EXHIBIT (4)
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE
"DEPOSITARY"), TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY TO XXXXXXX XXXXX & CO., INC. OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY), 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-1 Aggregate Principal Amount:
CUSIP: 00000X000 $275,060,000
XXXXXXX XXXXX & CO., INC.
6.75% Mandatorily Exchangeable Securities due October 15, 2007
Mandatorily Exchangeable for
Shares of Class A Common Stock of Nuveen Investments, Inc.
(the "Securities")
Xxxxxxx Xxxxx & Co., Inc., a Delaware corporation (hereinafter
referred to as the "Company," which term includes any successor corporation
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to CEDE & CO., or its registered assigns, the Total Exchange
Amount (as defined below) on the Maturity Date (as defined below) and to pay
interest on the Aggregate Principal Amount of this Security at a rate of 6.75%
in accordance with the provisions of this Security.
Payment of interest, the Total Exchange Amount and any interest on
any overdue amount 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; provided that payment of the Total Exchange Amount may also be
made in shares of Nuveen Stock (as defined below) in accordance with the
provisions of this Security.
This Security is one of the series of Securities of the Company,
designated as the Company's "6.75% Mandatorily Exchangeable Securities due
October 15, 2007, Mandatorily Exchangeable for Shares of Class A Common Stock
of Nuveen Investments, Inc." all issued or to be issued under the Indenture.
The Securities will initially be limited in aggregate principal amount to
$275,060,000. The Company may, without notice to, or the consent of, the
holders of the Securities, create and issue further Securities, equal in rank
to the Securities in all respects (or in all respects except for the payment
of interest accruing prior to the issue date of the new securities or except
for the first payment of interest following the issue date of the new
securities) so that the new securities may be consolidated and form a single
series with the Securities and have the same terms as the Securities.
Interest
Interest shall accrue on this Security from and including April 12,
2005 to but excluding the Scheduled Maturity Date (as defined below) or any
earlier date of acceleration. Interest shall be paid on the Securities in cash
quarterly in arrears on January 15, April 15, July 15 and October 15 of each
year, commencing July 15, 2005 to and including the Maturity Date (each such
date, an "Interest Payment Date"). Interest payable on any Interest Payment
Date shall include interest accrued from and including the immediately
preceding Interest Payment Date for which interest has been paid or duly
provided for (or if none, from and including April 12, 2005) to but excluding
such Interest Payment Date; provided that if the Maturity Date is postponed
beyond the Scheduled Maturity Date because a Valuation Date (as defined below)
occurs after October 10, 2007 or otherwise, the Company shall pay interest on
the Maturity Date as postponed rather than on the Scheduled Maturity Date, but
no interest shall accrue on the Securities or on such payment during the
period from or after the Scheduled Maturity Date.
Interest shall be payable to the persons in whose names the
Securities are registered at the close of business on the 15th calendar day
prior to the related Interest Payment Date, whether or not that date is a
Business Day (as defined below) (each, a "Regular Record Date"); provided
that, interest payable on the Maturity Date shall be payable to the Holder
presenting this Security for mandatory exchange on the Maturity Date. Any such
interest not so punctually paid or duly provided for on any Interest Payment
Date other than the Maturity Date ("Defaulted Interest") shall forthwith cease
to payable to the Holder on the close of business on any Regular Record Date
and, instead, shall be paid to the person in whose name this Security is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
Trustee (as defined below), notice whereof shall be given to the Holder of
this Security by the Trustee not less than 10 calendar days prior to such
Special Record Date or may be paid at any time in any other lawful manner, all
as more fully provided in the Indenture. Interest on the Securities shall be
computed on the basis of 360-day year of twelve 30-day months. If an Interest
Payment Date falls on a day that is not a Business Day, that interest payment
shall be made on the next Business Day and no additional interest shall accrue
as a result of the delayed payment.
As used herein, "Business Day" means any day, other than a Saturday
or Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close in The
City of New York.
Exchange at Maturity
Subject to the provisions of this Security set forth under
"Acceleration of Maturity," on the Maturity Date, upon presentation of this
Security to the Trustee, each $34.00 principal amount of this Security shall
be applied by the Company as payment for the sum of the Exchange Amounts (as
defined below) determined on each of the Valuation Dates (the "Total Exchange
Amount"), and the Company shall, or shall cause the Trustee to, deliver to the
Holder of this Security with respect to each $34.00 principal amount of
Securities, the Total Exchange Amount, together with accrued and unpaid
interest.
2
The date on which the Total Exchange Amount shall be payable and on
which this Security shall mature (the "Maturity Date") shall be October 15,
2007 (the "Scheduled Maturity Date") unless the maturity of this Security
shall be accelerated as a result of the occurrence of any of the events set
forth under "Acceleration of Maturity" or unless the Maturity Date of the
Securities is postponed in accordance with the provisions of the following
sentence. If, due to a Market Disruption Event (as defined below) or
otherwise, any Valuation Date occurs after October 10, 2007, the Maturity Date
shall be the third Business Day following the final Valuation Date as
postponed; provided that the Maturity Date shall be no later than November 15,
2007.
