Exhibit 4.02
CALCULATION AGENCY AGREEMENT
CALCULATION AGENCY AGREEMENT, dated as of March 21, 2003
(the "Agreement"), between Xxxxxx Brothers Holdings Inc. (the "Company")
and Xxxxxx Brothers Inc., as Calculation Agent.
WHEREAS, the Company has authorized the issuance of up to
$17,250,000 aggregate principal amount of YEELDS(TM) 10% Yield Enhanced Equity
Linked Debt Securities Due March 21, 2004 (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 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. The Calculation
Agent shall determine (a) the Maturity Payment Amount, (b) the
Settlement Value, (c) the Closing Price of each Settlement Value
Security on the Valuation Date, (d) the Multipliers for each of the
Settlement Value Securities, (e) whether adjustments to the Multipliers
should be made and (f) whether a Market Disruption Event has occurred.
The Calculation Agent shall notify the Trustee of all such
determinations and 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.
* "YEELDS" is a trademark of Xxxxxx Brothers Inc.
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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:
(a) 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;
(b) 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;
(c) the Calculation Agent shall be obliged to perform only
such duties as are set out specifically herein and any duties
necessarily incidental thereto;
(d) 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
(e) 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.
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(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 Business
Days), (a) in the case of the Company, to it at 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (facsimile: (000) 000-0000) (telephone: (212)
526-7000), Attention: Treasurer, with a copy to 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (facsimile: (000) 000-0000) (telephone: (212)
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526-7000), Attention: Corporate Secretary, (b) in the case of the
Calculation Agent, to it at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (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: (000) 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.
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IN WITNESS WHEREOF, this Agreement has been entered
into as of the day and year first above written.
XXXXXX BROTHERS HOLDINGS INC.
By: __/s/ Xxxxx Corrigan______
Name: Xxxxx Xxxxxxxx
Title: Vice President
XXXXXX BROTHERS INC.,
as Calculation Agent
By: __/s/ Xxxxx Corrigan______
Name: Xxxxx Xxxxxxxx
Title: Vice President
ANNEX A
1. Settlement Value Securities.
The "Settlement Value Securities" shall mean the securities
included in the calculation of the Settlement Value from time to time and shall
initially be the common stock of CIT Group Inc., unless adjusted for certain
extraordinary corporate events as described herein.
2. Determination of the Maturity Payment Amount.
The Calculation Agent shall determine the amount payable on
the Stated Maturity Date for each $1,000 principal amount of Securities (the
"Maturity Payment Amount"). The Maturity Payment Amount shall equal (i) the
lesser of (a) the Alternative Redemption Amount and (b) $1,212.50 and (ii) any
accrued but unpaid interest through the Stated Maturity Date.
3. Multipliers.
"Multiplier" shall mean, with respect to each Settlement Value
Security, the number of shares or other units (including any fractional share or
other unit expressed as a decimal) of the Settlement Value Security included in
the calculation of the Settlement Value. The initial Multiplier relating to CIT
Group Inc., initially the only Settlement Value Security, shall be 1.0. The
initial Multiplier for any other security which may subsequently become a
Settlement Value Security shall be the number of shares or other units of such
security which are to be included in the calculation of the Settlement Value at
the time the security becomes a Settlement Value Security. The Multiplier with
respect to any Settlement Value Security shall remain constant unless adjusted
for certain extraordinary corporate events as described below.
4. Adjustments to the Multipliers and the Settlement Value Securities.
Adjustments to a Multiplier and the Settlement Value
Securities shall be made in the circumstances described below. For purposes of
these adjustments, except as noted below, ADRs are treated like Settlement Value
Securities 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 shares.
o If a Settlement Value Security is subject to a stock split or reverse
stock split, then once the split has become effective, the Multiplier
relating to such Settlement Value Security shall be adjusted. The
Multiplier shall be adjusted to equal the product of the number of
shares outstanding of the Settlement Value Security after the split
with respect to each share of such Settlement Value Security
immediately prior to effectiveness of the split and the prior
Multiplier.
o If a Settlement Value Security is subject to an extraordinary stock
dividend or extraordinary stock distribution that is given equally to
all holders of shares, then once the Settlement Value Security is
trading ex-dividend, the Multiplier for such Settlement Value Security
shall be increased by the product of the number of shares of such
Settlement Value Security issued with respect to one share of such
Settlement Value Security and the prior Multiplier.
