EXHIBIT (4)
THIS CALLABLE 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
CALLABLE MITTS SECURITIES IN CERTIFICATED FORM, THIS CALLABLE 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
CALLABLE 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 CALLABLE 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- 2,000,000 Units
CUSIP 59021J 59 6 (Each Unit representing $10 principal
amount of Callable MITTS Securities)
XXXXXXX XXXXX & CO., INC.
Callable Market Index Target-Term Securities(R)
due May 4, 2009
Linked to the S&P 500(R) Index
("Callable 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 TWENTY MILLION
DOLLARS ($20,000,000) (the "Principal Amount") plus the Supplemental Redemption
Amount, as defined below, if any, on May 4, 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 Callable Market Index
Target-Term Securities(R) due May 4, 2009 Linked to the S&P 500(R) Index.
Supplemental Redemption Amount
The "Supplemental Redemption Amount" with respect to each $10 principal
amount of this Callable MITTS Security equals:
( Ending Value - Starting Value )
$10 x ( ----------------------------- )
( Starting Value )
provided, however, that in no event will the Supplemental Redemption Amount
be less than zero. The Starting Value equals 1,076.92. The Ending Value will be
determined by Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the
"Calculation Agent") and will equal the average (arithmetic mean) of the closing
values of the S&P 500(R) Index (the "S&P 500 Index") determined on each of the
first five Calculation Days (as defined below) during the Calculation Period (as
defined below). If there are fewer than five Calculation Days in the Calculation
Period, then the Ending Value will equal the average (arithmetic mean) of the
closing values of the S&P 500 Index on those Calculation Days. If there is only
one Calculation Day during the Calculation Period, then the Ending Value will
equal the closing value of the S&P 500 Index on that Calculation Day. If no
Calculation Days occur during the Calculation Period, then the Ending Value will
equal the closing value of the S&P 500 Index determined on the last scheduled
Index Business Day (as defined below) in the Calculation Period, regardless of
the occurrence of a Market Disruption Event (as defined below) on that Index
Business Day.
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.
A "Calculation Day" means any Index Business Day during the Calculation
Period on which a Market Disruption Event has not occurred.
An "Index Business Day" means any day on which the New York Stock Exchange
(the "NYSE"), the American Stock Exchange (the "AMEX") and the Nasdaq Stock
Market are open for trading and the S&P 500 Index 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 Callable
MITTS Securities.
Payment at the Call Date
The Callable MITTS Securities are callable by the Company, in whole but not
in part, on any Business Day during the month of September 2005 (the "Call
Period") by giving notice to the Trustee (as defined below) on any Business Day
during the Call Period and specifying the
date on which the Call Price (as defined below) shall be paid (the "Payment
Date"). If called, each Holder of a Unit will be entitled to receive a cash
payment of $12.40 (the "Call Price") in exchange for each Unit called. The
Payment Date shall be no later than the twentieth Business Day after the call
election. The Trustee will provide notice of the call to the Holders, specifying
the Payment Date, no less than fifteen calendar days prior to the Payment Date.
Adjustments to the S&P 500 Index; Market Disruption Events
If at any time Standard & Poor's changes its method of calculating the S&P
500 Index, or the value of the S&P 500 Index changes, in any material respect,
or if the S&P 500 Index is in any other way modified so that the S&P 500 Index
does not, in the opinion of the Calculation Agent, fairly represent the value of
the S&P 500 Index 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 S&P 500 Index 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 S&P 500 Index as if those changes or
modifications had not been made, and calculate the closing value with reference
to the S&P 500 Index, as so adjusted. Accordingly, if the method of calculating
the S&P 500 Index is modified so that the value of the S&P 500 Index 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 S&P 500 Index
in order to arrive at a value of the S&P 500 Index 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 of 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
underlying stocks which then comprise the S&P 500 Index; 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 (without taking into
account any extended or after-hours trading session), 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 underlying stocks which then comprise the S&P
500 Index or the S&P 500 Index, or any Successor Index or stocks
included in 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 and Exchange Commission
of similar scope as determined by the Calculation Agent, will be
considered "material".
