<PAGE> 1
Post-Effective Amendment No. 1 (No. 33-51044)
Post-Effective Amendment No. 1 (No. 33-58144)
File No. 33-55295
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------------
THE CHASE MANHATTAN CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 13-2633613
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1 Chase Manhattan Plaza, New York, New York 10081
(212) 552-2222
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
--------------------------
DEBORAH L. DUNCAN LESTER J. STEPHENS, JR. ARJUN K. MATHRANI
Executive Vice Senior Vice President Executive Vice
President and and Controller President and
Treasurer Chief Financial
Officer
RONALD C. MAYER
Secretary
1 Chase Manhattan Plaza, New York, New York 10081
(212)552-2222
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
ROBERT B. ADAMS, Esq.
The Chase Manhattan Corporation
1 Chase Manhattan Plaza
New York, New York 10081
-------------------------------
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this
Registration Statement as determined by market conditions.
-------------------------------
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. _
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
check the following box. X
-------------------------------
<TABLE>
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CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed Maximum Proposed Maximum Amount of
Title of Each Class Amount to be Offering Price Aggregate Offering Registration Fee
of Securities to be Registered Registered Per Unit(1) Price(1)(2)
<S> <C> <C> <C> <C>
Senior/Subordinated Debt Securities 100%
and Warrants to purchase
Senior/Subordinated
Debt Securities
$2,000,000,000(3) 100% $2,000,000,000 $689,660 (4)
Preferred Stock,
without par value(5)
Currency Warrants, Indexed 100%
Warrants and Interest Rate
Warrants
Common Stock, par value $2.00 per -
share and Junior Participating
Preferred Stock Purchase Rights(6)
<FN>
(1) Estimated solely for purposes of calculating the registration fee, which is calculated pursuant to Rule 457(o)
of the rules and regulations under the Securities Act of 1933, as amended.
(2) Exclusive of accrued interest, if any. No separate consideration will be received for Common Stock (and
attached Junior Participating Preferred Stock Purchase Rights) or Preferred Stock that are issued upon
conversion or exchange of Debt Securities or Preferred Stock, as the case may be. The
aggregate maximum offering price of all offered securities being registered hereby will not exceed
$2,000,000,000 or the equivalent amount in any foreign currency, currency unit or composite of currencies.
(3) Plus such additional principal amount as may be necessary such that, if Debt Securities are offered with
original issue discount, the aggregate initial offering price of all offered securities being registered hereby
will not exceed $2,000,000,000 or the equivalent amount in any foreign currency, currency unit or composite
of currencies.
(4) Previously paid.
(5) Such indeterminate number of shares of Preferred Stock as may, from time to time, be issued at
indeterminate prices or as may be issued upon exchange of any Debt Securities that
are exchangeable into Preferred Stock.
(6) Such indeterminate number of shares of Common Stock (and attached Junior Participating Preferred Stock
Purchase Rights) as may be issued upon conversion or exchange of Debt Securities or Preferred Stock that are
convertible or exchangeable into Common Stock.
</FN>
</TABLE>
Pursuant to Rule 429 under the Securities Act of 1933, the
Prospectus included in this Registration Statement will also be
used in connection with the issuance of debt securities registered
pursuant to Registration Statement No. 33-58144 previously filed by
the Registrant on Form S-3 and declared effective on March 2, 1993
and preferred stock registered pursuant to Registration Statement
No. 33-51044 previously filed by the Registrant on Form S-3 and
declared effective on September 13, 1992. This Registration
Statement, which is a new registration statement, also constitutes
Post-Effective Amendment No. 1 to Registration Statement No. 33-
51044 and Post-Effective Amendment No. 1 to Registration Statement
No. 33-58144, and such Post-Effective Amendments shall hereafter
become effective concurrently with the effectiveness of this
Registration Statement and in accordance with Section 8(c) of the
Securities Act of 1933.
=================================================================
<PAGE> 2
PROSPECTUS
LOGO
$2,827,525,000
The Chase Manhattan Corporation
Debt Securities, Debt Warrants,
Preferred Stock,
Currency Warrants, Index Warrants and Interest Rate Warrants
_______________
The Chase Manhattan Corporation (the "Company") may offer
from time to time pursuant hereto its (i) unsecured debt
securities which may be either Senior (the "Senior Securities")
or Subordinated (the "Subordinated Securities") in priority of
payment, consisting of debentures, notes or other evidences of
indebtedness (collectively, "Debt Securities"), (ii) warrants to
purchase Debt Securities (the "Debt Warrants"), (iii) shares of
its preferred stock without par value ("Preferred Stock"), (iv)
warrants entitling the holders thereof to receive from the
Company, upon exercise, the cash value of the right to sell
("Currency Put Warrants") and to purchase ("Currency Call
Warrants" and, together with the Currency Put Warrants, the
"Currency Warrants") a certain amount of one currency or currency
unit for a certain amount of a different currency or currency
unit, all as shall be designated by the Company at the time of
offering, (v) warrants entitling the holders thereof to receive
from the Company, upon exercise, an amount in cash determined by
reference to decreases ("Index Put Warrants") or increases
("Index Call Warrants") in the level of a specified index (an
"Index") which may be based on one or more U.S. or foreign
stocks, bonds or other securities, one or more U.S. or foreign
interest rates, one or more currencies or currency units, or any
combination of the foregoing, or determined by reference to the
differential between any two Indices ("Index Spread Warrants"
and, together with the Index Put Warrants and the Index Call
Warrants, the "Index Warrants"), all as shall be designated by
the Company at the time of offering, and (vi) warrants entitling
the holders thereof to receive from the Company, upon exercise,
an amount in cash determined by reference to decreases ("Interest
Rate Put Warrants") or increases ("Interest Rate Call Warrants"
and, together with the Interest Rate Put Warrants, the "Interest
Rate Warrants") in the yield, closing price or rate of one or
more specified debt instruments issued either by the United
States Government or by a foreign government (the "Government
Debt Instrument"), in the interest rate or interest rate swap
rate established from time to time by one or more specified
financial institutions (the "Financial Institution Rate") or in
any specified combination of Government Debt Instruments and/or
Financial Institution Rates, all as shall be designated by the
Company at the time of offering. The Debt Securities, Debt
Warrants, Preferred Stock, Currency Warrants, Index Warrants and
Interest Rate Warrants are collectively referred to as the
"Securities." The Debt Warrants, Currency Warrants, Index
Warrants and Interest Rate Warrants are collectively referred to
as the "Warrants."
The Company may issue Securities at an aggregate initial
offering price which will result in proceeds to the Company of
not more than $2,827,525,000 or, if applicable, the equivalent
thereof in any other currency or currency units. The Securities
may be offered as separate series in amounts, at prices and on
terms to be set forth in the applicable Prospectus Supplement.
The terms of each series of Securities, including, where
applicable, the specific designation, priority, aggregate
principal amount or number of shares, authorized denominations or
stated value per share, maturity, interest or dividend rate or
rates (or method of ascertaining same), interest or dividend
payment dates, any optional or mandatory redemption terms, any
conversion, exchange or sinking fund provisions, any initial
public offering price, the proceeds to the Company, listing on
any securities exchange, and any other specific terms of or in
connection with the offering and sale of such series (the
"Offered Securities") also will be set forth in the applicable
Prospectus Supplement. As used herein, Securities shall include
securities denominated in United States dollars or, at the option
of the Company, if so specified in the applicable Prospectus
Supplement, in any other currency, currency unit or composite of
currencies or in amounts determined by reference to an index.
The Senior Securities will rank equally with all other
unsubordinated and unsecured indebtedness of the Company. The
Subordinated Securities will be subordinated to all existing and
future Senior Indebtedness of the Company (as defined below). At
September 30, 1994, the outstanding Senior Indebtedness of the
Company, exclusive of guarantees and other contingent
obligations, was approximately $2.8 billion. See "DESCRIPTION OF
DEBT SECURITIES -- General."
When Warrants are offered, the Prospectus Supplement will
set forth the specific terms, such as, where applicable, the
specific designation, aggregate number of Warrants, the initial
public offering price, exercise price, detachability, the
currency or currency unit for which the Warrants may be
purchased, the currency or currency unit in which the cash
settlement value or the exercise price is payable, the method of
calculation of the cash settlement value, the date on which such
Warrants become exercisable and the expiration date, provisions,
if any, for the automatic exercise and/or cancellation prior to
the expiration date, a discussion of certain United States
federal income tax, accounting or other special considerations
applicable thereto and any other terms in connection with such
offering and sale.
The Securities may be sold directly by the Company, through
agents designated from time to time or to or through underwriters
or dealers. See "PLAN OF DISTRIBUTION." If any agents of the
Company or any underwriters are involved in the sale of any
Offered Securities in respect of which this Prospectus is being
delivered, the names of such agents or underwriters and any
applicable commissions or discounts will be set forth in the
applicable Prospectus Supplement. The net proceeds to the
Company from such sale also will be set forth in the applicable
Prospectus Supplement.
_______________
THE OFFERED SECURITIES ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR
OTHER OBLIGATIONS OF ANY BANK OR NONBANK SUBSIDIARY OF THE
COMPANY AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION, BANK INSURANCE FUND OR ANY OTHER GOVERNMENT AGENCY.
_______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS OR THE PROSPECTUS SUPPLEMENT TO WHICH IT
RELATES. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
_______________
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF
SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
_______________
The date of this Prospectus is November 23, 1994.
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934 (the "Exchange Act") and, in
accordance therewith, files reports and other information with
the Securities and Exchange Commission (the "SEC"). Proxy
statements, reports and other information concerning the Company
can be inspected and copied at the SEC's office at 450 Fifth
Street, N.W., Washington, D.C. 20549 and the SEC's Regional
Offices in New York (7 World Trade Center, Suite 1300, New York,
New York 10048) and Chicago (Northwestern Atrium Center, 500 W.
Madison Street, Suite 1400, Chicago, Illinois 60661), and copies
of such material can be obtained from the Public Reference
Section of the SEC at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. Proxy statements, reports and other
information concerning the Company also may be inspected at the
offices of the New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005. This Prospectus does not contain all
the information set forth in the Registration Statement and
Exhibits thereto which the Company has filed with the SEC under
the Securities Act of 1933 (the "Act") and to which reference is
hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are incorporated herein by reference the following
documents of the Company heretofore filed by it with the SEC:
(i) Annual Report on Form 10-K for the year ended
December 31, 1993, filed pursuant to Section 13 of the Exchange
Act, including the portions of The Chase Manhattan Corporation
1993 Annual Report incorporated therein (the "1993 Annual
Report").
(ii) Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1994, June 30, 1994 and September 30, 1994, filed
pursuant to Section 13 of the Exchange Act.
(iii) Current Reports on Form 8-K dated January 18, 1994,
January 20, 1994, April 18, 1994, April 29, 1994, May 18, 1994,
July 18, 1994, August 3, 1994, August 3, 1994, August 11, 1994,
October 18, 1994 and November 18, 1994 filed pursuant to Section
13 of the Exchange Act.
(iv) The description of the Company's Common Stock contained
in the Company's Registration Statement on Form 10 filed pursuant
to Section 12 of the Exchange Act on April 11, 1969, as amended
by amendments thereto on Form 8 filed on June 20, 1969, April 8,
1988, May 17, 1990 and April 19, 1993 and the description of the
Company's Junior Participating Preferred Stock Purchase Rights
contained in the Company's Registration Statement on Form 8-A
filed on February 17, 1989, including all amendments and reports
filed for the purpose of updating such descriptions prior to the
termination of the offering of the Securities of the Company
offered hereby.
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of the offering of
the Securities of the Company offered hereby shall be deemed to
be incorporated by reference into this Prospectus. Any statement
contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified
or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
Any person receiving a copy of this Prospectus may obtain,
without charge, upon written or oral request, a copy of any of
the documents incorporated by reference herein, except for the
exhibits to such documents (other than exhibits expressly
incorporated by reference therein). Written requests should be
directed to:
The Chase Manhattan Corporation
1 Chase Manhattan Plaza
New York, New York 10081
Attention: Office of the Secretary
Telephone requests may be directed to (212) 552-6511.
_______________
Unless otherwise indicated, currency amounts in this
Prospectus and any Prospectus Supplement thereto are stated in
United States dollars ("$", "dollars" or "U.S.$").
<PAGE>4
THE CHASE MANHATTAN CORPORATION
The Company is a bank holding company that was incorporated
in 1969 and whose principal subsidiary is The Chase Manhattan
Bank (National Association) (the "Bank"). As used herein, the
term "Corporation" means the Company and its consolidated
subsidiaries and the term "Bank" means the Bank and its
subsidiaries.
In addition to the Bank, the Corporation holds
investments in other subsidiaries that provide a variety of
financial services, including commercial and consumer financing,
investment banking, securities trading and investment advisory
services. The Corporation's primary strategy is that of a global
bank with a diversified domestic base serving three interrelated
franchises: global financial services, domestic consumer products
and regional banking in the northeastern United States. Over the
last few years, the Corporation has focused its business and
marketing efforts on two types of customers -- retail
(individuals and small and medium-sized businesses) and wholesale
(primarily large corporations and institutions). The
Corporation's business groups serving retail customers are
National Consumer Product Companies, Regional Banking and Global
Private Banking; those serving wholesale customers are Global
Corporate Finance, Global Markets and Transaction and Information
Services. In addition to these core business groups, the Real
Estate Finance Sector manages the Corporation's loan portfolio
related to the domestic commercial real estate business and the
LDC Portfolio Management group oversees the Corporation's
portfolio of cross-border extensions of credit to refinancing
countries.
The Company's ability to pay dividends on its preferred and
common stock is derived from several sources, including, among
other sources, dividends from its banking and nonbanking
subsidiaries. The ability of the Company's banking subsidiaries
to pay dividends is subject to certain restrictions.
National banks are subject to various legal limitations
which prohibit the payment of dividends in certain circumstances
and restrict the amount that may be paid without the prior
approval of the Office of the Comptroller of the Currency
("OCC"). Under these limitations as recently amended, a national
bank may not pay a dividend in an amount greater than its
undivided profits. The approval of the OCC is required if the
total of all dividends declared by a national bank in any
calendar year exceeds such bank's net income for that year,
combined with its retained net income for the preceding two
calendar years, less any required transfers to surplus.
<PAGE>5
At September 30, 1994, under the more restrictive of
these limitations, the Bank could declare dividends during the
remainder of 1994 of approximately $1.3 billion, combined with an
additional amount equal to its net income from September 30, 1994
up to the date of any dividend declaration. Under applicable
state and federal laws, The Chase Manhattan Bank (USA) ("Chase
USA") and Chase Bank of Maryland ("Chase Maryland") could declare
dividends during the remainder of 1994 of approximately $1
billion and $6 million, respectively, combined with an additional
amount equal to their respective retained net profits from
September 30, 1994 up to the date of any dividend declaration.
The payment of dividends by bank holding companies and their
banking subsidiaries may also be limited by other factors,
including applicable regulatory capital guidelines and leverage
limitations.
The Company is a legal entity separate and distinct from the
Bank and the Company's other subsidiaries. There are various
legal limitations on the extent to which banks, such as the Bank,
Chase USA and Chase Maryland, that are insured by the Federal
Deposit Insurance Corporation (the "FDIC"), may finance or
otherwise supply funds to certain of their affiliates. In
particular, each bank that is a subsidiary of the Company is
subject to certain restrictions on any extensions of credit to,
or other covered transactions, such as certain purchases of
assets, with the Company or such affiliates. Such restrictions
prevent banking subsidiaries of the Company from lending to the
Company and their affiliates unless such extensions of credit are
secured by collateral in specified amounts and are made on terms
and conditions that are substantially the same as those
prevailing for comparable transactions with non-affiliated
companies. Further, such covered transactions by any such bank
are limited in amount as to the Company or any such affiliate to
10 percent of such bank's capital and surplus and as to the
Company and all such affiliates in the aggregate to 20 percent of
such bank's capital and surplus.
The Company's Executive Office is located at 1 Chase
Manhattan Plaza, New York, New York 10081 and its telephone
number at said office is (212) 552-2222.
REGULATORY DEVELOPMENTS
The Federal Deposit Insurance Corporation Improvement
Act of 1991 ("FDICIA") was enacted, among other things, to
increase funding for the FDIC's Bank Insurance Fund, and
establish standards for, and restrictions on, activities of
depository institutions based upon capital status and supervisory
evaluation by federal banking regulators. Federal banking
agencies were required to adopt various rules and regulations
implementing FDICIA, most of which have already been promulgated;
others of which are still in the rulemaking process. Through
September 30, 1994, regulations have been promulgated under
FDICIA
<PAGE>6
covering a variety of matters including assessment of risk-based
deposit insurance and prompt corrective action measures available
to federal regulators based on the capital category of an
institution. Based upon its assessment of the impact of all of
the regulations issued under FDICIA, the Company does not expect
any of them to have a material effect on its operations.
Further rules have been proposed under FDICIA, governing
such matters as accounting and capital requirements. Until the
various regulations are adopted in final form, however, it is
difficult to assess how they will impact the Company's financial
condition or operations.
USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus
Supplement, the net proceeds from the sale of the Securities will
be applied to general corporate purposes, including, without
limitation, advances to or investments in banking and non-banking
subsidiaries of the Company and the repayment of commercial paper
or other indebtedness of the Company.
The Company expects that it will, from time to time, engage
in additional private or public financings in character and
amount to be determined as market conditions warrant and as the
need arises.
RATIOS OF EARNINGS TO FIXED CHARGES
The following are the consolidated ratios of earnings to
fixed charges for the Corporation for the nine-month period
ending September 30, 1994 and for each of the years in the five-
year period ended December 31, 1993:
Nine Months Year Ended
Ended December 31,
September 30, 1994 1993 1992 1991 1990 1989
------------- ----------------------------
Excluding Interest
on Deposits . . . . 1.9x 1.3x 1.4x 1.3x * *
Including Interest
on Deposits . . . . 1.4 1.1 1.2 1.1 * *
_______________
* For the years ended December 31, 1990 and 1989, earnings did
not cover fixed charges by $91 million and $449 million,
respectively, primarily as a result of large additions to
the reserve for possible credit losses and special charges.
<PAGE>7
For purposes of computing the consolidated ratios, earnings
represent net income (loss) plus applicable income taxes and
fixed charges, less cumulative effect of change in accounting
principle (for the year ended December 31, 1993) and equity in
undistributed earnings (losses) of unconsolidated subsidiaries
and associated companies. Fixed charges represent interest
expense (exclusive of interest on deposits in one case and
inclusive of such interest in the other), amortization of debt
discount and issuance costs and one-third (the amount deemed to
represent an interest factor) of net rental expense under all
lease commitments.
RATIOS OF EARNINGS TO FIXED CHARGES AND
PREFERRED STOCK DIVIDEND REQUIREMENTS
The following are the consolidated ratios of earnings to
fixed charges and preferred stock dividend requirements for the
Corporation for the nine-month period ended September 30, 1994
and for each of the years in the five-year period ended December
31, 1993:
Nine Months Year Ended
Ended December 31,
September 30, 1994 1993 1992 1991 1990 1989
------------- ----------------------------
Excluding Interest
on Deposits . . . . 1.7x 1.2x 1.2x 1.2x * *
Including Interest
on Deposits . . . . 1.4 1.1 1.1 1.1 * *
_______________
* For the years ended December 31, 1990 and 1989, earnings did
not cover fixed charges and preferred stock dividend
requirements by $231 million and $580 million, respectively,
primarily as a result of large additions to the reserve for
possible credit losses and special charges.
For purposes of computing the consolidated ratios, earnings
represent net income (loss) applicable to common stock plus
applicable income taxes, fixed charges and preferred stock
dividend requirements, less cumulative effect of change in
accounting principle (for the year ended December 31, 1993) and
equity in undistributed earnings (losses) of unconsolidated
subsidiaries and associated companies. Fixed charges and
preferred stock dividend requirements represent interest expense
(exclusive of interest on deposits in one case and inclusive of
such interest in the other), amortization of debt discount and
issuance costs, one-third (the amount deemed to represent an
interest factor) of net rental expense under all lease
<PAGE>8
commitments and dividend requirements on the outstanding
preferred stock.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt
Securities sets forth certain general terms and provisions of the
Debt Securities to which any Prospectus Supplement may relate.
The Debt Securities may be issued from time to time in one or
more series. The particular terms of each series of Debt
Securities offered by any Prospectus Supplement and the extent,
if any, to which such general provisions may apply to the Debt
Securities so offered will be described in the applicable
Prospectus Supplement.
The Senior Securities will be issued under an Indenture,
dated as of July 1, 1986, as supplemented by a First Supplemental
Indenture, dated as of November 1, 1990, and a Second
Supplemental Indenture, dated as of May 1, 1991, between the
Company and Bankers Trust Company, as Trustee (the "Senior
Trustee") (said Indenture as so supplemented, the "Senior
Indenture"). The Subordinated Securities will be issued under
the Amended and Restated Indenture, dated as of September 1,
1993, between the Company and Chemical Bank, as Trustee (the
"Subordinated Trustee") (said Indenture is referred to as the
"Subordinated Indenture"). The Senior Indenture and the
Subordinated Indenture are hereinafter collectively referred to
as the "Indentures."
The statements under this caption relating to the Debt
Securities include brief summaries of certain provisions of the
Indentures, do not purport to be complete and are subject to, and
are qualified in their entirety by reference to, the applicable
Indenture, each of which is filed as an exhibit to the
Registration Statement. Such summaries encompass all the
material provisions of the Debt Securities and their related
Indentures, including the definitions therein of certain terms.
All article and section references appearing herein are to
articles and sections of the applicable Indenture, and all
capitalized terms not defined herein have the meanings specified
in such Indenture. Whenever terms which are defined in an
Indenture are referred to, it is intended that such defined terms
shall be incorporated herein by reference.
Because the Company is a holding company, its rights and the
rights of its creditors, including the Holders of the Debt
Securities, to participate in the assets of any subsidiary upon
the latter's liquidation or recapitalization would be subject to
the prior claims of such subsidiary's creditors except to the
extent that the Company may itself be a creditor with recognized
claims against such subsidiary. There is no restriction in the
<PAGE>9
Debt Securities or either Indenture against the incurring of
indebtedness by the Company, the Bank or any other subsidiary of
the Company.
The Debt Securities may be issued either in registered form
("Registered Securities") or bearer form ("Bearer Securities")
with coupons attached or both. The Bearer Securities will be
offered only to non-United States persons and to offices of
certain United States financial institutions located outside the
United States.
General
Neither Indenture limits the amount of Debt Securities which
may be issued thereunder and Debt Securities may be issued
thereunder up to the aggregate principal amount which may be
authorized from time to time by the Company. The Senior
Securities will be unsecured and will rank on a parity with all
other unsecured and unsubordinated indebtedness of the Company.
The Subordinated Securities will be unsecured and will be
subordinate and junior in right of payment to the Company's
obligations to the Holders of Senior Indebtedness of the Company.
See "THE SUBORDINATED SECURITIES -- Subordination." Unless
otherwise set forth in the applicable Prospectus Supplement,
neither the Indentures nor the Debt Securities contain provisions
which would afford holders of Debt Securities protection in the
event of a takeover, recapitalization or similar restructuring
involving the Company, which could adversely affect the Debt
Securities.
Reference is made to the applicable Prospectus Supplement
that will contain the specific terms of the series of Debt
Securities that are Offered Securities, including where
applicable: (1) the title and priority of the Offered Securities;
(2) any limit on the aggregate principal amount of the Offered
Securities; (3) the price or prices (expressed as a percentage of
the aggregate principal amount thereof) at which the Offered
Securities will be issued; (4) the date or dates on which the
Offered Securities will mature; (5) the rate or rates (which may
be fixed or variable) per annum at which the Offered Securities
will bear interest, if any, or the method of determining the
same, and the date or dates from which such interest, if any,
will accrue; (6) the Interest Payment Dates, if any, for the
interest payable on the Offered Securities and the Regular Record
Dates for the interest payable on Registered Securities and
whether any such payments may be postponed or deferred;
(7) whether interest in respect of any portion of a temporary
global Debt Security representing the Offered Securities which is
payable in respect of an Interest Payment Date prior to the
issuance of definitive Debt Securities will be credited to the
Persons entitled thereto on such Interest Payment Date; (8) any
mandatory or optional sinking fund, amortization or analogous
<PAGE>10
provisions; (9) the place or places where the principal of (and
premium, if any) and interest, if any, on the Offered Securities
will be payable if other than solely at the Principal Trust
Office (as defined under "Payment and Paying Agents" below);
(10) the date, if any, after which and the price or prices at
which the Offered Securities may, pursuant to any optional or
mandatory redemption provisions, be redeemed, in whole or in
part, and the other detailed terms and provisions of any such
optional or mandatory redemption provisions; (11) whether the
Offered Securities are to be issuable as Registered Securities or
Bearer Securities or both, any restrictions applicable to the
offer, sale or delivery of Bearer Securities, whether the Offered
Securities may be issued in global form, and, if so, the
circumstances under which such Offered Securities may be
exchanged for Offered Securities of like tenor issued in a
different form, and the name of the depository with respect to
any global Offered Security; (12) any special provisions for the
payment of additional amounts with respect to the Offered
Securities; (13) the denominations in which any Offered
Securities which are Registered Securities will be issuable if
other than denominations of $1,000 and any integral multiple
thereof, and the denominations in which any Offered Securities
which are Bearer Securities will be issuable if other than the
denomination of $5,000; (14) the currency, currency unit or
currencies of payment of principal of (and premium, if any) and
interest, if any, on the Offered Securities if other than
dollars; (15) any index, currency exchange rate, commodity or
derivative instrument price, or other publicly available data
used to determine the amount of payments of principal of (and
premium, if any) and interest, if any, on the Offered Securities;
(16) any special United States tax considerations applicable to
any Offered Securities; (17) any special provisions relating to
defeasance of the Senior Securities; (18) any conversion or
exchange provisions; and (19) any other terms of the Offered
Securities not inconsistent with the provisions of the applicable
Indenture.
