Exhibit 4.01
CALCULATION AGENCY AGREEMENT
AGREEMENT, dated as of February 24, 2000 between Xxxxxx
Brothers Holdings Inc. (the ACompany@) and Xxxxxx Brothers Inc., as Calculation
Agent.
WHEREAS, the Company has authorized the issuance of up to
$21,830,000 aggregate principal amount of Notes Due February 24,
2007-Performance Linked to a Basket of Five U.S. Stocks (the "Securities");
WHEREAS, the Securities will be issued under an Indenture
Agreement dated as of September 1, 1987, between the Company and Citibank, N.A.,
as Trustee (the "Trustee"), as supplemented and amended by supplemental
indentures dated as of November 25, 1987, November 27, 1990, September 13, 1991,
October 4, 1993, October 1, 1995, and June 26, 1997, and incorporating Standard
Multiple Series Indenture Provisions dated July 30, 1987, as amended November
16, 1987 (collectively, the "Indenture"); and
WHEREAS, the Company requests the Calculation Agent to perform
certain services described herein in connection with the Securities;
NOW THEREFORE, the Company and the Calculation Agent agree as
follows:
1. Appointment of Agent. The Company hereby appoints Xxxxxx
Brothers Inc. as Calculation Agent and Xxxxxx Brothers Inc. hereby accepts such
appointment as the Company's agent for the purpose of performing the services
hereinafter described upon the terms and subject to the conditions hereinafter
mentioned.
2. Calculations and Information Provided. In response to a
request made by the Trustee for a determination of the Maturity Payment Amount
due at Stated Maturity of the Securities, the Redemption Payment Amount and the
Repurchase Payment Amount, the Calculation Agent shall determine such Payment
Amount and notify the Trustee of its determination. The Calculation Agent shall
also be responsible for (a) the determination of the Closing Level of the
Basket, (b) whether adjustments to the Multipliers should be made and (c)
whether a Market Disruption Event has occurred. The Calculation Agent shall
notify the Trustee of any such adjustment or if a Market Disruption Event has
occurred. Annex A hereto sets forth the procedures the Calculation Agent will
use to determine the information described in this Section 1.
3. Calculations. Any calculation or determination by the
Calculation Agent pursuant hereto shall (in the absence of manifest error) be
final and binding. Any calculation made by the Calculation Agent hereunder
shall, at the Trustee's request, be made available at the Corporate Trust
Office.
4. Fees and Expenses. The Calculation Agent shall be entitled
to reasonable compensation for all services rendered by it as agreed to between
the Calculation Agent and the Company.
5. Terms and Conditions. The Calculation Agent accepts its
obligations herein set out upon the terms and conditions hereof, including the
following, to all of which the Company agrees:
(i) in acting under this Agreement, the Calculation Agent
is acting solely as an independent expert of the Company and does not
assume any obligation toward, or any relationship of agency or trust
for or with, any of the holders of the Securities;
(ii) unless otherwise specifically provided herein, any
order, certificate, notice, request, direction or other communication
from the Company or the Trustee made or given under any provision of
this Agreement shall be sufficient if signed by any person who the
Calculation Agent reasonably believes to be a duly authorized officer
or attorney-in-fact of the Company or the Trustee, as the case may be;
(iii) the Calculation Agent shall be obliged to perform only
such duties as are set out specifically herein and any duties
necessarily incidental thereto;
(iv) the Calculation Agent, whether acting for itself or in
any other capacity, may become the owner or pledgee of Securities with
the same rights as it would have had if it were not acting hereunder as
Calculation Agent; and
(v) the Calculation Agent shall incur no liability
hereunder except for loss sustained by reason of its gross negligence
or wilful misconduct.
6. Resignation; Removal; Successor. (a) The Calculation Agent
may at any time resign by giving written notice to the Company of such intention
on its part, specifying the date on which its desired resignation shall become
effective, subject to the appointment of a successor Calculation Agent and
acceptance of such appointment by such successor Calculation Agent, as
hereinafter provided. The Calculation Agent hereunder may be removed at any time
by the filing with it of an instrument in writing signed by or on behalf of the
Company and specifying such removal and the date when it shall become effective.
