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Exhibit 99(B)
THIS MITTS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR MITTS
SECURITIES IN CERTIFICATED FORM, THIS MITTS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO A NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS MITTS
SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO MERRILL LYNCH &
CO., INC. OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY MITTS SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. R- Units
CUSIP 590188 272 (Each Unit representing $10 principal
amount of MITTS Securities)
MERRILL LYNCH & CO., INC.
S&P 500(R) Market Index Target-Term Securities(R)
due June , 2007
("MITTS Securities")
Merrill Lynch & Co., Inc., a Delaware corporation (hereinafter
referred to as the "Company", which term includes any successor corporation
under the Indenture herein referred to), for value received, hereby promises to
pay to CEDE & CO., or its registered assigns, the principal sum of
MILLION DOLLARS ($ ) (the "Principal Amount") plus the Supplemental
Redemption Amount, as defined below, if any, on June , 2007 (the "Stated
Maturity").
Payment or delivery of the Principal Amount and the Supplemental
Redemption Amount, if any, and any interest on any overdue amount thereof with
respect to this Security shall be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
This MITTS Security is one of the series of S&P 500(R) Market Index
Target-Term Securities due June , 2007.
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Supplemental Redemption Amount
The "Supplemental Redemption Amount" with respect to this MITTS
Security equals:
Adjusted Ending Value-Starting Value
Principal Amount x ------------------------------------
Starting Value
provided, however, that in no event will the Supplemental Redemption Amount be
less than zero. The Starting Value equals . The Adjusted Ending
Value will be determined by Merrill Lynch, Pierce, Fenner & Smith Incorporated
(the "Calculation Agent") and will equal the average or arithmetic mean of the
closing values of the S&P 500 Index (the "S&P 500 Index"), as reduced by the
application of the Adjustment Factor on each Calculation Day, 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 in the
Calculation Period, then the Adjusted Ending Value will equal the average or
arithmetic mean of the closing values of the Index on those Calculation Days, as
reduced by the application of the Adjustment Factor on each Calculation Day. If
there is only one Calculation Day, then the Ending Value will equal the closing
value of the Index on that Calculation Day as reduced by the application of the
Adjustment Factor on that Calculation Day. If no Calculation Days occur during
the Calculation Period, then the Adjusted Ending Value shall equal the closing
value of the Index determined on the last scheduled Index Business Day (as
defined below) in the Calculation Period, as reduced by the application of the
Adjustment Factor on that day, regardless of the occurrence of a Market
Disruption Event (as defined below) on that Index Business Day.
The "Adjustment Factor" equals % per annum and will be pro rated
based on a 365 day year and applied each calendar day during the entire term of
the MITTS Securities to reduce the values used to calculate the Supplemental
Redemption Amount on each Calculation Day during the Calculation Period.
The "Calculation Period" means the period from and including the
seventh scheduled Index Business Day prior to the Stated Maturity to and
including the second scheduled Index Business Day prior to the Stated Maturity.
"Calculation Day" means any Index Business Day during the Calculation
Period on which a Market Disruption Event has not occurred.
An "Index Business Day" is any day on which The New York Stock
Exchange (the "NYSE") and the Nasdaq Stock Market are open for trading and the
S&P 500 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 Holders and beneficial owners of the MITTS
Securities.
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Adjustments to the S&P 500 Index; Market Disruption Events
If at any time Standard & Poor's changes its method of calculating the
S&P 500 Index, or the value of the S&P 500 Index changes, in any material
respect, or if the S&P 500 Index is in any other way modified so that the S&P
500 Index does not, in the opinion of the Calculation Agent, fairly represent
the value of the S&P 500 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 S&P
500 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 S&P 500 Index as if
those changes or modifications had not been made, and calculate the closing
value with reference to the S&P 500 Index, as adjusted. Accordingly, if the
method of calculating the S&P 500 Index is modified so that the value of the S&P
500 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
S&P 500 Index in order to arrive at a value of the S&P 500 Index as if it had
not been modified, e.g., as if the split had not occurred.