The "Valuation Dates" shall be the first thirty Trading Days (as
defined below) commencing August 29, 2007 on which no Market Disruption Event
shall have occurred; provided that the last Valuation Date shall occur no
later than November 12, 2007. If, due to a Market Disruption Event or
otherwise, the final Valuation Date has not occurred by November 12, 2007, all
remaining Valuation Dates shall be deemed to occur on November 12, 2007, and
the Closing Price (as defined below) for each of the remaining Valuation Dates
shall be the Closing Price on November 12, 2007 or, if there is a Market
Disruption Event on that day, the market value per share of Nuveen Stock as
determined by the Calculation Agent (as defined below).
The "Exchange Amount" per each $34.00 principal amount of this
Security for each Valuation Date shall be determined by the Calculation Agent
as follows:
o if the Exchange Price (as defined below) on the Valuation Date
is greater than $40.80 (the "Threshold Appreciation Price"),
the Exchange Amount shall equal a number of shares of Nuveen
Stock equal to the product of .8333 (the "Threshold
Participation Factor") and the Exchange Ratio (as defined
below) on that Valuation Date divided by 30, or, at the option
of the Company, the cash value thereof;
o if the Exchange Price on the Valuation Date is less than or
equal to the Threshold Appreciation Price but is greater than
$34.00 (the "Initial Price"), the Exchange Amount shall equal a
number of shares of Nuveen Stock with a value (based on the
Closing Price of the Nuveen Stock on such Valuation Date) equal
to the Initial Price divided by 30, or, at the option of the
Company, cash equal to the Initial Price divided by 30; and
o if the Exchange Price on the Valuation Date is $34.00 or less,
the Exchange Amount shall equal a number of shares of Nuveen
Stock equal to the Exchange Ratio on that Valuation Date
divided by 30, or, at the option of the Company, the cash value
thereof.
The amount of cash to be delivered in lieu of shares of Nuveen Stock
for any applicable Valuation Date shall equal the number of such shares
multiplied by the Closing Price of Nuveen Stock on such Valuation Date.
"Nuveen Stock" shall mean Class A common stock, par value $0.01 per
share, of Nuveen Investments, Inc. ("Nuveen").
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The "Exchange Ratio" shall initially equal 1.0 but shall be subject
to adjustment as set forth herein under "Antidilution Adjustments."
The "Exchange Price" on any Valuation Date shall equal the product of
(i) the Closing Price of one share of Nuveen Stock and (ii) the Exchange
Ratio, each as determined on such Valuation Date.
The "Closing Price" for one share of Nuveen Stock (or one unit of any
other security for which a Closing Price must be determined) on any Trading
Day means:
o if Nuveen Stock (or any such other security) is listed or
admitted to trading on a national securities exchange that is
the primary market for Nuveen Stock, the last reported sale
price, regular way, of the principal trading session on such
day on the principal United States securities exchange
registered under the Securities Exchange Act of 1934, as
amended, on which Nuveen Stock (or any such other security) is
listed or admitted to trading;
o if Nuveen Stock (or any such other security) is a security that
is primarily traded on the Nasdaq National Market (and provided
that the Nasdaq National Market is not then a national
securities exchange), the Nasdaq official closing price
published by The Nasdaq Stock Market, Inc. on such day; or
o if Nuveen Stock (or any such other security) is neither listed
or admitted to trading on any national securities exchange that
is the primary market for Nuveen Stock nor a security that is
primarily traded on the Nasdaq National Market but is included
in the OTC Bulletin Board Service (the "OTC Bulletin Board")
operated by the National Association of Securities Dealers,
Inc., the last reported sale price of the principal trading
session on the OTC Bulletin Board on such day.
If Nuveen Stock (or any such other security) is listed or admitted to
trading on any national securities exchange or is a security traded on the
Nasdaq National Market but the last reported sale price or Nasdaq official
closing price, as applicable, is not available pursuant to the preceding
sentence, then the Closing Price for one share of Nuveen Stock (or one unit of
any such other security) on any Trading Day shall mean the last reported sale
price of the principal trading session on the over-the-counter market as
reported on the Nasdaq National Market or the OTC Bulletin Board on such day.
If, because of a Market Disruption Event or otherwise, the last reported sale
price or Nasdaq official closing price, as applicable, for Nuveen Stock (or
any such other security) is not available pursuant to either of the two
preceding sentences, then the Closing Price for any Trading Day shall be the
mean, as determined by the Calculation Agent, of the bid prices for Nuveen
Stock (or any such other security) obtained from as many recognized dealers in
such security, but not exceeding three, as will make such bid prices available
to the Calculation Agent. Bids of the Calculation Agent or any of its
affiliates may be included in the calculation of such mean, but only to the
extent that any such bid is the highest of the bids obtained. The term
"security traded on the Nasdaq National Market" shall include a security
included in any successor to such system, and the term "OTC Bulletin Board
Service" shall include any successor service thereto.
