time of the
issuance of these securities multiplied by the number of shares of these
securities issued with respect to one share of Marriott Common Stock. The
Share Multiplier of these securities shall be subject to the same adjustments
as that of the Share Multiplier of Marriott Common Stock. The amount payable
shall be calculated so as to include the Market Price of any securities
received in the Spin-off Event in addition to the Market Price of shares of
Marriott Common Stock already included in the amount payable at maturity or
upon redemption or exchange.
In the event of a tender or exchange offer with respect to Marriott
Common Stock or any security received in a reorganization event in which an
offeree may elect to receive cash or other property, Marriott Common Stock or
any such security received in a reorganization event shall be deemed to
include the kind and amount of cash and other property received by offerees
who elect to receive cash.
If Marriott, 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 Marriott, then
the amount to be paid shall be calculated to include the Market Price of the
securities, if any, received in that event instead of Marriott Common Stock.
The Share Multiplier for these securities shall equal the product of the Share
Multiplier in effect for Marriott Common Stock at the time of the issuance of
the securities multiplied by the number of shares of the securities issued
with respect to one share of Marriott Common Stock. The respective Share
Multiplier for each of these securities shall be subject to the same
adjustments as that of the Share Multiplier of Marriott Common Stock.
Adjustments to the Share Multiplier
No adjustments to the Share Multiplier shall be required unless the
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 shall be rounded to the nearest one thousandth
with five ten-thousandths being rounded upward.
No adjustments to the Share Multiplier shall be required other than
those specified above. However, ML&Co. may, at its sole discretion, cause the
Calculation Agent to make additional adjustments to the Share Multiplier to
reflect changes occurring in relation to Marriott Common Stock or any other
security received in a reorganization event in other circumstances where
ML&Co. determines that it is appropriate to reflect those changes.
MLPF&S, as 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 shall be conclusive absent manifest error.
No adjustments shall be made for certain other events, such as
offerings of common stock by Marriott for cash or in connection with
acquisitions or the occurrence of a partial tender or exchange offer for
Marriott Common Stock by Marriott or any third party.
ML&Co. shall, within ten Business Days following the occurrence of an
event that requires an adjustment to the Share Multiplier, or if ML&Co. is not
aware of this 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 this event and, if applicable, a
statement in reasonable detail setting forth the adjusted Share Multiplier.
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 cash
amount as requested by the Holder. 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 with
respect to each $1,000 principal amount of the Notes shall be determined by
the Calculation Agent and shall be equal to an amount as described above under
the "Company's Right to Early Redemption" calculated as though the date of
default were the Redemption Notice Date for the Notes.
In case of default in payment of the Notes (whether at their stated
maturity or upon acceleration), from and after the maturity date the Notes
shall bear interest, payable upon demand of the beneficial owners thereof, at
the rate of 0.25% 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, shall be issued to the designated
transferee or transferees.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: June 27, 2001
CERTIFICATE OF AUTHENTICATION Xxxxxxx Xxxxx & Co., Inc.
This is one of the Securities of the [Copy of Seal]
series designated therein referred to
in the within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee By:
Treasurer
By: Attest:
Authorized Officer Secretary
ANNEX A
OFFICIAL NOTICE OF EXERCISE OF THE HOLDER EXCHANGE RIGHT
0.25% Callable and Exchangeable Medium-Term Notes due
June 27, 2008 (Linked to the performance of the common stock
of Marriott International, Inc.)
Dated: [On or prior to the seventh scheduled Trading Day prior
to June 27, 2008]
Xxxxxxx Xxxxx & Co., Inc.
2 World Financial Center
5th Floor
New York, New York 10281
Fax No.: (000) 000-0000
(Attn: Treasury)
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated,
as Calculation Agent
4 World Financial Center
5th Floor
New York, New York 10080
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 0.25% Callable and Exchangeable
Medium-Term Notes due June 27, 2008 of Xxxxxxx Xxxxx & Co., Inc. (Linked to
the performance of the common stock of Marriott International, Inc.) (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 on or
prior to the fifth scheduled Trading Day prior to June 27, 2008 and subject to
the "holder exchange right" and restrictions as set forth in the "ML&Co.
redemption" as described in Pricing Supplement dated June 20, 2001 (the
"Pricing Supplement") to the Prospectus Supplement and the Prospectus dated
January 24, 2001. Capitalized terms not defined herein have the meanings given
to such terms in the Pricing Supplement. Please date and acknowledge receipt
of this notice in the place provided below on the date of receipt, and fax a
copy to the fax number indicated, whereupon the Company shall deliver an
amount in cash, 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 amount in cash 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:---------------------------------
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.