Debt Securities may be issued as Original Issue Discount
Securities (as defined in the applicable Indenture) to be sold at
a substantial discount below their principal amount. Special
United States federal income tax considerations applicable to
Debt Securities issued at an original issue discount, including
Original Issue Discount Securities and other special
considerations applicable to such series of Debt Securities will
be set forth in the applicable Prospectus Supplement.
Registration and Transfer
Unless otherwise provided with respect to any series of Debt
Securities, the Debt Securities of each series will be issuable
as Registered Securities. If so provided with respect to a
series of Debt Securities, however, Debt Securities may be issued
<PAGE>11
solely as Bearer Securities, or in a combination of both
Registered Securities and Bearer Securities. Unless otherwise
specified with respect to such series of Debt Securities, Debt
Securities issued in bearer form shall have interest coupons
attached. (Indentures Section 201) Bearer Securities may not be
offered, sold, resold or delivered in connection with their
original issuance in the United States or to United States
persons (each as defined below) other than offices located
outside the United States of certain United States financial
institutions. Purchasers of Bearer Securities will be subject to
certification procedures, and may be affected by certain
limitations under United States tax laws. (Indentures Section
311) See "--Limitations on Issuance of Bearer Securities."
If Debt Securities of any series are issuable as both
Registered Securities and Bearer Securities, at the option of the
Holder and subject to the terms of the respective Indenture, (i)
Bearer Securities (with all unmatured coupons, except as provided
below, and all matured coupons in default) of such series will be
exchangeable into an equal aggregate principal amount of
Registered Securities of the same series of any authorized
denominations and like tenor and (ii) Registered Securities of
such series will be exchangeable into an equal aggregate
principal amount of Registered Securities of the same series of
different authorized denominations and like tenor. Bearer
Securities surrendered in exchange for Registered Securities
between a Regular Record Date and the relevant Interest Payment
Date shall be surrendered without the coupon relating to such
Interest Payment Date. (Indentures Section 305) Bearer
Securities will not be issued in exchange for Registered
Securities.
Debt Securities may be presented for exchange as provided
above, and Registered Securities may be presented for transfer
(with the form of transfer endorsed thereon duly executed), at
the office of the Security Registrar and at the office of any
transfer agent appointed by the Company for such purpose with
respect to Debt Securities of a series and referred to in the
applicable Prospectus Supplement without service charge and upon
payment of any taxes and other governmental charges as described
in the Indentures. Such transfer or exchange will be effected
upon the Security Registrar or such transfer agent, as the case
may be, being satisfied with the documents of title and identity
of the person making the request. (Indentures Section 305)
Unless otherwise specified in the applicable Prospectus
Supplement with respect to any Offered Securities, the Bank,
acting through its office in The City of New York where at any
particular time its corporate agency business is conducted, is
designated as Security Registrar. (Indentures Section 1002)
<PAGE>12
The Company shall not be required to (i) issue, register
the transfer of or exchange Debt Securities of any series for a
period of 15 days immediately preceding the date notice of
redemption is given; (ii) register the transfer of or exchange
any Registered Security called for redemption in whole or in
part, except the unredeemed portion of any Registered Security
being redeemed in part; or (iii) exchange any Bearer Security
called for redemption, except to exchange such Bearer Security
for a Registered Security of that series which is immediately
surrendered for redemption. (Indentures Section 305) The
Subordinated Indenture also provides that the Company shall not
be required to (i) issue, register the transfer of or exchange
Subordinated Securities of any series during a period beginning
at the opening of business 15 days before the day of mailing of a
notice of exchange of Capital Securities (as defined below) for
Subordinated Securities of that series selected for exchange of
Capital Securities therefor and ending at the close of business
on the day of such mailing; or (ii) register the transfer of or
exchange any security of a series selected for exchange for
Capital Securities. (Subordinated Indenture Section 305)
Limitations on Issuance of Bearer Securities
In compliance with United States federal tax and securities
laws and regulations, Bearer Securities may not be offered, sold,
resold or delivered, as part of their issuance at any time or
otherwise until 40 days after their closing date, in the United
States or to United States persons other than to offices of
United States financial institutions located outside the United
States which agree in writing to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended (the "Code"), and the regulations thereunder,
and any underwriters, agents and dealers participating in the
offering of Debt Securities will agree that they will not offer
any Bearer Securities for sale or resale during the restricted
period in the United States or to United States persons (other
than the financial institutions described above) nor deliver
Bearer Securities within the United States. Bearer Securities
will bear a legend substantially to the following effect: "Any
United States person who holds this obligation will be subject to
limitations under the United States income tax laws, including
the limitations provided in Sections 165(j) and 1287(a) of the
Internal Revenue Code."
As used herein, "United States person" means any citizen or
resident of the United States, any corporation or partnership or
other entity created or organized in or under the laws of the
United States or any state thereof or any estate or trust the
income of which is subject to United States federal income
taxation regardless of its source, and "United States" means the
United States of America (including the States and the District
<PAGE>13
of Columbia), its territories, its possessions and other areas
subject to its jurisdiction. (Indentures Section 311)
Temporary Global Debt Securities
Pending the availability of definitive Debt Securities, Debt
Securities which are issuable as Bearer Securities initially may
be represented by one or more temporary global Debt Securities,
without interest coupons, to be deposited with a common
depositary in London for the Euroclear System ("Euroclear") and
Cedel S.A. for credit to the designated accounts against
certifications to the effect described below. Unless otherwise
indicated in the applicable Prospectus Supplement, any such
temporary global Debt Security will be exchangeable only for
definitive Bearer Securities. Such exchange may occur following
the availability of definitive forms of Bearer Securities,
subject to any further limitations described in the applicable
Prospectus Supplement, and only upon certification that such
Bearer Securities are not being acquired by or on behalf of a
United States person (other than by or through certain foreign
branches of United States financial institutions) or by a person
who has purchased the Bearer Securities for resale within the
United States or to United States persons. No such Bearer
Security delivered in exchange for a portion of a temporary
global Debt Security shall be mailed or otherwise delivered to
any location in the United States in connection with such
exchange. (Indentures Sections 304, 311)
If so specified in the applicable Prospectus Supplement,
interest in respect of any portion of a temporary global Debt
Security payable in respect of an Interest Payment Date prior to
the issuance of definitive Bearer Securities will be paid to each
of Euroclear and Cedel S.A. with respect to the portion of such
temporary global Debt Security held for its account. Each of
Euroclear and Cedel S.A. will undertake in such circumstances to
credit such interest received by it in respect of a temporary
global Debt Security to the respective accounts for which it
holds such temporary global Debt Security only upon receipt in
each case of certification that, as of the relevant Interest
Payment Date, the portion of such temporary global Debt Security
on which such interest is to be so credited is either not
beneficially owned by a United States person (other than by or
through certain foreign branches of United States financial
institutions) or by a person who has purchased the Bearer
Securities for resale to United States persons. (Indentures
Sections 304, 311)
Permanent Global Debt Securities
If any Debt Securities of a series are issuable in permanent
global form, the applicable Prospectus Supplement will describe
the circumstances, if any, under which beneficial owners of
<PAGE>14
interests in any such permanent global Debt Security may exchange
such interests for Debt Securities of such series and of like
tenor and principal amount in any authorized form and
denomination. No Bearer Debt Security delivered in exchange for
any portion of a permanent global Debt Security shall be mailed
or otherwise delivered to any location in the United States or
its possessions in connection with such exchange. Principal of
(and premium, if any) and interest, if any, on any permanent
global Debt Security will be payable in the manner described in
the applicable Prospectus Supplement. (Indentures Sections 305,
1002)
Payment and Paying Agents
Payment of principal of (and premium, if any) and interest,
if any, on Bearer Securities will be payable in the currency,
currency unit or currencies designated in the applicable
Prospectus Supplement, subject to any applicable laws and
regulations, at the offices of such Paying Agents outside the
United States as the Company may designate. Unless otherwise
indicated in the applicable Prospectus Supplement, payment of
interest on Bearer Securities on any Interest Payment Date will
be made only against surrender of the coupon relating to such
Interest Payment Date. Unless otherwise indicated in the
applicable Prospectus Supplement, such payment of principal of
(and premium, if any) and interest, if any, on such Bearer
Security will be made by a check in the designated currency or
currency unit or, if requested in writing by the Holder, by
transfer to an account in the designated currency or currency
unit maintained by the payee with a bank located outside the
United States. No payment with respect to any Bearer Security
will be made at any office or agency maintained by the Company in
the United States nor will any such payment be made by transfer
to an account, or by mail to an address, in the United States.
Notwithstanding the foregoing, payments of principal of (and
premium, if any) and interest, if any, on Bearer Securities will
be made in dollars at the principal office of the Bank in The
City of New York where at any particular time its corporate trust
business shall be administered (the "Principal Trust Office") if
payment of the full amount thereof in dollars at all offices or
agencies outside the United States is illegal or effectively
precluded by exchange controls or other similar restrictions.
(Indentures Sections 301, 1001, 1002)
Unless otherwise indicated in the applicable Prospectus
Supplement, payment of principal (and premium, if any) on
Registered Securities will be made in the currency, currency unit
or currencies designated in the applicable Prospectus Supplement
against surrender of such Registered Securities at the Principal
Trust Office or by check in the designated currency or currency
unit mailed to the person in whose name such Debt Security is
<PAGE>15
registered. Unless otherwise indicated in the applicable
Prospectus Supplement, payment of any instalment of interest on
Registered Securities will be made to the person in whose name
such Debt Security is registered at the close of business on the
Regular Record Date for such interest. Unless otherwise
indicated in the applicable Prospectus Supplement, payments of
such interest will be made at the Principal Trust Office or, at
the option of the Company, by a check in the designated currency
or currency unit mailed to the Holder at such Holder's registered
address. (Indentures Sections 307, 1002)
The Bank acting through the Principal Trust Office has been
designated as the Company's Paying Agent in The City of New York.
The Company may at any time designate additional Paying Agents or
rescind the designation of any Paying Agent or approve a change
in the office through which any Paying Agent acts, except that
the Company will maintain at least one Paying Agent in The City
of New York for payments with respect to Registered Securities of
each series and, if Debt Securities of a series are issuable as
Bearer Securities, at least one Paying Agent in a city outside
the United States where Debt Securities of such series may be
presented and surrendered for payment, provided that, if the Debt
Securities of such series are listed on The Stock Exchange of the
United Kingdom and the Republic of Ireland Limited or the
Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent in London or
Luxembourg or any other required city located outside the United
States, as the case may be, for the Debt Securities of such
series, so long as the Debt Securities of such series are listed
on such exchange. (Indentures Section 1002)
Any money paid by the Company to a Paying Agent for the
payment of principal of (and premium, if any) or interest on any
Debt Security which remain unclaimed at the end of two years
after such principal (and premium, if any) or interest has become
due and payable will be repaid to the Company and the Holder of
such Debt Security or any coupon may thereafter look only to the
Company for payment thereof. (Indentures Section 1003)
Restrictions on Disposition of Bank Stock
The Senior Indenture provides that, so long as any Senior
Securities issued thereunder are Outstanding, the Company will
not create a security interest in more than 20% of the shares of
Capital Stock of the Bank, or permit more than 20% of such shares
(exclusive of directors' qualifying shares) to be held directly
or indirectly other than (i) by the Company or (ii) by any
corporation which is wholly-owned (except for directors'
qualifying shares) by the Company. (Section 1006) The term
"Capital Stock of the Bank" is defined in the Senior Indenture as
the capital stock, par value $15.00 per share, of the Bank as
<PAGE>16
such capital stock exists on the date of execution of such
Indenture and such other shares of stock of the Bank as shall
have ordinary power to vote for election of directors of the Bank
and shall not have any preference as to distribution of assets
upon any dissolution or winding-up of the Bank. (Section 101)
The Senior Indenture does not contain any restriction on sales by
the Bank of its assets.
Consolidation, Merger and Sale of Assets
Each Indenture provides that the Company may, without the
consent of the Holders of any of the Outstanding Debt Securities
under such Indenture, consolidate with, merge into or transfer
its assets substantially as an entirety to any corporation
organized and existing under the laws of the United States, any
State or the District of Columbia, provided that the successor
corporation assumes the Company's obligations on the Debt
Securities and under the Indenture, and provided that after
giving effect to the transaction no Event of Default shall have
happened and be continuing and that certain other conditions are
met. (Indentures Section 801)
Conversion Rights
The terms, if any, on which Debt Securities may be
convertible into or exchangeable for other securities, including,
without limitation, other securities of the Company and
securities of other entities, will be set forth in the applicable
Prospectus Supplement.
Exchange or Redemption
Debt Securities may be subject to redemption and exchange in
certain events, in the manner, at the places and subject to the
restrictions set forth in or established pursuant to the
applicable Indenture and set forth in the Debt Securities and the
applicable Prospectus Supplement.
Meetings
The Senior Indenture contains provisions for convening
meetings of the Holders of Senior Securities of a series if
Senior Securities of that series are issuable as Bearer
Securities. (Senior Indenture Section 1301) The Subordinated
Indenture also contains provisions for convening meetings of the
Holders of Subordinated Securities. (Subordinated Indenture
Section 1601) A meeting may be called at any time by the
respective Trustee, and also, upon request, by the Company or the
Holders of at least 10% in principal amount of the Outstanding
Securities of such series, in any such case upon notice given in
accordance with "-- Notices" below. (Senior Indenture Section
1302, Subordinated Indenture Section 1602) Except as limited by
<PAGE>17
the provisos in "THE SENIOR SECURITIES--Modifications and Waiver"
and "THE SUBORDINATED SECURITIES--Modifications and Waiver", any
resolution presented at a meeting or adjourned meeting duly
reconvened at which a quorum is present may be adopted by the
affirmative vote of the Holders of a majority in principal amount
of the Outstanding Securities of that series; provided, however,
that, except as limited by such provisos, any resolution with
respect to any consent or waiver which may be given by the
Holders of not less than 66-2/3% in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly reconvened at which a quorum is present
only by the affirmative vote of the Holders of 66-2/3% in
principal amount of the Outstanding Securities of that series;
and provided, further, that, except as limited by the provisos
referred to immediately above, any resolution with respect to any
request, demand, authorization, direction, notice, consent,
waiver or other action which may be made, given or taken by the
Holders of a specified percentage, which is less than a majority,
in principal amount of the Outstanding Securities of a series may
be adopted at a meeting or adjourned meeting duly reconvened at
which a quorum is present by the affirmative vote of the Holders
of such specified percentage in principal amount of the
Outstanding Securities of that series. Any resolution passed or
decision taken at any meeting of Holders of Outstanding
Securities of any series duly held in accordance with the
applicable Indenture will be binding on all Holders of Debt
Securities of that series and any related coupons. The quorum at
any meeting called to adopt a resolution, and at any reconvened
meeting, will be persons holding or representing a majority in
principal amount of the Outstanding Securities of a series;
provided, however, that if any action is to be taken at such
meeting with respect to a consent or waiver which may be given by
the Holders of not less than 66-2/3% in principal amount of the
Outstanding Securities of a series, the persons holding or
representing 66-2/3% in principal amount of the Outstanding
Securities of such series will constitute a quorum. (Senior
Indenture Section 1304, Subordinated Indenture Section 1604)
Notices
Except as otherwise provided in the relevant Indenture,
notices to Holders of Bearer Securities will be given by
publication at least twice in a daily newspaper in The City of
New York and, if Debt Securities of such series are then listed
on The Stock Exchange of the United Kingdom and the Republic of
Ireland Limited or the Luxembourg Stock Exchange or any other
stock exchange located outside the United States and such stock
exchange shall so require, in a daily newspaper in London or
Luxembourg or any other required city located outside the United
States, as the case may be, or, if not practicable, elsewhere in
Europe. Notices to Holders of Registered Securities will be
<PAGE>18
given by mail to the addresses of such Holders as they appear in
the Security Register. (Indentures Sections 101, 106)
Title
Title to any Bearer Security, any coupons appertaining
thereto and any temporary global Debt Security will pass by
delivery. The Company, the Senior Trustee or the Subordinated
Trustee, as the case may be, and any agent of the Company or of
such Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon and the registered owner of any Registered
Security as the absolute owner thereof (whether or not any such
Debt Security or coupon shall be overdue and notwithstanding any
notice to the contrary) for the purpose of making payment and for
all other purposes. (Indentures Section 308)
Replacement of Securities and Coupons
Any Debt Security (including any coupons appertaining to
Bearer Securities) that becomes mutilated, destroyed, lost or
stolen will be replaced by the Company at the expense of the
Holder upon delivery to the Trustee of the Debt Security and any
coupons appertaining thereto or evidence of the destruction, loss
or theft thereof satisfactory to the Company and such Trustee.
An indemnity satisfactory to such Trustee and the Company may be
required before a replacement Debt Security or coupon will be
issued. (Indentures Section 306)
Governing Law
Each Indenture, the Debt Securities and the coupons will be
governed by and construed in accordance with the laws of the
State of New York. (Senior Indenture Section 113, Subordinated
Indenture Section 112)
THE SENIOR SECURITIES
Events of Default and Waiver Thereof
The Senior Indenture provides that the happening of one or
more of the following events shall constitute an Event of Default
with respect to the Senior Securities of any series: (i) default
in the payment of interest on any Senior Security of such series
for a period of 30 days; (ii) default in the payment of the
principal of (or premium, if any, on) any Senior Security of such
series; (iii) default in performance, or breach, of any covenant
or warranty of the Company contained in the Senior Indenture for
the benefit of Senior Securities of such series for a period of
60 days after notice has been given to the Company; (iv) certain
events of insolvency of the Company; and (v) any other Event of
Default specifically provided for by the terms of the Senior
Securities of such series. (Section 501) Any additional Events
<PAGE>19
of Default with respect to any series of Senior Securities will
be specified in the applicable Prospectus Supplement relating to
such series. In case an Event of Default shall have occurred and
be continuing with respect to the Senior Securities of any
series, the Senior Trustee or the Holders of not less than 25% in
principal amount of the Senior Securities of such series then
outstanding may declare the principal of the Senior Securities of
such series (or, if the Senior Securities of such series were
issued as discounted Senior Securities, such portion of the
principal as may be specified in the terms of that series) to be
due and payable immediately, but such declaration may be
annulled, and certain past defaults waived, by the Holders of not
less than a majority in principal amount of the Senior Securities
of such series, upon the conditions provided in the Senior
Indenture. (Sections 502, 513)
The Senior Indenture provides that, subject to the duty of
the Senior Trustee during a default to act with the required
standard of care, the Senior Trustee will be under no obligation
to exercise any of its rights or powers under the Senior
Indenture at the request or direction of any of the Holders,
unless such Holders shall have offered to the Senior Trustee
reasonable indemnity. (Sections 601, 603) Subject to such
provisions for the indemnification of the Senior Trustee and
certain other conditions, the Holders of a majority in principal
amount of the Outstanding Senior Securities of any series will
have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Senior Trustee, or
exercising any trust or power conferred on the Senior Trustee,
with respect to the Senior Securities of that series. (Section
512)
The Company is required to furnish to the Senior Trustee
annually a statement as to the performance by the Company of
certain of its obligations under the Senior Indenture and as to
any default in such performance. (Section 1007)
Modification and Waiver
Modifications and amendments of the Senior Indenture may be
made by the Company and the Senior Trustee with the consent of
the Holders of not less than 66-2/3% in principal amount of the
Outstanding Senior Securities of each series affected by such
modification or amendment; provided, however, that no such
modification or amendment may, without the consent of the Holder
of each Outstanding Senior Security affected thereby, (1) change
the Stated Maturity of the principal of, or any instalment of
principal of or interest on, any Senior Security; (2) reduce the
principal amount of any Senior Security or change the rate of
interest or the method of calculation of interest thereon (except
as provided in the Senior Indenture or in such Senior Security),
or any premium payable upon the redemption thereof; (3) change
<PAGE>20
any obligation of the Company to pay additional amounts pursuant
to the Senior Indenture; (4) reduce the amount of principal of an
Original Issue Discount Senior Security payable upon acceleration
of the maturity thereof; (5) adversely affect the right of
repayment, if any, at the option of the Holder thereof;
(6) change the coin or currency in which any Senior Security or
any premium or any interest thereon is payable; (7) impair the
right to institute suit for the enforcement of any payment on or
with respect to any Senior Security; (8) reduce the percentage in
principal amount of Outstanding Senior Securities of any series,
the consent of whose Holders is required for modification or
amendment of the Senior Indenture or for waiver of compliance
with certain provisions of the Senior Indenture or for waiver of
certain defaults; (9) change any obligation of the Company to
maintain an office or agency in the Borough of Manhattan, The
City of New York, or any obligation of the Company to maintain an
office or agency outside the United States pursuant to the Senior
Indenture; or (10) modify certain provisions of the Senior
Indenture requiring consent of specified percentages of Holders
except to increase any such percentage. (Section 902)
The Holders of at least 66-2/3% in principal amount of the
Outstanding Senior Securities of each series may, on behalf of
all Holders of Senior Securities of that series, waive, insofar
as that series is concerned, compliance by the Company with
certain restrictive provisions of the Senior Indenture. (Section
1008) The Holders of not less than a majority in principal amount
of the Outstanding Senior Securities of each series may, on
behalf of the Holders of all the Senior Securities of that series
and any coupons appertaining thereto, waive any past default
under the Senior Indenture with respect to Senior Securities of
that series, except a default (i) in the payment of principal of
(or premium, if any) or interest, if any, on any Senior Security
of such series, or (ii) in respect of a covenant or provision of
the Senior Indenture which cannot be modified or amended without
the consent of the Holder of each Outstanding Senior Security of
such series affected thereby. (Section 513)
Defeasance
The Company may elect to defease and be discharged from its
obligations under the Senior Indenture with respect to Senior
Securities of any series on the terms and subject to the
conditions contained in the Senior Indenture, by (a) depositing
irrevocably with the Senior Trustee as trust funds (i) in the
case of Senior Securities denominated in a foreign currency,
money in such foreign currency or Foreign Government Obligations
(as defined below) of the foreign government or governments
issuing such foreign currency, in each case in an amount which
through the payment of interest, principal or premium, if any, in
respect thereof in accordance with their terms will provide
<PAGE>21
(without any reinvestment of such interest, principal or
premium), not later than one Business Day before the due date of
any payment, money in such foreign currency or (ii) in the case
of Senior Securities denominated in U.S. dollars, U.S. dollars or
U.S. Government Obligations (as defined below), in each case in
an amount which through the payment of interest, principal or
premium, if any, in respect thereof in accordance with their
terms will provide (without any reinvestment of such interest,
principal or premium), not later than one Business Day before the
due date of any payment, U.S. dollars or (iii) a combination of
U.S. dollars and U.S. Government Obligations or Foreign
Government Obligations, as applicable, sufficient to pay the
principal of or premium, if any, and interest, if any, on the
Senior Securities of such series as are due and (b) satisfying
certain other conditions precedent specified in the Senior
Indenture. Such deposit and defeasance is conditioned, among
other things, upon the Company's delivery to the Senior Trustee
of an opinion of counsel that the Holders of the Senior
Securities of such series will have no federal income tax
consequences as a result of such deposit and termination.
(Article Fifteen)
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the
payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in
either case, under clauses (i) or (ii) are not callable or
redeemable at the option of the issuer thereof. "Foreign
Government Obligations" means securities denominated in a foreign
currency that are (i) direct obligations of a foreign government
for the payment of which its full faith and credit is pledged or
(ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of a foreign government
the payment of which is unconditionally guaranteed as a full
faith and credit obligation by such foreign government, which, in
either case, under clauses (i) or (ii) have, at the time of
defeasance, a rating from a nationally recognized rating agency
in their country of issue or the United States at least
equivalent to the highest rating given to the Senior Securities
being defeased by Moody's Investors Service, Inc. or Standard &
Poor's Corporation at any time since the issuance of such Senior
Securities, and are not callable or redeemable at the option of
the issuer thereof. (Section 101)
<PAGE>22
Regarding the Senior Trustee
Bankers Trust Company, the Senior Trustee under the
Senior Indenture, has its principal corporate trust office at
Four Albany Street, New York, New York 10006. Bankers Trust
Company also serves as trustee under the indentures with the
Company relating to the Floating Rate Notes Due 1999, the 8-1/2%
Notes Due 1996, the 7-7/8% Notes Due 1997, the fixed and floating
rate Medium-Term Notes and Senior Medium-Term Notes, Series A and
Series B of the Company. The Corporation has normal banking
relationships with the Senior Trustee.
THE SUBORDINATED SECURITIES
Events of Default and Waiver Thereof
The Subordinated Indenture defines an Event of Default with
respect to Subordinated Securities of any series as certain
events involving the bankruptcy, insolvency or reorganization of
the Company and such other events as may be established for any
series of Subordinated Securities. However, the inability of the
Company to pay its debts as they become due and the appointment
of a conservator with respect to a depository institution
subsidiary of the Company insured by the FDIC or any successor
agency do not constitute Events of Default under the Subordinated
Indenture. (Section 501) If an Event of Default with respect to
Subordinated Securities of any series at the time outstanding
occurs and is continuing, either the Subordinated Trustee or the
Holders of not less than 25% in aggregate principal amount of the
Outstanding Subordinated Securities of that series, by notice as
provided in the Subordinated Indenture, may declare the principal
amount (or, if the Subordinated Securities of that series are
Original Issue Discount Subordinated Securities, such portion of
the principal amount as may be specified in the terms of that
series) of all the Subordinated Securities of that series to be
due and payable immediately in cash. The foregoing provision
would be subject as to enforcement to the broad equity powers of
a federal bankruptcy court and to the determination by that court
of the nature of the rights of the Holders of the Subordinated
Securities of such series. At any time after a declaration of
acceleration with respect to Subordinated Securities of any
series has been made, but before a judgment or decree for payment
of the money due has been obtained by the Subordinated Trustee,
the Holders of a majority in aggregate principal amount of the
Outstanding Subordinated Securities of that series may, under
certain circumstances, rescind and annul such declaration.
