EXHIBIT 4.01
CALCULATION AGENCY AGREEMENT
(0.25% Notes Due June 1, 2008, Performance Linked
to a Basket of Seven Technology Stocks)
AGREEMENT, dated as of June 1, 2001 between ▇▇▇▇▇▇ Brothers Holdings Inc.
(the "Company") and ▇▇▇▇▇▇ Brothers Inc., as Calculation Agent.
WHEREAS, the Company has authorized the issuance of $12,950,000 aggregate
principal amount of 0.25% Notes Due June 1, 2008,Performance Linked to a Basket
of Seven Technology Stocks (the "Securities");
WHEREAS, the Securities will be issued under an Indenture 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 ▇▇▇▇▇▇ Brothers Inc.
as Calculation Agent and ▇▇▇▇▇▇ 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 Basket Level,
2
(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 2.
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
whom 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
3
(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
4
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 shall 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
5
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 Business Days), (a) in the case of the Company, to it at
Three World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (facsimile: (212)
▇▇▇-▇▇▇▇) (telephone: (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Legal Counsel, (b) in the case
of the Calculation Agent, to it at Three World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇) (telephone: (▇▇▇) ▇▇▇-▇▇▇▇),
Attention: Equity Derivatives Trading and (c) in the case of the Trustee, to it
at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (facsimile: (212)
▇▇▇-▇▇▇▇) (telephone: (▇▇▇) ▇▇▇-▇▇▇▇), 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.
6
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.
7
IN WITNESS WHEREOF, this Calculation Agency Agreement has been
entered into as of the day and year first above written.
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ BROTHERS INC.,
as Calculation Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
ANNEX A
1. The Basket Securities.
The Basket Securities is a group of securities included in the Basket (as
defined below) from time to time and shall initially consist of the American
Depositary Receipts ("ADRs") of Nokia Corporation and the common stocks of EMC
Corp., Novellus Systems Inc., Polycom Inc., Emcore Corp., Juniper Networks Inc.
and Broadcom Corp., in each case unless adjusted for certain extraordinary
corporate events as described herein.
"Basket" shall mean the Basket 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 "Maturity 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 "Redemption 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 Redemption Date. The
amount payable upon a Repurchase of each $1,000 principal amount of Securities
(the "Repurchase 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.
3. Multipliers.
The "Multiplier" shall mean, with respect to any applicable principal
amount of Securities, the number of shares or other units (including ADRs) or
any fractional share or other unit expressed as a decimal of each Basket
Security included in the Basket. In the case of each Security with principal
amount of $1,000.00, the initial Multiplier for each Basket Security is set
forth below:
Basket Security Initial Multiplier
Broadcom Corp. 0.3257
EMC Corp. 0.3660
Emcore Corp. 0.3700
Juniper Networks Inc. 0.2555
Nokia Corporation 0.4275
Novellus Systems Inc. 0.2597
Polycom Inc. 0.4962
The Multipliers with respect to each Basket Security shall remain constant
unless adjusted for certain extraordinary corporate events as described below.
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, ADRs 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 Basket Level 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 "M&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 ▇.▇. Reuters Spot Closing Rate at 11:00 a.m., New York City
time. If there are several quotes for the Official ▇.▇. 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 ▇.▇. 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.
3
Interest shall accrue beginning the first London Business Day after
the day that holders receive the cash consideration until the Stated
Maturity (the "M&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 ("LIBOR") 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 "Fair 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
"M&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 "M&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
4
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.
(h) 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 ▇.▇. Reuters Spot Closing Rate at 11:00 a.m., New
York City time. If there are several quotes for the Official ▇.▇.
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 ▇.▇.
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.
(i) If other corporate events occur with respect to such issuer or a
Basket Security, adjustments shall be made to reflect the economic substance of
such events.
5
The payment of an ordinary cash dividend by an issuer of a Basket
Security, or if a Basket Security is an ADR, by a foreign 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 131.25 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 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 Business 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", notwithstanding the Indenture, shall mean any
day other than a Saturday, a Sunday or a day on which the NYSE is not open for
trading or banking institutions or trust companies in the City of New York are
authorized or required by law or executive order to remain closed.
"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 ▇▇▇▇▇▇ Brothers Inc.
"Calculation Day" shall mean (i) five Business Days prior to
(a) for payment at Stated Maturity, June 1, 2008 or (b) for a payment upon a
Repurchase, the Non-Delaying Event Repurchase Date or (ii) the date of the
Redemption Notice for payment upon a redemption.
"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.
6
"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 quoted on NASDAQ, as the case
may be.
(ii) If the Basket Security is listed or quoted 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, quoted or admitted to trading, as the case
may be. The Closing Price shall then be converted into U.S. dollars using
the Official ▇.▇. Reuters Spot Closing Rate at 11:00 a.m., New York City
time. If there are several quotes for the Official ▇.▇. 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 ▇.▇. 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
▇.▇. Reuters Spot Closing Rate at 11:00 a.m., New York City time. If there
are several quotes for the Official ▇.▇. 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 ▇.▇. 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 Repurchase Date" shall mean, if a Delaying
Event occurs on the Calculation Day for a Repurchase, five 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
7
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 securities of a non-U.S. issuer, traded on 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
8
(iv) "trading systems" include bulletin board services.
"Multiplier" is defined in Section 3 herein.
"NYSE" shall mean the New York Stock Exchange.
"Non-Delaying Event Repurchase Date" shall mean the eighth
Business Day following the Business Day on which the Company receives notice of
a Repurchase from a Holder.
"Official ▇.▇. 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 Business 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 on or after May 24, 2003, in whole or from time to time in part, the
Securities.
"Redemption Date" shall mean, notwithstanding anything to the
contrary in the Indenture, 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.
"Redemption Notice" shall mean the notice of Redemption mailed
to the Holders.
"Repurchase" shall mean the option, at any time until eight
Business Days before June 1, 2008, 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 June 1, 2008 or if a Delaying
Event occurs, five Business Days after the Payment Determination Date on which
the Basket Level has been determined.