Such resignation or removal shall take effect upon the appointment by the
Company, as hereinafter provided, of a successor Calculation Agent and the
acceptance of such appointment by such successor Calculation Agent. In the event
a successor Calculation Agent has not been appointed and has not accepted its
duties within 90 days of the Calculation Agent's notice of resignation, the
Calculation Agent may apply to any court of competent jurisdiction for the
designation of a successor Calculation Agent.
(b) In case at any time the Calculation Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or make an assignment for the benefit of its creditors or
consent to the appointment of a receiver or custodian of all or any substantial
part of its property, or shall admit in writing its inability to pay or meet its
debts as they mature, or if a receiver or custodian of it or all or any
substantial part of its property shall be appointed, or if any public officer
shall have taken charge or control of the Calculation Agent or of its property
or affairs, for the purpose of rehabilitation, conservation or liquidation, a
successor Calculation Agent shall be appointed by the Company by an instrument
in writing, filed with the successor Calculation Agent. Upon the appointment as
aforesaid of a successor Calculation Agent and acceptance by the latter of such
appointment, the Calculation Agent so superseded shall cease to be Calculation
Agent hereunder.
(c) Any successor Calculation Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor, to the Company and to the
Trustee an instrument accepting such appointment hereunder and agreeing to be
bound by the terms hereof, and thereupon such successor Calculation Agent,
without any further act, deed or conveyance, shall become vested with all the
authority, rights, powers, trusts, immunities, duties and obligations of such
predecessor with like effect as if originally named as Calculation Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Calculation Agent shall be entitled to receive, all moneys,
securities and other property on deposit with or held by such predecessor, as
Calculation Agent hereunder.
(d) Any corporation into which the Calculation Agent hereunder
may be merged or converted or any corporation with which the Calculation Agent
may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Calculation Agent shall be a party, or any
corporation to which the Calculation Agent shall sell or otherwise transfer all
or substantially all of the assets and business of the Calculation Agent shall
be the successor Calculation Agent under this Agreement without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
7. Certain Definitions. Terms not otherwise defined herein or
in Annex A hereto are used herein as defined in the Indenture or the Securities.
8. Indemnification. The Company will indemnify the Calculation
Agent against any losses or liability which it may incur or sustain in
connection with its appointment or the exercise of its powers and duties
hereunder except such as may result from the gross negligence or wilful
misconduct of the Calculation Agent or any of its agents or employees. The
Calculation Agent shall incur no liability and shall be indemnified and held
harmless by the Company for or in respect of any action taken or suffered to be
taken in good faith by the Calculation Agent in reliance upon written
instructions from the Company.
9. Notices. Any notice required to be given hereunder shall be
delivered in person, sent (unless otherwise specified in this Agreement) by
letter, telex or facsimile transmission or communicated by telephone (confirmed
in a writing dispatched within two New York Business Days), (a) in the case of
the Company, to it at Three World Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(facsimile: (000) 000-0000) (telephone: (000) 000-0000), Attention: Legal
Counsel, (b) in the case of the Calculation Agent, to it at Three World
Financial Center, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 (facsimile:
(000) 000-0000) (telephone: (000) 000-0000), Attention: Equity Derivatives
Trading and (c) in the case of the Trustee, to it at 000 Xxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (facsimile: (000) 000-0000) (telephone: (212)
000-0000), Attention: Corporate Trust Department or, in any case, to any other
address or number of which the party receiving notice shall have notified the
party giving such notice in writing. Any notice hereunder given by telex,
facsimile or letter shall be deemed to be served when in the ordinary course of
transmission or post, as the case may be, it would be received.
10. Governing Law. This Agreement shall be governed by
and continued in accordance with the laws of the State of New York.
11. Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
12. Benefit of Agreement. This Agreement is solely for the
benefit of the parties hereto and their successors and assigns, and no other
person shall acquire or have any rights under or by virtue hereof.
IN WITNESS WHEREOF, this Calculation Agency Agreement has been entered
into as of the day and year first above written.
XXXXXX BROTHERS HOLDINGS INC.
