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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ HOLDINGS
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- 1 PRINCIPAL AMOUNT
CUSIP 795 49B 826 REPRESENTED
$[ ]
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ HOLDINGS INC.
Equity Linked Noted based upon the
Dow ▇▇▇▇▇ Industrial AverageSM
due [ ], 2005
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Holdings Inc., a Delaware corporation
(hereinafter referred to as the "Company" which term includes any
successor corporation under the Indenture herein referred to),
for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of [ ] ($[ ])
(the "Principal Amount") plus the Supplemental Redemption Amount,
as defined below, on [ ], 2005 (the "Stated Maturity"). This
Note will not bear periodic payments of interest, is not subject
to redemption or any sinking fund prior to maturity, and is not
subject to the defeasance provisions of the within-mentioned
indenture.
Payment of the Principal ▇▇▇▇▇▇ and the Supplemental
Redemption Amount with respect to this Note shall be made upon
presentation and surrender of this Note at the corporate trust
office of the Trustee in the Borough of Manhattan, The City and
State of New York, in such coin or currency of the United States
as at the time of payment is legal tender for payment of public
and private debts.
This Note is one of the series of Equity Linked Notes based
upon the Dow ▇▇▇▇▇ Industrial AverageSM due [ ], 2005 (the
"Notes").
SUPPLEMENTAL REDEMPTION AMOUNT
The "Supplemental Redemption Amount" with respect to this
Note equals:
Ending Index Value -
Starting Index Value
Principal Amount X --------------------- X Participation Rate
Starting Index Value
provided, however, that in no event will the Supplemental
Redemption Amount be less than zero. The Participation Rate equals
[ ]%. The "Starting Index Value" equals [ ], which was the
closing value of the Dow ▇▇▇▇▇ Industrial Average (the "Index")
on [ ], 1998. The Ending Index Value will be determined by ▇▇▇▇▇
▇▇▇▇▇▇ Inc. (the "Calculation Agent", which term includes any
successor thereto) and will equal the average of the closing
values of the Index on each of the eighteen Calculation Days during
the Calculation Period. If the [ ] of any month during the
Calculation Period is not a Calculation Day due to the occurrence
of one or more Market Disruption Events, then the Index value for
that month of the Calculation Period will equal the closing value
of the Index determined on the next Business Day on which no
Market Disruption Event exists. The "Calculation Period" means
the period from and including the date eighteen months prior to
maturity to but excluding the maturity date. "Calculation Day"
means the [ ] of each month during the Calculation Period,
provided that no Market Disruption Event has occurred on such
day. For purposes of determining the Ending Index Value, a
"Business Day" is a day on which each of the New York Stock
Exchange ("NYSE") and the American Stock Exchange are open for
trading and the Index or any Successor Index, as defined below,
is published. All determinations made by the Calculation Agent
shall be at the sole discretion of the Calculation Agent and
shall be binding on the Company and Holders of the Notes, absent
manifest error.
ADJUSTMENTS TO THE INDEX; MARKET DISRUPTION EVENTS
If at any time the method of calculating the Index or a
Successor Index, or the value thereof, is changed in any material
respect, or if the Index or a Successor Index is in any other way
modified so that such Index does not, in the opinion of the
Calculation Agent, fairly represent the value of the Index or
such Successor Index had such changes or modifications not been
made, then, from and after such time, the Calculation Agent
shall, at the close of business in New York, New York, on each
date that the closing value with respect to the Ending Index
Value is to be calculated, make such 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 Index or such Successor Index as if such
changes or modifications had not been made, and calculate such
closing value with reference to the Index, as adjusted.
Accordingly, if the method of calculating the Index or such
Successor Index is modified so that the value of such Index or
such Successor 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 in
such Index), then the Calculation Agent shall adjust such Index
in
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order to arrive at a value of such Index as if it had not been
modified (e.g., as if such split had not occurred).
The Trustee shall not at any time be under any duty or
responsibility to any Holder of this Note to determine whether
any facts exist which may require any adjustment to the Ending
Index Value or with respect to the nature or extent of any such
adjustment when made or with respect to the method employed in
making the same.
"Market Disruption Event" means any of the following events,
as determined by the Calculation Agent:
(i) the suspension or material limitation of trading
in 20% or more of the underlying stocks which then comprise
the Index or any Successor Index, in each case, for more
than two hours of trading or during the one-half hour
period preceding the close of trading on the NYSE or any
other applicable organized U.S. exchange (for purposes of
this definition, limitations on trading during significant
market fluctuations imposed pursuant to NYSE Rule 80B (or
any applicable rule or regulation enacted or promulgated by
the NYSE, any other self regulatory organization or the SEC
of similar scope or as a replacement for Rule 80B, as
determined by the Calculation Agent) shall be considered
"material"); or
(ii) 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
(whether by reason of movements in price otherwise
exceeding levels permitted by the relevant exchange or
otherwise) in (A) futures contracts related to the Index or
options on such futures contracts which are traded on any
major U.S. exchange or (B) options contracts related to the
Index which are traded on any major U.S. exchange; or
(iii) the unavailability, through a recognized system
of public dissemination of transaction information, for
more than two hours of trading or during the one-half hour
period preceding the close of trading, of accurate price,
volume or related information in respect of 20% or more of
the underlying stocks which then comprise the Index or any
Successor Index or in respect of futures contracts related
to the Index, options on such futures contracts or options
contracts related to the Index, in each case traded on any
major U.S. exchange.