4
If the security is an American Depositary Receipt (an "ADR"), the
Closing Price for such security shall mean: (i) the closing price of such ADR
determined as set forth above; or (ii) if the ADRs are not traded, the product
of (a) the closing price per share (or, if no closing price per share is
reported, the last reported per share sale price) of such shares represented
by such ADR on the principal securities exchange on which such shares are
listed on such date, or, if such shares are not listed for trading on a
securities exchange on such date, the per share market value of such shares on
such date as determined by a nationally recognized independent investment
banking firm retained for this purpose by the Calculation Agent, (b) the
number of shares represented by such ADR on such date of determination and (c)
the U.S. dollar noon buying rate in New York City for cable transfers of the
relevant currency for U.S. dollars as certified by the Federal Reserve Bank of
New York on such date.
"Trading Day" shall mean a day, as determined by the Calculation
Agent, on which trading is generally conducted on the New York Stock Exchange,
Inc. ("NYSE"), the American Stock Exchange LLC, the Nasdaq National Market,
the Chicago Mercantile Exchange and the Chicago Board of Options Exchange and
in the over-the-counter market for equity securities in the United States.
Settlement
The Company shall, or shall cause the Calculation Agent to, (i)
provide written notice to the Trustee at its corporate trust office in New
York, New York (the "New York Office") and to the Depositary, on or prior to
the fifth Business Day immediately prior to the first Valuation Date, of the
Company's elections with respect to each of the thirty Valuation Dates as to
whether the Company shall deliver shares of Nuveen Stock or cash to the
Trustee for the benefit of the Holder of this Security in respect of each such
Valuation Date, which election the Company may change by providing written
notice to the Trustee and to the Depositary at least three Business Days prior
to the Valuation Date for which such change is to take effect, (ii) provide
written notice to the Trustee at its New York Office and to the Depositary, on
which notice the Trustee and the Depositary may conclusively rely, on the
Business Day following each Valuation Date, of the Exchange Amount for such
Valuation Date, and (iii) deliver shares of Nuveen Stock (and cash in respect
of interest and any factional shares of Nuveen Stock) or cash, as the case may
be, in respect of each such Valuation Date to the Trustee on or before the
Maturity Date. In addition, the Company shall, or shall cause the Calculation
Agent to, provide written notice to the Trustee at its New York Office and to
the Depositary, on which notice the Trustee and Depositary may conclusively
rely, on or prior to 10:30 a.m. on the Trading Day immediately prior to the
Maturity Date of this Security (but if such Trading Day is not a Business Day,
prior to the close of business on the Business Day preceding the Maturity Date
of this Security), (1) of the amount of Nuveen Stock (or the amount of
Exchange Property) and/or cash constituting the Total Exchange Amount to be
delivered to the Holder of this Security on the Maturity Date with respect to
each $34.00 principal amount of this Security and of the amount of any cash to
be paid in lieu of any fractional share of Nuveen Stock (or of any other
securities included in Exchange Property, if applicable) and (2) if any
amounts of Nuveen Stock and/or cash have been previously delivered to the
Trustee on any Settlement Date prior to the Maturity Date, as described
herein, of (x) the specific Valuation Date(s) with respect to which Exchange
Amounts(s) are to be delivered to the Trustee on the Maturity Date and (y) the
amount of Nuveen Stock or cash that constitutes the Exchange Amount for each
such Valuation Date. Any
5
notice that is mailed in the manner herein provided shall be conclusively
presumed to have been duly given to the Trustee and the Depositary, whether or
not the Holder of this Security receives the notice.
The Company shall have the option to deliver the Nuveen Stock or cash
constituting the Exchange Amount with respect to one or more Valuation Dates
to the Trustee for the benefit of the Holder of this Security prior to the
Maturity Date. The Company's delivery of such Nuveen Stock and/or cash to the
Trustee shall be irrevocable and shall satisfy the Company's obligation to
deliver those shares of Nuveen Stock and/or cash on the Maturity Date. Any day
on which the Company makes a delivery of Nuveen Stock and/or cash (including
the Maturity Date) is hereinafter referred to as a "Settlement Date". After
the delivery of the Exchange Amount in respect of one or more Valuation Dates
to the Trustee on any Settlement Date, the Company shall have no ownership
interest in the Nuveen Stock or cash that it shall have delivered. The Trustee
shall hold such Nuveen Stock and/or cash for the benefit of the Holder of this
Security and shall distribute the same to the Holder of this Security on the
Maturity Date, unless required by law or regulation to deliver such shares or
cash prior to the Maturity Date. The Company shall, or shall cause the
Calculation Agent to, provide written notice to the Trustee at its New York
Office and to the Depositary, on which notice the Trustee and Depositary may
conclusively rely, on or prior to 10:30 a.m. on the Trading Day immediately
prior to any Settlement Date (but if such Trading Day is not a Business Day,
prior to the close of business on the Business Day preceding any such
Settlement Date), of (x) the specific Valuation Date(s) with respect to which
Exchange Amount(s) are to be delivered on such Settlement Date and (y) the
amount of Nuveen Stock or cash that constitutes the Exchange Amount for each
such Valuation Date; provided that, if the Company has elected, pursuant to
the following paragraph, to deliver any shares of Nuveen Stock prior to any
Valuation Date, such notice shall also specify to what extent, if any, the
amounts specified in clause (y) above have been satisfied by such prior
delivery of shares of Nuveen Stock. If any fractional shares of Nuveen Stock
would otherwise be payable on any Settlement Date prior to the Maturity Date,
the Company shall deliver the sum of such fractional shares on the Maturity
Date, including cash in lieu of any remaining fractional share, calculated as
described in the fifth and sixth paragraphs of "Settlement" below.