"Market Disruption Event" means either of the following events, as
determined by the Calculation Agent:
(A) the suspension or material limitation on trading for more than two
hours of trading, or during the one-half hour period preceding the
close of trading on the applicable exchange, in 20% or more of the
stocks which then comprise the S&P 500 Index; or
(B) the suspension or material limitation, in each case, for more than two
hours of trading, or during the one-half hour period preceding the
close of trading on the applicable exchange, whether by reason of
movements in price otherwise exceeding levels permitted by the
relevant exchange or otherwise, in option contracts or futures
contracts related to the S&P 500 Index, or any Successor Index, which
are traded on any major U.S. exchange.
For the purpose of the above definition:
(1) a limitation on the hours in a trading day and/or number of days of
trading will not constitute a Market Disruption Event if it results
from an announced change in the regular business hours of the relevant
exchange and
(2) for the purpose of clause (A) above, any limitations on trading during
significant market fluctuations under NYSE Rule 80A, or any applicable
rule or regulation enacted or promulgated by the NYSE or any other
self regulatory organization or the SEC of similar scope as determined
by the Calculation Agent, will be considered "material".
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Discontinuance of the S&P 500 Index
If Standard & Poor's discontinues publication of the S&P 500 Index and
Standard & Poor's or another entity publishes a successor or substitute index
that the Calculation Agent determines, in its sole discretion, to be comparable
to the S&P 500 Index (a "Successor Index"), then, upon the Calculation Agent's
notification of its determination to the trustee and ML&Co., the Calculation
Agent will substitute the Successor Index as calculated by Standard & Poor's or
any other entity for the S&P 500 Index and calculate the Adjusted Ending Value
as described above under "Payment at maturity". Upon any selection by the
Calculation Agent of a Successor Index, ML&Co. shall promptly give notice to the
beneficial owners of the MITTS Securities by publication in a United States
newspaper with a national circulation.
In the event that Standard & Poor's discontinues publication of the
S&P 500 Index and:
. the Calculation Agent does not select a Successor Index, or
. the Successor Index is no longer published on any of the Calculation
Days,
the Calculation Agent will compute a substitute value for the S&P 500 Index in
accordance with the procedures last used to calculate the S&P 500 Index before
any discontinuance. If a Successor Index is selected or the Calculation Agent
calculates a value as a substitute for the S&P 500 Index as described below, the
Successor Index or value will be used as a substitute for the S&P 500 Index for
all purposes, including for purposes of determining whether a Market Disruption
Event exists, and the Calculation Period and the Calculation Days shall be
determined as if each Business Day were an Index Business Day.
If Standard & Poor's discontinues publication of the S&P 500 Index
before the Calculation Period and the Calculation Agent determines that no
Successor Index is available at that time, then on each Business Day until the
earlier to occur of:
. the determination of the Adjusted Ending Value, and
. a determination by the Calculation Agent that a Successor Index is
available,
the Calculation Agent will determine the value that would be used in computing
the Supplemental Redemption Amount as described in the preceding paragraph as if
that day were a Calculation Day. The Calculation Agent will cause notice of each
value to be published not less often than once each month in The Wall Street
Journal or another newspaper of general circulation, and arrange for information
with respect to these values to be made available by telephone.
A "Business Day" is any day on which the NYSE and the Nasdaq Stock
Market are open for trading.
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General
This MITTS Security is one of a duly authorized issue of Securities of
the Company, issued and to be issued under an Indenture, dated as of April 1,
1983, as amended and restated (herein referred to as the "Indenture"), between
the Company and The Chase Manhattan Bank , as Trustee (herein referred to as the
"Trustee", which term includes any successor Trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights thereunder of the Company, the Trustee
and the Holders of the MITTS Securities, and the terms upon which the MITTS
Securities are, and are to be, authenticated and delivered.