For purposes of determining whether a Market Disruption
Event has occurred: (1) a limitation on the hours or number of
days of trading will not constitute a Market Disruption Event if
it results from an announced change in the regular business hours
of the relevant exchange, (2) a decision to permanently
discontinue trading in the relevant futures or options contract
will not constitute a Market Disruption Event, (3) any suspension
in trading in a futures or options contract on the Index by a
major securities market by reason of (x) a price change violating
limits set by such securities market, (y) an imbalance of orders
relating to such contracts or (z) a disparity in bid and ask
quotes relating to such contracts will constitute a suspension or
material limitation of trading in futures or options contracts
related to the Index, notwithstanding that such suspension or
material limitation is less than two hours, and (4) a
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"suspension or material limitation" on an exchange or in a market
will include a suspension or material limitation of trading by
one class of investors provided that such suspension continues
for more than two hours of trading or during the last one-half
hour period preceding the close of trading on the relevant
exchange or market (but will not include limitations imposed on
certain types of trading under NYSE Rule 80A) and will not
include any time when such exchange or market is closed for
trading as part of such exchange's or market's regularly
scheduled business hours.
DISCONTINUANCE OF THE INDEX
If Dow ▇▇▇▇▇ & Company, Inc. ("Dow ▇▇▇▇▇") discontinues
publication of the Index and ▇▇▇ ▇▇▇▇▇ or another entity
publishes a successor or substitute index that the Calculation
Agent determines, in its sole discretion, to be comparable to
such Index (any such index being referred to hereinafter as a
"Successor Index"), then the Ending Index Value shall be
determined by reference to the value of such Successor Index
using the methodology described above.
Upon any selection by the Calculation Agent of a Successor
Index, the Company shall cause notice thereof to be furnished to
the Trustee, who shall provide notice thereof to the Holders of
the Notes.
If Dow ▇▇▇▇▇ discontinues publication of the Index and a
Successor Index is not selected by the Calculation Agent or is no
longer published on any Calculation Day, the value to be
substituted for the Index for any such Calculation Day used to
calculate the Supplemental Redemption Amount at maturity will be
a value computed by the Calculation Agent for such Calculation
Day in accordance with the procedures last used to calculate the
Index prior to any such discontinuance.
If Dow ▇▇▇▇▇ discontinues publication of the Index prior to
the period during which the Supplemental Redemption Amount is to
be determined and the Calculation Agent determines that no
Successor Index is available at such time, then on each Business
Day until the earlier to occur of (i) the determination of the
Ending Index Value and (ii) 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
Supplemental Redemption Amount as described above as if such day
were a Calculation Day. The Calculation Agent will cause notice
of each such 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 such
values to be made available by telephone.
If a Successor Index is selected or the Calculation Agent
calculates a value as a substitute for the Index as described
above, such Successor Index or value shall be substituted for the
Index for all purposes, including for purposes of determining
whether a Market Disruption Event exists.
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GENERAL
This Note is one of a duly authorized issue of Notes of the
Company, issued and to be issued in one or more series under an
indenture, dated as of October 27, 1993, as supplemented by a
First Supplemental Indenture, dated as of November 28, 1997, and
as further supplemented from time to time (the "Indenture"),
between the Company and The Bank of New York, as Trustee (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, limitations of rights, duties and immunities
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 Notes are not subject to redemption by the Company or
at the option of any Holder prior to the Stated Maturity.
If an Event of Default with respect to the Notes shall have
occurred and be continuing, the principal of the Notes may be
declared due and payable in the manner and with the effect
provided in the Indenture. In such case, the amount declared due
and payable upon any acceleration permitted by the Indenture,
with respect to each $15.00 principal amount thereof, will be
equal to: (i) $15.00, plus (ii) the Supplemental Redemption
Amount, if any, calculated as though the date of early repayment
were the Stated Maturity of the Notes.
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 Notes of each series to be affected under the
Indenture at any time by the Company and a majority in aggregate
principal amount of the Notes at the time Outstanding of each
series affected thereby. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate
principal amount of the Notes of any series at the time
Outstanding, on behalf of the Holders of all Notes of such
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.
The Holder of this Note may not enforce such ▇▇▇▇▇▇'s
rights pursuant to the Indenture or the Notes except as provided
in the Indenture. 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 Principal Amount plus the Supplemental
Redemption 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.
Upon issuance, all Notes will be represented by one or more
fully-registered global securities (the "Global Notes"). Each
such Global Note will be deposited with, or on behalf of, the
DTC, and registered in the name of the DTC or a nominee thereof.
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Unless and until it is exchanged in whole or in part for
Notes in definitive form, no Global Note may be transferred
except as a whole by the DTC to a nominee of the DTC or by a
nominee of the DTC to the DTC pr another nominee of the DTC or by
the DTC or any such nominee to a successor of the DTC or a
nominee of such successor.
Accountholders in the Euroclear or Cedel Bank clearance
systems may hold beneficial interests in the Notes through the
accounts each such system maintains as a participant in the DTC.
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 the Trustee by manual signature, this Note shall not
be entitled to any benefit under the Indenture or be valid or
obligatory for any purposes.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed under its corporate seal.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ HOLDINGS INC.
By:______________________________
Name:
Title:
Corporate Seal
Attest:
By:_______________________
Name:
Title:
Dated: [ ], 1998
CERTIFICATE OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Indenture.
The Bank of New York,
as Trustee
By:_______________________
Authorized Signatory
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