Exhibit 99(B)
THIS NOTE 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 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ & 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.
No. R- Units
CUSIP (Each Unit representing $10
original public offering price per Note)
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., INC.
Strategic Return Notes/SM/ Linked to the Select Ten Index
due May , 2007
(the "Notes")
▇▇▇▇▇▇▇ ▇▇▇▇▇ & 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, a sum for each Unit equal to the
Redemption Amount, if any, as defined below, on May , 2007 (the "Stated
Maturity") or a sum for each Unit equal to the Exchange Amount, if any, as
defined below, on the Exchange Date, as defined below.
Payment or delivery of the Redemption Amount or Exchange Amount and any
interest on any overdue amount thereof 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.
This Note is one of the series of Strategic Return Notes/SM/ Linked to
the Select Ten Index due May , 2007.
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Redemption Amount
The "Redemption Amount" with respect to each Unit of this Note equals:
( Ending Value )
$9.90 x ( -------------- )
( Starting Value )
The Starting Value equals . The Ending Value will be determined by ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Calculation Agent") and will
equal the average (arithmetic mean) of the closing values of the Select Ten
Index (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 Ending Value will equal the
average (arithmetic mean) of the closing values of the Select Ten Index on those
Calculation Days. If there is only one Calculation Day during the Calculation
Period, then the Ending Value will equal the closing value of the Select Ten
Index on that Calculation Day. If no Calculation Days occur during the
Calculation Period, then the Ending Value shall equal the closing value of the
Select Ten Index determined on the last scheduled Index Business Day (as defined
below) in the Calculation Period regardless of the occurrence of a Market
Disruption Event (as defined below) on that Index Business Day. The "Select Ten
Index" is calculated and disseminated by the American Stock Exchange (the
"AMEX") and is an index which reflects the total return of fifteen of the top
dividend yielding stocks, reconstituted annually, in the S&P Industrial Index
less an annual index adjustment factor of 1.5%.
This Note may be exchanged in whole or in part in whole Units at the
option of the Holder during any Business Day (as defined below) during any
Exchange Notice Period by delivery of appropriate written notice from the Holder
to the Trustee (in the form of Annex A attached hereto). An "Exchange Notice
Period" means the period from and including the first calendar day of the month
of April to and including 12 noon in The City of New York on the fifteenth
calendar day during the month of April in the years 2003, 2004, 2005 and 2006.
If the fifteenth calendar day of the applicable month of April is not a Business
Day, then the Exchange Notice Period will be extended to 12 noon in The City of
New York on the next succeeding Business Day. The amount of the cash payment
received upon exchange (the "Exchange Amount") will be equal to the Redemption
Amount, calculated as though the Exchange Date was the Stated Maturity Date and
as though the Ending Value equals the closing value of the Select Ten Index on
the Exchange Date. An "Exchange Date" will be the second Index Business Day
following the end of the applicable Exchange Notice Period. If a Market
Disruption Event, as defined below, occurs on the second Index Business Day
following an Exchange Notice Period, the Exchange Date for that year will be the
next succeeding Index Business Day on which a Market Disruption Event does not
occur. The Exchange Amount will be paid three Business Days after the Exchange
Date. To the extent a Unit represented by this Note is exchanged, the number of
Units represented on the first page of this Note shall be reduced by each
exchanged Unit and the number of such Units then outstanding shall be as
maintained in the records of the Trustee (as defined below).
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.
2
"Calculation Day" means any Index Business Day during the Calculation
Period on which a Market Disruption Event has not occurred.
An "Index Business Day" is any day on which The New York Stock Exchange
(the "NYSE") and the AMEX are open for trading and the Select Ten Index or any
Successor Index (as defined below) is calculated and published.
All determinations made by the Calculation Agent shall be at the sole
discretion of the Calculation Agent and, absent a determination by the
Calculation Agent of a manifest error, shall be conclusive for all purposes and
binding on the Company and the Holders and beneficial owners of the Notes.
Adjustments to the Select Ten Index; Market Disruption Events
If at any time the AMEX changes its method of calculating the Select
Ten Index, or the value of the Select Ten Index changes, in any material
respect, or if the Select Ten Index is in any other way modified so that the
Select Ten Index does not, in the opinion of the Calculation Agent, fairly
represent the value of the Select Ten 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 Select Ten 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 Select Ten
Index as if those changes or modifications had not been made, and calculate the
closing value with reference to the Select Ten Index, as so adjusted.
Accordingly, if the method of calculating the Select Ten Index is modified so
that the value of the Select Ten 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 Select Ten Index in order to arrive at a
value of the Select Ten Index as if it had not been modified, e.g., as if the
split had not occurred.
"Market Disruption Event" means either of the following events, as
determined by the Calculation Agent:
(A) a suspension 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, in
one or more of the stocks which then comprise the Select Ten
Index; or
(B) the suspension of or material limitation on, 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 options contracts or futures contracts related
to the stocks which then comprise the Select Ten Index, or the
stocks which then comprise any Successor Index, which are
traded on any major U.S. exchange.