(Sections 502, 513)
The Subordinated Indenture does not provide for any right of
acceleration of the payment of principal of the Subordinated
Securities of any series upon a default in the payment (including
any obligation to exchange Capital Securities (as defined below)
<PAGE>23
for Subordinated Securities of such series) of principal of (or
premium, if any) or interest, if any, on the Subordinated
Securities of such series, or in the performance of any covenant
or agreement in the Subordinated Indenture or in the terms of the
Subordinated Securities of such series. In the event of any such
default (including a default in such payment or exchange at the
stated maturity date of the Subordinated Securities of such
series), the Company will, upon demand of the Subordinated
Trustee, pay to it, for the benefit of the Holders of the
Subordinated Securities of such series, the whole amount then due
and payable on the Subordinated Securities of such series for
principal (and premium, if any) and interest, if any, including
the delivery of any Capital Securities then required to be
delivered. The Subordinated Indenture provides that if the
Company fails to pay such amount (or to deliver any such Capital
Securities) forthwith upon such demand, the Subordinated Trustee
may, among other things, institute a judicial proceeding for the
collection thereof or for delivery of any Capital Securities
required to be delivered. The Subordinated Indenture also
provides that if Capital Securities are exchangeable for
Subordinated Securities of such series and the Company shall fail
to elect the type of Capital Securities to be exchanged for
Subordinated Securities of such series on the relevant exchange
date or shall fail to issue or deliver such Capital Securities on
or prior to such exchange date, the Company shall be liable to
the Holders of Subordinated Securities of such series for the
payment of the principal amount of Subordinated Securities of
such series (or the applicable percentage thereof) in cash on the
earlier of the relevant proposed exchange date or the stated
maturity date of Subordinated Securities of such series. The
limitation on the right of acceleration described above permits
limited amounts of Subordinated Securities with certain original
weighted average maturities to qualify as supplementary or "Tier
2" capital of the Company under current regulatory guidelines for
bank holding companies. Any additional Events of Default with
respect to any series of Subordinated Securities, including any
related right of acceleration, will be specified in the
applicable Prospectus Supplement. (Section 503)
The Subordinated Indenture provides that, subject to the
duty of the Subordinated Trustee during the continuance of an
Event of Default or Default to act with the required standard of
care, the Subordinated Trustee will be under no obligation to
exercise any of its rights or powers under the Subordinated
Indenture at the request or direction of any of the Holders of
the Subordinated Securities of any series, unless such Holders
shall have offered to the Subordinated Trustee reasonable
indemnity. Subject to such provisions for the indemnification of
the Subordinated Trustee, the Holders of a majority in aggregate
principal amount of the Outstanding Subordinated Securities of
any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
<PAGE>24
the Subordinated Trustee, or exercising any trust or power
conferred on the Subordinated Trustee, with respect to the
Subordinated Securities of such series. (Sections 512, 601, 603)
The Subordinated Indenture provides that notwithstanding any
other provision of the Subordinated Indenture, each Holder of
Subordinated Securities of any series shall have the right to
institute suit for the enforcement of any payment (including any
delivery of Capital Securities to be exchanged for such
Subordinated Securities) of principal of (and premium, if any)
and interest, if any, on such Subordinated Securities on the
respective stated maturity dates expressed in such Subordinated
Securities or on the Exchange Date or the redemption date
thereof, as the case may be, and that such right shall not be
impaired without the consent of such Holder. (Section 508)
The Holders of not less than a majority in principal amount
of the Outstanding Subordinated Securities of any series may, on
behalf of the holders of all Subordinated Securities of such
series, waive any past default under the Subordinated Indenture
with respect to Subordinated Securities of such series and its
consequences, except a default (i) in the payment (including any
obligation to exchange Capital Securities for Subordinated
Securities of such series) of principal of (or premium, if any)
or interest, if any, on any Subordinated Security of such series,
or (ii) in respect of a covenant or provision of the Subordinated
Indenture which cannot be modified or amended without the consent
of the Holder of each Outstanding Subordinated Security of such
series affected thereby. (Section 513)
The Company is required to file annually with the
Subordinated Trustee a written statement as to the existence or
non-existence of defaults. (Section 1006)
Modification and Waiver
The Subordinated Indenture provides that, with the consent
of the Holders of not less than 66-2/3% in principal amount of
the Outstanding Subordinated Securities of each series affected
thereby, modifications and alterations of the Subordinated
Indenture may be made which affect the rights of the Holders of
the Subordinated Securities of such series, but no such
modification or alteration may be made without the consent of the
Holder of each Subordinated Security affected thereby which would
(i) change the fixed maturity of the principal of, or any
instalment of principal of or interest on, any Subordinated
Security, or reduce the principal amount thereof or change the
rate or rates (or the method of ascertaining the rate or rates)
of interest thereon (except as provided in the Subordinated
Indenture or in the Subordinated Securities of such series) or
any premium payable upon the redemption thereof, or reduce the
portion of the principal amount of any Original Issue Discount
<PAGE>25
Subordinated Security payable upon acceleration of the maturity
thereof, or change any place where, or the coin or currency in
which, the principal amount of any Subordinated Security or any
premium or interest thereon is payable, or impair any right to
institute suit for the enforcement of any right to receive
payment of the principal of (and premium, if any) and interest,
if any, on such Subordinated Security on the respective stated
maturity dates expressed in such Subordinated Security (or, in
the case of redemption, on the redemption date), or, if
applicable, to have delivered Capital Securities to be exchanged
for such Subordinated Security and to have such Capital
Securities sold in a secondary offering to the extent provided in
such Subordinated Security and in the Subordinated Indenture, or
modify the provisions of the Subordinated Indenture with respect
to the subordination of the Subordinated Securities of such
series in a manner adverse to the Holders, or (ii) reduce the
above-stated percentage in principal amount of Outstanding
Subordinated Securities of such series required to modify or
alter the Subordinated Indenture, or (iii) impair the right of
any Holder of Subordinated Securities of such series, subject to
the provisions of the Subordinated Indenture and of Subordinated
Securities of such series, to receive on any exchange date for
Subordinated Securities of such series Capital Securities with a
market value equal to the amount established with respect to the
Securities of such series held by such Holder. (Sections 902,
1007)
Exchangeability
If so provided in the applicable Prospectus Supplement,
Subordinated Securities may be exchangeable, either upon the
occurrence of certain events described in the applicable
Prospectus Supplement or at the option of the Company or both,
for Capital Securities, and certain funds may be designated with
regard to the Subordinated Securities as Available Funds (as
defined in the applicable Prospectus Supplement) or Optional
Available Funds (as defined in the applicable Prospectus
Supplement) for United States bank regulatory purposes. In
certain circumstances, Subordinated Securities may also provide
Holders with the right to elect to receive cash for Capital
Securities issued in exchange for Offered Subordinated
Securities. The applicable Prospectus Supplement will set forth
the terms, conditions and restrictions relating to any of the
foregoing provisions applicable to a series of Subordinated
Securities. (Sections 1301, 1310, 1401)
"Capital Securities" means any securities issued by the
Company which consist of any one of the following: (i) Common
Stock (as defined in the Subordinated Indenture), (ii) Perpetual
Preferred Stock (as defined in the Subordinated Indenture), or
(iii) other securities which at the date of issuance are
securities of a type that may constitute capital of the Company
<PAGE>26
in unlimited amounts for which Subordinated Securities are
permitted to be exchanged under regulations of, or other
determinations by, the Company's Primary Federal Regulator (as
defined in the applicable Prospectus Supplement), provided that
if any securities under (iii) are (a) issued in exchange for
Subordinated Securities under the Subordinated Indenture and (b)
debt obligations for which Capital Securities are exchangeable,
the Company shall have received the approval of the Company's
Primary Federal Regulator for such issuance. Capital Securities
may have such terms, rights and preferences as may be determined
by the Company. (Section 101)
The staff of the SEC has advised that Rule 13e-4 and Rule
14e-1 of the SEC's rules and regulations relating to tender
offers, as currently interpreted and in effect, would be
applicable to the exchange of Capital Securities for Subordinated
Securities and to the related secondary offering. If the staff
were to continue to take this position, the Company intends,
subject to its right to seek appropriate relief (which may or may
not be available) from the application of such rules, at the time
of the exchange of Capital Securities for Subordinated Securities
and the related secondary offering to comply with Rule 13e-4 and
Rule 14e-1 (or any successor rules), as then interpreted and in
effect, and to afford holders of Subordinated Securities all
rights under, and to make all filings required by, such rules (or
successor rules).
Subordination
The obligation of the Company to make any payment on
account of the principal of (and premium, if any) and interest,
if any, on the Subordinated Securities will be subordinate and
junior in right of payment to the Company's obligations to the
holders of Senior Indebtedness of the Company to the extent
described in the next paragraph. "Senior Indebtedness of the
Company" is defined in the Subordinated Indenture to mean the
obligations of the Company to its creditors other than the
Holders of the Subordinated Securities, whether outstanding on
the date of execution of the Subordinated Indenture or thereafter
incurred, except obligations "ranking on a parity with the
[Subordinated] Securities" or "ranking junior to the
[Subordinated] Securities" (as those terms are defined in the
Subordinated Indenture). The obligations of the Company in
respect of the Subordinated Securities will rank on a parity with
the Company's obligations in respect of the Floating Rate
Subordinated Notes Due 1997, the 7-1/2% Subordinated Notes Due
1997, the 10% Subordinated Notes Due 1999, the 8% Subordinated
Notes Due 1999, the 7-3/4% Subordinated Notes due 1999, the
Floating Rate Subordinated Notes Due 2000, the 9-3/8%
Subordinated Notes Due 2001, the 9-3/4% Subordinated Notes Due
2001, the 7.50% Subordinated Notes Due 2003, the Floating Rate
Subordinated Notes Due 2003, the Floating Rate Subordinated Notes
Due August 1, 2003, the 8%
<PAGE>27
Subordinated Notes Due 2004, the 7-7/8% Subordinated Notes Due
2004, the 6.50% Subordinated Notes Due 2005, the 6.75%
Subordinated Notes Due 2008, the 6-1/8% Subordinated Notes Due
2008, the 6.50% Subordinated Notes Due 2009, the Floating Rate
Subordinated Notes Due 2009 and the Subordinated Medium-Term
Notes, Series A and Series B, issued by the Company and any other
obligations of the Company ranking on a parity with the
Subordinated Securities. The obligations of the Company in
respect of the Subordinated Securities of any series will rank on
a parity with the obligations of the Company in respect of the
Subordinated Securities of each other series. (Section 1201)
In the case of any insolvency, receivership,
conservatorship, reorganization, readjustment of debt,
marshalling of assets and liabilities or similar proceedings or
any liquidation or winding-up of or relating to the Company as a
whole, whether voluntary or involuntary, all obligations of the
Company to Holders of Senior Indebtedness of the Company shall be
entitled to be paid in full before any payment shall be made on
account of the principal of (and premium, if any) and interest,
if any, on the Subordinated Securities. At September 30, 1994,
the outstanding Senior Indebtedness of the Company, exclusive of
guarantees and other contingent obligations, was approximately
$2.8 billion. In the event of any such proceeding, after payment
in full of all sums owing with respect to Senior Indebtedness of
the Company, the Holders of the Subordinated Securities, together
with the holders of any obligations of the Company ranking on a
parity with the Subordinated Securities, shall be entitled to be
paid from the remaining assets of the Company the amounts at the
time due and owing on account of unpaid principal of (and
premium, if any) and interest, if any, on the Subordinated
Securities before any payment or other distribution, whether in
cash, property or otherwise, shall be made on account of any
capital stock or any obligations of the Company ranking junior to
the Subordinated Securities. By reason of such subordination, in
the event of the insolvency of the Company, Holders of Senior
Indebtedness of the Company may receive more, ratably, and
Holders of the Subordinated Securities having a claim pursuant to
the Subordinated Securities may receive less, ratably, than the
other creditors of the Company. Such subordination will not
prevent the occurrence of any Event of Default in respect of the
Subordinated Securities. See "-- Events of Default and Waiver
Thereof" for limitations on the right of acceleration of
Subordinated Securities. (Section 1201)
Regarding the Subordinated Trustee
Chemical Bank, the Subordinated Trustee under the
Subordinated Indenture, has its principal corporate trust office
at 450 West 33rd Street, New York, New York 10001. Chemical Bank
serves as Trustee with respect to the 7-1/2% Subordinated Notes
Due 1997, the 10% Subordinated Notes Due 1999, the 8%
<PAGE>28
Subordinated Notes Due 1999, the 7-3/4% Subordinated Notes due
1999, the 9-3/8% Subordinated Notes Due 2001, the 9-3/4%
Subordinated Notes Due 2001, the 7.50% Subordinated Notes Due
2003, the Floating Rate Subordinated Notes Due 2003, the Floating
Rate Subordinated Notes Due August 1, 2003, the 8% Subordinated
Notes Due 2004, the 7-7/8% Subordinated Notes Due 2004, the 6.50%
Subordinated Notes Due 2005, the 6.75% Subordinated Notes Due
2008, the 6-1/8% Subordinated Notes Due 2008, the 6.50%
Subordinated Notes Due 2009 and the Subordinated Medium-Term
Notes, Series A and Series B, of the Company, which are currently
outstanding under the Subordinated Indenture. The Corporation
has normal banking relationships with the Subordinated Trustee.
DESCRIPTION OF PREFERRED STOCK
The following description of Preferred Stock sets forth
certain general terms and provisions of the series of Preferred
Stock to which any Prospectus Supplement may relate. Certain
other terms of any particular series of Preferred Stock
(including Preferred Stock issuable upon conversion or exchange
of any Debt Security) will be described in the applicable
Prospectus Supplement. If so indicated in the applicable
Prospectus Supplement, the terms of any such series of Preferred
Stock may differ from the terms set forth below. The description
of Preferred Stock set forth below and the description of the
terms of a particular series of Preferred Stock set forth in the
applicable Prospectus Supplement do not purport to be complete
and are qualified in their entirety by reference to the Company's
Restated Certificate of Incorporation, as amended (the
"Certificate of Incorporation"), and the Certificate of
Designation, Preferences and Rights relating to such series of
Preferred Stock, which will be filed or incorporated by reference
as an exhibit to the Registration Statement to which this
Prospectus relates. Preferred Stock, if so indicated in the
applicable Prospectus Supplement, may be issuable in exchange for
a series of Debt Securities or upon conversion thereof.
General
Under the Certificate of Incorporation, the Board of
Directors of the Company is authorized to issue up to 100,000,000
shares of Preferred Stock, without par value, in one or more
series, with such voting powers, full or limited but not to
exceed one vote per share, or without voting powers, and with
such designations, preferences and relative, participating,
optional or other special rights, and qualifications, limitations
or restrictions thereof, as shall be stated and expressed in the
resolution or resolutions providing for the issue thereof adopted
by the Board of Directors and as are not stated and expressed in
the Certificate of Incorporation. As used herein the term "Board
of Directors" means the Board of Directors of the Company and
<PAGE>29
includes any duly authorized committee thereof. Prior to the
issuance of each series of Preferred Stock, the Board of
Directors will adopt resolutions creating and designating such
series as a series of preferred stock of the Company.
As of September 30, 1994, there were 56,000,000 shares
of preferred stock of the Company outstanding and having an
aggregate stated value of approximately $1,400,000,000. Unless
otherwise specified in the applicable Prospectus Supplement, the
shares of each series of Preferred Stock will rank on a parity as
to dividends and distributions of assets with each other and with
the currently outstanding series of preferred stock of the
Company which have been designated as Preferred Stock, 10 1/2%
Series G, with a stated value of $25 per share, Preferred Stock,
9.76% Series H, with a stated value of $25 per share, Preferred
Stock, 10.84% Series I, with a stated value of $25 per share,
Preferred Stock, 9.08% Series J, with a stated value of $25 per
share, Preferred Stock, 8-1/2% Series K, with a stated value of
$25 per share, Preferred Stock, 8.32% Series L, with a stated
value of $25 per share, Preferred Stock, 8.40% Series M, with a
stated value of $25 per share, and Preferred Stock, Adjustable
Rate Series N, with a stated value of $25 per share, and will
rank senior to the Company's authorized but unissued Junior
Participating Preferred Stock.
Under regulations adopted by the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board"), if the
holders of shares of any series of preferred stock of the Company
become entitled to vote for the election of directors because
dividends on such series are in arrears (see "Voting Rights"),
such series may then be deemed a "class of voting securities" and
a holder of 25 percent or more of such series (or a holder of 5
percent or more if it otherwise exercises a "controlling
influence" over the Company) may then be subject to regulation as
a bank holding company in accordance with the Bank Holding
Company Act of 1956, as amended. In addition, at such time as
such series is deemed a class of voting securities, any other
bank holding company may be required to obtain the prior approval
of the Federal Reserve Board to acquire 5 percent or more of such
series.
Reference is made to the Prospectus Supplement relating to
either the particular series of Preferred Stock offered thereby
or the particular series of Debt Securities offered thereby which
is convertible or exchangeable for a particular series of
Preferred Stock for certain specific terms thereof, including:
(i) the designation, number of shares and stated value per share;
(ii) the amount of liquidation preference; (iii) the initial
public offering price at which shares of such series of Preferred
Stock will be sold; (iv) the dividend rate or rates (or method of
ascertaining the same); (v) the dates on which dividends shall be
<PAGE>30
payable, the date from which dividends shall accrue and the
record dates for determining the holders entitled to such
dividends; (vi) any redemption or sinking fund provisions;
(vii) any conversion or exchange provisions; and (viii) any
additional dividend, redemption, liquidation or other preferences
or rights and qualifications, limitations or restrictions
thereof.
The shares of Preferred Stock will, when issued, be fully
paid and nonassessable and will have no preemptive rights.
Unless otherwise specified in the applicable Prospectus
Supplement, the transfer agent, registrar and dividend disbursing
agent for shares of each series of Preferred Stock will be Mellon
Securities Trust Company.
Voting Rights
Holders of shares of Preferred Stock will have no voting
rights, except as set forth below or otherwise required by law.
In the event that six quarterly dividends (whether or not
consecutive) payable on any share or shares of any series of
preferred stock of the Company shall be in arrears, the holders
of shares of each series of Preferred Stock, voting separately as
a class with the holders of shares of any one or more other
series of preferred stock of the Company upon which like voting
rights have been conferred (including any other series of
Preferred Stock), shall be entitled at the Company's next annual
meeting of stockholders (and at each subsequent annual meeting of
stockholders), unless all dividends in arrears have been paid or
declared and set apart for payment prior to such meeting (or such
subsequent meeting), to cast one-fortieth (1/40) of one vote for
each $25 of involuntary liquidation preference (exclusive of
accrued and unpaid dividends thereon) for each share of such
series of Preferred Stock held of record (but not more than one
vote per share) for the election of two directors of the Company,
with the remaining directors of the Company to be elected by the
holders of shares of any other class or classes or series of
stock entitled to vote therefor. Until the arrears in payments
of all dividends which permitted the election of such directors
shall cease to exist, any director who has been so elected
pursuant to the preceding sentence may be removed at any time,
either with or without cause, only by the affirmative vote of the
holders of the shares at the time entitled to cast a majority of
the votes entitled to be cast for the election of any such
director at a special meeting of such holders called for that
purpose, and any vacancy thereby created may be filled by the
vote of such holders. If and when such arrears shall cease to
exist, the holders of shares of such series of Preferred Stock
shall be divested of the foregoing special voting rights, subject
to revesting in the event of each and every subsequent like
<PAGE>31
arrears in payments of dividends. Upon the termination of each
such special voting right, the terms of office of all persons who
may have been elected directors by vote of the holders of such
shares of preferred stock of the Company pursuant to such special
voting right shall immediately terminate.
Without the consent of the holders of shares entitled to
cast at least two-thirds of the votes entitled to be cast by the
holders of the total number of shares of preferred stock of the
Company then outstanding, voting as a class without regard to
series, with the holders of shares of each series of Preferred
Stock being entitled to cast one-fortieth (1/40) of one vote for
each $25 of involuntary liquidation preference (exclusive of
accrued and unpaid dividends thereon) for each share of such
series of Preferred Stock (but not more than one vote per share),
the Company may not: (a) create any class or series of stock
which shall have preference as to dividends or distributions of
assets over any outstanding series of preferred stock of the
Company (other than a series which has no right to object to such
creation) or (b) alter or change the provisions of the
Certificate of Incorporation so as to adversely affect the voting
power, preferences or special rights of the holders of shares of
preferred stock of the Company; provided, however, that if such
creation or such alteration or change would adversely affect the
voting power, preferences or special rights of one or more, but
not all, series of preferred stock of the Company at the time
outstanding, consent of the holders of shares entitled to cast at
least two-thirds of the votes entitled to be cast by the holders
of all of the shares of all such series so affected, voting as a
class, shall be required in lieu of the consent of the holders of
shares entitled to cast at least two-thirds of the votes entitled
to be cast by the holders of the total number of shares of
preferred stock of the Company at the time outstanding. Without
limiting the generality of the foregoing, the creation of any
class or series of stock entitled to vote as a class together
with the holders of shares of any series of Preferred Stock on
the matters set forth in this paragraph, the holders of shares of
which are entitled to cast more than one-fortieth (1/40) of one
vote for each $25 of involuntary liquidation preference
(exclusive of accrued and unpaid dividends thereon) to which the
holders of such shares of such class or series are entitled,
shall be deemed to adversely affect the voting power of such
series of Preferred Stock.
Dividends
The holders of shares of each series of Preferred Stock
shall be entitled to receive, when and as declared by the Board
of Directors, out of funds legally available therefor, cumulative
or non-cumulative cash or other dividends on such dates and at
such rate or rates as are set forth in, or as are determined by
the method described in, the applicable Prospectus Supplement.
<PAGE>32
Dividends on the shares of each series of Preferred Stock will
accrue from the date on which the Company initially issues shares
of such series or as otherwise set forth in the applicable
Prospectus Supplement. Each dividend will be payable to holders
of record as they appear on the stock register of the Company on
the record dates fixed by the Board of Directors, as specified in
the applicable Prospectus Supplement.
So long as the shares of any series of Preferred Stock shall
be outstanding, unless (i), when applicable, full cumulative
dividends shall have been paid or declared and set apart for
payment on all outstanding shares of Preferred Stock and other
classes and series of preferred stock of the Company (other than
Junior Stock, as defined below) and (ii) the Company shall not be
in default or in arrears with respect to any sinking or other
analogous fund or other agreement for the purchase, redemption or
other retirement of any shares of preferred stock of the Company
(other than Junior Stock), the Company may not declare any
dividends on any shares of Common Stock, par value $2.00 per
share, of the Company ("Common Stock") or any other stock of the
Company ranking as to dividends or distributions of assets junior
to each series of Preferred Stock (the Common Stock and any such
other stock being herein referred to as "Junior Stock"), or make
any payment on account of, or set apart money for, a sinking or
other analogous fund for the purchase, redemption or other
retirement of any shares of Junior Stock or make any distribution
in respect thereof, whether in cash or property or in obligations
or stock of the Company, other than Junior Stock. In the event
that there shall be outstanding shares of any other series of
preferred stock of the Company (including any other series of
Preferred Stock) ranking on a parity as to dividends with any
series of Preferred Stock and dividends on shares of such series
of Preferred Stock or such other series of preferred stock of the
Company are in arrears, the Company, in making any dividend
payment on account of such arrears, is required to make payments
ratably on all outstanding shares of such series of Preferred
Stock and such other series of preferred stock of the Company in
proportion to the respective amounts of dividends in arrears on
all such outstanding shares of such series of Preferred Stock and
such other series of preferred stock of the Company to the date
of such dividend payment. Holders of shares of any series of
Preferred Stock shall not be entitled to any dividend, whether
payable in cash, property or stock, in excess of full cumulative
dividends on shares of such series of Preferred Stock. No
interest, or sum of money in lieu of interest, shall be payable
in respect of any dividend payment or payments which may be in
arrears.
<PAGE>33
Redemption
The shares of any series of Preferred Stock may be
redeemable at the option of the Company and may be subject to
mandatory redemption pursuant to a sinking fund or otherwise, in
each case upon the terms, at the times and at the redemption
prices set forth in the applicable Prospectus Supplement.
If any dividends on shares of any series of Preferred Stock
are in arrears, no shares of such series shall be redeemed unless
all outstanding shares of such series are simultaneously
redeemed, and the Company shall not purchase or otherwise acquire
any shares of such series; provided, however, that the foregoing
shall not prevent the purchase or acquisition of shares of such
series pursuant to a purchase or exchange offer made on the same
terms to holders of all outstanding shares of such series.