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o If the issuer of a Settlement Value Security, or if a Settlement
Value 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 Settlement Value Security shall continue to be
included in the calculation of the Settlement Value so long as
the primary exchange, trading system or market is reporting a
market price for the Settlement Value Security. If a market
price, including a price on a bulletin board service, is no longer
available for a Settlement Value Security, then the value of the
Settlement Value 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 Settlement Value to compensate for
the deletion of such Settlement Value Security.
o If the issuer of a Settlement Value Security, or if a Settlement Value
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 Settlement Value Security are entitled to
receive cash, securities, other property or a combination thereof in
exchange for the Settlement Value Security, then the following shall be
included in the Settlement Value:
o To the extent cash is received, the Settlement Value 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 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 Date (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.
o 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 Settlement Value Security
shall be removed from the calculation of the Settlement Value and the new
security shall be added to the calculation of the Settlement Value as a new
Settlement Value Security. The Multiplier for the new Settlement Value
Security shall equal the product of the last value of the Multiplier of the
original Settlement Value Security and the number of securities of the new
Settlement Value Security exchanged with respect to one share of the
original Settlement Value Security.
o 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 Settlement Value shall
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include an amount of cash equal to the product of the Multiplier of the
Settlement Value Security and the Fair Market Value (the "M&A Sale
Component"). The Settlement Value 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 Date (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.
o If all of the shares of a Settlement Value 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 Settlement Value
Security, whether by capital reorganization, recapitalization or
reclassification or otherwise, then, once the conversion has become
effective, the former Settlement Value Security shall be removed from the
calculation of the Settlement Value and the new common stock shall be added
to the calculation of the Settlement Value as a new Settlement Value
Security. The Multiplier for each new Settlement Value Security shall equal
the product of the last value of the Multiplier of the original Settlement
Value Security and the number of shares of the new Settlement Value
Security issued with respect to one share of the original Settlement Value
Security.
o If the issuer of a Settlement Value Security, or if a Settlement Value
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 calculation of the Settlement Value as a new Settlement
Value Security. The multiplier for the new Settlement Value Security shall
equal the product of the last value of the Multiplier with respect to the
original Settlement Value Security and the number of shares of the new
Settlement Value Security issued with respect to one share of the original
Settlement Value Security.
o If an ADR included in the calculation of the Settlement Value as a
Settlement Value Security 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, then the foreign share underlying the ADR shall be deemed
to be a new common stock added to the calculation of the Settlement
Value as a new Settlement Value Security. The initial Multiplier for
that new Settlement Value 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.
o If a Settlement Value 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 Settlement Value Security, then the Settlement Value shall include
the following:
o To the extent cash is entitled to be received, the Settlement Value shall
include on each day after the time that the Settlement Value 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
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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 Settlement Value and the
Settlement Value 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 Date (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.
o 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 calculation of the
Settlement Value shall include an amount of cash equal to the product of
the Multiplier of the Settlement Value Security and the Fair Market Value
(the "Extraordinary Sale Component"). The Settlement Value 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 Date
(the "Extraordinary Sale Component Interest Accrual Period"). Interest
shall accrue at a rate equal to LIBOR with a term corresponding to the
Extraordinary Sale Component Interest Accrual Period.
o If similar corporate events occur with respect to the issuer of an
equity security other than a Settlement Value Security, adjustments
similar to the above will be made for that equity security. In
addition, if any other corporate events occur with respect to the
issuer of a Settlement Value Security, adjustments will be made to
reflect the economic substance of those events.
The payment of an ordinary cash dividend from current income or retained
earnings will not result in an adjustment to the Multiplier.
5. Definitions.
Set forth below are the terms used in the Agreement and in
this Annex A.
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"ADR" shall mean American Depositary Receipt.
"Alternative Redemption Amount" shall mean the product of (a)
$1,000 and (b) the Settlement Value divided by $17.25.
"AMEX" shall mean the American Stock Exchange LLC.
"Average Execution Price" shall mean, for a security or other
property, 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.
"Business Day", notwithstanding any provision in the
Indenture, shall mean any day that is not a Saturday, a Sunday or a day on which
the NYSE, Nasdaq or AMEX is not open for trading 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 Maturity Payment Amount, which term shall, unless the
context otherwise requires, include its successors and assigns. The initial
Calculation Agent shall be Xxxxxx Brothers Inc.
"Close of Trading" shall mean 4:00 p.m., New York City time.
"Closing Price" shall mean, for each Settlement Value
Security, as determined by the Calculation Agent based on information reasonably
available to it:
(i) If the Settlement Value Security is listed on a United
States national securities exchange or trading system or is a Nasdaq
security, 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 Settlement Value
Security is listed or admitted to trading or on Nasdaq, as the case may
be.