In addition, the Company may elect to make an irrevocable delivery of
Nuveen Stock to the Trustee prior to any Valuation Date, in an amount no
greater than .8333 shares per each $34.00 principal amount of this Security,
for the benefit of the Holder of this Security. To the extent of any such
delivery, the Company's obligation to deliver Nuveen Stock with respect to one
or more Valuation Dates shall be reduced accordingly. The Company shall, or
shall cause the Calculation Agent to, provide written notice to the Trustee at
its New York Office and to the Depositary, on which notice the Trustee and
Depositary may conclusively rely, on or prior to 10:30 a.m. on the Trading Day
immediately prior to any Settlement Date with respect to any such prior
delivery (but if such Trading Day is not a Business Day, prior to the close of
business on the Business Day preceding any such Settlement Date), of (x) the
Company's election to make such an early delivery and (y) the number of shares
of Nuveen Stock to be delivered on such Settlement Date.
If, while the Trustee is holding Nuveen Stock for the benefit of the
Holder of this Security, the Trustee receives any solicitation for any vote or
other action to be taken with respect to Nuveen Stock, the Trustee shall
abstain from voting or taking such action.
6
If the Company elects to deliver shares of Nuveen Stock with respect
to the Exchange Amount determined on any Valuation Date but the Company has
not yet delivered such shares to the Trustee, the Calculation Agent shall
adjust the amount of Nuveen Stock to be delivered during the period following
the relevant Valuation Date to but excluding the Settlement Date on which such
Exchange Amount is delivered to the Trustee on account of the occurrence of
any of the events set forth under "Antidilution Adjustments" below that would
require an adjustment to the Exchange Ratio.
On the Maturity Date, the Company shall deliver the aggregate number
of shares of Nuveen Stock and/or cash due with respect to this Security, as
described above, but, if the Company delivers shares, the Company shall pay
cash in lieu of delivering any fractional share of Nuveen Stock in an amount
equal to the corresponding fractional Closing Price of such fraction of a
share of Nuveen Stock as determined by the Calculation Agent as of the final
Valuation Date.
If this Security is not surrendered for exchange on the Maturity Date
it shall be deemed to be no longer Outstanding under, and as defined in, the
Indenture, and the Holder thereof shall have no rights thereunder or under the
Indenture except the right to receive the Total Exchange Amount and the
interest payable at maturity.
Acceleration of Maturity
Upon the occurrence of a Reorganization Event (as defined below) in
which the Exchange Property (as defined below) consists solely of cash, the
Maturity Date of the Securities shall be deemed to be accelerated to the third
Business Day immediately following the date on which such cash is distributed
to holders of Nuveen Stock (the "Acceleration Date").
On the Acceleration Date, the Holder of this Security shall be
entitled to receive, in respect of each $34.00 principal amount of this
Security, in lieu of the Total Exchange Amount and as liquidated damages in
full satisfaction of the Company's obligations under this Security, an amount
of cash equal to:
(a) if the Transaction Value (as defined below) is equal to
or less than the Initial Price, the Transaction Value,
(b) if the Transaction Value is less than or equal to the
Threshold Appreciation Price but is greater than the Initial Price,
the Initial Price, and
(c) if the Transaction Value is greater than the Threshold
Appreciation Price, the product of the Threshold Participation Factor
and the Transaction Value,
plus, in each case, accrued but unpaid interest to but excluding the
Acceleration Date.
If an Event of Default under the Indenture and the Securities shall
have occurred and be continuing, the amount declared due and payable per each
$34.00 principal amount of this Security upon any acceleration of the
Securities in accordance with the provisions of the Indenture shall be
determined by the Calculation Agent and shall be equal to the sum of the
Exchange Amounts (in each case using the cash value of such Exchange Amount)
for each of thirty Valuation Dates, plus accrued and unpaid interest to but
excluding the date on which the Securities are accelerated (the "Event of
Default Acceleration Date"). For purposes of determining the Exchange Amounts,
such Event of Default Acceleration Date shall be the first Valuation Date and
the subsequent Valuation Dates shall be the first twenty-nine Trading Days
7
on which no Market Disruption Event shall have occurred immediately following
such Event of Default Acceleration Date.