Discontinuance of the S&P 500 Index
If Standard & Poor's discontinues publication of the S&P 500 Index and
Standard & Poor's or another entity publishes a successor or substitute index
that the Calculation Agent determines, in its sole discretion, to be comparable
to the S&P 500 Index (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 Standard & Poor's or any other entity for the S&P 500 Index and calculate the
Ending Value as described above under "Supplemental Redemption Amount". Upon any
selection by the Calculation Agent of a Successor Index, the Company shall cause
notice to be given to the Holders of the Callable MITTS Securities.
In the event that Standard & Poor's discontinues publication of the S&P 500
Index and:
o the Calculation Agent does not select a Successor Index, or
o the Successor Index is no longer published on any of the Calculation
Days,
the Calculation Agent will compute a substitute value for the S&P 500 Index in
accordance with the procedures last used to calculate the S&P 500 Index before
any discontinuance. If a Successor Index is selected or the Calculation Agent
calculates a value as a substitute for the S&P 500 Index as described below, the
Successor Index or value will be used as a substitute for the S&P 500 Index for
all purposes, including for purposes of determining whether a Market Disruption
Event exists.
If Standard & Poor's discontinues publication of the S&P 500 Index 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:
o the determination of the Ending Value, and
o 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, the AMEX and the Nasdaq
Stock Market are open for trading.
General
This Callable 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 Callable MITTS Securities, and
the terms upon which the Callable MITTS Securities are, and are to be,
authenticated and delivered.
The Company hereby covenants for the benefit of the Holders of the Callable
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 Callable MITTS Securities.
In case an Event of Default with respect to any Callable MITTS Securities
shall have occurred and be continuing, the amount payable to a Holder of a
Callable MITTS Security upon any acceleration permitted by the Callable MITTS
Securities, with respect to each $10 principal amount thereof, will be equal to
such $10 principal amount and the Supplemental Redemption Amount, if any,
calculated as though the date of early repayment was the Stated Maturity of the
Callable MITTS Securities, provided, however, if the acceleration occurs before
the end of the Call Period, the maximum amount payable with respect to each
Callable MITTS Security will be the Call Price.
In case of default in payment of the Callable MITTS Securities (whether at
the Stated Maturity or upon acceleration), from and after such date the Callable
MITTS Securities shall bear interest, payable upon demand of the Holders
thereof, at the rate of 2.12% 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 Callable 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 original public
offering price or principal amount, as the case may be, of the Securities at the
time Outstanding of each series affected thereby. Holders of specified
percentages in aggregate original public offering price or principal amount, as
the case may be, of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of each series, are permitted 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 Callable MITTS Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Callable MITTS
Security and of any Callable MITTS Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent or waiver is made upon this Callable MITTS Security.
No reference herein to the Indenture and no provision of this Callable
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 Callable 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 Callable MITTS
Security may be registered on the Security Register of the Company, upon
surrender of this Callable 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 Callable
MITTS Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Callable MITTS Securities are issuable only in registered form without
coupons in denominations of $10 and integral multiples thereof. This Callable
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 Callable MITTS Security
shall be exchangeable or (z) an Event of Default has occurred and is continuing
with respect to the Callable MITTS Securities, this MITTS Security shall be
exchangeable for Callable 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 Callable MITTS Securities shall be registered
in such name or names as the Depository shall instruct the Trustee. If
definitive Callable MITTS Securities are so delivered, the Company may make such
changes to the form of this Callable MITTS Security as are necessary or
appropriate to allow for the issuance of such definitive Callable 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 Callable 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 Callable MITTS Security is
registered as the owner hereof for all purposes, whether or not this Callable
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 Callable MITTS Security which are defined in the
Indenture but not in this Callable 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 one of its authorized officers, this
Callable MITTS Security shall not be entitled to any benefits under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: May 3, 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