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Vice President
XXXXXX BROTHERS INC.,
as Calculation Agent
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Vice President
ANNEX A
The Basket Securities.
The Basket is a group of five common stocks of the following
corporations: Affymetrix Inc., Amgen Inc., Human Genome Sciences Inc.,
Millennium Pharmaceuticals Inc. and The Chase Manhattan Corporation unless
adjusted for certain extraordinary corporate events as described herein (the
ABasket Securities@).
2. Determination of the Payment Amount.
The Calculation Agent shall determine the Payment Amount payable for
each Security.
The amount payable at Stated Maturity for each $1,000 principal amount
of Securities (the AMaturity Payment Amount@) shall equal (i) the greater of (a)
$1,000 and (b) the Alternative Redemption Amount and (ii) any accrued but unpaid
interest through the Stated Maturity. The amount payable upon a Redemption of
each $1,000 principal amount of Securities (the ARedemption Payment Amount@)
shall equal (i) the greater of (a) $1,000 and (b) the Alternative Redemption
Amount and (ii) any accrued but unpaid interest through the Non-Delaying Event
Redemption Date or, if a Delaying Event occurs, through the Delaying Event
Redemption Date. The amount payable upon a Repurchase of each $1,000 principal
amount of Securities (the ARepurchase Payment Amount@) shall equal (i) the
Alternative Redemption Amount and (ii) any accrued but unpaid interest through
the Non-Delaying Event Repurchase Date or, if a Delaying Event occurs, through
the Delaying Event Repurchase Date.
The Basket Level used to calculate the Alternative Redemption Amount
shall be determined by the Calculation Agent.
Multipliers.
The Multiplier relating to each Basket Security is the number of shares
(including fractional shares, expressed as a decimal) of such Basket Security
included in the Basket. The initial Multipliers relating to the initial Basket
Securities on a U.S. dollar weighted basis are set forth below opposite the name
of the issuer of such Basket Security:
Basket Security Initial Multiplier
Affymetrix Inc. 0.06999
Amgen Inc. 0.27511
Human Genome Sciences Inc. 0.09604
Millennium Pharmaceuticals Inc. 0.06969
The Chase Manhattan Corporation 0.25998
The Multipliers with respect to each Basket Security shall remain constant
unless adjusted for certain extraordinary corporate events as described below.
Each Multiplier shall be rounded at the Calculation Agent's discretion.
4. Adjustments to the Multipliers and the Basket.
Adjustments to a Multiplier and the Basket shall be made in the
circumstances described below. For purposes of the following adjustments, except
as noted below, American Depositary Receipts (AADRs@) shall be treated like
common stock if a comparable adjustment to the foreign shares underlying the
ADRs is made pursuant to the terms of the depositary arrangement for the ADRs or
if holders of ADRs are entitled to receive property in respect of the underlying
foreign share.
(a) If a Basket Security is subject to a stock split or reverse stock
split, then once the split has become effective, the Multiplier relating to such
Basket Security shall be adjusted. The Multiplier shall be adjusted to equal the
product of the number of shares outstanding of the Basket Security after the
split with respect to each share of such Basket Security immediately prior to
effectiveness of the split and the prior Multiplier.
(b) If a Basket Security is subject to an extraordinary stock dividend
or extraordinary stock distribution that is given equally to all holders of
shares, then once the Basket Security is trading ex-dividend, the Multiplier for
such Basket Security shall be increased by the product of the number of shares
of such Basket Security issued with respect to one share of such Basket Security
and the prior Multiplier.
(c) If the issuer of a Basket Security, or if a Basket Security is an
ADR, the foreign issuer of the underlying foreign share, is being liquidated or
dissolved or is subject to a proceeding under any applicable bankruptcy,
insolvency or other similar law, such Basket Security shall continue to be
included in the Basket so long as the primary exchange, trading system or market
is reporting a market price for the Basket Security. If a market price,
including a price on a bulletin board service, is no longer available for a
Basket Security, then the value of the Basket Security shall equal zero for so
long as no market price is available, and no attempt shall be made to find a
replacement stock or increase the level of the Basket to compensate for the
deletion of such Basket Security.