If the Maturity Date of this Security is accelerated in accordance
with the foregoing, the Company shall give notice of such acceleration as
promptly as possible, and in no case later than two Business Days after the
date of acceleration, to (i) the Holder of this Security by mailing notice of
such acceleration by first class mail, postage prepaid, to the Holder's last
address as it shall appear upon the registry books, (ii) the Trustee by
telephone or facsimile confirmed by mailing such notice to the Trustee by
first class mail, postage prepaid, at its New York Office and (iii) the
Depositary by telephone or facsimile confirmed by mailing such notice to the
Depositary by first class mail, postage prepaid. If the Maturity Date of the
Securities is accelerated as a result of a Reorganization Event in which the
Exchange Property consists solely of cash, the Company shall include in such
notice the amount of cash payable with respect to each $34.00 principal amount
of this Security. If the Maturity Date of the Securities is accelerated as a
result of an Event of Default under the Indenture and the Securities, the
Company shall provide notice of the amount of cash payable with respect to
each $34.00 principal amount of this Security as promptly as possible and in
no event later than one Business Day after the twenty-ninth Trading Day
referred to in the preceding paragraph. Notwithstanding anything herein to the
contrary, the Total Exchange Amount due in connection with an Event of Default
Acceleration Date shall not be required to be delivered by the Company until
the second Business Day after such twenty-ninth Trading Day.
Antidilution Adjustments
The Exchange Ratio shall be adjusted by the Calculation Agent upon
the occurrence of the events described below, as follows:
1. Stock splits. If Nuveen Stock is subject to a stock split or
reverse stock split, then once such split has become effective, the Exchange
Ratio shall be adjusted to equal the product of the prior Exchange Ratio and
the number of shares issued in such stock split or reverse stock split with
respect to one share of Nuveen Stock.
2. Stock dividends. If Nuveen Stock is subject
(i) to a stock dividend (issuance of additional shares of
Nuveen Stock) that is given ratably to all holders of shares of
Nuveen Stock, or
(ii) to a distribution of Nuveen Stock as a result of the
triggering of any provision of the corporate charter of Nuveen,
then at the close of business on the record date for such dividend, the
Exchange Ratio shall be adjusted so that the new Exchange Ratio shall equal
the prior Exchange Ratio plus the product of (i) the number of shares to be
issued with respect to one share of Nuveen Stock and (ii) the prior Exchange
Ratio.
3. Rights or Warrants. If Nuveen issues rights or warrants to all
holders of Nuveen Stock to subscribe for or purchase Nuveen Stock at an
exercise price per share less than the Closing Price of Nuveen Stock on both
8
(i) the date the exercise price of such rights or warrants
is determined, and
(ii) the expiration date of such rights or warrants,
and if the expiration date of such rights or warrants precedes the Maturity
Date of the Securities, then the Exchange Ratio shall be adjusted to equal the
product of the prior Exchange Ratio and a fraction:
(A) the numerator of which shall be the number of shares of
Nuveen Stock outstanding immediately prior to the issuance of such
rights or warrants plus the number of additional shares of Nuveen
Stock offered for subscription or purchase pursuant to such rights
or warrants; and
(B) the denominator of which shall be the number of shares of
Nuveen Stock outstanding immediately prior to the issuance of such
rights or warrants plus a number of additional shares of Nuveen
Stock equal to:
(I) the total number of shares offered for subscription
or purchase pursuant to such rights or warrants
multiplied by the exercise price of such rights or
warrants,
divided by
(II) the Closing Price of Nuveen Stock on the expiration
date of such rights or warrants.
4. Ordinary Dividends. In the event of any increase or decrease on or
after April 6, 2005 in the regular quarterly cash dividend payable to holders
of Nuveen Stock relative to the Base Quarterly Dividend (as defined below),
the Exchange Ratio shall be adjusted as of the related ex-dividend date for
such quarterly cash dividend.
The new Exchange Ratio shall equal the prior Exchange Ratio times a
fraction:
(i) the numerator of which shall be the Base Closing Price
(as defined below) minus the Base Quarterly Dividend; and
(ii) the denominator of which shall be the Base Closing
Price minus the amount per share of such dividend or distribution.
For purposes of this calculation the "Base Quarterly Dividend" means a
quarterly dividend of $0.18 per share. The amount of the Base Quarterly
Dividend is subject to adjustment by the Calculation Agent in its sole
discretion in a manner inversely proportional to any adjustment to the
Exchange Ratio in the case of any stock split or reverse stock split described
in paragraph 1 or any stock dividend or distribution described in paragraph 2.
