EXHIBIT (4)
THIS MITTS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR MITTS
SECURITIES IN CERTIFICATED FORM, THIS MITTS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO A NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS MITTS SECURITY
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO XXXXXXX XXXXX & CO., INC.
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY MITTS
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. R- 7,500,000 Units
CUSIP 59021J 79 4 (Each Unit representing $10 principal
amount of MITTS Securities)
XXXXXXX XXXXX & CO., INC.
Market Index Target-Term Securities(R)
based upon the Dow Xxxxx Industrial Average/SM/
due January 16, 2009
("MITTS Securities")
Xxxxxxx Xxxxx & Co., Inc., a Delaware corporation (hereinafter referred to
as the "Company", which term includes any successor corporation under the
Indenture herein referred to), for value received, hereby promises to pay to
CEDE & CO., or its registered assigns, the principal sum of SEVENTY FIVE MILLION
DOLLARS ($75,000,000) (the "Principal Amount") plus the Supplemental Redemption
Amount, as defined below, if any, on January 16, 2009 (the "Stated Maturity").
Payment or delivery of the Principal Amount and the Supplemental Redemption
Amount, if any, and any interest on any overdue amount thereof with respect to
this Security shall be made at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
This MITTS Security is one of the series of Market Index Target-Term
Securities(R) based upon the Dow Xxxxx Industrial Average/SM/ due January 16,
2009.
Supplemental Redemption Amount
The "Supplemental Redemption Amount" with respect to this MITTS
Security equals:
( Adjusted Ending Value - Starting Value )
Principal Amount x ( -------------------------------------- )
( Starting Value )
provided, however, that in no event will the Supplemental Redemption Amount be
less than zero. The Starting Value equals 10,067.86. The Adjusted Ending Value
will be determined by Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated (the
"Calculation Agent") and will equal the average (arithmetic mean) of the closing
values of the Dow Xxxxx Industrial Average as reduced by the application of the
Adjustment Factor on each Calculation Day (as defined below), determined on each
of the first five Calculation Days during the Calculation Period (as defined
below). If there are fewer than five Calculation Days in the Calculation Period,
then the Adjusted Ending Value will equal the average (arithmetic mean) of the
closing values of the Dow Xxxxx Industrial Average on those Calculation Days, as
reduced by the application of the Adjustment Factor on each Calculation Day. If
there is only one Calculation Day during the Calculation Period, then the
Adjusted Ending Value will equal the closing value of the Dow Xxxxx Industrial
Average on that Calculation Day as reduced by the application of the Adjustment
Factor on that Calculation Day. If no Calculation Days occur during the
Calculation Period, then the Adjusted Ending Value shall equal the closing value
of the Dow Xxxxx Industrial Average determined on the last scheduled Index
Business Day (as defined below) in the Calculation Period, as reduced by the
application of the Adjustment Factor on that day, regardless of the occurrence
of a Market Disruption Event (as defined below) on that Index Business Day.
The "Adjustment Factor" equals 2% per year and will be applied over the
entire term of the MITTS Securities. For each calendar day during the term of
the MITTS Securities, the Adjustment Factor will be applied on a pro-rated basis
based on a 365-day year to reduce the values of the Dow Xxxxx Industrial Average
used to calculate the Supplemental Redemption Amount on each Calculation Day
during the Calculation Period.
The "Calculation Period" means the period from and including the seventh
scheduled Index Business Day prior to the Stated Maturity to and including the
second scheduled Index Business Day prior to the Stated Maturity.
"Calculation Day" means any Index Business Day during the Calculation
Period on which a Market Disruption Event has not occurred.
An "Index Business Day" is any day on which The New York Stock Exchange
(the "NYSE") and the Nasdaq Stock Market are open for trading and the Dow Xxxxx
Industrial Average or any Successor Index (as defined below) is calculated and
published.
All determinations made by the Calculation Agent shall be at the sole
discretion of the Calculation Agent and, absent a determination by the
Calculation Agent of a manifest error, shall be conclusive for all purposes and
binding on the Company and the Holders and beneficial owners of the MITTS
Securities.
