EXHIBIT 99 (B)
FORM OF NOTE
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 SECURITIES
IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TRUST COMPANY (THE "DEPOSITORY") TO A NOMINEE OF THE DEPOSITORY
OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS GLOBAL NOTE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TO THE COMPANY 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 THE DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY), 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 No.: R- CUSIP No.: PRINCIPAL AMOUNT:
$
XXXXXXX XXXXX & CO., INC.
Medium-Term Notes, Series C
50/150 Notes
(the "Notes")
ORIGINAL ISSUE DATE: STATED MATURITY: INDEX:
INDEX PUBLISHER: STARTING VALUE: DEFAULT RATE:
CALCULATION AGENT: DENOMINATIONS: SPECIFIED CURRENCY:
Xxxxxxx Xxxxx, Xxxxxx, Integral multiples of $10 United States dollar
Xxxxxx & Xxxxx Incorporated (unless otherwise specified) (unless otherwise specified)
(unless otherwise specified)
1
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 Redemption Amount (as
defined below) at the Stated Maturity.
Payment or delivery of the Redemption Amount and any interest on any
overdue amount thereof with respect to this Global 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.
Payment at Stated Maturity
At the Stated Maturity, a Holder shall receive a cash payment equal
to the Redemption Amount. The "Redemption Amount" with respect to each $10
principal amount of this Global Note shall be determined by the Calculation
Agent and shall equal:
(i) If the Ending Value (as defined below) is equal or greater than
the Starting Value:
(Ending Value-Starting Value))
$10 + ($10 x 150% x (---------------------------)).
( Starting Value ))
(ii) If the Ending Value is less than the Starting Value:
(Ending Value-Starting Value))
$10 + ($10 x 50% x (---------------------------)).
( Starting Value ))
The "Ending Value" shall be determined by the Calculation Agent and
shall equal the average of the closing levels of the Index determined on each
of the first five Calculation Days (as defined below) during the Calculation
Period (as defined below). If there are fewer than five Calculation Days
during the Calculation Period, then the Ending Value shall equal the average
of the closing levels of the Index on those Calculation Days. If there is only
one Calculation Day during the Calculation Period, then the Ending Value shall
equal the closing level of the Index on that Calculation Day. If no
Calculation Days occur during the Calculation Period, then the Ending Value
shall equal the closing level of the Index determined on the last scheduled
Index Business Day (as defined below) in the Calculation Period, regardless of
the occurrence of a Market Disruption Event (as defined below) on that
scheduled Index Business Day.
The "Calculation Period" means the period from and including the
seventh scheduled Index Business Day before the Stated Maturity to and
including the second scheduled Index Business Day before the Stated Maturity.
A "Calculation Day" means any Index Business Day during the
Calculation Period on which a Market Disruption Event has not occurred.
An "Index Business Day" means any day on which the Index or any
Successor Index (as defined below) are calculated and published.
2
All determinations made by the Calculation Agent, absent a
determination of a manifest error, shall be conclusive for all purposes and
binding on the Company and the Holders and beneficial owners of this Global
Note.
Adjustments to the Index; Market Disruption Events
If at any time the Index Publisher makes a material change in the
formula for or the method of calculating the Index or in any other way
materially modifies the Index so that the Index does not, in the opinion of
the Calculation Agent, fairly represent the level of the 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 level of the 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 level of a stock index
comparable to the Index as if those changes or modifications had not been
made, and calculate the closing level with reference to the Index, as so
adjusted.
"Market Disruption Event" means either of the following events as
determined by the Calculation Agent:
(A) the suspension of 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 (without taking into account any extended or
after-hours trading session), in 20% or more of the stocks
which then comprise the Index or any Successor Index; or
(B) the suspension of 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 (without taking into account any extended or
after-hours trading session), whether by reason of movements
in price otherwise exceeding levels permitted by the
applicable exchange or otherwise, in option contracts or
futures contracts related to the Index, or any Successor
Index.
For the purpose of determining whether a Market Disruption Event has
occurred:
(1) a limitation on the hours in a trading day and/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 applicable exchange;
(2) a suspension in trading in a futures or option contract on
the Index, or any Successor Index, by a major securities
market by reason of (a) a price change violating limits set
by that securities market, (b) an imbalance of orders
relating to those contracts or (c) a disparity in bid and
ask quotes relating to those contracts shall constitute a
suspension of or material limitation on trading in futures
or option contracts related to that index;
(3) a suspension of or material limitation on trading on the
relevant exchange shall not include any time when that
exchange is closed for trading under ordinary circumstances;
and
3
(4) for the purpose of clause (A) above, any limitations on
trading during significant market fluctuations under NYSE
Rule 80B, or any applicable rule or regulation enacted or
promulgated by the NYSE or any other self regulatory
organization or the Securities and Exchange Commission of
similar scope as determined by the Calculation Agent, shall
be considered "material".
Discontinuance of the Index
If the Index Publisher discontinues publication of the Index and the
Index Publisher or another entity publishes a successor or substitute index
that the Calculation Agent determines, in its sole discretion, to be
comparable to the Index (a "Successor Index"), then, upon the Calculation
Agent's notification of that determination to the Trustee (as defined below)
and the Company, the Calculation Agent shall substitute such Successor Index
as calculated by the Index Publisher or any other entity for the Index and
calculate the Ending Value as described above under "Payment at Stated
Maturity". Upon any selection by the Calculation Agent of a Successor Index,
the Company shall cause notice to be given to Holders of this Global Note.