For purposes of this calculation, the "Base Closing Price" means the
Closing Price of Nuveen Stock on the Trading Day preceding the ex-dividend
date for the payment of such cash dividend.
9
The "ex-dividend date" means the day on and after which transactions
in Nuveen Stock on an organized securities exchange or trading system no
longer carry the right to receive the cash dividend or other cash
distribution.
5. Other Cash or Non-Cash Dividends.
(a) If a cash dividend or distribution (excluding any dividends or
distributions described in paragraph 4, including a regular quarterly dividend
equal to the Base Quarterly Dividend, or paragraph 6) occurs with respect to
Nuveen Stock, the Exchange Ratio with respect to Nuveen Stock shall be
adjusted on the ex-dividend date with respect to such cash dividend or
distribution.
The new Exchange Ratio shall equal the product of the then current
Exchange Ratio and a fraction, the numerator of which shall be the Base
Closing Price and the denominator of which shall be the Base Closing Price
minus the cash dividend or distribution.
For purposes of this calculation, the "Base Closing Price" means the
Closing Price of Nuveen Stock on the Trading Day preceding the ex-dividend
date for the payment of such cash dividend or distribution.
(b) If a non-cash dividend or distribution (excluding any non-cash
dividends or distributions described in paragraph 2, paragraph 3 or paragraph
6) occurs with respect to Nuveen Stock, the Exchange Ratio with respect to
Nuveen Stock shall be adjusted on the ex-dividend date with respect to such
non-cash dividend or distribution.
The new Exchange Ratio shall equal the product of the then current
Exchange Ratio and a fraction, the numerator of which shall be the Base
Closing Price and the denominator of which shall be the Base Closing Price
minus the full cash value of the non-cash dividend or distribution.
For purposes of this calculation, the "Base Closing Price" means the
Closing Price of Nuveen Stock on the Trading Day preceding the ex-dividend
date for the payment of such non-cash dividend or distribution.
To the extent a dividend or distribution is not paid in cash, the
value of the non-cash component shall be determined by the Calculation Agent,
whose determination shall be conclusive. A distribution on Nuveen Stock
described in clause (i), (iv) or (v) of the first sentence of paragraph 6
below shall cause an adjustment to the Exchange Ratio pursuant only to clause
(i), (iv) or (v) of the first sentence of paragraph 6, as applicable.
6. Reorganization Events. Any of the following shall constitute a
"Reorganization Event":
(i) Nuveen's stock is reclassified or changed, including,
without limitation, as a result of the issuance of any tracking stock
by Nuveen;
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(ii) Nuveen or any surviving entity or subsequent surviving
entity of Nuveen (a "Nuveen Successor") has been subject to a merger,
combination or consolidation and is not the surviving entity;
(iii) Nuveen or any Nuveen Successor completes a statutory
exchange of securities with another corporation (other than pursuant
to clause (ii) above);
(iv) Nuveen or any Nuveen Successor is liquidated;
(v) Nuveen or any Nuveen Successor issues to all of its
shareholders equity securities of an issuer other than Nuveen (other
than in a transaction described in clause (ii), (iii) or (iv) above)
(a "Spin-off Event"); or
(vi) all of the outstanding shares of Nuveen Stock are
acquired pursuant to a tender offer, exchange offer or going private
transaction.
If any Reorganization Event occurs, in each case as a result of which
the holders of Nuveen Stock receive any equity security listed on a national
securities exchange or traded on The Nasdaq National Market (a "Marketable
Security"), other securities or other property, assets or cash, including (A)
in the case of the issuance of tracking stock, the reclassified share of
Nuveen Stock, (B) in the case of a Spin-off Event, the share of Nuveen Stock
with respect to which the spun-off security was issued, and (C) in the case of
any other Reorganization Event where Nuveen Stock continues to be held by the
holders receiving such distribution, the Nuveen Stock (collectively "Exchange
Property"), the amount payable with respect to each $34.00 principal amount of
this Security with respect to any Valuation Date following the effective date
for such Reorganization Event (or, if applicable, in the case of spinoff
stock, the ex-dividend date for the distribution of such spinoff stock) shall
be adjusted to provide that the Holder of this Security may receive Exchange
Property or, at the option of the Company, the cash value of such Exchange
Property on the Maturity Date.
Following the effective date for such Reorganization Event (or, if
applicable, in the case of spinoff stock, the ex-dividend date for the
distribution of such spinoff stock), the method of determining the Exchange
Price used to calculate the Exchange Amount on any Valuation Date shall be
adjusted so that the Exchange Price shall mean the Transaction Value (as
defined below) as of the Valuation Date.