(d) If the issuer of a Basket Security, or if a Basket Security is an
ADR, the foreign issuer of the underlying foreign share, has been subject to a
merger or consolidation and is not the surviving entity and holders of the
Basket Security are entitled to receive cash, securities, other property or a
combination thereof in exchange for the Basket Security, then the following
shall be included in the Basket:
(i) To the extent cash is received, the Basket shall include
the amount of the cash consideration at the time holders are entitled
to receive the cash consideration (the AM&A Cash Component@), plus
accrued interest. If the cash received is denominated in a foreign
currency, such cash shall then be converted into U.S. dollars using the
Official X.X. Reuters Spot Closing Rate at 11:00 a.m., New York City
time. If there are several quotes for the Official X.X. Reuters Spot
Closing Rate at that time, the first quoted rate starting at 11:00 a.m.
shall be the rate used. If there is no such Official X.X. Reuters Spot
Closing Rate for a country=s currency at 11:00 a.m., New York City
time, the foreign currency-denominated cash shall be converted into
U.S. dollars using the last available U.S. dollar cross-rate quote
before 11:00 a.m., New York City time. Interest shall accrue beginning
the first London Business Day after the day that holders receive the
cash consideration until the Stated Maturity (the AM&A Cash Component
Interest Accrual Period@). Interest shall accrue on the M&A Cash
Component at a rate equal to the London Interbank Offered Rate
(ALIBOR@) with a term corresponding to the M&A Cash Component Interest
Accrual Period.
(ii) To the extent that equity securities that are traded or
listed on an exchange, trading system or market are received, once the
exchange for the new securities has become effective, the former Basket
Security shall be removed from the Basket and the new security shall be
added to the Basket as a new Basket Security. The Multiplier for the
new Basket Security shall equal the product of the last value of the
Multiplier of the original Basket Security and the number of securities
of the new Basket Security exchanged with respect to one share of the
original Basket Security.
(iii) To the extent that equity securities that are not traded
or listed on an exchange, trading system or market or non-equity
securities or other property (other than cash) is received, the
Calculation Agent shall determine the AFair Market Value@ of the
securities or other property received based on the Average Execution
Price. The Basket shall include an amount of cash equal to the product
of the Multiplier of the Basket Security and the Fair Market Value (the
AM&A Sale Component@). The Basket shall also include accrued interest
on the M&A Sale Component. Interest shall accrue beginning the first
London Business Day after the day that an affiliate of Holdings sells
the securities or other property used to hedge Holdings= obligations
under the Securities until the Stated Maturity (the AM&A Sale Component
Interest Accrual Period@). Interest shall accrue at a rate equal to
LIBOR with a term corresponding to the M&A Sale Component Interest
Accrual Period.
(e) If all of the shares of a Basket Security of an issuer are
converted into or exchanged for the same or a different number of shares of any
class or classes of common stock other than such Basket Security, whether by
capital reorganization, recapitalization or reclassification or otherwise, then,
once the conversion has become effective, the former Basket Security shall be
removed from the Basket and the new common stock shall be added to the Basket as
a new Basket Security. The Multiplier for each new Basket Security shall equal
the product of the last value of the Multiplier of the original Basket Security
and the number of shares of the new Basket Security issued with respect to one
share of the original Basket Security.
(f) If the issuer of a Basket Security, or if a Basket Security is an
ADR, the issuer of the underlying foreign share, issues to all of its
shareholders common stock or another equity security that is traded or listed on
an exchange, trading system or market of an issuer other than itself, then the
new common stock or other equity security shall be added to the Basket as a new
Basket Security. The multiplier for the new Basket Security shall equal the
product of the last value of the Multiplier with respect to the original Basket
Security and the number of shares of the new Basket Security with respect to one
share of the original Basket Security.
(g) If an ADR is no longer listed or admitted to trading on a United
States securities exchange registered under the Securities Exchange Act of 1934
or is no longer a security quoted on The Nasdaq Stock Market, Inc., then the
foreign share underlying the ADR shall be deemed to be a new common stock added
to the Basket as a new Basket Security. The initial Multiplier for that new
Basket Security shall equal the product of the last value of the Multiplier with
respect to the original ADR and the number of underlying foreign shares
represented by a single such ADR.
