Exhibit 4.01
CALCULATION AGENCY AGREEMENT
AGREEMENT, dated as of November 10, 1999, between Xxxxxx Brothers Holdings
Inc. (the "Company")and Xxxxxx Brothers Inc., as Calculation Agent.
WHEREAS, the Company has authorized the issuance of up to $23,830,000
aggregate principal amount of Dow Xxxxx Internet IndexSM Stock Upside Note
SecuritiesSM Due November 10, 2004 (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:
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.
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 Calculation Agent shall determine such Maturity
Payment Amount and notify the Trustee of its determination. The Calculation
Agent shall also be responsible for (a) the determination of the Alternative
Amount, (b) whether adjustments to the index level should be made, (c) the
Successor Index if publication of the Index is discontinued and (d) whether a
Market Disruption Event has occurred. The Calculation Agent shall notify the
Trustee of any such adjustment or any such Successor Index, 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.
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. .
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.
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:
() 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;
() 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; () the Calculation Agent
shall be obliged to perform only such duties as are set out specifically
herein and any duties necessarily incidental thereto;
() 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
() the Calculation Agent shall incur no liability hereunder except for
loss sustained by reason of its gross negligence or wilful misconduct.
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.
.
Certain Definitions. Terms not otherwise defined herein or in Annex A
hereto are used herein as defined in the Indenture or the Securities.
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.
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: (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.
Governing Law. This Agreement shall be governed by and continued in
accordance with the laws of the State of New York. .
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.
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\ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title: Vice President
XXXXXX BROTHERS INC.,
as Calculation Agent
By: \s\ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
ANNEX A
. The Index.
The Index is the Dow Xxxxx Internet Index, as calculated by Dow Xxxxx
(the "Index").
. Determination of the Maturity Payment Amount.
The Calculation Agent shall determine the amount payable at Stated
Maturity for each $1,000 principal amount of Securities (the "Maturity
Payment Amount"). The Maturity Payment Amount shall equal the greater of
(a) $1,000 and (b) the Alternative Amount.
. Discontinuance of the Index.
() If Dow Xxxxx discontinues publication of the Index and Dow Xxxxx or
another entity publishes a successor or substitute index that the
Calculation Agent determines, in its sole discretion, to be comparable to
the Index, then, upon the Calculation Agent's notification of its
determination to the Trustee and the Company, the Calculation Agent shall
substitute that successor index (the "Successor Index") for the Index and
calculate the Maturity Payment Amount pursuant to Section 2 hereof by
reference to the level of that Successor Index.
() If Dow Xxxxx discontinues publication of the Index and (i) the
Calculation Agent does not select a Successor Index or (ii) the Successor
Index is no longer published, then the Calculation Agent, based on the
information provided by Dow Xxxxx, shall compute a substitute level for the
Index in accordance with the procedures last used to calculate the Index
before any discontinuance.
() If Dow Xxxxx discontinues publication of the Index and the
Calculation Agent determines that no Successor Index is available at that
time, then on each Business Day until the Calculation Agent determines that
a Successor Index is available, the Calculation Agent shall determine the
level of the Index as described in Section 3(b).
() If a Successor Index is selected or the Calculation Agent calculates
a level as a substitute for the Index, that Successor Index or that level
shall be used as a substitute for the Index for all purposes, including for
purposes of determining whether a Market Disruption Event exists.
. Alterations to the index level.
If at any time Dow Xxxxx or the publisher of a Successor Index changes
its method of calculating the Index or a Successor Index, as the case may
be, in any material respect, or if the Index or a Successor Index, as the
case may be, is in any other way modified so that the Index or that
Successor Index does not, in the opinion of the Calculation Agent, fairly
represent the value thereof had those changes or modifications not been
made, then the Calculation Agent shall, at the Close of Trading, on each
day, make those adjustments as, in the good faith judgment of the
Calculation Agent, may be necessary in order to arrive at a calculation of
a value of a stock index comparable to the Index or that Successor Index,
as the case may be, as if those changes or modifications had not been made.
The Calculation Agent shall calculate the index level with reference to the
Index or that Successor Index, as the case may be, as so adjusted.
. Definitions.
Set forth below are the terms used in this Annex A to the Calculation
Agent Agreement.
"Alternative Amount" shall mean, with respect to each $1,000
principal amount of Securities, the sum of (i) the Issue Price and (ii) the
product of (x) the Issue Price multiplied by (y) the quotient of (1) the
Final Index Level minus the Starting Level divided by (2) the Starting
Level; provided, that the Alternative Amount shall not exceed $2,000.
"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 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.
"Calculation Day" shall mean three Trading Days prior to
November 10, 2004.
"Closing Level" shall mean the last reported level of the
Index or the Successor Index, as the case may be, at 4:00 p.m., New York
City time, as reported by Dow Xxxxx or the publisher of the Successor
Index, as the case may be.
"Close of Trading" shall mean 4:00 p.m., New York City time.
"Dow Xxxxx" shall mean Dow Xxxxx & Company, Inc.
"Final Index Level" shall equal (a) the Closing Level of the
Index or a Successor Index, as the case may be, on the Calculation Day or
(b) if a Market Disruption Event occurs on the Calculation Day, the Closing
Level of the Index or that Successor Index, as the case may be, on the next
Trading Day on which a Market Disruption Event does not occur.
"Issue Price" shall mean $1,000 per each $1,000 principal
amount of Securities.
"Market Disruption Event", on any day, shall mean any of the
following events as determined by the Calculation Agent:
() A suspension, absence or material limitation of trading in
20% of more of the underlying stocks which then comprise the Index or
any Successor Index, as the case may be, 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 stocks are traded or, in
the case of a common stock not listed or quoted in the United States,
on the primary exchange, trading system or market for such stock.
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 stock traded on a bulletin
board means a suspension, absence or material limitation of trading of
such stock for more than two hours or during the one hour period
preceding 4:00 p.m., New York City time.
() 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 the Index or any Successor Index, as the case may
be, 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.
() 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 20% or more of the underlying stocks which then comprise
the Index or any Successor Index, as the case may be, or in respect of
options contracts related to the Index or any Successor Index, as the
case may be, in each case traded on any major U.S. exchange or trading
system or in the case of stocks 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 the
Index or the Successor Index, as the case may be, 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 systems" include bulletin board services.
"NYSE" shall mean the New York Stock Exchange.
"Payment Determination Date" shall mean the Calculation Day,
unless a Market Disruption Event occurs with respect to such Payment
Determination Date, in which case the first Trading Day after the
Calculation Day on which a Market Disruption Event does not occur.
"Starting Level" shall mean 268.73.
"Stated Maturity" shall mean November 10, 2004, or if a Market
Disruption Event occurs, three Business Days after the Payment
Determination Date on which the Final Index Level has been determined.
"Successor Index" shall have the meaning set forth in Section
3(a).
"Trading Day" shall mean a day on which trading generally is
conducted on the NYSE, American Stock Exchange and NASDAQ NMS and in the
over-the-counter market for equity securities as determined by the Calculation
Agent.