"Transaction Value" at any Valuation Date means the sum of:
(I) for any cash received in any such Reorganization Event,
the amount of cash received per share of Nuveen Stock as adjusted by
the Exchange Ratio at the time of such Reorganization Event;
(II) for any property other than cash or Marketable
Securities received in any such Reorganization Event, the market
value, as determined by the Calculation Agent, as of the date of
receipt, of such Exchange Property received for each share of Nuveen
Stock, as adjusted by the Exchange Ratio at the time of such
Reorganization Event; and
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(III) for any Marketable Securities received in any such
Reorganization Event, an amount equal to the Closing Price per share,
as of such Valuation Date, of such security multiplied by the
quantity of such security received for each share of Nuveen Stock, as
adjusted by the Exchange Ratio at the time of such Reorganization
Event (and as the Exchange Ratio for such Marketable Security may
have been subsequently adjusted to and including the applicable
Valuation Date).
If Exchange Property consists of more than one type of property and
the Company does not elect to deliver cash with respect to any Valuation Date,
the Company shall deliver to the Trustee for the benefit of the Holder of each
$34.00 principal amount of this Security, a pro rata share of each such type
of Exchange Property. If Exchange Property includes a cash component, the
Holder of this Security shall not receive any interest accrued on such cash
component. In the event Exchange Property consists of Marketable Securities,
those Marketable Securities shall, in turn, be subject to the antidilution
adjustments set forth in paragraphs 1 through 6, except that the Calculation
Agent may make any modifications to such adjustments as it may reasonably
determine.
* * *
For purposes of paragraph 6 above, in the case of a consummated
tender or exchange offer or going-private transaction involving consideration
of particular types, Exchange Property shall be deemed to include the amount
of cash or other property delivered by the offeror in the tender or exchange
offer (in an amount determined on the basis of the rate of exchange in such
tender or exchange offer or going-private transaction). In the event of a
tender or exchange offer or a going-private transaction in which an offeree
may elect to receive cash or other property, Exchange Property shall be deemed
to include the kind and amount of cash and other property received by offerees
who elect to receive cash.
Following the occurrence of any Reorganization Event referred to in
paragraph 6 above, (i) references to "Nuveen Stock" in the sixth paragraph
under the caption "Settlement" in this Security, under the caption "Exchange
at Maturity" in this Security and under the caption "Market Disruption Event"
in this Security shall be deemed to also refer to any other security received
by holders of Nuveen Stock in any such Reorganization Event, and (ii) all
other references in this Security to "Nuveen Stock" shall be deemed to refer
to the Exchange Property into which this Security is thereafter exchangeable
and references to a "share" or "shares" of Nuveen Stock shall be deemed to
refer to the applicable unit or units of such Exchange Property, unless the
context otherwise requires.
If the Closing Price is no longer available for Nuveen Stock for
whatever reason, including the liquidation of Nuveen or the subjection of
Nuveen to a proceeding under any applicable bankruptcy, insolvency or other
similar law, then the value of Nuveen Stock shall equal zero for so long as no
Closing Price is available.
The Exchange Ratio resulting from any of the adjustments specified
above shall be rounded to the nearest one hundred-thousandth, with five
one-millionths rounded upward. Adjustments to the Exchange Ratios with respect
to any Nuveen Stock or Exchange Property shall be made up to the close of
business on the final Valuation Date.
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No adjustments to the Exchange Ratio or method of calculating the
Exchange Ratio shall be required other than those specified above.
The Calculation Agent shall be solely responsible for the
determination and calculation of any adjustments to the Exchange Ratio or of
any related determinations and calculations with respect to any distributions
of stock, other securities or other property or assets (including cash) in
connection with any corporate event described in paragraphs 1 through 6 above,
and its determinations and calculations with respect thereto shall be
conclusive in the absence of manifest error.
The Calculation Agent shall, upon the occurrence of an event that
requires an adjustment to the Exchange Ratio or the occurrence of a
Reorganization Event (or, in either case, if the Calculation Agent is not
aware of such occurrence, as soon as practicable after becoming so aware),
promptly notify the Company, the Trustee and the Depositary as the Holder of
this Security in writing of the occurrence of such event including a statement
setting forth the factors by which the Exchange Ratio is to be adjusted.
Market Disruption Event
"Market Disruption Event" shall mean, with respect to Nuveen Stock:
(i) a suspension, absence or material limitation of trading
of Nuveen Stock on the primary market for Nuveen Stock for more than
two hours of trading or during the one-half hour period preceding the
close of the principal trading session in such market; or a breakdown
or failure in the price and trade reporting systems of the primary
market for Nuveen Stock as a result of which the reported trading
prices for Nuveen Stock during the last one-half hour preceding the
close of the principal trading session in such market are materially
inaccurate; or the suspension, absence or material limitation of
trading on the primary market for trading in options contracts
related to Nuveen Stock, if available, during the one-half hour
period preceding the close of the principal trading session in the
applicable market, in each case as determined by the Calculation
Agent in its sole discretion; and
(ii) a determination by the Calculation Agent in its sole
discretion that any event described in clause (i) above materially
interfered with the ability of the Company or any of its subsidiaries
to unwind or adjust all or a material portion of the hedge with
respect to the Securities.