(ii) If the Settlement Value 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 Settlement Value 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.
(iii) If the Settlement Value Security is not listed on a
national securities exchange or trading system or is not a Nasdaq
security, and is listed or traded on a bulletin board, the Average
Execution Price of the Settlement Value Security. If such Settlement
Value Security is listed or traded on a non-United States bulletin
board, the Closing Price will then be converted into U.S. dollars using
the Official X.X. Reuters Spot Closing Rate.
(iv) If a Market Disruption Event has occurred for a
Settlement Value Security on a day on which the Closing Price for such
Settlement Value Security is to be calculated, the Closing Price for
such Settlement Value Security shall initially be determined using the
Closing Price for such Settlement Value Security on the next preceding
Trading Day on which a Market Disruption Event did not occur. Once the
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Market Disruption Event has ceased, the Closing Price of such
Settlement Value Security shall then be adjusted to equal the Average
Execution Price of the Settlement Value Security.
"Company" shall have the meaning set forth in the preamble to
this Agreement.
"Ending Multiplier" shall mean, for each Settlement Value
Security, the initial Multiplier for such Settlement Value Security adjusted
from time to time for the occurrence, prior to the Close of Trading on the
Valuation Date, of any of the extraordinary corporate transactions described in
Section 4 of this Annex A.
"Indenture" shall have the meaning set forth in the preamble
to this Agreement.
"Issue Date" shall mean March 21, 2003.
"LIBOR" shall mean London Interbank Offered Rate.
"London Business Day" shall mean shall mean any day in the
United Kingdom that is not a Saturday, a Sunday or a day on which the London
Stock Exchange is not open for trading or banking institutions or trust
companies in the City of London are authorized or obligated by law or
parliamentary order to close.
"Market Disruption Event", on any day, shall mean any of the
following events as determined by the Calculation Agent:
(i) A suspension, absence or material limitation of trading in
a Settlement Value 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 that security is traded or, in the case of a
Settlement Value Security not listed or quoted in the United States, on
the primary exchange, trading system or market for that security.
Limitations on trading during significant market fluctuations imposed
pursuant to the rules of any primary organized U.S. exchange or trading
system similar 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 security traded on a
bulletin board means a suspension, absence or material limitation of
trading of that security for more than two hours or during the one-hour
period preceding the Close of Trading.
(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 a Settlement Value Security, whether by reason of
movements in price exceeding levels permitted by an exchange, trading
system or market on which such options contracts 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
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information in respect of a Settlement Value Security or in respect of
options contracts related to a Settlement Value 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 options contract on a
Settlement Value 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) "trading system" includes bulletin board services.
"Maturity Payment Amount" shall have the meaning set forth in
Section 2 of this Annex A.
"Multiplier" shall have the meaning set forth in Section 3 of
this Annex A.
"Nasdaq" shall mean The Nasdaq Stock Market, Inc.
"NYSE" shall mean The New York Stock Exchange, Inc.
"Official W.M. Reuters Spot Closing Rate" shall mean the
closing spot rate published on Reuters page "WMRA" relevant for a Settlement
Value Security.
"Prospectus Supplement" shall mean the prospectus supplement,
dated March 14, 2003, issued by the Company relating to $15,000,000 aggregate
principal amount of the Securities.
"Settlement Value" shall mean the sum of (a) the products of
the Closing Prices and the applicable Ending Multipliers for each Settlement
Value Security on the Valuation Date and (b) any cash included in the Settlement
Value on the Valuation Date.
"Settlement Value Securities" shall have the meaning set forth
in Section 1 of this Annex A.
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"Stated Maturity Date" shall mean March 21, 2004; provided,
that if a Market Disruption Event with respect to one or more of the Settlement
Value Securities occurs on the Valuation Date, then the Stated Maturity Date
shall be five Business Days after the date on which an affiliate of the Company
has completed the sale of the common stock or other equity security used to
hedge the Company's obligations under the Securities.
"Trading Day" shall mean a day on which trading generally is
conducted on the NYSE, AMEX and Nasdaq and in the over-the-counter market for
equity securities, as determined by the Calculation Agent.
"Trustee" shall have the meaning set forth in the preamble to
this Agreement.
"Valuation Date" shall mean March 15, 2004; provided that if a
Market Disruption Event occurs on such date, the Valuation Date shall be the
previous Business Day on which there was not a Market Disruption Event.