The Company hereby covenants for the benefit of the Holders of the
MITTS Securities, to the extent permitted by applicable law, not to claim
voluntarily the benefits of any laws concerning usurious rates of interest
against a Holder of the MITTS Securities.
The MITTS Securities are not subject to redemption by the Company or
at the option of the Holder prior to the Stated Maturity.
In case an Event of Default with respect to any MITTS Securities shall
have occurred and be continuing, the amount payable to a Holder of a MITTS
Security upon any acceleration permitted by the MITTS Securities, with respect
to each $10 principal amount thereof, will be equal to the $10 principal amount
and the Supplemental Redemption Amount, if any, calculated assuming (i) the date
of early repayment is the Stated Maturity of the MITTS Securities and (ii) the
Adjustment Factor will be applied to the values used to calculate the
Supplemental Redemption Amount as if the MITTS Securities had not been
accelerated and had remained outstanding to the Stated Maturity.
In case of default in payment of the MITTS Securities (whether at the
Stated Maturity or upon acceleration), from and after the maturity date the
MITTS Securities shall bear interest, payable upon demand of the Holders
thereof, at the rate of % per annum (to the extent that payment of such
interest shall be legally enforceable) on the unpaid amount due and payable on
such date in accordance with the terms of the MITTS Securities to the date
payment of such amount has been made or duly provided for.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than 66 2/3% in aggregate 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
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 MITTS
Security shall be conclusive and binding upon such Holder and upon all future
Holders of this MITTS Security and of any MITTS Security issued upon the
registration of transfer
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hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent or waiver is made upon this MITTS Security.
No reference herein to the Indenture and no provision of this MITTS
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the Principal Amount plus
the Supplemental Redemption Amount, if any, with respect to this MITTS Security
and any interest on any overdue amount thereof at the time, place, and rate, and
in the coin or currency herein prescribed.
As provided in the Indenture and subject to certain limitations set
forth therein and on the first page hereof, the transfer of this MITTS Security
may be registered on the Security Register of the Company, upon surrender of
this MITTS Security for registration of transfer at the office or agency of the
Company in the Borough of Manhattan, The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company duly executed by, the Holder hereof or by his attorney duly authorized
in writing, and thereupon one or more new MITTS Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The MITTS Securities are issuable only in registered form without
coupons in denominations of $10 and integral multiples thereof. This MITTS
Security shall remain in the form of a global security held by a Depository.
Notwithstanding the foregoing, if (x) any Depository is at any time unwilling or
unable to continue as Depository and a successor depository is not appointed by
the Company within 60 days, (y) the Company executes and delivers to the Trustee
a Company Order to the effect that this MITTS Security shall be exchangeable or
(z) an Event of Default has occurred and is continuing with respect to the MITTS
Securities, this MITTS Security shall be exchangeable for MITTS Securities in
definitive form of like tenor and of an equal aggregate Principal Amount, in
denominations of $10 and integral multiples thereof. Such definitive MITTS
Securities shall be registered in such name or names as the Depository shall
instruct the Trustee. If definitive MITTS Securities are so delivered, the
Company may make such changes to the form of this MITTS Security as are
necessary or appropriate to allow for the issuance of such definitive MITTS
Securities.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or governmental charge payable in connection therewith.
Prior to due presentment of this MITTS Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this MITTS Security is registered as the
owner hereof for all purposes, whether or not this MITTS Security be overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
All terms used in this MITTS Security which are defined in the
Indenture but not in this MITTS Security shall have the meanings assigned to
them in the Indenture.
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Unless the certificate of authentication hereon has been executed by
The Chase Manhattan Bank, the Trustee under the Indenture, or its successor
thereunder, by the manual signature of one of its authorized officers, this
MITTS Security shall not be entitled to any benefits under the Indenture or be
valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: June , 2000
CERTIFICATE OF AUTHENTICATION Merrill Lynch & Co., Inc.
This is one of the Securities of the series
designated therein referred to in the [Copy of Seal]
within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee By:
Treasurer
By: Attest:
Authorized Officer Secretary
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