(g) If a Basket Security is subject to an extraordinary dividend or an
extraordinary distribution, including upon liquidation or dissolution, of cash,
equity securities that are not traded or listed on an exchange, trading system
or market, non-equity securities or other property of any kind which is received
equally by all holders of such Basket Security, then the Basket shall include
the following:
(i) To the extent cash is entitled to be received, the Basket
shall include on each day after the time that the Basket Security
trades ex-dividend until the date the cash consideration is entitled to
be received, the present value of the cash to be received, discounted
at a rate equal to LIBOR, with a term beginning that day and ending on
the date that the cash is entitled to be received (the "PV
Extraordinary Cash Component"). When the cash consideration is
received, the PV Extraordinary Cash Component shall be deleted from the
Basket and the Basket shall include the amount of the cash
consideration (the "Extraordinary Cash Component"), plus accrued
interest. If the cash consideration received or entitled to be received
is denominated in a foreign currency, such cash or the present value of
such cash, as the case may be, shall be converted into U.S. dollars
using the Official X.X. Reuters Spot Closing Rate at 11:00 a.m., New
York City time. If there are several quotes for the Official X.X.
Reuters Spot Closing Rate at that time, the first quoted rate starting
at 11:00 a.m. shall be the rate used. If there is no such Official X.X.
Reuters Spot Closing Rate for a country's currency at 11:00 a.m., New
York City time, the foreign currency-denominated cash shall be
converted into U.S. dollars using the last available U.S. dollar
cross-rate quote before 11:00 a.m., New York City time. Interest shall
accrue on the Extraordinary Cash Component beginning the first London
Business Day after the day that holders are entitled to receive the
Extraordinary Cash Component until the Stated Maturity (the
"Extraordinary Cash Component Interest Accrual Period"). Interest shall
accrue at a rate equal to LIBOR with a term corresponding to the
Extraordinary Cash Component Interest Accrual Period.
(ii) To the extent that equity securities that are not traded
or listed on an exchange, trading system or market or non-equity
securities or other property (other than cash) is received, the
Calculation Agent shall determine the Fair Market Value of the
securities or other property received based on the Average Execution
Price and the Basket shall include an amount of cash equal to the
product of the Multiplier of the Basket Security and the Fair Market
Value (the "Extraordinary Sale Component"). The Basket shall also
include accrued interest on the Extraordinary Sale Component. Interest
shall accrue beginning the first London Business Day after the day that
an affiliate of Holdings sells the securities or other property used to
hedge Holdings' obligations under the Securities until the Stated
Maturity (the "Extraordinary Sale Component Interest Accrual Period").
Interest shall accrue at a rate equal to LIBOR with a term
corresponding to Extraordinary Sale Component Interest Accrual Period.
The payment of an ordinary cash dividend by an issuer of a Basket
Security, or if a Basket Security is an ADR, by the issuer of the underlying
foreign share, from current income or retained earnings shall not result in an
adjustment to the Multiplier.
No adjustments of any Multiplier of a Basket Security shall be required
unless the adjustment would require a change of at least .1% (.001) in the
Multiplier then in effect. The Multiplier resulting from any of the adjustments
specified above shall be rounded at the Calculation Agent=s discretion.
5. Definitions.
Set forth below are the terms used in this Annex A to the Calculation
Agent Agreement.
"Alternative Redemption Amount" shall mean the product of (a)
the Issue Price divided by 124.09 and (b) the Basket Level on the relevant
Payment Determination Date.
"Average Execution Price" for a security or other property
shall mean the average execution price that an affiliate of the Company receives
or pays for such security or property, as the case may be, to hedge the
Company=s obligations under the Securities.
"Basket" shall mean the Basket Securities.