In the event that the Index Publisher discontinues publication of the
Index and:
o the Calculation Agent does not select a Successor Index; or
o the Successor Index is not published on any of the Calculation
Days,
the Calculation Agent shall compute a substitute level for the Index in
accordance with the procedures last used to calculate the Index before any
discontinuance. If a Successor Index is selected or the Calculation Agent
calculates a level as a substitute for the Index as described below, the
Successor Index or level shall be used as a substitute for the Index for all
purposes, including the purpose of determining whether a Market Disruption
Event exists.
If the Index Publisher discontinues publication of the Index before
the Calculation Period and the Calculation Agent determines that no Successor
Index is available at that time, then on each Business Day (as defined below)
until the earlier to occur of:
o the determination of the Ending Value; or
o a determination by the Calculation Agent that a Successor Index
is available,
the Calculation Agent shall determine the value that would be used in
computing the Redemption Amount as described in the preceding paragraph as if
that day were a Calculation Day. The Calculation Agent shall 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" means any day that is either (i) an Index Business
Day or (ii) a day on which the applicable exchanges listing the stocks of
companies used to calculate a substitute level for the Index following a
discontinuance are open for trading.
4
General
All percentages resulting from any calculation on the Notes shall be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards. For example, 9.876545%
(or .09876545) would be rounded to 9.87655% (or .0987655). All dollar amounts
used in or resulting from any calculation shall be rounded to the nearest cent
with one-half cent being rounded upward.
This Global Note is one of a duly authorized issue of the Company's
Medium-Term Notes, Series C, Due Nine Months or More from Date of Issue and
designated as Accelerated Return Notes which are due at the Stated Maturity.
The Notes are issued and to be issued under an indenture dated as of April 1,
1983, as amended and restated (the "Indenture"), between the Company and
JPMorgan Chase Bank, N.A. (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.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee with respect to the Notes under the Indenture, or
its successor thereunder, by the manual signature of one of its authorized
officers, this Global Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
The Notes are issuable only in registered form without coupons in the
Denominations specified above. As provided in the Indenture and subject to
certain limitations therein set forth, this Global Note is exchangeable for
certificates representing notes of like tenor and of an equal Principal Xxxxxx
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
Global Note shall be exchangeable or (z) an Event of Default has occurred and
is continuing with respect to this Global Note, this Global Note shall be
exchangeable for certificates representing the Notes in definitive form of
like tenor and of an equal 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 Global Note as are necessary or
appropriate to allow for the issuance of such definitive Notes.
In case an Event of Default with respect to this Global Note shall
have occurred and be continuing, the amount payable to a Holder of this Global
Note upon any acceleration permitted by the Notes, with respect to the
Principal Amount of this Global Note, shall be equal to the Redemption Amount,
calculated as though the date of acceleration were the Stated Maturity.
In case of default in payment of this Global Note, whether at the
Stated Maturity or upon acceleration, from and after such date this Global
Note shall bear interest, payable upon demand of the Holders thereof, at the
Default Rate, to the extent that payment of interest shall be legally
enforceable on the unpaid amount due and payable on such date in accordance
with the terms of this Global Note to the date payment of such amount has been
made or duly provided for.
5
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Holders of the Securities of each series to
be affected under the Indenture at any time by the Company and the Trustee
with the consent of the Holders of not less than 66 2/3% in aggregate
principal amount of the Securities at the time Outstanding of each series
affected thereby. Holders of specified percentages in aggregate principal
amount of the Securities of each series at the time Outstanding, on behalf of
the Holders of all Securities of each series, 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 Global Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Global 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 Global Note.
No reference herein to the Indenture and no provision of this Global
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the Redemption Amount hereof and
interest on this Global Note, if any, 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 Global Note may be
registered on the Security Register of the Company, upon surrender of this
Global 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 certificates representing the Notes
of authorized denominations of like tenor and for the same Principal Amount
shall be issued to the designated transferee or transferees.
Prior to due presentment of this Global 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 Global Note is registered as the owner
hereof for all purposes, whether or not this Global Note be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
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.
The Company and each Holder and beneficial owner by acceptance hereof
hereby agree (in the absence of an administrative determination, judicial
ruling or other authoritative guidance to the contrary) to characterize and
treat this Global Note for all tax purposes as a pre-paid cash-settled forward
contract linked to the level of the Index.
The Indenture and this Global Note shall be governed by and construed
in accordance with the laws of the State of New York.
6
All terms used in this Global Note which are defined in the Indenture
but not in this Global Note shall have the meanings assigned to them in the
Indenture.
7
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
CERTIFICATE OF AUTHENTICATION Xxxxxxx Xxxxx & Co., Inc.
This is one of the Securities of the series
designated therein referred to in the [Copy of Seal]
within-mentioned Indenture.
JPMorgan Chase Bank, N.A., as Trustee By: _________________________
Assistant Treasurer
By: __________________________ Attest: _____________________
Authorized Officer Secretary
8
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.
Date: __________________________ _______________________________________
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.