Liquidation Preference
In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company, the holders of shares
of each series of Preferred Stock shall be entitled to receive
out of the assets of the Company available for distribution to
stockholders, before any distribution of assets is made to the
holders of Common Stock or of any other shares of stock of the
Company ranking as to such a distribution junior to the shares of
such series, an amount described in the applicable Prospectus
Supplement. The holders of the presently outstanding shares of
preferred stock of the Company are entitled to receive amounts
equal to the stated value of such shares. If upon any voluntary
or involuntary liquidation, dissolution or winding up of the
Company, the amounts payable with respect to shares of each
series of Preferred Stock and any other shares of stock of the
Company ranking as to any such distribution on a parity with
shares of such series of Preferred Stock are not paid in full,
the holders of shares of such series of Preferred Stock and of
such other shares will share ratably in any such distribution of
assets of the Company in proportion to the full respective
preferential amounts to which they are entitled. After payment
to the holders of shares of such series of Preferred Stock of the
full preferential amounts to which they are entitled, the holders
of shares of such series of Preferred Stock will not be entitled
to any further participation in any distribution of assets by the
Company, unless otherwise provided in the applicable Prospectus
Supplement. The consolidation or merger of the Company with or
into any other corporation, or the sale of substantially all the
assets of the Company in consideration for the issuance of equity
securities of another corporation, shall not be regarded as a
liquidation, dissolution or winding up of the Company, if the
voting power, preferences or special rights of the holders of
shares of such series of Preferred Stock are not impaired
thereby.
<PAGE>34
Conversion and Exchangeability Provisions
The terms, if any, on which shares of any series of
Preferred Stock are convertible into or exchangeable for shares
of Common Stock will be set forth in the applicable Prospectus
Supplement. Such terms may include provisions for conversion or
exchange, either mandatory, at the option of the holder, or at
the option of the Company, in which the number of shares of
Common Stock to be received by the holders of Preferred Stock
would be calculated by reference to the market price of Common
Stock as of a time stated in the applicable Prospectus
Supplement. See "DESCRIPTION OF COMMON STOCK."
DESCRIPTION OF COMMON STOCK
If so specified in the Prospectus Supplement relating to the
Offered Securities, the Offered Securities are convertible into
or exchangeable for shares of Common Stock. The statements below
describing the Common Stock are in general terms and are in all
respects subject to, and are qualified in their entirety by
reference to, the applicable provisions of the Certificate of
Incorporation.
The Company is authorized to issue 500,000,000 shares of
Common Stock. At September 30, 1994, 181,289,886 shares of
Common Stock were outstanding, 19,011,983 shares of Common Stock
were reserved for issuance pursuant to the Chase Lincoln First
Bank, N.A. 1982 Incentive Stock Plan, The Chase Manhattan 1982
Long-Term Incentive Plan, The Chase Manhattan 1987 Long-Term
Incentive Plan, and The Chase Manhattan 1994 Long-Term Incentive
Plan, 3,310,875 shares of Common Stock were reserved for issuance
pursuant to warrants issued in settlement of a legal action,
14,000,000 shares of Common Stock were reserved for issuance
pursuant to The Chase Manhattan Stock Option Program for
Employees, and 9,596,151 shares of Common Stock were reserved for
issuance pursuant to the Company's Dividend Reinvestment and
Stock Purchase Plan.
Holders of shares of Common Stock are entitled to one vote
per share and, subject to the rights, if any, of holders of
shares of the outstanding series of preferred stock of the
Company (as described above under "DESCRIPTION OF PREFERRED
STOCK"), have equal rights to participate in dividends when
declared and, in the event of liquidation, in the net assets of
the Company available for distribution to stockholders. The
Company may not declare any dividends on, or make any payment on
account of the purchase, redemption or other retirement of, its
Common Stock unless full cumulative dividends, where applicable,
<PAGE>35
have been paid or declared and set apart for payment upon all
outstanding shares of the preferred stock of the Company and the
Company is not in default or in arrears with respect to any
sinking or other analogous fund or any call for tender
obligations, or any other agreement for the purchase, redemption
or other retirement of any shares of the preferred stock of the
Company. The holders of shares of Common Stock do not have
redemption or sinking fund rights, and none of the holders of
shares of Common Stock is entitled to preemptive rights or
preferential rights to subscribe for shares of Common Stock or
any other securities of the Company, except for certain Junior
Participating Preferred Stock Purchase Rights that were
distributed in 1989 as dividends to holders of Common Stock on or
after February 27, 1989 which are exercisable or transferable
separately from shares of Common Stock only upon the occurrence
of certain events including the acquisition by a person or group
of affiliated or associated persons of 20% or more of the
outstanding shares of Common Stock of the Company. Such rights
are more fully described in the 1993 Annual Report of the Company
and will be more fully described in any Prospectus Supplement
applicable to Preferred Stock that is convertible or exchangeable
into Company Stock. Shares of Common Stock are fully paid and
nonassessable; however, federal law (12 U.S.C. Section 55)
provides for the enforcement of any pro rata assessment of
stockholders of a national bank to cover impairment of capital by
sale, to the extent necessary, of the stock of any assessed
stockholder failing to pay his assessment, and the Company, as
the stockholder of the Bank and other national banking
subsidiaries, is subject to such assessment and sale. The shares
of Common Stock are listed on the New York Stock Exchange. The
transfer agent and registrar for the Common Stock of the Company
is Mellon Securities Trust Company.
The Certificate of Incorporation includes a "fair price
provision" that would require a 75% stockholder vote for approval
of certain business combinations, including certain mergers,
asset sales, security issuances, recapitalizations and
liquidations, involving the Company or its subsidiaries and
certain acquiring persons (namely, a person, entity or specified
group which beneficially owns more than 10% of the voting stock
of the Company), unless the "fair price" and other procedural
requirements of the provision are met, or unless approved by a
majority of directors who are not affiliated with the acquiring
party. This provision includes a requirement of a 75%
stockholder vote to amend or repeal it. The Certificate of
Incorporation also provides for classification of the Board of
Directors into three classes and includes related provisions
requiring (i) advance notice of stockholder nominations of
directors, (ii) limitations on filling newly created
directorships and vacancies, (iii) removal of directors only for
cause and by vote of the holders of at least 75% of the shares
entitled to vote, (iv) a limitation on action by written consent
<PAGE>36
of holders of Common Stock other than at a meeting of
stockholders and (v) a requirement of a 75% stockholder vote to
amend or repeal such provision.
DESCRIPTION OF WARRANTS
The Company may issue, together with any Debt Securities of
a series offered or separately, Debt Warrants for the purchase of
other Debt Securities of any series or Currency Warrants, Index
Warrants and Interest Rate Warrants. The Warrants are to be
issued under separate Warrant Agreements (each a "Warrant
Agreement" and respectively a "Debt Warrant Agreement," a
"Currency Warrant Agreement," an "Index Warrant Agreement" and an
"Interest Rate Warrant Agreement") to be entered into between the
Company and a bank or trust company, as Warrant Agent (each a
"Warrant Agent" and respectively a "Debt Warrant Agent," a
"Currency Warrant Agent," an "Index Warrant Agent" and an
"Interest Rate Warrant Agent"), all as set forth in the
applicable Prospectus Supplement. A copy of the form of each
type of Warrant Agreement, including the form of Warrant
Certificate representing each type of Warrant (the "Warrant
Certificates"), reflecting the alternative provisions to be
included in the Warrant Agreements that will be entered into with
respect to particular offerings of Warrants, is filed as an
exhibit to the Registration Statement of which this Prospectus
forms a part. The following summaries of certain provisions of
the Warrant Agreements and the Warrant Certificates do not
purport to be complete and are subject to, and are qualified in
their entirety by reference to, all provisions of the Warrant
Agreements and the Warrant Certificates, respectively, including
the definition therein of certain terms. Such summaries
encompass all the material provisions contained in the form of
Warrant Agreements and the form of Warrant Certificates.
<PAGE>37
Debt Warrants
The applicable Prospectus Supplement will describe the
following terms of the Debt Warrants being offered thereby, the
Debt Warrant Agreement relating to such Debt Warrants and the
Debt Warrant Certificates representing such Debt Warrants: (1)
the number of Debt Warrants offered; (2) the designation,
aggregate principal amount and terms of the Debt Securities
purchasable upon exercise of such Debt Warrants; (3) the
designation and terms of any related Debt Securities with which
such Debt Warrants are issued and the number of such Debt
Warrants issued with each such Debt Security; (4) the date, if
any, on and after which such Debt Warrants and the related Debt
Securities will be separately transferable; (5) the principal
amount of Debt Securities purchasable upon exercise of one Debt
Warrant and the price at which such principal amount of Debt
Securities may be purchased upon such exercise; (6) the date on
which the right to exercise the Debt Warrants shall commence and
the date on which such right shall expire (the "Debt Warrant
Expiration Date"); (7) the form in which the Debt Warrants
represented by the Debt Warrant Certificates will be issued and
where the Debt Warrants represented by Debt Warrant Certificates
may be transferred and registered; and (8) any other terms of the
Debt Warrants. The applicable Prospectus Supplement will contain
a summary of the United States federal income tax, accounting and
other consequences with respect to the Debt Warrants.
If issued in definitive form, Debt Warrant Certificates will
be exchangeable for new Debt Warrant Certificates of authorized
denominations at the corporate trust office of the Debt Warrant
Agent or any other office indicated in the applicable Prospectus
Supplement. Prior to the exercise of Debt Warrants, holders of
such Debt Warrants will not have any of the rights of Holders of
the Debt Securities purchasable upon such exercise and will not
be entitled to payments of principal of (or premium, if any) or
interest, if any, on the Debt Securities purchasable upon such
exercise.
Exercise of Debt Warrants
Each Debt Warrant will entitle the holder, upon payment of
the exercise price, if any, to purchase such principal amount of
Debt Securities at such exercise price as shall in each case be
set forth in, or calculable from, the applicable Prospectus
Supplement. Debt Warrants will be exercisable (i) at any time up
to the close of business on the Debt Warrant Expiration Date set
forth in the applicable Prospectus Supplement or (ii) only at
maturity. After the close of business on the Expiration Date (or
such later date to which such Expiration Date may be extended by
the Company), unexercised Debt Warrants will become void.
<PAGE>38
Debt Warrants may be exercised by delivery to the Debt
Warrant Agent of payment as provided in the applicable Prospectus
Supplement of the amount required to purchase the Debt Securities
purchasable upon such exercise together with certain information
set forth on the reverse side of the Debt Warrant Certificate.
Debt Warrants will be deemed to have been exercised upon receipt
of the exercise price, subject to the receipt, within five
business days, of the Debt Warrant Certificate evidencing such
Debt Warrants. Upon receipt of such payment and the Debt Warrant
Certificate properly completed and duly exercised at the
corporate trust office of the Debt Warrant Agent or any other
office indicated in the applicable Prospectus Supplement, the
Company will, as soon as practicable, issue and deliver pursuant
to the applicable Indenture the Debt Securities purchasable upon
such exercise. If fewer than all of the Debt Warrants
represented by such Debt Warrant Certificate are exercised, a new
Debt Warrant Certificate will be issued for the remaining amount
of outstanding Debt Warrants.
Currency Warrants
The Company may issue, together with Debt Securities, Debt
Warrants, Index Warrants or Interest Rate Warrants, or
separately, Currency Warrants (a) in the form of Currency Put
Warrants, entitling the owners thereof to receive from the
Company the Currency Warrant Cash Settlement Value (as defined in
the applicable Prospectus Supplement) of the right to sell a
specified amount of one currency (whether U.S. dollars or a
foreign currency or foreign currency unit) (a "Base Currency")
for a specified amount of a different currency (whether U.S.
dollars or a foreign currency or foreign currency unit) (a
"Reference Currency"), (b) in the form of Currency Call Warrants,
entitling the owners thereof to receive from the Company the
Currency Warrant Cash Settlement Value of the right to purchase a
specified amount of a Base Currency for a specified amount of a
Reference Currency, or (c) in such other form as specified in the
applicable Prospectus Supplement. The applicable Prospectus
Supplement will set forth the formula pursuant to which the
Currency Warrant Cash Settlement Value will be determined,
including any multipliers, if applicable.
The applicable Prospectus Supplement will describe the
following terms of the Currency Warrants being offered thereby,
the Currency Warrant Agreement relating to such Currency Warrants
and the Currency Warrant Certificates representing such Currency
Warrants: (1) the title and number of such Currency Warrants
offered; (2) the aggregate amount of such Currency Warrants; (3)
the initial offering price of such Currency Warrants; (4) the
exercise price, if any; (5) the currency or currency unit in
which the initial offering price, the exercise price, if any, and
the Currency Warrant Cash Settlement Value of such Currency
Warrants is payable; (6) the Base Currency and the Reference
<PAGE>39
Currency for such Currency Warrants; (7) whether such Currency
Warrants shall be Currency Put Warrants, Currency Call Warrants
or otherwise; (8) the formula for determining the Currency
Warrant Cash Settlement Value, if applicable, of each Currency
Warrant; (9) whether and under what circumstances a minimum
and/or maximum expiration value is applicable upon the expiration
or exercise of such Currency Warrants; (10) the effect or
effects, if any, of the occurrence of a Market Disruption Event
or Force Majeure Event (each as defined in the applicable
Prospectus Supplement); (11) the date on which the right to
exercise such Currency Warrants shall commence and the date (the
"Currency Warrant Expiration Date") on which such right shall
expire; (12) any minimum number of Currency Warrants which must
be exercised at any one time, other than upon automatic exercise;
(13) the maximum number, if any, of such Currency Warrants that
may, subject to election by the Company, be exercised by all
owners (or by any person or entity) on any day; (14) any
provisions for the automatic exercise of such Currency Warrants
other than at expiration; (15) whether and under what
circumstances such Currency Warrants may be canceled by the
Company prior to their expiration date; (16) any other procedures
and conditions relating to the exercise of such Currency
Warrants; (17) the identity of the Currency Warrant Agent; (18)
any national securities exchange on which such Currency Warrants
will be listed; (19) provisions, if any, for issuing such
Currency Warrants in certificated form; (20) if such Currency
Warrants are not issued in book-entry form, the place or places
at which payments in respect of such Currency Warrants are to be
made by the Company; (21) if applicable, a discussion of certain
United States federal income tax, accounting or other special
considerations applicable thereto; and (22) any other terms of
the Currency Warrants.
Other important information concerning Currency Warrants is
set forth below under "Certain Items Applicable to Currency
Warrants, Index Warrants and Interest Rate Warrants."
Index Warrants
The Company may issue, together with Debt Securities, Debt
Warrants, Currency Warrants or Interest Rate Warrants, or
separately, Index Warrants (a) in the form of Index Put Warrants,
entitling the owners thereof to receive from the Company the
Index Warrant Cash Settlement Value (as defined in the applicable
Prospectus Supplement) in cash, which amount will be determined
by reference to the amount, if any, by which the Fixed Amount (as
defined in the applicable Prospectus Supplement) at the time of
exercise exceeds the Index Value (as defined in the applicable
Prospectus Supplement), (b) in the form of Index Call Warrants,
entitling the owners thereof to receive from the Company the
Index Warrant Cash Settlement Value in cash, which amount will be
determined by reference to the amount, if any, by which the Index
<PAGE>40
Value at the time of exercise exceeds the Fixed Amount, (c) in
the form of Index Spread Warrants, entitling the owners thereof
to receive from the Company the Index Warrant Cash Settlement
Value in cash, which amount will be determined by reference to
the amount, if any, by which the Reference Index Value (as
defined in the applicable Prospectus Supplement) at the time of
exercise exceeds the Base Index Value (as defined in the
applicable Prospectus Supplement) or (d) in such other form as
shall be specified in the applicable Prospectus Supplement. The
applicable Prospectus Supplement will set forth the formula
pursuant to which the Index Warrant Cash Settlement Value will be
determined, including any multipliers, if applicable.
The applicable Prospectus Supplement will describe the
following terms of the Index Warrants being offered thereby, the
Index Warrant Agreement relating to such Index Warrants and the
Index Warrant Certificate representing such Index Warrants: (1)
the title and number of such Index Warrants offered; (2) the
aggregate amount of such Index Warrants; (3) the initial offering
price of such Index Warrants; (4) the exercise price, if any; (5)
the currency or currency unit in which the initial offering
price, the exercise price, if any, and the Index Warrant Cash
Settlement Value of such Index Warrants is payable; (6) the Index
or Indices for such Index Warrants, which may be based on one or
more U.S. or foreign stocks, bonds, or other securities, one or
more U.S. or foreign interest rates, one or more currencies or
currency units, or any combination of the foregoing, and may be a
preexisting U.S. or foreign index compiled and published by a
third party or an index based on one or more securities, interest
rates or currencies selected by the Company solely in connection
with the issuance of such Index Warrants, and certain information
regarding such Index or Indices and the underlying securities,
interest rates or currencies (including, to the extent possible,
the policies of the publisher of the Index with respect to
additions, deletions and substitutions of such securities,
interest rates or currencies); (7) whether such Index Warrants
shall be Index Put Warrants, Index Call Warrants, Index Spread
Warrants or otherwise; (8) the method of providing for a
substitute Index or Indices or otherwise determining the amount
payable in connection with the exercise of such Index Warrants if
any Index changes or ceases to be made available by its
publisher, which determination will be made by an independent
expert; (9) the formula for determining the Index Warrant Cash
Settlement Value, if applicable, of each Index Warrant; (10)
whether and under what circumstances a minimum and/or maximum
expiration value is applicable upon the expiration or exercise of
such Index Warrants; (11) the effect or effects, if any, of the
occurrence of a Market Disruption Event or Force Majeure Event
(as defined in the applicable Prospectus Supplement); (12) the
date on which the right to exercise such Index Warrants shall
commence and the date (the "Index Warrant Expiration Date") on
which such right shall expire; (13) any minimum number of Index
<PAGE>41
Warrants which must be exercised at any one time, other than upon
automatic exercise; (14) the maximum number, if any, of such
Index Warrants that may, subject to election by the Company, be
exercised by all owners (or by any person or entity) on any day;
(15) any provisions for the automatic exercise of such Index
Warrants other than at expiration; (16) whether and under what
circumstances such Index Warrants may be canceled by the Company
prior to their expiration date; (17) any provisions permitting a
Holder to condition any notice of exercise on the absence of
certain specified changes in the Index Value, the Base Index
Value or the Reference Index Value after the date of exercise;
(18) any other procedures and conditions relating to the exercise
of such Index Warrants; (19) the identity of the Index Warrant
Agent; (20) any national securities exchange on which such Index
Warrants will be listed; (21) provisions, if any, for issuing
such Index Warrants in certificated form; (22) if such Index
Warrants are not issued in book-entry form, the place or places
at which payments in respect of such Index Warrants are to be
made by the Company; (23) if applicable, a discussion of certain
United States federal income tax, accounting or other special
considerations applicable thereto; and (24) any other terms of
such Index Warrants.
Other important information concerning Index Warrants is set
forth below under "Certain Items Applicable to Currency Warrants,
Index Warrants and Interest Rate Warrants."
Interest Rate Warrants
The Company may issue, together with Debt Securities, Debt
Warrants, Currency Warrants or Index Warrants, or separately,
Interest Rate Warrants (a) in the form of Interest Rate Put
Warrants, entitling the owners thereof to receive from the
Company the Interest Rate Warrant Cash Settlement Value (as
defined in the applicable Prospectus Supplement) in cash, which
amount will be determined by reference to the amount, if any, by
which the Spot Amount (as defined in the applicable Prospectus
Supplement) is less than the Strike Amount (as defined in the
applicable Prospectus Supplement) on the applicable valuation
date following exercise, (b) in the form of Interest Rate Call
Warrants, entitling the owners thereof to receive from the
Company the Interest Rate Warrant Cash Settlement Value in cash,
which amount will be determined by reference to the amount, if
any, by which the Spot Amount on the applicable valuation date
following exercise exceeds the Strike Amount or (c) in such other
form as shall be specified in the applicable Prospectus
Supplement. The applicable Prospectus Supplement will set forth
the formula pursuant to which the Interest Rate Warrant Cash
Settlement Value will be determined, including any multipliers,
if applicable. The Strike Amount may either be a fixed yield,
price or rate of a Government Debt Instrument, a Financial
Institution Rate or any combination of Government Debt Instrument
<PAGE>42
and/or Financial Institution Rates or a yield, price or rate that
varies during the term of the Interest Rate Warrants in
accordance with a schedule or formula. The Government Debt
Instrument will be one or more instruments specified in the
applicable Prospectus Supplement issued either by the United
States government or by a foreign government. The Financial
Institution Rate will be one or more interest rates or interest
rate swap rates established from time to time by one or more
financial institutions specified in the applicable Prospectus
Supplement.
The applicable Prospectus Supplement will describe the
following terms of the Interest Rate Warrants being offered
thereby, the Interest Rate Warrant Agreement relating to such
Interest Rate Warrants and the Interest Rate Warrant Certificate
representing such Interest Rate Warrants: (1) the title and
number of such Interest Rate Warrants offered, (2) the aggregate
amount of such Interest Rate Warrants; (3) the initial offering
price of such Interest Rate Warrants; (4) the exercise price, if
any; (5) the currency or currency unit in which the initial
offering price, the exercise price, if any, and the Interest Rate
Warrant Cash Settlement Value of such Interest Rate Warrants is
payable; (6) the Government Debt Instrument (which may be one or
more debt instruments issued either by the United States
government or by a foreign government), the Financial Institution
Rate (which may be one or more interest rates or interest rate
swap rates established from time to time by one or more specified
financial institutions) or the other yield, price or rate
utilized for such Interest Rate Warrants, and certain information
regarding such Government Debt Instrument or Financial
Institution Rate; (7) whether such Interest Rate Warrants shall
be Interest Rate Put Warrants, Interest Rate Call Warrants or
otherwise; (8) the Strike Amount, the method of determining the
Spot Amount and the method of expressing movements in the yield
or closing price of the Government Debt Instrument or in the
level of the Financial Institution Rate as a cash amount in the
currency in which the Interest Rate Warrant Cash Settlement Value
of such Warrants is payable; (9) the formula for determining the
Interest Rate Warrant Cash Settlement Value, if applicable, of
each Interest Rate Warrant; (10) whether and under what
circumstances a minimum and/or maximum expiration value is
applicable upon the expiration or exercise of such Interest Rate
Warrants (as defined in the applicable Prospectus Supplement);
(11) the effect or effects, if any, of the occurrence of a Market
Disruption Event or Force Majeure Event (as defined in the
applicable Prospectus Supplement); (12) the date on which the
right to exercise such Interest Rate Warrants shall commence and
the date (the "Interest Rate Warrant Expiration Date") on which
such right shall expire; (13) any minimum number of Interest Rate
Warrants which must be exercised at any one time, other than upon
automatic exercise; (14) the maximum number, if any, of such
Interest Rate Warrants that may, subject to election by the
<PAGE>43
Company, be exercised by all owners (or by any person or entity)
on any day; (15) any provisions for the automatic exercise of
such Interest Rate Warrants other than at expiration; (16)
whether and under what circumstances such Interest Rate Warrants
may be canceled by the Company prior to their expiration date;
(17) any provisions permitting a Holder to condition any notice
of exercise on the absence of certain specified changes in the
Spot Amount after the date of exercise; (18) any other procedures
and conditions relating to the exercise of such Interest Rate
Warrants; (19) the identity of the Interest Rate Warrant Agent;
(20) any national securities exchange on which such Interest Rate
Warrants will be listed; (21) provisions, if any, for issuing
such Interest Rate Warrants in certified form; (22) if such
Interest Rate Warrants are not issued in book-entry form, the
place or places at which payments in respect of such Interest
Rate Warrants are to be made by the Company; (23) if applicable,
a discussion of certain United States federal income tax,
accounting or other special considerations applicable thereto;
and (24) any other terms of such Interest Rate Warrants.
Other important information concerning Interest Rate
Warrants is set forth below under "Certain Items Applicable to
Currency Warrants, Index Warrants and Interest Rate Warrants."
Certain Items Applicable to Currency Warrants, Index Warrants and
Interest Rate Warrants
Exercise of Warrants
Unless otherwise specified in the applicable Prospectus
Supplement, (a) each Currency Warrant, Index Warrant and Interest
Rate Warrant will entitle the holder, upon payment of the
exercise price, if any, to the applicable Cash Settlement Value
of such Warrant, on the applicable Exercise Date, in each case as
such terms will further be defined in the applicable Prospectus
Supplement (Section 1.1 of the applicable Warrant Agreement) and
(b) if not exercised prior to 1:30 p.m., New York City time on
the applicable Warrant Expiration Date, the Warrants will be
deemed automatically exercised on such Warrant Expiration Date
(Section 2.3). As described below, Currency Warrants, Index
Warrants and Interest Rate Warrants may also be deemed to be
automatically exercised if they are delisted. Procedures for
exercise of the Currency Warrants, Index Warrants and Interest
Rate Warrants will be set out in the applicable Prospectus
Supplement.
Market Disruption and Force Majeure Events
If so specified in the applicable Prospectus Supplement,
following the occurrence of a Market Disruption Event or Force
Majeure Event (as each term shall be defined therein), the Cash
Settlement Value of a Currency Warrant, an Index Warrant or an
<PAGE>44
Interest Rate Warrant may be determined on a different basis than
under normal exercise of a Warrant or the determination of the
applicable Cash Settlement Value. In addition, if so specified
in the applicable Prospectus Supplement, Currency Warrants, Index
Warrants and Interest Rate Warrants may, in certain
circumstances, be canceled by the Company prior to their
expiration date and the holders thereof will be entitled to
receive only the applicable Cancellation Amount. The
Cancellation Amount may be either a fixed amount or an amount
that varies during the term of the Warrants in accordance with a
schedule or formula.
Settlement Currency
Currency Warrants, Index Warrants and Interest Rate Warrants
will be settled only in U.S. dollars (unless settlement in a
foreign currency is specified in the applicable Prospectus
Supplement and is permissible under securities exchange rules
approved by the SEC) and accordingly will not require or entitle
an owner to sell, deliver, purchase or take delivery of the
currency, security or other instrument underlying such Warrants.