"Basket Level", when used with respect to any Payment
Determination Date, shall equal the sum of (a) the products of the Closing
Prices and the applicable Multipliers for each Basket Security for which a
Delaying Event does not occur on the related Calculation Day, (b) if a Delaying
Event occurs for a Basket Security on the related Calculation Day, the product
of the Closing Price for such Basket Security on the next Trading Day on which a
Market Disruption Event does not occur for such Basket Security and the
Multiplier for such Basket Security and (c) any cash included in the Basket on
such Calculation Day.
"Business Day" shall mean any day that is not a Saturday, a
Sunday or a day on which the NYSE or banking institutions or trust companies in
the City of New York are authorized or obligated by law or executive order to
close.
"Calculation Agent" shall mean the person that has entered
into an agreement with the Company providing for, among other things, the
determination of the Basket Level and the Payment Amount, which term shall,
unless the context otherwise requires, include its successors and assigns. The
initial Calculation Agent shall be Xxxxxx Brothers Inc.
"Calculation Day" shall mean three Trading Days prior to (a)
for payment at Stated Maturity, February 24, 2007, (b) for payment upon a
Redemption, the Non-Delaying Event Redemption Date or (c) for a payment upon a
Repurchase, the Non-Delaying Event Repurchase Date.
"Cash Included in the Basket" shall mean the M&A Cash
Component, the M&A Sale Component, the PV Extraordinary Cash Component, the
Extraordinary Cash Component, the Extraordinary Sale Component, and interest
accrued thereon as provided for herein.
"Close of Trading" shall mean 4:00 p.m., New York City time.
"Closing Price" means the following, determined by the
Calculation Agent based on information reasonably available to it:
(i) If the Basket Security is listed on a United States
national securities exchange or trading system or is a security quoted
on The Nasdaq Stock Market, Inc. ("NASDAQ"), the last reported sale
price at the Close of Trading, regular way, on such day, on the primary
securities exchange registered under the Securities Exchange Act of
1934 on which such Basket Security is listed or admitted to trading or
NASDAQ, as the case may be.
(ii) If the Basket Security is listed on a non-United States
securities exchange, trading system (other than a bulletin board) or
market, the last reported sale price at the Close of Trading, regular
way, on such day, on the primary exchange, trading system or market on
which such Basket Security is listed or admitted to trading, as the
case may be. The Closing Price shall then be converted into U.S.
dollars using the Official X.X. Reuters Spot Closing Rate at 11:00
a.m., New York City time. If there are several quotes for the Official
X.X. Reuters Spot Closing Rate at that time, the first quoted rate
starting at 11:00 a.m. shall be the rate used. If there is no such
Official X.X. Reuters Spot Closing Rate for a country=s currency at
11:00 a.m., New York City time, the Closing Price shall be converted
into U.S. dollars using the last available U.S. dollar cross-rate quote
before 11:00 a.m., New York City time.
(iii) If the Basket Security is not listed on a national
securities exchange or is not a NASDAQ security, and is listed or
traded on a bulletin board, the Average Execution Price of the Basket
Security. If such Basket Security is listed or traded on a non-United
States bulletin board, the Closing Price shall then be converted into
U.S. dollars using the Official X.X. Reuters Spot Closing Rate at 11:00
a.m., New York City time. If there are several quotes for the Official
X.X. Reuters Spot Closing Rate at that time, the first quoted rate
starting at 11:00 a.m. shall be the rate used. If there is no such
Official X.X. Reuters Spot Closing Rate for a country's currency at
11:00 a.m., New York City time, the Closing Price shall be converted
into U.S. dollars using the last available U.S. dollar cross-rate quote
before 11:00 a.m., New York City time.
"Delaying Event" shall mean a Market Disruption Event for a
Basket Security occurs on the relevant Calculation Day.
"Delaying Event Redemption Date" shall mean, if a Delaying
Event occurs on the Calculation Day for a Redemption, three Business Days after
the Payment Determination Date thereof.
"Delaying Event Repurchase Date" shall mean, if a Delaying
Event occurs on the Calculation Day for a Repurchase, three Business Days after
the Payment Determination Date thereof.
"Issue Price" shall mean $1,000 per each $1,000 principal
amount of Securities.