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Adjustments to the Dow Xxxxx Industrial Average; Market Disruption Events
If at any time Dow Xxxxx & Company, Inc. ("Dow Xxxxx") changes its method
of calculating the Dow Xxxxx Industrial Average, or the value of the Dow Xxxxx
Industrial Average changes, in any material respect, or if the Dow Xxxxx
Industrial Average is in any other way modified so that the Dow Xxxxx Industrial
Average does not, in the opinion of the Calculation Agent, fairly represent the
value of the Dow Xxxxx Industrial Average had those changes or modifications not
been made, then, from and after that time, the Calculation Agent shall, at the
close of business in New York, New York, on each date that the closing value of
the Dow Xxxxx Industrial Average is to be calculated, make any adjustments as,
in the good faith judgment of the Calculation Agent, may be necessary in order
to arrive at a calculation of a value of a stock index comparable to the Dow
Xxxxx Industrial Average as if those changes or modifications had not been made,
and calculate the closing value with reference to the Dow Xxxxx Industrial
Average, as adjusted. Accordingly, if the method of calculating the Dow Xxxxx
Industrial Average is modified so that the value of the Dow Xxxxx Industrial
Average is a fraction or a multiple of what it would have been if it had not
been modified, e.g., due to a split, then the Calculation Agent shall adjust the
Dow Xxxxx Industrial Average in order to arrive at a value of the Dow Xxxxx
Industrial Average as if it had not been modified, e.g., as if the split had not
occurred.
"Market Disruption Event" means either of the following events, as
determined by the Calculation Agent:
(A) the suspension or material limitation on trading for more than two
hours of trading, or during the one-half hour period preceding the
close of trading on the applicable exchange, in 20% or more of the
stocks which then comprise the Dow Xxxxx Industrial Average; or
(B) the suspension or material limitation, in each case, for more than two
hours of trading, or during the one-half hour period preceding the
close of trading on the applicable exchange, whether by reason of
movements in price otherwise exceeding levels permitted by the
relevant exchange or otherwise, in option contracts or futures
contracts related to the Dow Xxxxx Industrial Average, or any
Successor Index, which are traded on any major U.S. exchange.
For the purpose of the above definition:
(1) a limitation on the hours in a trading day and/or number of days of
trading will not constitute a Market Disruption Event if it results
from an announced change in the regular business hours of the relevant
exchange, and
(2) for the purpose of clause (A) above, any limitations on trading during
significant market fluctuations under NYSE Rule 80A, or any applicable
rule or regulation enacted or promulgated by the NYSE or any other
self regulatory organization or the Securities Exchange Commission of
similar scope as determined by the Calculation Agent, will be
considered "material".
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Discontinuance of the Dow Xxxxx Industrial Average
If Dow Xxxxx discontinues publication of the Dow Xxxxx Industrial Average
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 Dow Xxxxx Industrial Average (a "Successor Index"), then, upon the
Calculation Agent's notification of its determination to the Trustee (as defined
below) and the Company, the Calculation Agent will substitute the Successor
Index as calculated by Xxx Xxxxx or any other entity for the Dow Xxxxx
Industrial Average and calculate the Adjusted Ending Value as described above
under "Supplemental Redemption Amount". Upon any selection by the Calculation
Agent of a Successor Index, the Company shall promptly give notice to the
beneficial owners of the MITTS Securities by publication in a United States
newspaper with a national circulation.
In the event that Dow Xxxxx discontinues publication of the Dow Xxxxx
Industrial Average and:
. the Calculation Agent does not select a Successor Index, or
. the Successor Index is no longer published on any of the Calculation
Days,
the Calculation Agent will compute a substitute value for the Dow Xxxxx
Industrial Average in accordance with the procedures last used to calculate the
Dow Xxxxx Industrial Average before any discontinuance. If a Successor Index is
selected or the Calculation Agent calculates a value as a substitute for the Dow
Xxxxx Industrial Average as described below, the Successor Index or value will
be used as a substitute for the Dow Xxxxx Industrial Average for all purposes,
including for purposes of determining whether a Market Disruption Event exists.
If Dow Xxxxx discontinues publication of the Dow Xxxxx Industrial Average
before the Calculation Period and the Calculation Agent determines that no
Successor Index is available at that time, then on each Business Day until the
earlier to occur of:
. the determination of the Adjusted Ending Value, and
. a determination by the Calculation Agent that a Successor Index is
available,
the Calculation Agent will determine the value that would be used in computing
the Supplemental Redemption Amount as described in the preceding paragraph as if
that day were a Calculation Day. The Calculation Agent will cause notice of each
value to be published not less often than once each month in The Wall Street
Journal or another newspaper of general circulation, and arrange for information
with respect to these values to be made available by telephone.
A "Business Day" is any day on which the NYSE and the Nasdaq Stock Market
are open for trading.
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General
This MITTS Security is one of a duly authorized issue of Securities of the
Company, issued and to be issued under an Indenture, dated as of April 1, 1983,
as amended and restated (herein referred to as the "Indenture"), between the
Company and JPMorgan Chase Bank , as Trustee (herein referred to as the
"Trustee", which term includes any successor Trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights thereunder of the Company, the Trustee
and the Holders of the MITTS Securities, and the terms upon which the MITTS
Securities are, and are to be, authenticated and delivered.