If any of the Currency Warrants, Index Warrants or Interest Rate
Warrants are sold for, or if the exercise price, if any, is
payable in, foreign currencies or foreign currency units or if
the amount payable by the Company in respect of any series of
Currency Warrants, Index Warrants or Interest Rate Warrants is
payable in foreign currencies or foreign currency units, the
restrictions, elections, tax consequences, specific terms and
other information with respect to such issue of Warrants and such
currencies or currency units will be set forth in the applicable
Prospectus Supplement.
Listing
Unless otherwise specified in the applicable Prospectus
Supplement, each issue of Currency Warrants, Index Warrants and
Interest Rate Warrants will be listed on a national securities
exchange, as specified in the applicable Prospectus Supplement,
subject only to official notice of issuance, as a pre-condition
to the sale of any such Warrants. It may be necessary in certain
circumstances for such national securities exchange to obtain the
approval of the SEC in connection with any such listing. Unless
otherwise specified in the applicable Prospectus Supplement, in
the event that such Warrants are delisted from, or permanently
suspended from trading on, such exchange, and, at or prior to
such delisting or suspension, such Warrants shall not have been
listed on another national securities exchange or traded pursuant
to the rules of another self-regulatory organization, any such
Warrants not previously exercised will be deemed automatically
exercised on the date such delisting or permanent trading
suspension becomes effective (Section 2.3 of the applicable
Warrant Agreement). The applicable Cash Settlement Value to be
paid in such event will be as set forth in the applicable
Prospectus Supplement. The Company will notify holders of such
Warrants as
<PAGE>45
soon as practicable of such delisting or permanent trading
suspension. The applicable Warrant Agreement will contain a
covenant of the Company not to seek delisting of such Warrants
from, or permanent suspension of their trading on, such exchange
(Section 2.4 of the Currency Warrant Agreement and the Interest
Rate Warrant Agreement and Section 2.5 of the Index Warrant
Agreement).
PLAN OF DISTRIBUTION
The Company may sell Securities to one or more underwriters
for public offering and sale by them or may sell Securities to
investors directly or through agents which solicit or receive
offers on behalf of the Company or through dealers or through a
combination of any such methods of sale. Any such underwriter or
agent involved in the offer and sale of the Offered Securities
will be named in the applicable Prospectus Supplement.
Underwriters may offer and sell the Offered Securities at a
fixed price or prices, which may be changed, or from time to time
at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices.
The Company also may offer and sell the Offered Securities in
exchange for one or more of its outstanding issues of debt or
convertible debt securities. The Company may, from time to time,
authorize agents acting on a best efforts basis as agents of the
Company to solicit or receive offers to purchase the Offered
Securities upon the terms and conditions as are set forth in the
applicable Prospectus Supplement. In connection with the sale of
Offered Securities, underwriters or agents may be deemed to have
received compensation from the Company in the form of
underwriting discounts or commissions and may also receive
commissions from purchasers of Offered Securities for whom they
may act as agents. Underwriters may sell Offered Securities to
or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the
underwriters and/or commissions from the purchasers for whom they
may act as agent.
Any compensation paid by the Company to underwriters or
agents in connection with the offering of Offered Securities, and
any discounts, concessions or commissions allowed by underwriters
to participating dealers, will be set forth in the applicable
Prospectus Supplement. Underwriters, dealers and agents
participating in a distribution of the Offered Securities
(including agents only soliciting or receiving offers to purchase
Offered Securities on behalf of the Company) may be deemed to be
underwriters, and any discounts and commissions received by them
and any profit realized by them on resale of the Offered
Securities may be deemed to be underwriting discounts and
commissions, under the Act. Underwriters, dealers and agents may
<PAGE>46
be entitled, under agreements entered into with the Company, to
indemnification against and contribution toward certain civil
liabilities, including liabilities under the Act. The Company
may agree to reimburse underwriters or agents for certain
expenses incurred in connection with the distribution of the
Offered Securities.
If so indicated in the applicable Prospectus Supplement, the
Company will authorize agents or dealers acting as the Company's
agents to solicit offers by certain institutions to purchase
Offered Securities from the Company at the public offering price
set forth in such Prospectus Supplement pursuant to delayed
delivery contracts ("Contracts") providing for payment and
delivery on the date or dates stated in such Prospectus
Supplement. Each Contract will be for an amount not less than,
and the aggregate principal amount of Offered Securities sold
pursuant to Contracts shall be not less nor more than, the
respective amounts stated in such Prospectus Supplement.
Institutions with whom Contracts, when authorized, may be made
include commercial and savings banks, insurance companies,
pension funds, investment companies, educational and charitable
institutions, and other institutions but will in all cases be
subject to the approval of the Company. Contracts will not be
subject to any conditions except (i) the purchase by an
institution of the Offered Securities covered by its Contracts
shall not at the time of delivery be prohibited under the laws of
any jurisdiction in the United States to which such institution
is subject, and (ii) if the Offered Securities are being sold to
underwriters, the Company shall have sold to such underwriters
the total principal amount of the Offered Securities less the
principal amount thereof covered by Contracts.
Each underwriter, dealer and agent participating in the
distribution of any Offered Securities which are issuable as
Bearer Securities will agree that it will not offer, sell or
deliver, directly or indirectly, Bearer Securities in the United
States or to United States persons (other than qualifying
financial institutions), in connection with the original issuance
of the Offered Securities. See "THE DEBT SECURITIES --
Limitations on Issuance of Bearer Securities."
Offers of the Securities may not be made in Great Britain
except to persons whose ordinary business it is to buy or sell
shares or debentures, whether as principal or agent, and this
Prospectus and any Prospectus Supplement or any other offering
material relating to the Securities may not be distributed in or
from Great Britain except to persons whose business involves the
acquisition and disposal, or the holding, of securities, whether
as principal or as agent.
<PAGE>47
Certain of the underwriters, dealers or agents and their
associates may be customers of, engage in transactions with, and
perform services for, the Company in the ordinary course of
business.
Each offering of the Offered Securities will be conducted in
compliance with any applicable requirements of Schedule E to the
By-Laws of the National Association of Securities Dealers, Inc.
This Prospectus may be used by an affiliate of the Company in
connection with offers and sales related to market making
activities. Any such affiliate may act as principal or agent in
any such transactions. Such sales will be made at prices related
to the prevailing market prices at the time of sale.
EXPERTS
The Company only and consolidated financial statements of
the Corporation as of December 31, 1993 and 1992 and for each of
the years in the three-year period ended December 31, 1993
incorporated in this Prospectus by reference to the Company's
Annual Report on Form 10-K for the year ended December 31, 1993,
have been so incorporated in reliance on the report of Price
Waterhouse, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
LEGAL OPINION
The legality of the Securities offered hereby will be
passed upon for the Company by Robert B. Adams, Senior Vice
President and Deputy General Counsel of the Company and the Bank.
As of September 30, 1994, Mr. Adams was the beneficial owner of
or had options to purchase less than 0.1% of the outstanding
shares of Common Stock of the Company.
<PAGE>48
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Securities and Exchange
Commission registration fee . . . . . . . $689,660
NASD fee. . . . . . . . . . . . . . . . . . 30,500
Legal fees and expenses . . . . . . . . . . 70,000
Blue Sky fees and expenses. . . . . . . . . 15,000
Accounting fees and expenses. . . . . . . . 220,000
Printing and engraving. . . . . . . . . . . 270,000
Fees and expenses of Trustees . . . . . . . 50,000
Fees and expenses of Transfer Agents. . . . 20,000
Rating agency fees. . . . . . . . . . . . . 80,000
Miscellaneous . . . . . . . . . . . . . . . 54,840
--------
Total. . . . . . . . . . . . . . . . .$1,500,000
All of the above items except the registration fee and NASD
fees are estimated.
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides
for the indemnification of directors and officers of corporations
organized thereunder in certain circumstances. In addition, said
Section 145 grants to each such corporation the power to
indemnify its directors and officers against liability for
certain of their acts.
The Restated Certificate of Incorporation and By-Laws of the
Company provide that directors and officers of the Company shall
be indemnified to the fullest extent permitted by the laws of the
State of Delaware against liability for certain of their acts.
Directors' and officers' liability insurance has also been
obtained by the Company, the effect of which is to indemnify the
directors and officers of the Company against certain damages and
expenses because of certain claims made against them caused by
their negligent act, error or omission.
Item 16. Exhibits.
The exhibits to this Registration Statement are listed in
the Exhibit Index which immediately precedes the signature pages
to this Registration Statement and which is incorporated herein
by reference.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales
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<PAGE>49
are being made of the securities offered hereby, a post-
effective amendment to this Registration Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of this
Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in this Registration Statement;
(iii) to include any material information with
respect to the plan of distribution not previously
disclosed in this Registration Statement or any
material change to such information in this
Registration Statement;
provided, however, that the undertakings in paragraphs (i) and
(ii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this Registration
Statement;
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof; and
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered hereby
which remain unsold at the termination of the offering.
The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
provisions described in Item 15 above, or otherwise, the
Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is,
therefore,
II-2
<PAGE>50
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by
the final adjudication of such issue.
II-3
<PAGE>51
Exhibit Index
1.1 - Form of Debt Securities Underwriting Agreement. (1)
1.2 - Form of Debt Securities Underwriting Agreement
Standard Provisions.
1.3 - Form of Medium-Term Note, Series B Distribution
Agreement (to be filed or incorporated herein
subsequently).
1.4 - Form of Medium-Term Note, Series C Distribution
Agreement.
1.5 - Euro Distribution Agreement. (2)
1.6 - Amendment No. 1 to the Euro Distribution
Agreement. (1)
1.7 - Form of Amendment No. 2 to the Euro Distribution
Agreement. (1)
1.8 - Form of Preferred Stock Underwriting Agreement. (1)
1.9 - Form of Preferred Stock Underwriting Agreement
Standard Provisions.
4.1 - Indenture dated as of July 1, 1986 between the
Company and Bankers Trust Company, as
Trustee. (3)
4.2 - First Supplemental Indenture dated as of
November 1, 1990 between the Company and
Bankers Trust Company, as Trustee. (4)
4.3 - Second Supplemental Indenture dated as of May 1,
1991 between the Company and Bankers Trust Company, as
Trustee. (5)
4.4 - Amended and Restated Indenture dated as of September
1, 1993 between the Company and Chemical Bank, as
Trustee. (6)
4.5 - Form of Debt Warrant Agreement.
4.6 - Form of Currency Warrant Agreement.
4.7 - Form of Index Warrant Agreement.
4.8 - Form of Interest Rate Warrant Agreement.
4.9 - Form of Debt Warrant Certificate (included
in Exhibit 4.5).
4.10 - Forms of Currency Warrant Certificate
(included in Exhibit 4.6).
4.11 - Forms of Index Warrant Certificate (included
in Exhibit 4.7).
4.12 - Forms of Interest Rate Warrant Certificate
(included in Exhibit 4.8).
4.13 - Forms of Certificates of Designation for
Preferred Stock (to be filed or incorporated
herein subsequently.)
4.14 - Form of Certificate for Preferred Stock. (1)
4.15 - Form of Certificate for the Common Stock. (1)
4.16 - Form of Senior Medium-Term Note, Series B
(Fixed Rate). (1)
4.17 - Form of Senior Medium-Term Note, Series B
(Floating Rate). (1)
4.18 - Form of Senior Medium-Term Note, Series B
(Foreign Currency). (1)
II-4
<PAGE>52
4.19 - Form of Subordinated Medium-Term Note, Series
B (Fixed Rate). (1)
4.20 - Form of Subordinated Medium-Term Note, Series
B (Floating Rate). (1)
4.21 - Form of Subordinated Medium-Term Note, Series
B (Foreign Currency). (1)
4.22 - Form of Senior Medium-Term Note, Series C
(Fixed Rate). (7)
4.23 - Form of Senior Medium-Term Note, Series C
(Floating Rate). (7)
4.24 - Form of Subordinated Medium-Term Note, Series
C (Fixed Rate). (7)
4.25 - Form of Subordinated Medium-Term Note, Series
C (Floating Rate). (7)
4.26 - Restated Certificate of Incorporation of the
Company. (8)
4.27 - Certificate of Designation, Preferences and
Rights of Preferred Stock, Adjustable Rate
Series N. (9)
4.28 - By-laws of the Company. (10)
4.29 - Rights Agreement dated as of February 15, 1989
relating to the Junior Participating Preferred Stock
Purchase Rights of the Company. (11)
5 - Opinion of Robert B. Adams, Senior Vice
President and Deputy General Counsel of the
Company as to the legality of the Offered
Securities. (1)
12.1 - Computation of ratios of earnings to fixed charges
(consolidated). (12)
12.2 - Computation of ratios of earnings to fixed charges
and preferred stock dividend requirements
(consolidated).
23.1 - Consent of Price Waterhouse.
23.2 - Consent of Robert B. Adams (contained in Exhibit 5).
24 - Power of Attorney. (1)
25.1 - Statement of Eligibility of Senior Trustee on
Form T-1. (1)
25.2 - Statement of Eligibility of Subordinated
Trustee on Form T-1. (1)
_______________
(1) Previously filed.
(2) Incorporated herein by reference to Exhibit (1)(c) to the
Company's Form 8-K dated November 5, 1992, File No. 1-5945.
(3) Incorporated herein by reference to the respective exhibit
to the Company's Registration Statement No. 33-7299.
(4) Incorporated herein by reference to the respective exhibit
to the Company's Registration Statement No. 33-40485.
(5) Incorporated herein by reference to the respective exhibit
to the Company's Registration Statement No. 33-42367.
(6) Incorporated herein by reference to Exhibit (4)(cc) to the
Company's Form 8-K dated August 19, 1993, File No. 1-5945.
(7) Incorporated herein by reference to Exhibits
(4)(oo),(4)(pp), (4)(qq) and (4)(rr), respectively, to the
Company's Form 8-K dated August 11, 1994, File No. 1-5945.
II-5
<PAGE>53
(8) Incorporated herein by reference to the respective Exhibit
to the Company's Registration Statement No. 33-58144.
(9) Incorporated herein by reference to Exhibit (4)(e) to the
Company's Form 8-K dated April 29, 1994, File No. 1-5945.
(10) Incorporated herein by reference to the respective exhibit
to the Company's Registration Statement No. 33-42366.
(11) Incorporated herein by reference to Exhibit 28 to the
Company's Form 10-K for the year ended December 31, 1988,
File No. 1-5945.
(12) Incorporated herein by reference to Exhibit 12 to the
Company's Form 10-Q for the quarter ended September 30,
1994, File No. 1-5945.
II-6
<PAGE>54
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
The City of New York, State of New York, on this 23rd day of
November 1994.
THE CHASE MANHATTAN CORPORATION
By: /s/ Deborah L. Duncan
(Deborah L. Duncan)
(Attorney-in-fact)(1)
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Capacity Date
Thomas G. Labrecque Director, Chairman of November 23, 1994
the Board (Principal
Executive Officer)
By: /s/ Deborah L. Duncan
(Deborah L. Duncan)
(Attorney-in-fact)(1)
Richard J. Boyle,
Joan Ganz Cooney,
James L. Ferguson
Edward S. Finkelstein,
H. Laurance Fuller, Directors
William H. Gray, III,
Delano E. Lewis,
Paul W. MacAvoy,
John H. McArthur,
Edmund T. Pratt, Jr.,
Henry B. Schacht,
Donald H. Trautlein,
By: /s/ Deborah L. Duncan November 23, 1994
(Deborah L. Duncan)
(Attorney-in-fact)(1)
<PAGE> 55
Signature Capacity Date
Arjun K. Mathrani Executive Vice President November 23, 1994
and Chief Financial
Officer (Principal
Financial Officer)
By: /s/ Deborah L. Duncan
(Deborah L. Duncan)
(Attorney-in-fact)(1)
Lester J. Stephens, Jr. Senior Vice President November 23,1994
and Controller
(Principal Accounting Officer)
By: /s/ Deborah L. Duncan
(Deborah L. Duncan)
(Attorney-in-fact)(1)
__________
(1) An original power of attorney authorizing Deborah L. Duncan
to sign any amendment to the Registration Statement on behalf of
the Registrant and certain directors and officers of the
Registrant was included in Part II of the Registration Statement
as originally filed with the Securities and Exchange Commission.
ACE02636
II-9
<PAGE>
THE CHASE MANHATTAN CORPORATION
Senior/Subordinated Debt Securities and Warrants
Underwriting Agreement
Standard Provisions
(November 1994)
_____________
THE CHASE MANHATTAN CORPORATION, a Delaware corporation (the
"Company"), may from time to time enter into one or more underwriting
agreements that provide for the sale of one or more series of its senior debt
securities ("Senior Debt Securities"), its subordinated debt securities
("Subordinated Debt Securities", and, together with the Senior Debt
Securities, the "Securities") and/or warrants to purchase Securities
("Warrants") registered under the registration statements referred to in
Paragraph 1(a) hereof. The Securities will be issued under the indenture
referred to in the Underwriting Agreement (as hereinafter defined) (such
indenture, including any amendments or supplements thereto, being herein
referred to as the "Indenture"), between the Company and the trustee referred
to in the Underwriting Agreement (the "Trustee"), and will have varying
maturities, interest rates, interest payment dates, redemption provisions,
selling prices, priority of payment and other items, with such terms for any
particular offering to be determined at the time of offering. The Warrants
will be issued under one or more warrant agreements (the warrant agreement
relating to any issue of Warrants to be sold pursuant to this Agreement will
be identified in the applicable Underwriting Agreement (as hereinafter
defined) and is referred to as the "Warrant Agreement") between the Company
and the warrant agent identified in such Warrant Agreement (the "Warrant
Agent"). The standard provisions set forth herein may be incorporated by
reference in any underwriting agreement relating to the offering of
Securities or Warrants (an "Underwriting Agreement"). An Underwriting
Agreement relating to a particular series of Securities or Warrants,
including the provisions incorporated therein by reference, is herein
referred to, with respect to such series, as "this Agreement". The
Securities and the Warrants may be offered either together or separately.
The Securities and/or Warrants involved in any such offering are hereinafter
referred to as the "Offered Securities", the firms which agree to purchase
the Offered Securities pursuant to this Agreement are hereinafter referred to
as the "Underwriters" of such Offered Securities and the representatives of
the Underwriters named in this Agreement are hereinafter referred to as the
"Representatives". The Offered Securities to be sold to the Underwriters on
the Delivery Date (as hereinafter defined) are hereinafter referred to as the
"Underwritten Securities". "Warrant Securities" shall mean the Senior Debt
Securities or Subordinated Debt Securities issuable
1
<PAGE>
upon exercise of Warrants. The Offered Securities, if any, to be sold
pursuant to the Delayed Delivery Contracts (as hereinafter defined) are
hereinafter referred to as the "Delayed Delivery Securities".
1. The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 with respect to the
Securities and Warrants has been prepared by the Company in conformity
with the requirements of the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations (the "Rules and Regulations") of
the Securities and Exchange Commission (the "Commission") thereunder,
has been filed with the Commission under the Act and has become
effective. As used in this Agreement, "Registration Statement" means
that registration statement as amended at the date of this Agreement;
"Basic Prospectus" means the prospectus (including all documents
incorporated therein by reference) included in the Registration
Statement; and "Prospectus" means the Basic Prospectus, together with
any prospectus amendment or supplement (including in each case all
documents incorporated therein by reference) specifically relating to
the Offered Securities, in the form first filed with the Commission
pursuant to Rule 424 of the Rules and Regulations, which amendment or
supplement the Company agrees to promptly so file. The Commission has
not issued any order preventing or suspending the use of the Prospectus.
(b) The Registration Statement and the Prospectus (excluding, for
purposes of this Paragraph 1(b), any preliminary or "red herring"
prospectus supplement) contain, and each amendment or supplement to the
Registration Statement or the Prospectus filed with the Commission prior
to the termination of the offering of the Offered Securities (including
any document filed by the Company on or after the date of this Agreement
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), prior to the termination
of the offering of the Offered Securities ("Incorporated Document"))
will contain, all statements which are required by the Act and the Rules
and Regulations and the Exchange Act and the rules and regulations of
the Commission thereunder; the Indenture conforms to the requirements of
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and the applicable rules and regulations of the Commission thereunder;
and the Registration Statement and the Prospectus do not, and any
amendment or supplement to the Registration Statement or the Prospectus
(including Incorporated Documents) filed with the Commission prior to
2
<PAGE>
the termination of the offering of the Offered Securities will not,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided that the Company makes no
representation or warranty as to that part of the Registration Statement
which consists of the Statement of Eligibility under the Trust Indenture
Act (Form T-1) of the Trustee or as to information contained in or
omitted from the Registration Statement or the Prospectus, or any
amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company through the Representatives
by or on behalf of any Underwriter specifically for inclusion therein.
(c) The consolidated financial statements of the Company and its
subsidiaries included or incorporated by reference in the Prospectus
present fairly the consolidated financial position of the Company and
its subsidiaries as at the dates indicated and the consolidated results
of their operations for the period specified; and except as stated
therein, said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis.
(d) Except as set forth in or contemplated by the Registration
Statement and the Prospectus, since the respective dates as of which
information is given in the Registration Statement and Prospectus, there
has not been any material transaction not in the ordinary course of
business entered into by the Company or The Chase Manhattan Bank
(National Association) (the "Bank"), any material change in the
liabilities or obligations (direct or contingent) of the Company or the
Bank, or any material adverse change in, or development materially and
adversely affecting, the financial position of the Company or the Bank.
(e) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware and is duly registered as a bank holding company under the Bank
Holding Company Act of 1956; and the Bank has been duly organized and is
in good standing under the laws of the United States of America.
(f) The Company and the Bank have the authority (corporate and
other) to conduct their respective businesses in all material respects
as described in the Prospectus; and all of the issued and outstanding
shares of capital stock of
3
<PAGE>
the Bank have been duly authorized and are validly issued and
outstanding and are owned by the Company free and clear of all liens,
encumbrances, security interests and claims, except for existing or
future restrictions on the disposition or encumbrance by the Company of
the capital stock of the Bank contained in the Indenture or in other
indentures, guarantees or evidences of indebtedness of the Company.
(g) Except as set forth in or contemplated by the Registration
Statement and the Prospectus, the Company and the Bank hold all material
licenses, certificates, permits and authorizations from governmental
authorities deemed by the Company to be reasonably necessary for the
conduct of their present operations.
(h) The accountants whose reports are incorporated by reference in
the Prospectus are certified public accountants and are independent
public accountants as required by the Act and the Rules and Regulations.
(i) Except as referred to in the Registration Statement and the
Prospectus (including documents incorporated therein by reference),
there is no material litigation or governmental proceeding pending or,
to the knowledge of the Company, threatened against or involving the
Company or the Bank which would be likely to result in any material
adverse change in the financial position of the Company or the Bank.
(j) Neither the Company nor the Bank is in violation of its
certificate of incorporation or Articles of Association, as the case may
be, or by-laws, or in default in the performance of any material
obligation, agreement or condition contained in any bond, debenture,
note or any other evidence of its indebtedness or any related loan
agreement, note purchase agreement or indenture by which the Company or
the Bank is bound. The execution, delivery and performance of this
Agreement, the Indenture and the Delayed Delivery Contracts, if any, and
compliance by the Company with the provisions of the Indenture and each
Warrant Agreement, if any, and the Offered Securities will not conflict
with, or constitute a breach of, or a default under, any material
agreement, indenture or other instrument by which the Company or the
Bank is bound, or any applicable law, administrative regulation or court
decree, violation of which would have a material adverse effect on the
operations of the Company or the Bank, or result in the creation or
imposition of any material lien, charge or encumbrance upon any of the
property or assets of the Company or the Bank,
4
<PAGE>
and will not result in a violation of the provisions of the certificate
of incorporation or Articles of Association, as the case may be, or
by-laws, of the Company or the Bank.
(k) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statement by the Act or by
the Rules and Regulations or which were required to be filed as exhibits
to any document incorporated by reference in the Prospectus by the
Exchange Act or the rules or regulations thereunder, which have not been
filed as exhibits to the Registration Statement or to such document
incorporated by reference in the Prospectus as permitted by the Rules
and Regulations or the rules and regulations under the Exchange Act, as
the case may be.
(l) The Indenture and Warrant Agreement, if any, have been validly
authorized and, prior to the issuance of the Offered Securities will be,
duly executed and delivered by the Company, and, assuming the due
authorization, execution and delivery thereof by the Trustee, will
constitute valid and binding instruments of the Company, enforceable in
accordance with its terms; the Offered Securities have been validly
authorized; upon payment for the Offered Securities as provided in this
Agreement or the related Delayed Delivery Contracts, as the case may be,
the Offered Securities will be validly issued and outstanding, and will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms; the Securities will be
entitled to the benefits of the Indenture; and the Offered Securities,
the Indenture and Warrant Agreement, if any, will conform to the
descriptions thereof contained in the Registration Statement and the
Prospectus.
(m) Since the end of its latest fiscal year, the Company has
timely filed all documents and amendments to previously filed documents
required to be filed by it pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act. The documents incorporated by reference in the
Prospectus have been, and each Incorporated Document will be, prepared
by the Company in conformity with the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder and such
documents have been, and in the case of each Incorporated Document will
be, timely filed as required thereby. Copies of each of the documents
incorporated by reference in the Prospectus have been delivered by the
Company to the Representatives.
(n) The Company has complied with all of the provisions of Section
517.075 of the Florida Statutes, and
5
<PAGE>
all rules and regulations promulgated thereunder, relating to issuers
doing business in Cuba.