"Market Disruption Event" with respect to a Basket Security
means any of the following events as determined by the Calculation Agent:
(i) A suspension, absence or material limitation of trading of
such Basket Security has occurred on that day, in each case, for more
than two hours of trading or during the one-half hour period preceding
the Close of Trading on the primary organized U.S. exchange or trading
system on which such Basket Security is traded or, if such Basket
Security is not listed or quoted in the United States, on the primary
exchange, trading system or market for such Basket Security.
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 exchange, trading system, or
market, any other self regulatory organization or the Securities and
Exchange Commission of similar scope or as a replacement for Rule 80B,
may be considered material. Notwithstanding the first sentence of this
paragraph, a Market Disruption Event for a Basket Security traded on a
bulletin board means a suspension, absence or material limitation of
trading of such Basket Security for more than two hours or during the
one hour period preceding 4:00 p.m., New York City time.
(ii) A suspension, absence or material limitation has occurred
on that day, in each case, for more than two hours of trading or during
the one-half hour period preceding the Close of Trading in options
contracts related to such Basket Security, whether by reason of
movements in price exceeding levels permitted by an exchange, trading
system or market on which such options contracts related to such Basket
Security are traded or otherwise.
(iii) Information is unavailable on that date, 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 such Basket Security or in respect of options
contracts related to such Basket Security, in each case traded on any
major U.S. exchange or trading system or in the case of Basket
Securities of a non-U.S. issuer, the primary non-U.S. exchange, trading
system or market.
For purposes of determining whether a Market Disruption Event has
occurred:
(i) 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, trading system or market;
(ii) any suspension in trading in an option contract on a
Basket Security by a major securities exchange, trading system or
market by reason of (a) a price change violating limits set by such
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 Market Disruption Event notwithstanding
that the suspension or material limitation is less than two hours;
(iii) a suspension or material limitation on an exchange,
trading system or in a market shall include a suspension or material
limitation of trading by one class of investors provided that the
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, trading system or market but shall not include any
time when the relevant exchange, trading system or market is closed for
trading as part of that exchange=s, trading system=s or market=s
regularly scheduled business hours; and
(iv) ATrading systems@ include bulletin board services.
"Multiplier" relating to each Basket Security shall mean the
number of shares (including any fractional share expressed as a decimal) of such
Basket Security included in the Basket.
"NYSE" shall mean the New York Stock Exchange.
"Non-Delaying Event Redemption Date" shall mean the date set
forth in the Redemption Notice, which date shall not be less than 30 nor more
than 60 days after the date of the Redemption Notice.
"Non-Delaying Event Repurchase Date" shall mean the third
Business Day following the five Business Days after the day on which a Holder
gives notice to the Trustee of a Repurchase.
"Official X.X. Reuters Spot Closing Rates" shall mean the
closing spot rates published on Reuters page "WMRA" relevant for such Basket
Security.
"Payment Amount" shall mean the Maturity Payment Amount, the
Redemption Payment Amount or the Repurchase Payment Amount, as the case may be.
"Payment Determination Date" shall mean the relevant
Calculation Day, unless a Delaying Event occurs with respect to such Payment
Determination Date, in which case the first Trading Day after the Calculation
Day on which the Closing Prices for all Basket Securities that have been subject
to a Delaying Event have been determined.
"Redemption" shall mean the option of the Company to redeem,
at any time after February 15, 2002 in whole or from time to time in part, the
Securities.
"Redemption Notice" shall mean the notice of Redemption mailed
to the Holders.
"Repurchase" shall mean the option, after February 15, 2002,
of a beneficial holder to elect to require the Company to repurchase, in whole
or from time to time in part, such holder's Securities.
"Stated Maturity" shall mean February 24, 2007 or if a
Delaying Event occurs, three Business Days after the Payment Determination Date
on which the Basket Level has been determined.
"Trading Day" shall mean a day on which trading generally is
conducted on the NYSE, American Stock Exchange and The Nasdaq Stock Market, Inc.
and in the over-the-counter market for equity securities as determined by the
Calculation Agent.
"Trading Systems", as used herein, shall include bulletin board services unless
otherwise indicated.