For the purpose of the above definition:
3
(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 the Securities and Exchange Commission of
similar scope as determined by the Calculation Agent, will be
considered "material".
Discontinuance of the Select Ten Index
If the AMEX discontinues publication of the Select Ten Index and the
AMEX or another entity publishes a successor or substitute index that the
Calculation Agent determines, in its sole discretion, to be comparable to the
Select Ten Index (a "Successor Index"), then, upon the Calculation Agent's
notification of its determination to the Trustee and the Company, the
Calculation Agent will substitute the Successor Index as calculated by the AMEX
or any other entity for the Select Ten Index and calculate the Ending Value as
described above under "Redemption Amount". Upon any selection by the Calculation
Agent of a Successor Index, the Company shall cause notice to be given to
Holders of the Notes.
In the event that the AMEX discontinues publication of the Select Ten
Index and:
o the Calculation Agent does not select a Successor Index, or
o the Successor Index is no longer published on any of the
Calculation Days,
the Calculation Agent will compute a substitute value for the Select Ten Index
in accordance with the procedures last used to calculate the Select Ten Index
before any discontinuance. If a Successor Index is selected or the Calculation
Agent calculates a value as a substitute for the Select Ten Index as described
below, the Successor Index or value will be used as a substitute for the Select
Ten Index for all purposes, including for purposes of determining whether a
Market Disruption Event exists.
If the AMEX discontinues publication of the Select Ten 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:
o the determination of the Ending Value, or
o 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 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.
4
A "Business Day" means a day on which the NYSE and the AMEX are open
for trading.
General
This Note 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 Notes, and the terms upon which the Notes are, and are to
be, authenticated and delivered.
The Company hereby covenants for the benefit of the Holders of the
Notes, 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 Notes.
The Notes are not subject to redemption by the Company prior to the
Stated Maturity.
In case an Event of Default with respect to any Notes shall have
occurred and be continuing, the amount payable to a Holder of a Note upon any
acceleration permitted by the Notes, with respect to each $10 original public
offering price of each unit, will be equal to the Redemption Amount, calculated
as though the date of early repayment were the Stated Maturity of the Notes.
In case of default in payment of the Notes (whether at the Stated
Maturity or upon exchange or upon acceleration), from and after such date of
default the Notes 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 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 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, as defined in the Indenture, of each series affected thereby.
Holders of specified percentages in aggregate original 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 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
5
the Redemption Amount or the Exchange Amount 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 first page 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 original public offering price, will be issued to the designated
transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of a single Unit and integral multiples thereof. This Note 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 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 original public offering price, in denominations of a single Unit and
integral multiples thereof. 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.
The Company and the Holder of a Note by acceptance hereof hereby agree
(in absence of an administrative determination or judicial ruling to the
contrary) to characterize and treat each Note for all tax purposes as a
cash-settled pre-paid forward contract linked to the Industrial 15 Index.
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 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.
All terms used in this Note which are defined in the Indenture but not
in this Note shall have the meanings assigned to them in the Indenture.
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 Note
shall not be entitled to any benefits under the Indenture or be valid or
obligatory for any purpose.
6
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: May , 2002
CERTIFICATE OF AUTHENTICATION ▇▇▇▇▇▇▇ ▇▇▇▇▇ & 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
7
ANNEX A
OFFICIAL NOTICE OF EXERCISE
Strategic Return Notes/SM/ Linked to the
Select Ten Index due May , 2007
Dated:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
2 World Financial Center
5th Floor
New York, New York 10281
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(Attn: Treasury)
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
as Calculation Agent
4 World Financial Center
5th Floor
New York, New York 10080
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(Attn: Operations (▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇))
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(Attn: Institutional Trust Services)
Dear Sirs:
The undersigned holder of the Strategic Return Notes/SM/ Linked to the
Select Ten Index due May , 2007 of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc. (the "Notes")
hereby irrevocably elects to exercise with respect to the number of Units of the
Notes indicated below, as of the date hereof, provided that such day is within
the applicable Exchange Notice Period and subject to the restrictions as set
forth under "Exchange of the Notes prior to maturity" as described in the
Prospectus Supplement dated April 30, 2002 to the Prospectus dated April 1,
2002. Capitalized terms not defined herein have the meanings given to such terms
in the Prospectus Supplement. Please date and acknowledge receipt of this notice
in the place provided below on the date of receipt, and fax
A-1
a copy to the fax number indicated, whereupon the Exchange Amount shall be
delivered in cash, in accordance with the terms of the Notes described in the
Prospectus Supplement.
Very truly yours,
-----------------------------
[Name of Holder]
By:
-----------------------------------------
[Title]
---------------------------------------------
[Fax No.]
-------------------------------------------
Number of Units of Notes surrendered for exercise of the right to receive the
Exchange 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:
--------------------------------------
A-2
Receipt of the above Official
Notice of ▇▇▇▇▇▇'s exchange right is hereby acknowledged
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., INC.,
as Issuer
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED,
as Calculation Agent
By JPMORGAN CHASE BANK,
as Trustee
By:
-------------------------------------------------
Title:
Date and time of acknowledgment
--------------------
A-3
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.
A-4