(o) The Warrant Securities, if any, have been duly authorized for
issuance and sale upon the exercise of the Warrants, and, when issued,
authenticated and delivered pursuant to the terms and provisions of the
applicable Indenture against payment of the exercise price in accordance
with the terms of the Warrant Agreement, the Warrant Securities will be
valid and legally binding obligations of the Company enforceable in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other laws of general applicability
relating to or affecting enforcement of creditors' rights or by general
equity principles, and will be entitled to the benefits of the
Indenture; and the Warrant Securities, if any, will conform at the time
of their issuance in all material respects to all statements relating
thereto in the Prospectus.
2. If the Prospectus so provides, the Underwriters may solicit
offers to purchase Offered Securities by institutional investors for delayed
delivery pursuant to contracts substantially in the form of Exhibit A
attached hereto, with such changes therein as the Company may approve
("Delayed Delivery Contracts"). The Company shall have the right, in its
sole discretion, to approve or disapprove each such institutional investor.
The Company will pay to the Representatives for the account of the
Underwriters, contemporaneously with the purchase on the Delivery Date by the
Underwriters of the Underwritten Securities pursuant to this Agreement, the
compensation specified in this Agreement for arranging the sale of Delayed
Delivery Securities pursuant to Delayed Delivery Contracts, which shall be
equal to a percentage of the aggregate principal amount of the Delayed
Delivery Securities. The Underwriters shall have no responsibility in
respect of the validity or performance of any Delayed Delivery Contracts.
For the purpose of determining the principal amount of the
Underwritten Securities to be purchased by each Underwriter, there shall be
deducted from the principal amount of Offered Securities to be purchased by
such Underwriter as set forth in the Underwriting Agreement that portion of
the aggregate principal amount of Delayed Delivery Securities (not to exceed
the principal amount of Offered Securities to be purchased by such
Underwriter as set forth in the Underwriting Agreement) as set forth in a
written notice delivered by the Representatives to the Company; provided,
however, that the total principal amount of Offered Securities to be
purchased by all Underwriters on the Delivery Date shall be the total amount
of Offered Securities
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covered by this Agreement, less the principal amount of Delayed Delivery
Securities.
3. The Company shall not be obligated to deliver any Offered
Securities except upon payment for all the Underwritten Securities to be
purchased pursuant to this Agreement. If any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining non--
defaulting Underwriters shall be obligated to purchase the Underwritten
Securities which the defaulting Underwriter agreed but failed to purchase in
the respective proportions which the principal amount of the Offered
Securities set forth in the Underwriting Agreement to be purchased by each
remaining non-defaulting Underwriter bears to the aggregate principal amount
of the Offered Securities set forth in the Underwriting Agreement to be
purchased by all the remaining non-defaulting Underwriters; provided that the
remaining non-defaulting Underwriters shall not be obligated to purchase any
Underwritten Securities if the aggregate principal amount of the Underwritten
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase exceeds 9.09% of the total principal amount of the Offered
Securities, and any remaining non-defaulting Underwriter shall not be
obligated to purchase more than 110% of the principal amount of the Offered
Securities set forth in the Underwriting Agreement to be purchased by such
Underwriter. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriters, or those other Underwriters satisfactory to the
Representatives who so agree, shall have the right, but shall not be
obligated, to purchase, in such proportions as may be agreed upon among them,
all the Underwritten Securities. If the remaining Underwriters or other
underwriters satisfactory to the Representatives do not elect to purchase the
Underwritten Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company,
except that the Company will continue to be liable for the payment of
expenses as set forth in Paragraphs 5(j) and 10 hereof.
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company or any non-defaulting Underwriter
for damages caused by its default. If other underwriters are obligated or
agree to purchase the Underwritten Securities of a defaulting or withdrawing
Underwriter, either the Representatives or the Company may postpone the
Delivery Date for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the
Underwriters may be necessary in the Registration Statement, the Prospectus
or in any other document or arrangement.
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<PAGE>
4. Delivery of and payment for the Underwritten Securities shall
be made at the offices of the Company, 1 Chase Manhattan Plaza, New York, New
York 10081, at 10:00 A.M., New York City time, on the fifth business day
following the date of this Agreement or at such other location or other date
as shall be determined by agreement between the Representatives and the
Company or, if the Offered Securities shall be denominated in, or sold for, a
currency or currency unit other than United States Dollars, at the time, date
and location specified in the Underwriting Agreement. The date and time of
delivery of and payment for the Underwritten Securities are sometimes
referred to herein as the "Delivery Date". On the Delivery Date the Company
shall deliver the Underwritten Securities to the Representatives for the
account of each Underwriter against payment to or upon the order of the
Company of the purchase price by certified or official bank check or checks
payable in federal funds or, if the Offered Securities shall be denominated
in, or sold for, a currency or currency unit other than United States
Dollars, by such means as are specified in the Underwriting Agreement. Time
shall be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligation of each
Underwriter hereunder. Upon delivery the Underwritten Securities shall be in
definitive or temporary fully registered form, and shall be in such
denominations and registered in such names as the Representatives shall
request in writing not less than two full business days prior to the Delivery
Date. For the purpose of expediting the checking and packaging thereof, the
Company shall make the Underwritten Securities available for inspection by
the Representatives in New York, New York (or, if the Offered Securities
shall be denominated in, or sold for, a currency or currency unit other than
United States Dollars, at such other location as shall be specified in the
Underwriting Agreement) not later than 2:00 P.M., New York City time, on the
business day prior to the Delivery Date.
5. The Company agrees:
(a) To furnish promptly to the Representatives and to counsel for
the Underwriters an executed copy of the Registration Statement and the
Prospectus, including the documents incorporated by reference in the
Prospectus and all consents and exhibits filed therewith;
(b) To furnish the Underwriters with copies of the Prospectus
(including the documents incorporated by reference therein) in such
quantities as the Representatives may reasonably request;
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<PAGE>
(c) To file promptly all reports and definitive proxy statements
or information statements required to be filed by the Company pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act during such
period following the date of this Agreement as a prospectus is required
to be delivered in connection with the offering and sale of the Offered
Securities;
(d) To file with the Commission during the period referred to in
(c) above any amendment to the Registration Statement or the Prospectus
or any supplement to the Prospectus that may, in the judgment of the
Company or in the reasonable judgment of the Representatives, be
required by the Act or that may be requested by the Commission and, in
each case, approved by the Representatives and by the Company;
(e) Prior to filing with the Commission during the period referred
to in (c) above (i) any amendment to the Registration Statement or
supplement to the Prospectus, or (ii) any Prospectus relating to the
Offered Securities pursuant to Rule 424 of the Rules and Regulations, or
(iii) any Incorporated Document, to furnish a copy thereof to the
Representatives and to counsel for the Underwriters;
(f) To advise the Representatives promptly (i) when any
post-effective amendment to the Registration Statement relating to or
covering the Offered Securities becomes effective, (ii) of any request
by the Commission for an amendment or supplement to the Registration
Statement (insofar as the amendment or supplement relates to or covers
the Offered Securities), to the Prospectus, to any document incorporated
by reference in any of the foregoing or for any additional information
relating to the offering of the Offered Securities, (iii) of the
issuance by the Commission of any stop order or any order preventing or
suspending the use of the Prospectus or any request by the Commission
for the amending or supplementing of the Registration Statement or the
Prospectus or any order directed to any document incorporated or deemed
to be incorporated by reference in the Prospectus or the initiation of
any stop order proceeding or any challenge by the Commission to the
accuracy or adequacy of any document incorporated or deemed to be
incorporated by reference in the Prospectus, (iv) of receipt by the
Company of any notification with respect to the suspension of the
qualification of the Offered Securities for sale in any jurisdiction or
the initiation of any proceeding for that purpose, and (v) of the
happening of any event which makes untrue any statement of a material
fact made in the Registration Statement or the Prospectus,
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<PAGE>
or which requires the making of a change in the Registration Statement
or the Prospectus in order to make any material statement therein not
misleading;
(g) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Offered Securities
for offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Offered Securities; provided, however, that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
(h) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
"effective date of the registration statement" (as defined in Rule
158(c) under the Act), an earning statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Act and Rule 158 thereunder;
(i) If during the period referred to in (c) above the Commission
shall issue a stop order suspending the effectiveness of the
Registration Statement, to make every reasonable effort to obtain the
lifting of that order at the earliest possible time;
(j) To pay the costs incident to the authorization, issuance, sale
and delivery of the Offered Securities and any taxes payable in that
connection; the costs incident to the preparation, printing and filing
under the Act of the Registration Statement and any amendments,
supplements and exhibits thereto; the costs incident to the preparation,
printing and filing of any document and any amendments and exhibits
thereto required to be filed by the Company under the Exchange Act; the
costs of distributing the Registration Statement as originally filed and
each amendment and post-effective amendment thereof (including
exhibits), any preliminary prospectus, the Prospectus and any documents
incorporated by reference in any of the foregoing documents; the costs
of distributing the terms of the agreement relating to the organization
of the underwriting syndicate to the Underwriters by mail, telex or
other means of communication; the costs of preparing this Agreement and
of printing the Delayed Delivery Contracts, if any; the costs of any
filings with the National Association of Securities Dealers, Inc.; fees
paid to rating agencies in connection
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<PAGE>
with the rating of the Offered Securities; the fees and expenses of
qualifying the Offered Securities under the securities laws of the
several jurisdictions as provided in this Paragraph and of preparing and
printing a Blue Sky Memorandum and a memorandum concerning the legality
of the Offered Securities as an investment (including fees of counsel to
the Underwriters not in excess of $10,000); and all other costs and
expenses incident to the performance of the Company's obligations under
this Agreement; provided that, except as provided in this Paragraph and
in Paragraph 10 hereof, the Underwriters shall pay their own costs and
expenses, including the fees and expenses of their counsel, any transfer
taxes on the Offered Securities which they may sell and the expenses of
advertising any offering of the Offered Securities made by the
Underwriters; and
(k) During the period prior to the earlier of the Delivery Date
and the date on which any price restrictions on the sale of the Offered
Securities are terminated, not to offer or sell, or to cause any
subsidiary to offer or sell, in the United States, without the prior
consent of the Representatives, any debt securities of the Company or
any warrants for the purchase of debt securities of the Company which
are substantially similar to the Offered Securities.
6. (a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls an underwriter within the
meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of
a material fact contained in the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, unless such untrue statement or omission was
made in reliance upon and in conformity with written information
furnished to the Company on behalf of any Underwriter through the
Representatives expressly for use in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or
supplement thereto);
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<PAGE>
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of litigation, or investigation or proceeding by any
government agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission (except as made in
reliance upon and in conformity with information furnished on
behalf of any Underwriter through the Representatives as aforesaid)
if such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever (including the
fees and disbursements of counsel chosen by the Representatives)
reasonably incurred in investigating, preparing or defending
against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission (except as made in
reliance upon and in conformity with information furnished on
behalf of any Underwriter through the Representatives as
aforesaid), to the extent that any such expense is not paid under
(i) or (ii) above.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subparagraph (a) of this Paragraph, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in
the Registration Statement (or any amendment thereto) or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company on behalf of any Underwriter
through the Representatives expressly for use in the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of such action. In no event
shall
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<PAGE>
the indemnifying parties be liable for the fees and expenses of more than one
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances; provided, however, that
when more than one Underwriter is an indemnified party, each Underwriter
shall be entitled to separate counsel in each such jurisdiction to the extent
such Underwriter may have interests conflicting with those of another
Underwriter because of the participation of one Underwriter in a transaction
hereunder in which another Underwriter did not participate.
(d) Any amounts to be paid an indemnified party by an indemnifying
party pursuant to this Paragraph 6 for losses, liabilities, claims, damages
and other expenses shall be paid as incurred; provided, however, that amounts
to be paid shall be returned to the indemnifying party in the event that it
is ultimately determined that the indemnified party was not entitled to such
payment.
(e) The Underwriters severally shall confirm in the related
Underwriting Agreement any information or statements with respect to the
public offering of the Offered Securities furnished to the Company by or on
behalf of the Underwriters for use in the Registration Statement and the
Prospectus.
(f) The indemnity and contribution agreements contained in this
Paragraph 6 and Paragraph 7 and the representations, warranties and
agreements of the Company in Paragraphs 1 and 5 shall survive the delivery of
the Offered Securities and shall remain in full force and effect, regardless
of any termination or cancellation of this Agreement or any investigation
made by or on behalf of any indemnified party.
7. In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Paragraph 6 is
for any reason held to be unavailable to an Underwriter other than in
accordance with its terms, the Company and the Underwriters of each offering
of Securities and/or Warrants shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and one or more of such
Underwriters with respect to Securities and/or Warrants sold to or through
such Underwriters in such proportions that such Underwriters are responsible
for that portion represented by the percentage that the total commissions and
underwriter discounts received by such Underwriters to the date of such
liability bears to the total sales price received by the Company from the
sale of Securities and/or warrants made to or through such Underwriters to
the date of such liability, and
13
<PAGE>
the Company is responsible for the balance. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if an Underwriter failed to give the notice required under Paragraph
6(c), then the Company and the Underwriter involved shall contribute to such
aggregate losses, liabilities, claims, damages and expenses in such
proportion as is appropriate to reflect not only the percentage described in
the immediately preceding sentence but also the relative fault of the Company
and such Underwriter in connection with the statements or omissions which
resulted in such liabilities, claims, damages and expenses, as well as any
other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or such
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Paragraph 7 were determined pro
rata (even if the Underwriters were treated as one entity for such purpose)
or by any other method of allocation which does not take account of the
equitable considerations referred to in this Paragraph 7. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled under this Paragraph 7 to contribution from any
person who was not guilty of such fraudulent misrepresentation. For
purposes of this Paragraph, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same rights
to contribution as such Underwriter, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as the Company. Any
amounts to be paid a party pursuant to this Paragraph 7 for losses,
liabilities, claims, damages and other expenses shall be paid as incurred;
provided, however, that amounts to be paid shall be returned to the paying
party in the event that it is ultimately determined that the party that
received payment was not entitled to such payment.
8. The obligations of the Underwriters under this Agreement
may be terminated by the Representatives, in their absolute discretion, by
notice given to and received by the Company at any time prior to delivery of
and payment for any Offered Securities, (i) if there has occurred any
outbreak or escalation of hostilities or other calamity or crisis the effect
of which on the financial markets of the United States is such as to make it,
in the Representatives' judgment, impracticable to
14
<PAGE>
market the Securities or enforce contracts for the sale of the Securities, or
(ii) if trading in any securities of the Company has been suspended by the
Commission or a national securities exchange, or if trading generally on
either the American Stock Exchange or the New York State Exchange has been
suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of
said exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by either Federal or
New York authorities.
9. The respective obligations of the Underwriters under this
Agreement are subject to the accuracy, on the date this Agreement is executed
and on the Delivery Date, of the representations and warranties of the
Company contained herein, to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the provisions hereof,
to performance by the Company of its obligations hereunder, and to each of
the following additional terms and conditions:
(a) At or before the Delivery Date, no stop order suspending the
effectiveness of the Registration Statement nor any order directed to
any document incorporated by reference in the Prospectus or to any
Incorporated Documents shall have been issued, and prior to that time no
stop order proceeding shall have been initiated or threatened by the
Commission and no challenge by the Commission shall have been made to
the accuracy or adequacy of any document incorporated by reference in
the Prospectus or to any Incorporated Document; any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus shall have been complied with; and the
Company shall not have filed with the Commission any amendment or
supplement to the Registration Statement or the Prospectus without the
consent of the Representatives.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Delivery Date that the Registration Statement
or the Prospectus or any Incorporated Document or any amendment or
supplement thereto contains an untrue statement of a fact which, in the
opinion of counsel for the Underwriters, is material or omits to state a
fact which, in the opinion of such counsel, is material and is required
to be stated therein or is necessary to make the statement therein not
misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Indenture,
any Warrant Agreement and the Offered Securities, and the form of the
Registration
15
<PAGE>
Statement and the Prospectus and any Incorporated Document, other than
financial statements and other financial data, and all other legal
matters relating to this Agreement and the transactions contemplated
hereby shall be satisfactory in all respects to counsel for the
Underwriters, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable
them to pass upon such matters.
(d) Counsel to the Company shall have furnished to the
Representatives their opinion in form and substance satisfactory to the
Representatives addressed to the Underwriters and dated the Delivery
Date to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, has the authority (corporate and other) to own
its properties and to conduct its business as described in the
Prospectus and is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended;
(ii) The Bank has been duly organized and is validly existing
under the laws of the United States of America and has the
authority (corporate and other) to conduct operations as a national
banking association and in all material respects to conduct its
business as described in the Prospectus;
(iii) All the outstanding shares of capital stock of the Bank
have been duly authorized and are validly issued and are owned by
the Company, free and clear of any perfected security interest and,
to the knowledge of such counsel, after due inquiry, any other
security interests, except as described in Paragraph 1(f) above;
(iv) This Agreement and the Delayed Delivery Contracts, if
any, have been duly executed and delivered by the Company;
(v) The Indenture and any Warrant Agreement have been validly
authorized by the Company and duly executed and delivered by the
Company; the Indenture has been duly qualified under the Trust
Indenture Act; and, assuming due authorization, execution and
delivery, in the case of the Indenture, by the Trustee, and in the
case of any Warrant Agreement, by the Warrant Agent, each of the
Indenture and any Warrant Agreement constitutes a valid and legally
binding
16
<PAGE>
instrument of the Company, except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency and other laws
affecting creditors' rights generally and by general principles of
equity regardless of whether such enforceability is considered in a
proceedings in equity or at law;
(vi) The Offered Securities have been duly authorized and,
assuming due authorization, execution and delivery, in the case of
the Indenture, by the Trustee, and in the case of any Warrant
Agreement, by the Warrant Agent, the Offered Securities, when
executed and authenticated in accordance with the provisions of the
Indenture, in the case of Securities, and with the provisions of
any Warrant Agreement, in the case of Warrants, and delivered to
and paid for by the Underwriters pursuant to this Agreement or
delivered to and paid for by the purchasers thereof pursuant to the
Delayed Delivery Contracts, as the case may be, will constitute
valid and binding obligations of the Company, entitled to the
benefits of the Indenture or the Warrant Agreement, as the case may
be, except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency and other laws affecting creditors' rights
generally and by general principles of equity regardless of whether
such enforceability is considered in a proceedings in equity or at
law; provided that such counsel need express no opinion as to
whether a court in the United States would render a money judgment
in a currency other than that of the United States;
(vii) The Offered Securities, any Warrant Agreement and the
Indenture conform to the descriptions thereof in the Registration
Statement and the Prospectus;
(viii) The Warrant Securities, if any, have been duly authorized
for issuance and sale upon the exercise of the Warrants, and, when
issued, authenticated and delivered pursuant to the terms and
provisions of the Indenture against payment of the exercise price
in accordance with the terms of the Warrant Agreement, the Warrant
Securities will be valid and legally binding obligations of the
Company enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or
other laws of general applicability relating to or affecting
enforcement of creditors' rights or by general equity principles,
and except further as enforcement thereof may be limited by
requirements that a claim (or a
17
<PAGE>
foreign currency judgment in respect of such claim) be converted
into United States dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law, and will be entitled to
the benefits of the Indenture; and the form of Warrant Securities,
if any, conforms in all material respects to the description
thereof in the Prospectus;
(ix) No approval of any public regulatory body, state or
federal (except under state securities or blue sky statutes, as to
which such counsel need not express an opinion), other than those
approvals that have been obtained, is required for the valid
execution, delivery and performance by the Company of this
Agreement;
(x) The execution, delivery and performance of this Agreement
and the Delayed Delivery Contracts, if any, have been authorized by
all requisite corporate action by the Company;
(xi) The execution, delivery and performance of this
Agreement and the Delayed Delivery Contracts, if any, the Indenture
and any Warrant Agreement and Securities or Warrants issued in
accordance with the Indenture, any Warrant Agreement and this
Agreement and compliance by the Company with the provisions of the
Indenture, any Warrant Agreement and the Offered Securities will
not result in a material breach of any of the provisions of, or
constitute a material default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the
property or assets of the Company pursuant to the terms of, any
agreement or instrument known to such counsel to which the Company
is a party or by which the Company is bound, and will not result in
a violation of the provisions of the certificate of incorporation
or by-laws of the Company, or any existing applicable law, rule,
regulation, judgment, order or decree of any governmental
instrumentality or court having jurisdiction over the Company or
any of its subsidiaries;
(xii) The Registration Statement has become effective under
the Act, and, to the best of the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated under the Act; no
order directed to any document incorporated by reference in the
Prospectus or to any Incorporated Document has been issued, and, to
the best of the
18
<PAGE>
knowledge of such counsel, no challenge has been made to the
accuracy or adequacy of any such document; the Registration
Statement and the Prospectus (other than the financial statements
and other financial data included therein, as to which no opinion
need be expressed) comply as to form in all material respects with
the requirements of the Act and the applicable rules and
regulations of the Commission under said Act; the documents
incorporated by reference in the Prospectus and the Incorporated
Documents which have been filed prior to the Delivery Date (except
that no opinion need be expressed as to the financial statements
and other financial data contained therein) comply as to form in
all material respects with the requirements of the Exchange Act and
the rules and regulations of the Commission thereunder; and nothing
has come to the attention of such counsel that would lead them to
believe that either such Registration Statement at the time it
became effective, or if an amendment to the Registration Statement
or an annual report on Form 10-K has been filed by the Company with
the Commission subsequent to the effectiveness of the Registration
Statement, then at the time of the most recent such filing (other
than the financial statements and other financial data included
therein, as to which no opinion need be expressed), contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as
amended or supplemented, at the date of the Underwriting Agreement
or at the Delivery Date (other than the financial statements and
other financial data included in such Prospectus, as to which no
opinion need be expressed), contained or contains an untrue
statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading;
(xiii) To the best of the knowledge of such counsel, there are
no contracts or other documents required to be filed as exhibits to
the Registration Statement by the Act or by the Rules and
Regulations, or which were required to be filed as exhibits to any
document incorporated by reference in the Prospectus by the
Exchange Act or the rules or regulations of the Commission
thereunder, which have not been so filed or so incorporated by
reference as exhibits thereto; the descriptions in the Registration
Statement and
19
<PAGE>
Prospectus of the contracts and other documents therein described
and filed with the Registration Statement are accurate in all
material respects and fairly present the information required to be
shown; and to the best of the knowledge of such counsel there are
no legal or governmental proceedings pending or threatened against
the Company or any of its subsidiaries of a character required to
be disclosed in the Prospectus which have not been adequately
disclosed therein;
(xiv) The statements made in the Prospectus under the captions
"Description of Debt Securities" and "Description of (Title of
Offered Securities)", insofar as they purport to summarize the
provisions of documents or agreements specifically referred to
therein, fairly present the information called for with respect
thereto by Form S-3; and
(xv) The opinion, if any, of such counsel filed as Exhibit 8 to
the Registration Statement is confirmed and the Underwriters may
rely upon such opinion as if it were addressed to them, and such
counsel has reviewed the statements, if any, contained in the
Prospectus under the caption "United States Taxation", and such
statements, insofar as they describe federal statutes, rules and
regulations, constitute a fair summary thereof.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form satisfactory to counsel for the
Underwriters and in substance satisfactory to the Representatives.
(e) The opinion or opinions of counsel to the Underwriters shall
have been furnished to the Representatives, relating to the incorporation of
the Company, the validity of the Offered Securities, the Indenture, the
Registration Statement, the Prospectus, this Agreement, any Warrant Agreement
and such other matters as the Underwriters may reasonably request.
(f) There shall not have occurred, since the respective dates as
of which information is given in the Registration Statement and the
Prospectus, in which case as then amended and supplemented, except as set
forth in or contemplated by the Registration Statement and the Prospectus,
any material change in the liabilities or obligations of the Company or the
Bank or any material adverse change in, or development materially and
adversely affecting, the financial position of the Company or the Bank; no
stop order suspending the effectiveness of the
20
<PAGE>
Registration Statement or of any part thereof shall have been issued and not
withdrawn and no proceedings for that purpose shall have been instituted and
not suspended or, to the knowledge of the Company or any Representative,
shall be contemplated by the Commission; and at the Delivery Date, each
Representative shall have received a certificate of the Company's Executive
Vice President and Chief Financial Officer or Senior Vice President and
Controller or Treasurer or a Vice President assigned to the Controller's
Department, dated as of the Delivery Date, and the Representatives shall have
received a certificate dated as of the Delivery Date, in each case to the
effect (i) that there has been no such material adverse change, (ii) that the
other representations and warranties of the Company contained in Paragraph 1
hereof are true and correct with the same force and effect as though
expressly made at and as of the date of such certificate, (iii) that the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the date of such
certificate, and (iv) that no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been initiated or threatened by the Commission.
(g) At the time this Agreement is executed and at the Delivery
Date, Price Waterhouse shall have furnished to the Representatives a letter
or letters, dated respectively as of the date this Agreement is executed and
as of the Delivery Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within the
meaning of the Act and the Exchange Act and the respective applicable rules
and regulations of the Commission thereunder, and stating, as of the date of
each such letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five
business days prior to the date of each such letter), the conclusions and
findings of such firm as to such financial information and other matters as
the Representatives shall reasonably request, and, in the case of the letter
dated as of the Delivery Date, confirming in all material respects the
conclusions and findings set forth in the letter dated as of the date this
Agreement is executed.