For purposes of determining whether a Market Disruption Event has
occurred: (1) 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; (2) a decision to
permanently discontinue trading in the relevant options contract shall not
constitute a Market Disruption Event; (3) limitations pursuant to NYSE Rule
80A (or any applicable rule or regulation enacted or promulgated by the NYSE,
any other self-regulatory organization or the Securities and Exchange
Commission of scope similar to NYSE Rule 80A as determined by the Calculation
Agent) on trading during significant market fluctuations shall constitute a
suspension, absence or material limitation of trading; (4) a suspension of
trading in
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options contracts on Nuveen Stock by the primary securities market trading
such options, if available, by reason of (x) a price change exceeding limits
set by such securities exchange or market, (y) an imbalance of orders relating
to such contracts or (z) a disparity in bid and ask quotes relating to such
contracts shall constitute a suspension, absence or material limitation of
trading in options contracts related to Nuveen Stock; and (5) a suspension,
absence or material limitation of trading on the primary securities market on
which options contracts related to Nuveen Stock are traded shall not include
any time when such securities market is itself closed for trading under
ordinary circumstances.
General
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and its successors
(the "Calculation Agent") shall make all calculations and determinations under
the Securities. All determinations made by the Calculation Agent shall be at
the sole discretion of the Calculation Agent and shall, in the absence of
manifest error, be conclusive for all purposes and binding on the Holders of
the Securities, the Trustee and the Company.
All calculations with respect to the Exchange Ratio for the
Securities shall be made by the Calculation Agent and shall be rounded to the
nearest one hundred-thousandth, with five one-millionths rounded upward (e.g.,
..876545 would be rounded to .87655); and all dollar amounts paid to the Holder
of this Security in the aggregate related to interest payments or payouts on
the Maturity Date resulting from such calculations shall be rounded to the
nearest cent with one-half cent rounded upward.
This 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, N.A., 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 this Security, and the terms upon which this
Security are to be authenticated and delivered. For purposes of the Indenture,
the "Issue Price" for each $34.00 principal amount of Securities shall equal
such $34.00 principal amount of Securities.
The Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York.
This Security is not subject to redemption or exchange by the Company
or at the option of the Holder prior to the Maturity Date.
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 issue
price of the securities at the time Outstanding of each series affected
thereby. Holders of specified percentages in aggregate issue price 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
14
Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Securities 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 Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay any amount payable with
respect to this 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 Security may
be registered on the Security Register of the Company, upon surrender of this
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 Securities, of authorized
denominations and for the same aggregate principal amount, shall be issued to
the designated transferee or transferees.
The Securities are issuable only in registered form without coupons
in denominations of $34.00 and integral multiples thereof. This Security shall
remain in the form of a global security held by the Depositary.
Notwithstanding the foregoing, if (x) any depositary is at any time unwilling
or unable to continue as depositary and a successor depositary 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 Security shall be
exchangeable or (z) an Event of Default has occurred and is continuing with
respect to this Security, this Security shall be exchangeable for Securities
in definitive form of like tenor and of an equal aggregate principal amount,
in denominations of $34.00 and integral multiples thereof. Such definitive
Securities shall be registered in such name or names as the Depositary shall
instruct the Trustee. If definitive Securities are so delivered, the Company
may make such changes to the form of this Security as are necessary or
appropriate to allow for the issuance of such definitive 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.
15
The Company and each Holder and beneficial owners by acceptance
hereof hereby agree (in the absence of an administrative determination or
judicial ruling to the contrary) to treat this Security for all tax purposes
as an investment unit consisting of the following components: (i) a debt
instrument of the Company (the "Debt Instrument") with a fixed principal
amount unconditionally payable on the Maturity Date equal to $34.00 per each
$34.00 principal amount of this Security and bearing stated interest at the
stated interest rate of 6.75% for this Security and (ii) a contract pursuant
to which the Holder agrees to use the principal payment due on the Debt
Instrument to make a payment to the Company on the Maturity Date in exchange
for the right to receive a variable number of shares of Nuveen Stock (subject
to the Company's right to elect cash settlement).
Prior to due presentment of this 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 Security is registered as the owner
hereof for all purposes, whether or not this 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 Security which are defined in the Indenture
but not in this Security shall have the meanings assigned to them in the
Indenture.
Unless the Certificate of Authentication hereon has been executed by
the Trustee under the Indenture, or its successor thereunder, by the manual
signature of one of its authorized officers, this 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: April 12, 2005
CERTIFICATE OF AUTHENTICATION Xxxxxxx Xxxxx & Co., Inc.
This is one of the Securities of the
series designated therein referred [Copy of Seal]
to in the within-mentioned Indenture.
JPMorgan Chase Bank, N.A., as Trustee By:
-----------------------------------------
Assistant Treasurer
By: Attest:
----------------------------------- -------------------------------------
Authorized Officer Secretary
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