The Company hereby covenants for the benefit of the Holders of the MITTS
Securities, to the extent permitted by applicable law, not to claim voluntarily
the benefits of any laws concerning usurious rates of interest against a Holder
of the MITTS Securities.
The MITTS Securities are not subject to redemption by the Company or at the
option of the Holder prior to the Stated Maturity.
In case an Event of Default with respect to any MITTS Securities shall have
occurred and be continuing, the amount payable to a Holder of a MITTS Security
upon any acceleration permitted by the MITTS Securities, with respect to each
$10 principal amount thereof, will be equal to the $10 principal amount and the
Supplemental Redemption Amount, if any, calculated as though the date of early
repayment were the Stated Maturity of the MITTS Securities, provided, however,
the Adjustment Factor will be applied to the values used to calculate the
Supplemental Redemption Amount as if the MITTS Securities had not been
accelerated and had remained outstanding to the Stated Maturity.
In case of default in payment of the MITTS Securities (whether at the
Stated Maturity or upon acceleration), from and after the maturity date the
MITTS Securities shall bear interest, payable upon demand of the Holders
thereof, at the rate of 5.7% per annum (to the extent that payment of such
interest shall be legally enforceable) on the unpaid amount due and payable on
such date in accordance with the terms of the MITTS Securities to the date
payment of such amount has been made or duly provided for.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than 66 2/3% in aggregate principal amount of
the Securities at the time Outstanding, as defined in the Indenture, of each
series affected thereby. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Securities
of each series at the time Outstanding, on behalf of the Holders of all
Securities of each series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this MITTS
Security shall be conclusive and binding upon such Holder and upon all future
Holders of this MITTS Security and of any MITTS Security issued upon the
registration of transfer hereof or in exchange herefor
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or in lieu hereof whether or not notation of such consent or waiver is made upon
this MITTS Security.
No reference herein to the Indenture and no provision of this MITTS
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the Principal Amount plus
the Supplemental Redemption Amount, if any, with respect to this MITTS Security
and any interest on any overdue amount thereof at the time, place, and rate, and
in the coin or currency herein prescribed.
As provided in the Indenture and subject to certain limitations set forth
therein and on the first page hereof, the transfer of this MITTS Security may be
registered on the Security Register of the Company, upon surrender of this MITTS
Security for registration of transfer at the office or agency of the Company in
the Borough of Manhattan, The City of New York, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company duly
executed by, the Holder hereof or by his attorney duly authorized in writing,
and thereupon one or more new MITTS Securities, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The MITTS Securities are issuable only in registered form without coupons
in denominations of $10 and integral multiples thereof. This MITTS Security
shall remain in the form of a global security held by a Depository.
Notwithstanding the foregoing, if (x) any Depository is at any time unwilling or
unable to continue as Depository and a successor depository is not appointed by
the Company within 60 days, (y) the Company executes and delivers to the Trustee
a Company Order to the effect that this MITTS Security shall be exchangeable or
(z) an Event of Default has occurred and is continuing with respect to the MITTS
Securities, this MITTS Security shall be exchangeable for MITTS Securities in
definitive form of like tenor and of an equal aggregate Principal Amount, in
denominations of $10 and integral multiples thereof. Such definitive MITTS
Securities shall be registered in such name or names as the Depository shall
instruct the Trustee. If definitive MITTS Securities are so delivered, the
Company may make such changes to the form of this MITTS Security as are
necessary or appropriate to allow for the issuance of such definitive MITTS
Securities.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or governmental charge payable in connection therewith.
Prior to due presentment of this MITTS Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this MITTS Security is registered as the
owner hereof for all purposes, whether or not this MITTS Security be overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
All terms used in this MITTS Security which are defined in the Indenture
but not in this MITTS Security shall have the meanings assigned to them in the
Indenture.
Unless the certificate of authentication hereon has been executed by
JPMorgan Chase Bank, the Trustee under the Indenture, or its successor
thereunder, by the manual signature of
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one of its authorized officers, this MITTS Security shall not be entitled to any
benefits under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
Dated: January 16, 2002
CERTIFICATE OF AUTHENTICATION Xxxxxxx Xxxxx & Co., Inc.
This is one of the Securities of the series
designated therein referred to in the [Copy of Seal]
within-mentioned Indenture.
JPMorgan Chase Bank, as Trustee By:
Treasurer
By: Attest:
Authorized Officer Secretary
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