10. If the Company shall fail to tender the Underwritten
Securities on the Delivery Date or if the Underwriters shall for any reason
permitted under this Agreement (other than pursuant to Paragraphs 3 and 7)
decline to purchase the Underwritten Securities, the sole liability of the
Company to the several Underwriters will be to reimburse the several
Underwriters up to a reasonable amount for the fees and expenses of their
counsel and for such other out-of-pocket expenses as
21
<PAGE>
shall have been incurred by them in connection with this Agreement and the
proposed purchase of the Underwritten Securities and the solicitation of
purchases of the Delayed Delivery Securities, and upon demand the Company
will pay the full amount thereof to the Representatives. The Company will
not be obligated to reimburse the several Underwriters on account of any such
expenses if this Agreement shall be terminated for the reasons set forth in
Paragraph 3.
11. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement given or made by the Representatives.
Any notice by the Company to the Underwriters shall be sufficient if given in
writing or by telegraph addressed to the Representatives at the address
furnished to the Company and any notice by the Underwriters to the Company
shall be sufficient if given by the Representatives in writing or by
telegraph addressed to the Company at 1 Chase Manhattan Plaza, New York, New
York 10081, Attention of the Secretary.
12. This Agreement shall inure to the benefit of and be binding
upon the Underwriters, the Company, and their respective successors. Nothing
in this Agreement is intended or shall be construed to give any person other
than the persons mentioned in the preceding sentence any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein, this Agreement and the terms and provisions hereof being
for the sole benefit of only those mentioned persons; except that (a) the
representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any Underwriter within the meaning of
Section 15 of the Act, and (b) the indemnity agreement of the Underwriters
contained in Paragraph 6 of this Agreement shall be deemed to be for the
benefit of directors of the Company, officers of the Company who have signed
the Registration Statement and any person controlling the Company. Nothing
in this Agreement is intended or shall be construed to give any person, other
than the persons referred to in this Paragraph, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision
contained herein.
13. For purposes of this Agreement, (a) "business day" means any
day on which the New York Stock Exchange, Inc. is open for trading, and (b)
"subsidiary" has the meaning set forth in Rule 405 of the Rules and
Regulations.
14. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
22
<PAGE>
EXHIBIT A
(Three copies of this Delayed Delivery Contract should be signed
and returned to the address shown below so as to arrive not later than __ :00
A.M., New York time, on __________________
_______ , 19__ .)
DELAYED DELIVERY CONTRACT
-------------------------
(Insert date of offering
of Securities to be sold)
THE CHASE MANHATTAN CORPORATION
c/o (Insert name and address
of Agent)
Attention:
Gentlemen:
The undersigned hereby agrees to purchase from The Chase Manhattan
Corporation, a Delaware corporation (the "Company"), and the Company agrees
to sell to the undersigned, as of the date hereof, for delivery on __________
(the "Delivery Date"), $_____________ principal amount of the Company's _____
_______________ (hereinafter called "Securities"), offered by the
Company's Prospectus relating thereto, receipt of a copy of which is hereby
acknowledged, at _______ % of the principal amount thereof plus accrued
interest, if any, and on the further terms and conditions set forth in this
Delayed Delivery Contract ("Contract").
Payment for the Securities which the undersigned has agreed to
purchase for delivery on the Delivery Date shall be made to the Company or
its order in immediately available funds in New York, New York, at 10:00
A.M., New York City time, at the offices of the Company, 1 Chase Manhattan
Plaza, New York, New York 10081, on the Delivery Date upon delivery to the
undersigned of the Securities to be purchased by the undersigned in
definitive form and in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication address to
the Company not less than five full business days prior to the Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make
delivery of and accept payment for, and the obligation of the undersigned to
take delivery of and make payment for, Securities on the Delivery Date shall
be subject only to the condition that investment in the Securities shall not
at the Delivery Date be prohibited under the laws of any jurisdiction in the
United States to which the undersigned is subject.
A-1
<PAGE>
The undersigned represents that its investment in such Securities
is not, as of the date hereof, prohibited under the laws of any jurisdiction
to which the undersigned is subject and which govern such investment.
Promptly after receipt of a request therefor from the undersigned,
the Company will mail or deliver to the undersigned at its address set forth
below a copy of the opinion of counsel for the Company delivered to the
Company's agents in connection with the offering of the Securities to the
public through such events.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
This Contract may be executed by either of the parties hereto in
any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same
instrument.
It is understood that the acceptance of any such Contract
(including this Contract) is in the Company's sole discretion and, without
limiting the foregoing, need not be on a first-come, first-served basis. If
this Contract is acceptable to the Company, it is requested that the Company
sign the form of acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This will become a
binding contract between the Company and the undersigned when such
counterpart is so mailed or delivered.
Yours very truly,
____________________________
(Name of Buyer)
By__________________________
____________________________
(Name and Title of Signatory)
____________________________
____________________________
(Address of Buyer)
Accepted, as of the date
first above written
THE CHASE MANHATTAN CORPORATION
By_____________________________
Name:
Title:
ALF01C0D A-2
<PAGE>
$200,000,000
THE CHASE MANHATTAN CORPORATION
SENIOR/SUBORDINATED MEDIUM-TERM NOTES SERIES C DUE
FROM NINE MONTHS FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
November --, 1994
Smith Barney Inc.
1345 Avenue of the Americas
New York, NY 10105
Chase Securities, Inc.
One Chase Manhattan Plaza
New York, NY 10081
Ladies and Gentlemen:
The Chase Manhattan Corporation, a Delaware corporation (the
"Company"), confirms its agreement with you (each of you being hereinafter
referred to as an "Agent" and collectively, with any other agents appointed
hereunder, as the "Agents") with respect to the issue and sale by the Company
of its Medium-Term Notes, Series C registered under the Registration
Statement referred to below (any such Medium-Term Notes being hereinafter
referred to as the "Securities") in an aggregate amount not to exceed
$200,000,000 subject to reduction in such amounts as the Company may from
time to time advise the Agents. This Agreement provides both for the sale of
Securities by the Company to the Agents, as principal for resale to investors
and other purchasers and for the sale of Securities by the Company to
investors as may from time to time be agreed to by the Company and an Agent,
in which case the relevant Agent will act as an agent of the Company in
soliciting purchases of the Securities. The Securities may be issued as
senior indebtedness (the "Senior Notes") or as subordinated indebtedness (the
"Subordinated Notes") of the Company. The Senior Notes are to be issued as a
series under an Indenture, dated as of July 1, 1986, as supplemented by a
First Supplemental Indenture, dated as of November 1, 1990 and a Second
Supplemental Indenture, dated as of May 1, 1991 (said Indenture as so
supplemented, the "Senior Indenture"), between the Company and Bankers Trust
Company, as trustee (the "Senior Trustee") and the Subordinated Notes are to
be issued as a series
1
<PAGE>
under an Amended and Restated Indenture, dated as of September 1, 1994, (the
"Subordinated Indenture", and together with the Senior Indenture, the
"Indentures"), between the Company and Chemical Bank, as trustee (the
"Subordinated Trustee", and together with the Senior Trustee, the
"Trustees").
Subject to the terms and conditions stated herein, and subject to
the Company's right to sell Securities other than as contemplated by Section
2(a), (b) or (c) of this Agreement including the Company's right to sell
Securities directly to investors on its own behalf, the Company hereby (i)
agrees to sell Securities directly to an Agent as principal for resale to
others in accordance with the provisions of Section 2(a) hereof and (ii) if
agreed to by an Agent and the Company, to sell Securities through an Agent,
acting solely as agent for the Company, in accordance with the provisions of
Section 2(b) hereof. The Company may from time to time offer other series of
Medium-Term Notes through other agents in which case the commissions to be
paid to such other agents may vary from those set forth in Schedule A. The
Company may from time to time appoint one or more additional persons as
agents for soliciting offers to purchase the Securities from the Company by
appointing such additional agents as Agents hereunder or by entering into
distribution agreements substantially similar to this Agreement, provided
that the commissions to be paid to agents party to any such agreement shall
be identical to those set forth in Schedule A hereof or otherwise agreed upon
hereunder (except in the case of sales of Securities made to any such agent
as principal). The Company will notify you prior to making any such
appointment.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
33-55295) (such registration statement also constitutes post-effective
amendment no. 1 to registration statement no. 33-58144 and post-effective
amendment no. 1 to registration statement no. 33-51044), relating to the
Securities and the offering thereof from time to time in accordance with Rule
415 under the Securities Act of 1933 (the "1933 Act"). Such registration
statement has been declared effective by the Commission, and each Indenture
has been qualified under the Trust Indenture Act of 1939 (the "1939 Act").
Such registration statement and the prospectus, in the form most recently
filed pursuant to Rule 424 under the 1933 Act, including all documents
incorporated therein by reference, as from time to time amended or
supplemented by the filing of documents pursuant to the Securities Exchange
Act of 1934 (the "1934 Act"), the 1933 Act or otherwise, are referred to
herein as the "Registration Statement" and the "Prospectus", respectively.
SECTION 1. Representations and Warranties. (a) The Company
------------------------------
represents and warrants to each Agent as of the date
2
<PAGE>
hereof, as of the Closing Time and each Settlement Date hereinafter referred
to, and as of the times referred to in Sections 6(a) and 6(b) hereof (in each
case the "Representation Date"), as follows:
(i) The Registration Statement and the Prospectus, at the times
the Registration Statement became effective, complied, and as of the
applicable Representation Date will comply, in all material respects
with the requirements of the 1933 Act, and the rules and regulations
thereunder (the "Regulations") and the 1939 Act. The Registration
Statement, at the times the Registration Statement became effective did
not, and as of the applicable Representation Date will not, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, at the times the Registration
Statement became effective did not, and as of the applicable
Representation Date will not, contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were or are made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to
the Company in writing by such Agent expressly for use in the
Registration Statement or Prospectus or to that part of the Registration
Statement which shall constitute the Statements of Eligibility under the
1939 Act (Form T-1) of the Senior Trustee and the Subordinated Trustee.
(ii) The documents incorporated by reference in the Prospectus, at
the time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of the
1934 Act and the rules and regulations thereunder (the "1934 Act
Regulations"), and, when read together and with the other information in
the Prospectus, at the time the Registration Statement became, and any
amendments thereto become, effective, did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were or are
made, not misleading.
(iii) The consolidated financial statements of the Company and its
subsidiaries included or incorporated by reference in the Prospectus
present fairly the consolidated financial position of the Company and
its subsidiaries as at
3
<PAGE>
the dates indicated and the consolidated results of their operations for
the periods specified; and except as stated therein, said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis.
(iv) Except as set forth in or contemplated by the Registration
Statement and the Prospectus, since the respective dates as of which
information is given in the Registration Statement and Prospectus, there
has not been any material transaction not entered into in the ordinary
course of business by the Company or The Chase Manhattan Bank, N.A. (the
"Bank"), any material change in the liabilities or obligations (direct
or contingent) of the Company or the Bank, or any material adverse
change in, or development materially and adversely affecting, the
financial position of the Company or the Bank.
(v) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, and is duly registered as a bank holding company under the
Bank Holding Company Act of 1956; and the Bank has been duly organized
and is validly existing as a national banking association in good
standing under the laws of the United States of America.
(vi) The Company and the Bank have the power and authority
(corporate and other) to own their properties and to conduct their
respective businesses in all material respects as described in the
Prospectus; and all of the issued and outstanding shares of capital
stock of the Bank have been duly authorized and are validly issued and
outstanding and are owned by the Company free and clear of all liens,
encumbrances, security interests and claims, except for existing or
future restrictions on the disposition or encumbrance by the Company of
the capital stock of the Bank contained in the Indentures or in other
indentures, guarantees or evidences of indebtedness of the Company.
(vii) Except as set forth in or contemplated by the Registration
Statement and the Prospectus, the Company and the Bank hold all material
licenses, certificates, permits and authorizations from governmental
authorities deemed by the Company to be reasonably necessary for the
conduct of their present operations.
(viii) The accountants whose reports are incorporated by reference in
the Prospectus are certified public accountants and are independent
public accountants as required by the 1933 Act and the Regulations.
4
<PAGE>
(ix) Except as referred to in the Registration Statement and the
Prospectus, there is no material litigation or governmental proceeding
pending or, to the knowledge of the Company, threatened against or
involving the Company or the Bank which would be likely to result in any
material adverse change in the financial position of the Company or the
Bank.
(x) Neither the Company nor the Bank is in violation in any
material respect of its certificate of incorporation or Articles of
Association, as the case may be, or by-laws, or in default in the
performance of any material obligation, agreement or condition contained
in any bond, debenture, note or any other evidence of its indebtedness
or any related loan agreement, note purchase agreement or indenture by
which the Company or the Bank is bound. The execution, delivery and
performance of this Agreement and each Indenture, and each applicable
Delayed Delivery Contract (as defined in Section 2(c)), if any, and
compliance by the Company with the provisions of each Indenture and the
Securities will not conflict with, or constitute a breach of, or a
default under, any material agreement, indenture or other instrument by
which the Company or the Bank is bound, or any applicable law,
administrative regulation or court decree, violation of which would have
a material adverse effect on the operations of the Company or the Bank,
or result in the creation or imposition of any material lien, charge or
encumbrance upon any of the property or assets of the Company or the
Bank, and will not result in a violation of the provisions of the
certificate of incorporation or Articles of Association, as the case may
be, or by-laws of the Company or the Bank.
(xi) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statement by the 1933 Act or
by the regulations or which were, or hereafter are, required to be filed
as exhibits to any document incorporated by reference in the Prospectus
by the 1934 Act or the 1934 Act Regulations, which have not been, or
will not be, filed as exhibits to the Registration Statement or to such
document incorporated by reference in the Prospectus as permitted by the
Regulations or the 1934 Act Regulations, as the case may be.
(xii) Each Indenture has been validly authorized and duly executed
and delivered by the Company and constitutes a valid and legally binding
instrument of the Company, enforceable in accordance with its terms; the
Securities will have been validly authorized prior to issuance thereof;
upon payment of the consideration therefor specified in the Prospectus
or agreed upon pursuant to the provisions of this
5
<PAGE>
Agreement or any applicable Delayed Delivery Contract, as the case may
be, the Securities will be validly issued and outstanding, and will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms; the Securities will be
entitled to the benefits of the applicable Indenture; and the Securities
and each Indenture will conform to the descriptions thereof contained in
the Registration Statement and the Prospectus.
(xiii) Since the end of its latest fiscal year, the Company has
timely filed all documents and amendments to previously filed documents
required to be filed by it pursuant to Section 13(a), 13(c), 14 or 15(d)
of the 1934 Act. The documents incorporated by reference in the
Prospectus, at the time they were filed with the Commission, were
timely filed as required thereby. Copies of each of the documents
incorporated by reference in the Prospectus have been delivered by the
Company to the Agents.
(xiv) The Company has complied with all the provisions of Section
517.075 of the Florida Statutes, and all rules and regulations
promulgated thereunder, relating to issuers doing business in Cuba.
(b) Any certificate signed by any officer of the Company and
delivered to any Agent or to its counsel in connection with an offering of
Securities shall be deemed a representation and warranty by the Company to
such Agent as to the matters covered thereby.
SECTION 2. Purchases as Principal; Solicitations as Agent. (a)
----------------------------------------------
Purchases as Principal. Unless otherwise agreed by an Agent and the
- ----------------------
Company, Securities shall be purchased by an Agent as principal. Each sale
of Securities to an Agent as principal shall be made in accordance with the
terms agreed upon by an Agent and the Company, which terms shall be agreed
upon orally, with written confirmation prepared by such Agent and mailed to
the Company. Each such written confirmation shall specify the principal
amount and terms of the Securities to be purchased by the relevant Agent and
the time and place of delivery of and payment for such Securities (the
"Settlement Date"), and such other information (as applicable) as is set
forth in Exhibit A hereto. Unless otherwise agreed upon by an Agent and the
Company, the Company agrees to pay the Agent the applicable commission, in
the form of a discount, set forth in Schedule A hereto or otherwise agreed
upon between the Agents and the Company from time to time. An Agent's
commitment to purchase Securities as principal shall be deemed to have been
made on the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set forth.
At the time of each purchase of Securities by an
6
<PAGE>
Agent as principal, such Agent and the Company shall agree on any
requirements for stand-off, officer's certificate, opinion of counsel and
letters from Price Waterhouse or other independent public accountants of the
Company pursuant to Section 3(k), 6(b), 6(c) and 6(d), respectively, hereof.
(b) Solicitations as Agent. On the basis of the representations
----------------------
and warranties herein contained, but subject to the terms and conditions
herein set forth, when agreed by the Company and an Agent, such Agent will
use its best efforts, as agent for the Company, to solicit offers to purchase
the Securities upon the terms and conditions set forth in the Prospectus.
Upon request, the Company will inform any Agent of the remaining
amount of Securities which may be sold pursuant to the Registration
Statement. The Company reserves the right, in its sole discretion, to
suspend solicitation of offers to purchase the Securities commencing at any
time for any definite or indefinite period of time or permanently. Upon
receipt of instructions from the Company, each of you will forthwith suspend
solicitation of offers to purchase from the Company until advised by the
Company that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the percentage of the principal amount of each Security
sold by the Company as a result of a solicitation made by such Agent, as
agent for the Company, as set forth in Schedule A hereto or as otherwise
agreed upon between the Agents and the Company from time to time; provided,
however, in the event that any Security shall be sold by the Company at a
price to the investor which shall be less than the principal amount thereof,
such commission shall be equal to the applicable percentage of the principal
amount set forth in Schedule A hereto or otherwise agreed upon between the
Agents and the Company from time to time multiplied by such price to the
investor.
Each Agent, when acting in the capacity as agent for the Company,
is authorized to solicit orders for the Securities with terms specified to
such Agent from time to time by the Company. Each Agent shall communicate to
the Company, orally or in writing, each reasonable offer to purchase
Securities received by it as agent. The Company shall have the sole right to
accept offers to purchase the Securities and may reject any such offer in
whole or in part. Each Agent shall have the right, in its discretion
reasonably exercised, without notice to the Company, to reject any offer to
purchase Securities received by it, in whole or in part, and any such
rejection shall not be deemed a breach of its agreement contained herein.
7
<PAGE>
(c) Delayed Delivery. The Company authorizes the Agents to
----------------
solicit offers to purchase Securities pursuant to delayed delivery contracts
(the "Contract Securities") substantially in the form of Exhibit B attached
hereto ("Delayed Delivery Contracts") with such changes therein as the
Company may approve. Delayed Delivery Contracts are to be with institutional
investors, including commercial and savings banks, insurance companies,
pension funds, investment companies and educational and charitable
institutions. Upon execution of a Delayed Delivery Contract by the Company,
the Company will pay the Agent that arranged such contract as compensation
the fee set forth in Schedule A hereto in respect of the principal amount of
Contract Securities purchased as a result of solicitations made, or offers
received, by such Agent; provided, however, that if no sale of Securities
pursuant to such contract is consummated, such Agent shall repay such fee to
the Company. The Company will make Delayed Delivery Contracts in all cases
where sales of Contract Securities arranged by the Agents have been approved
by the Company. The Agents will not have any responsibility in respect of
the validity or the performance of Delayed Delivery Contracts.
(d) Procedures. Administrative procedures respecting the sale of
----------
Securities shall be agreed upon from time to time by the Agents and the
Company (the "Procedures"). The Agents, severally and not jointly, and the
Company agree to perform on and after the Closing Time (as defined below) the
respective duties and obligations specifically provided to be performed by
each of them herein and in the Procedures.
(e) Delivery. The documents required to be delivered pursuant to
--------
Section 5 hereof shall be delivered at the offices of the Company, One Chase
Manhattan Plaza, New York, New York, 10081, at 1:00 P.M., New York City time,
on or prior to the date on which the first supplement to the Prospectus
relating to the Securities is filed with the Commission, which date and time
may be postponed by agreement between the Company and the Agents (the time
and date of such delivery being hereinafter called the "Closing Time").
(f) Sale of Securities. No Security which the Company has agreed
------------------
to sell pursuant to Section 2(b) of this Agreement shall be deemed to have
been purchased and paid for, or sold, by the Company until such Security
shall have been delivered to the purchaser thereof against payment by such
purchaser.
(g) Manner of Sale. Agents may sell Securities to or through
--------------
other broker-dealers, and such other broker-dealers may receive compensation
in the form of underwriting discounts, concessions, or commissions from the
Agents and/or commissions from the purchasers of Securities for whom they may
act as agent.
8
<PAGE>
SECTION 3. Covenants of the Company. The Company covenants with
------------------------
each Agent as follows:
(a) If at any time when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Securities any event shall
occur or condition exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Agents or counsel for the Company, to
further amend or supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of either such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the Regulations, immediate notice shall be
given, and confirmed in writing, to each Agent to cease the solicitation of
offers to purchase the Securities in its capacity as Agent and to cease sales
of any Securities it may then own as principal, and the Company will promptly
prepare and file with the Commission such amendment or supplement, whether by
filing documents pursuant to the 1934 Act, the 1933 Act or otherwise, as may
be necessary to correct such untrue statement or omission or to make the
Registration Statement comply with such requirement.
(b) On or prior to the date on which there shall be released to
the general public interim financial statement information related to the
Company with respect to each of the first three quarters of any fiscal year
or preliminary financial statement information with respect to any fiscal
year, the Company shall furnish such information to each Agent, confirmed in
writing, and shall cause the Prospectus to be amended or supplemented to
include or incorporate by reference financial information with respect to the
results of operations of the Company for the period between the end of the
preceding fiscal year and the end of such quarter or for such fiscal year, as
the case may be, and corresponding information for the comparable period of
the preceding fiscal year, as well as such other information and explanations
as shall be necessary for an understanding of such financial information or
as shall be required by the 1933 Act or the Regulations; provided, however,
that if on the date of such release the Agents shall have suspended
solicitation of offers to purchase the Securities in their capacity as agent
for the Company pursuant to a request from the Company, and shall not then
hold any Securities as principal, the Company shall not be obligated so to
amend or supplement the Prospectus until such time as the Company shall
determine that solicitation of offers to purchase the Securities should be
resumed or shall subsequently agree to sell Securities to an Agent as
principal.
9
<PAGE>
(c) On or prior to the date on which there shall be released to
the general public financial information included in or derived from the
audited financial statements of the Company for the preceding fiscal year,
the Company shall cause the Registration Statement and the Prospectus to be
amended, whether by the filing of documents pursuant to the 1934 Act, the
1933 Act or otherwise, to include or incorporate by reference such audited
financial statements and the report or reports, and consent or consents to
such inclusion or incorporation by reference, of the independent accountants
with respect thereto, as well as such other information and explanations as
shall be necessary for an understanding of such financial statements or as
shall be required by the 1933 Act or the Regulations; provided, however, that
if on the date of such release the Agents shall have suspended solicitation
of offers to purchase the Securities in their capacity as agent for the
Company pursuant to a request from the Company, and shall not then hold any
Securities as principal, the Company shall not be obligated so to amend or
supplement the Prospectus until such time as the Company shall determine that
solicitation of offers to purchase the Securities should be resumed or shall
subsequently agree to sell Securities to an Agent as principal.
(d) The Company will make generally available to its security
holders as soon as practicable, but not later than 60 days after the close of
each of the first three fiscal quarters of each fiscal year and 90 days after
the close of each fiscal year, earnings statements (in form complying with
the provisions of Rule 158 under the 1933 Act) covering a twelve-month period
beginning not later than the first day of the fiscal quarter next following
the period beginning not later than the effective date of the Registration
Statement (as defined in Rule 158) with respect to each sale of Securities.
(e) The Company will give each Agent notice of (i) its intention
to file any amendment to the Registration Statement or any amendment or
supplement (other than a "pricing" supplement) to the Prospectus pursuant to
the 1933 Act or (ii) the initial press release relating to earnings results
for any fiscal period or to significant corporate developments during any
period during which solicitations of offers to purchase Securities has not
been suspended pursuant to Section 2(b) hereof. The Company will promptly
notify each Agent of any such amendment, supplement or release, and will make
available to each Agent copies of documents, including documents filed
pursuant to the 1934 Act incorporated by reference, so filed promptly upon
the filing thereof.
(f) The Company will notify each Agent immediately (i) of the
effectiveness of any amendment to the Registration Statement, (ii) of the
mailing or the delivery to the Commission
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for filing of any supplement to the Prospectus or any document to be filed
pursuant to the 1934 Act which will be incorporated by reference in the
Prospectus, (iii) of the receipt of any comments from the Commission with
respect to the Registration Statement or the Prospectus, (iv) of any request
by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued,
to obtain the lifting thereof at the earliest possible moment.
(g) The Company will deliver to each Agent as many signed and
conformed copies of the registration statement (as originally filed) and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference in the Prospectus)
as it may reasonably request. The Company will furnish to each Agent as many
copies of the Prospectus (as amended or supplemented) as it shall reasonably
request so long as it is required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Securities.
(h) The Company will furnish to each Agent, at the earliest time
the Company makes the same available to others, copies of its annual reports
and other financial reports furnished or made available to the public
generally.
(i) The Company will use its best efforts, in cooperation with the
Agents, to qualify the Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States
as the Agents may designate, and will maintain such qualifications in effect
for as long as may be required for the distribution of the Securities;
provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign corporation
in any jurisdiction in which it is not so qualified. The Company will file
such statements and reports as may be required by the laws of each
jurisdiction in which the Securities have been qualified as above provided.
(j) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act, will use its best efforts to file
promptly all documents required to be filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the 1934 Act and will notify the Agents
immediately of any failure to file promptly any such documents. In addition,
on or prior to the date on which the Company makes any announcement to the
general public concerning any event not referred to in
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subsection (b) or (c) of this Section which is required to be described, or
which the Company proposes to describe, in a document filed pursuant to the
1934 Act, the Company shall furnish the information contained or to be
contained in such announcement to each Agent, confirmed in writing. The
Company also will furnish each Agent with copies of all other press releases
or announcements to the general public, if the information contained therein
could reasonably be construed to be material to the offering of the
Securities.
(k) Any other provision of this Agreement notwithstanding, if
specified by the Agent in connection with a purchase by it of Securities as
principal, between the date of the agreement to purchase such Securities and
the Settlement Date, the Company will not, without the prior consent of such
Agent, offer or sell in the United States, or enter into any agreement to
sell in the United States, any debt securities of the Company with terms
substantially similar to those of the Securities that are to be sold pursuant
to such agreement (other than such Securities).
SECTION 4. Payment of Expenses. The Company will pay the
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following expenses incident to the performance of its obligations under this
Agreement, including: (i) the preparation and filing of the registration
statement and all amendments thereto, (ii) the preparation, issuance and
delivery of the Securities, (iii) the fees and disbursements of the Company's
accountants and of the Trustee and its counsel, (iv) the qualification of the
Securities under securities laws in accordance with the provisions of Section
3(i), including filing fees and the reasonable fees and disbursements of
counsel in connection therewith and in connection with the preparation of any
Blue Sky Survey, (v) the printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and all amendments
thereto, and of the Prospectus and any amendments or supplements thereto,
(vi) the printing and delivery to the Agents of copies of each Indenture and
any Blue Sky Survey and any Legal Investment Survey, (vii) any fees charged
by rating agencies for the rating of the Securities, and (viii) the fees and
expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc.
The Company shall also reimburse the Agents for the reasonable fees
and disbursements of counsel for the Agents, advertising expenses authorized
by the Company and other reasonable out-of-pocket expenses.
SECTION 5. Conditions of Obligations. The obligations of each
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Agent to purchase Securities as principal and to solicit offers to purchase
the Securities as agent of the Company will be
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subject to the accuracy of the representations and warranties on the part of
the Company herein, to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the provisions hereof,
to the performance and observance by the Company of all covenants and
agreements herein contained on its part to be performed and observed and to
the following additional conditions precedent:
(a) At Closing Time and at each Settlement Date (if required in
connection with the purchase of Securities by an Agent as principal), each
Agent (or, if an Agent is purchasing Securities as principal, such Agent)
shall have received:
(1) The opinion or opinions, dated as of such time, of Robert B.
Adams, Esq., Senior Vice President and Deputy General Counsel of the
Company, or other counsel satisfactory to the Agents receiving such
opinion, in form and substance satisfactory to such Agent, to the effect
that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, has the power and authority (corporate and
other) to own its properties and to conduct its business as
described in the Prospectus, as then amended and supplemented, and
is duly registered as a bank holding company under the Bank Holding
Company Act of 1956;
(ii) The Bank has been duly organized and is validly existing
as a national banking association in good standing under the laws
of the United States of America and has the power and authority
(corporate and other) to own its properties and to conduct
operations as a national banking association and in all material
respects to conduct its business as described in the Prospectus, as
then amended and supplemented;
(iii) All the outstanding shares of capital stock of the Bank
have been duly authorized and are validly issued and are owned by
the Company, free and clear of any perfected security interest and,
to the knowledge of such counsel, after due inquiry, any other
security interests, except as described in Section 1(a)(vi) above;
(iv) This Agreement and any applicable Delayed Delivery
Contracts have been duly authorized, executed and delivered by the
Company;
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(v) Each Indenture has been validly authorized by the Company
and duly executed and delivered by the Company; each Indenture has
been duly qualified under the 1939 Act and, assuming due
authorization, execution and delivery of each Indenture by the
applicable Trustee, constitutes a valid and binding instrument of
the Company, enforceable in accordance with its terms, except to
the extent that enforcement thereof may be limited by bankruptcy,
insolvency and other laws affecting creditors' rights generally and
by general principles of equity regardless of whether such
enforceability is considered in a proceeding in equity or at law;
and each Indenture conforms to the description thereof in the
Prospectus, as then amended and supplemented;
(vi) The Securities of any series established on or prior to
the date of such opinion have been validly authorized and, assuming
due authorization, execution and delivery of the applicable
Indenture, as then amended and supplemented, by the applicable
Trustee, each Security of such series, when the terms of such
Security have been established in accordance with such Indenture
and so as not to violate any relevant law or agreement and such
Security has been executed and authenticated in accordance with the
provisions of such Indenture and delivered against payment of the
consideration therefor in accordance with this Agreement or any
Delayed Delivery Contract, will constitute a valid and binding
obligation of the Company, except to the extent that enforcement of
such Security may be limited by bankruptcy, insolvency and other
laws affecting creditors' rights generally and by general
principles of equity regardless of whether such enforceability is
considered in a proceeding in equity or at law, and such Security
will be entitled to the benefits of such Indenture; and such
Security will conform to the description thereof in the Prospectus,
as then amended and supplemented;
(vii) No approval of any public regulatory body, state or
federal (except under state securities or blue sky statutes, as to
which such counsel need not express an opinion), other than those
approvals that have been obtained, is required for the valid
execution, delivery and performance by the Company of this
Agreement or any Delayed Delivery Contract;
(viii) The execution and delivery of this Agreement, the
execution, delivery and performance of any applicable Delayed
Delivery Contracts, each Indenture
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and Securities issued in accordance with each Indenture and this
Agreement or any Delayed Delivery Contract, and compliance by the
Company with the provisions of each Indenture and such Securities,
will not result in the creation or imposition of any lien, charge
or encumbrance upon any of the property or assets of the Company
pursuant to the terms of any agreement or instrument known to such
counsel to which the Company is a party or by which the Company is
bound, and will not result in a violation of the provisions of the
certificate of incorporation or by-laws of the Company, or any
existing applicable law, rule, regulation, judgment, order or
decree of any governmental instrumentality or court having
jurisdiction over the Company or any of its subsidiaries;
(ix) The Registration Statement has become effective under the
1933 Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued or if issued has not been lifted and no proceedings
for that purpose have been instituted or if instituted have not
been suspended or are pending or are contemplated under the 1933
Act; no order directed to any document incorporated by reference in
the Prospectus or any amendment or supplement thereto has been
issued or if issued remains in effect, and, to the best of the
knowledge of such counsel, no challenge has been made to the
accuracy or adequacy of any such document or if made has not been
withdrawn or satisfied; the Registration Statement and the
Prospectus (other than the financial statements and other financial
data included therein, as to which no opinion need be expressed),
in each case as then amended or supplemented, comply as to form in
all material respects with the requirements of the 1933 Act, the
1939 Act and the applicable regulations under each of those Acts;
the documents incorporated by reference in the Prospectus which
have been filed prior to the Closing Time or Settlement Date, as
the case may be (except that no opinion need be expressed as to the
financial statements and other financial data contained therein),
at the time of filing thereof complied as to form in all material
respects with the then applicable requirements of the 1934 Act and
the 1934 Act Regulations; and nothing has come to the attention of
such counsel that would lead him to believe either that such
Registration Statement, at the time it became effective, or if an
amendment to the Registration Statement or an annual report on Form
10-K has been filed by the Company with the Commission subsequent
to
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the effectiveness of the Registration Statement, then at the time
of the most recent such filing (other than the financial statements
and other financial data included in any such Registration
Statement, amendment or annual report, as to which no opinion need
be expressed), contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as amended or supplemented at the Closing Time or the
Settlement Date, as the case may be (other than the financial
statements and other financial data included in such Prospectus, as
to which no opinion need be expressed), contains an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading;
(x) To the best of the knowledge of such counsel, there are
no contracts or other documents required to be filed as exhibits to
the Registration Statement by the 1933 Act or by the Regulations,
or which were required to be filed as exhibits to any document
incorporated by reference in the Prospectus by the 1934 Act or the
1934 Act Regulations which have not been so filed or so
incorporated by reference as exhibits thereto; the descriptions in
the Registration Statement and Prospectus, in each case as then
amended and supplemented, of the contracts and other documents
therein described and filed with the Registration Statement, as
then amended and supplemented, are accurate in all material
respects and fairly present the information required to be shown;
and to the best of the knowledge of such counsel there are no legal
or governmental proceedings pending or threatened against the
Company or any of its subsidiaries of a character required to be
disclosed in the Prospectus, as then amended and supplemented,
which have not been adequately disclosed therein; and
(xi) The statements made in the Prospectus, as then amended
and supplemented, under the captions "Description of Debt
Securities", "Description of Notes", "Plan of Distribution", and
"Plan of Distribution of Notes", insofar as they purport to
summarize the provisions of documents or agreements specifically
referred to therein, fairly present the information called for with
respect thereto by Form S-3.
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In rendering such opinion such counsel shall be entitled to limit
the matters covered thereby to matters involving the laws of the United
States and the State of New York and the General Corporation Law of the
State of Delaware.
(2) The opinion or opinions of counsel to the Agents, relating to
the incorporation of the Company, the validity of the Securities, the
Indentures, the Registration Statement, the Prospectus, this Agreement
and such other matters as the Agent or Agents receiving such opinion may
reasonably request.
(b) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus (or, in the case of any
agreement by an Agent to purchase Securities as principal, since the date of
such agreement), there shall not have occurred any material change in the
liabilities or obligations of the Company or the Bank or any material adverse
change in, or development materially and adversely affecting, the financial
position of the Company or the Bank; no stop order suspending the
effectiveness of the Registration Statement or of any part thereof shall have
been issued and not withdrawn and no proceedings for that purpose shall have
been instituted and not suspended or, to the knowledge of the Company or any
Agent, shall be contemplated by the Commission; and at Closing Time and at
each Settlement Date, each Agent (or, in the case of any agreement by an
Agent to purchase Securities as principal, such Agent) shall have received a
certificate of the Company's
Executive Vice President and Chief Financial Officer or Senior Vice President
and Controller or Treasurer or a Vice President assigned to the Controller's
Department, dated as of the Closing Time or the Settlement Date, in each case
to the effect (i) that there has been no such material adverse change, (ii)
that the other representations and warranties of the Company contained in
Section 1 hereof are true and correct with the same force and effect as
though expressly made at and as of the date of such certificate, (iii) that
the Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to the date of such
certificate, and (iv) that no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been initiated or threatened by the Commission.
(c) At Closing Time and at each Settlement Date (if required in
connection with the purchase of Securities by an Agent as principal), each
Agent (or, if an Agent is purchasing Securities as principal, such Agent)
shall have received from Price Waterhouse or other independent public
accountants of the Company, a letter, dated as of the Closing Time or such
17
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Settlement Date in form and substance satisfactory to such Agent as agreed
upon between the Company and such Agent.
(d) At the Closing Time and at each Settlement Date, counsel for
the Agents shall have been furnished with such documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of
the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the Agents and
their counsel.
The obligations of an Agent to purchase Securities as principal
will be subject to the provisions of Section 11 and the following further
condition: there shall not have come to the attention of the Agent obligated
to purchase such Securities any facts that would reasonably cause it to
believe that the Prospectus, at the time it was required to be delivered to a
purchaser of the Securities, contained an untrue statement of a material fact
or omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at such time, not misleading.
If any condition specified in this Section shall not have been
fulfilled, this Agreement (or, at the option of an Agent, any applicable
agreement by such Agent to purchase Securities as principal) may be
terminated insofar as it applies to an Agent by notice to the Company at any
time at or prior to the Closing Time or applicable Settlement Date, and such
termination shall be without liability of any party to any other party,
except that the covenants set forth in Section 3(d) hereof, the provisions of
Section 4 hereof, the indemnity and contribution agreements set forth in
Sections 7 and 8 hereof, and the provisions of Sections 10 and 13 hereof
shall remain in effect.
SECTION 6. Additional Covenants of the Company. The Company
-----------------------------------
covenants and agrees that:
(a) Each acceptance by it of an offer for the purchase of
Securities (whether to an Agent as principal or through an Agent as
Agent) shall be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement and in any
certificate theretofore delivered to the Agents pursuant hereto are true
and correct at the time of such acceptance or sale, as the case may be,
and an undertaking that such representations and warranties
18
<PAGE>
will be true and correct at the time of delivery to the purchaser or his
agent, or such Agent, as the case may be, of the relevant Securities as
though made at and as of each such time (and it is understood that such
representations and warranties shall relate to the Registration
Statement and the Prospectus as amended and supplemented to each such
time).
(b) Each time that the Registration Statement or the Prospectus
shall be amended or supplemented (other than by an amendment or
supplement relating solely to the terms of Securities, or a change in
the principal amount of Securities to be sold, or similar changes) or
there is filed with the Commission any document incorporated by
reference into the Prospectus, or, if required in connection with the
purchase of Securities by an Agent as principal, the Company shall
furnish or cause to be furnished to the Agents (or, if such certificate
is being furnished in connection with the purchase of Securities by an
Agent as principal, to such Agent) forthwith a certificate in form
satisfactory to the Agents (or, if such certificate is being furnished
in connection with the purchase of Securities by an Agent as principal,
to such Agent) to the effect that the statements contained in the
certificates referred to in Section 5(b) hereof which were last
furnished to the Agents are true and correct at the time of such
amendment or supplement or filing or sale, as the case may be, as though
made at and as of such time (except that such statements shall be deemed
to relate to the Registration Statement and the Prospectus as amended
and supplemented to such time) or, in lieu of such certificate,
certificates of the same tenor as the certificates referred to in said
Section 5(b), modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such certificates; provided, however, that no such
certificate shall be required upon the filing of a Current Report on
Form 8-K (x) containing only information concerning quarterly earnings
which has been announced to the general public or (y) containing solely
exhibits relating to an offering of securities other than the
Securities;
(c) Each time that the Registration Statement or the Prospectus
shall be amended or supplemented (other than by an amendment or
supplement relating solely to the terms of Securities, or a change in
the principal amount of Securities to be sold, or similar changes) or
there is filed with the Commission any document incorporated by
reference into the Prospectus (except for a filing of a Current Report
on Form 8-K (x) containing only information concerning quarterly
earnings which has been announced to the general
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public or (y) containing solely exhibits relating to an offering of
securities other than the Securities) or, if required in connection with
the purchase of Securities by an Agent as principal, the Company shall
furnish or cause to be furnished forthwith to the Agents (or, if such
certificate is being furnished in connection with the purchase of
Securities by an Agent as principal, to such Agent) and the counsel for
the Agents a written opinion of Robert B. Adams, Esq., Senior Vice
President and Deputy General Counsel of the Company, or other counsel
satisfactory to the Agents receiving such opinion, dated the date of
delivery of such opinion, in form satisfactory to the Agents receiving
such opinion, of the same tenor as the opinion referred to in Section
5(a)(1) hereof but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such opinion or, in lieu of such opinion, counsel last
furnishing such opinion to the Agents shall furnish to the Agent or
Agents entitled to receive such opinion a letter to the effect that such
Agent may rely on such last opinion to the same extent as though it was
dated the date of such letter authorizing reliance (except that
statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such letter authorizing reliance); and
(d) Each time that the Registration Statement or the Prospectus
shall be amended or supplemented to include additional financial
information or there is filed with the Commission any document
incorporated by reference into the Prospectus which contains additional
financial information (except for a filing of a Current Report on Form
8-K (x) containing only information concerning quarterly earnings which
has been announced to the general public or (y) containing solely
exhibits relating to an offering of securities other than the
Securities) or, if required in connection with the purchase of
Securities by an Agent as principal, the Company shall cause Price
Waterhouse or other independent public accountants of the Company
forthwith to furnish the Agents (or, if such letter is being furnished
in connection with the purchase of Securities by an Agent as principal,
to such Agent) a letter, dated the date of filing of such amendment,
supplement or document with the Commission, or the date of such sale, as
the case may be, in form satisfactory to the Agent or Agents entitled to
receive such letter, of the same tenor as the letter referred to in
Section 5(c) hereof but modified to relate to the Registration Statement
and Prospectus, as amended and supplemented to the date of such letter;
provided, however, that if the Registration Statement or the Prospectus
is amended or supplemented solely to include financial information as of
and for a fiscal quarter, Price Waterhouse or such other accountants may
limit the scope of such letter
20
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to the unaudited financial statements included in such amendment or
supplement.
SECTION 7. Indemnification. (a) The Company agrees to indemnify
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and hold harmless each Agent and each person, if any, who controls an Agent
within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or
any amendment thereto), or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading, unless such untrue statement or omission was
made in reliance upon and in conformity with written information
furnished to the Company by such Agent expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or
any amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged
untrue statement or omission (except as made in reliance upon and in
conformity with information furnished by such Agent as aforesaid) if
such settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever (including the fees and
disbursements of counsel chosen by such Agent) reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission or any such alleged untrue statement or
omission (except as made in reliance upon and in conformity with
information furnished by such Agent as aforesaid), to the extent that
any such expense is not paid under (i) or (ii) above.
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(b) Each Agent agrees to indemnify and hold harmless the Company,
its directors, each of its officers who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with written information furnished to the
Company by such Agent expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of such action. In no event
shall the indemnifying parties be liable for the fees and expenses of more
than one counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances; provided,
however, that when more than one Agent is an indemnified party, each Agent
shall be entitled to separate counsel in each such jurisdiction to the extent
such Agent may have interests conflicting with those of another Agent because
of the participation of one Agent in a transaction hereunder in which another
Agent did not participate.
(d) Any amounts to be paid an indemnified party by an indemnifying
party pursuant to this Section 7 for losses, liabilities, claims, damages and
other expenses shall be paid as incurred; provided, however, that amounts so
paid shall be returned to the indemnifying party in the event that it is
ultimately determined that the indemnified party was not entitled to such
payment.
SECTION 8. Contribution. In order to provide for just and
------------
equitable contribution in circumstances in which the indemnity agreement
provided for in Section 7 is for any reason held to be unavailable to an
Agent other than in accordance with its terms, the Company and such Agent
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by
the Company and such Agent with respect to Securities sold to or through such
Agent in such proportions that such Agent is responsible for that portion
represented by the percentage that
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the total commissions and underwriting discounts received by such Agent to
the date of such liability bears to the total sales price received by the
Company from the sale of Securities made to or through such Agent to the date
of such liability, and the Company is responsible for the balance. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if an Agent failed to give the notice required
under Section 7(c), then the Company and the Agent involved shall contribute
to such aggregate losses, liabilities, claims, damages and expenses in such
proportion as is appropriate to reflect not only the percentage described in
the immediately preceding sentence but also the relative fault of the Company
and such Agent in connection with the statements or omissions which resulted
in such liabilities, claims, damages and expenses, as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or such Agent
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company
and the Agents agree that it would not be just and equitable if contributions
pursuant to this Section 8 were determined pro rata (even if the Agents were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in
this Section 8. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled under this
Section 8 to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person, if
any, who controls an Agent within the meaning of Section 15 of the 1933 Act
shall have the same rights to contribution as such Agent, and each director
of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company. Any amounts to be paid a party pursuant to this
Section 8 for losses, liabilities, claims, damages and other expenses shall
be paid as incurred; provided, however, that amounts so paid shall be
returned to the paying party in the event that it is ultimately determined
that the party that received payment was not entitled to such payment.
SECTION 9. Status of the Agents. In the event the Company and an
--------------------
Agent agree that an Agent shall act as agent of the Company in soliciting
purchases of the Securities from the Company, any such Agent shall be acting
solely as agent for the Company and not as principal. Each Agent will make
reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Securities from the Company has
23
<PAGE>
been solicited or received by such Agent and accepted by the Company but such
Agent shall not have any liability to the Company in the event any such
purchase is not consummated for any reason.
Nothing herein contained shall constitute the Agents an
association, joint venture or partnership, with the Company or with each
other, or, except as expressly provided in Section 14 hereof with respect to
purchases of Securities as principal by more than one Agent, render any Agent
liable for the obligation of any other Agent to purchase Securities from the
Company.
SECTION 10. Representations, Warranties and Agreements to
------------------------------------------
Survive Delivery. All representations, warranties and agreements contained
in this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of the Agents or
any controlling person, or by or on behalf of the Company, and shall survive
each delivery of and payment for any of the Securities.
SECTION 11. Termination. This Agreement (excluding any
agreement
-----------
hereunder by an Agent to purchase Securities as principal) may be terminated
with respect to the participation of any party hereto for any reason at any
time by such party upon the giving of 30 days' written notice of such
termination to the other parties hereto. An Agent may also terminate any
agreement hereunder by such Agent to purchase Securities as principal,
immediately upon notice to the Company, at any time prior to the Settlement
Date relating thereto (i) if there has occurred any outbreak or escalation of
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in such Agent's judgment,
impracticable to market the Securities or enforce contracts for the sale of
the Securities, or (ii) if trading in any securities of the Company has been
suspended by the Commission or a national securities exchange, or if trading
generally on the New York Stock Exchange has been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium
has been declared by either Federal or New York authorities. In the event of
any such termination by any party hereto, no other party will have any
liability to such party and such party will not have any liability to any
other party hereto, except that (i) in the case of a termination pursuant to
the first sentence of this Section 11, the Agents shall be entitled to any
commissions earned in accordance with the third paragraph of Section 2(b)
hereof, (ii) if at the time of termination (A) the Agents shall own any of
the Securities with the intention of
24
<PAGE>
reselling them or (B) an offer to purchase any of the Securities has been
accepted by the Company but the time of delivery to the purchaser or his
agent of the Securities or Securities relating thereto has not occurred, the
covenants set forth in Sections 3 and 6 hereof shall remain in effect until
such Securities are so resold or delivered, as the case may be, and (iii) the
covenant set forth in Section 3(d) hereof, the provisions of Section 4
hereof, the indemnity agreement set forth in Section 7 hereof, the
contribution agreement set forth in Section 8 hereof, and the provisions of
Sections 10 and 13 hereof shall remain in effect.
SECTION 12. Notices. All notices and other communications
-------
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
the Company shall be directed to it at 1 Chase Manhattan Plaza, New York, New
York 10081, Attention of the Secretary, with copies to Arjun K. Mathrani,
Executive Vice President and Chief Financial Officer, at the same address;
notices to Chase Securities, Inc., shall be directed to it at 1 Chase
Manhattan Plaza, 35th Floor, New York, NY 10081 Attention: MTN Department
and to Smith Barney Inc. at 1345 Avenue of the Americas, 46th Floor, New
York, NY 10105 Attention: Frank W. Hamilton III, Continuously Offered
Products Group, or, in the case of any party, to such other address or person
as such party shall specify to each other party by a notice given in
accordance with the provisions of this Section 12.
SECTION 13. Parties. This Agreement shall inure to the benefit
-------
of and be binding upon the Agents and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling persons
and officers and directors referred to in Sections 7 and 8 and their heirs
and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended to be
for the sole and exclusive benefit of the parties hereto and their respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm
or corporation. No purchaser of Securities shall be deemed to be a successor
by reason merely of such purchase.
SECTION 14. Default by an Agent Purchasing Securities as
--------------------------------------------
Principal. If any Agent or Agents purchasing Securities as principal
- ---------
hereunder shall fail to purchase and pay for any of the Securities agreed in
such transaction to be purchased by such Agent or Agents, and such failure to
purchase shall constitute a
25
<PAGE>
default in the performance of its or their obligations to purchase such
Securities in such transaction, then: (a) if the aggregate principal amount
of Securities which the defaulting Agent or Agents agreed but failed to
purchase as principal does not exceed 10% of the aggregate principal amount
of Securities agreed to be purchased in such transaction by all Agents, the
Company shall have the right to require each nondefaulting Agent to purchase
at the applicable Settlement Date the aggregate principal amount of
Securities which such Agent agreed to purchase as principal in such
transaction, and, in addition, to require each nondefaulting Agent to
purchase its pro rata proportion of the Securities (based on the aggregate
principal amount of Securities such nondefaulting Agent agreed to purchase as
principal in such transaction) originally agreed to be purchased by such
defaulting Agent or Agents; but nothing herein shall relieve a defaulting
Agent of its liability, if any, to the Company and any nondefaulting Agent
for its default hereunder; or (b) if the aggregate principal amount of
Securities which the defaulting Agent or Agents agreed but failed to purchase
as principal exceeds 10% of the aggregate principal amount of Securities
agreed to be purchased in such transaction by all Agents, or if the Company
shall not exercise the right described in clause (a) above to require
nondefaulting Agents to purchase Securities of a defaulting Agent or Agents,
the nondefaulting Agent or Agents shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities agreed
by the Agents to be purchased as principal in such transaction, and if such
nondefaulting Agent or Agents do not purchase all such Securities, the
applicable agreement to purchase such Securities as principal shall terminate
without liability to any nondefaulting Agent or the Company, except for the
indemnity and contribution agreements in Sections 7 and 8 hereof and the
expense provisions provided in Section 4 hereof; but nothing herein shall
relieve a defaulting Agent of its liability, if any, to the Company and any
nondefaulting Agent for its default hereunder.
In the event of a default by any Agent as set forth in this Section
14, the Settlement Date with respect to such purchase of Securities as
principal shall be postponed for such period, not exceeding seven days, as
the lead nondefaulting Agent or, if no Agent is the lead nondefaulting Agent,
the nondefaulting Agent or Agents, shall determine in order that the required
changes in the Registration Statement and the Prospectus or Pricing
Supplement or in any other document or arrangements may be effected.
SECTION 15. Governing Law. This Agreement and the rights and
-------------
obligations of the parties created hereby shall be governed by the laws of
the State of New York.
26
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement between you and the Company in accordance with its terms.
Very truly yours,
THE CHASE MANHATTAN CORPORATION
By:
----------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of the
date first above written:
SMITH BARNEY INC.
By:
---------------------------
Name:
Title:
CHASE SECURITIES INC.
By:
---------------------------
Name:
Title:
27
<PAGE>
SCHEDULE A
Commission Rates
(as a percentage of
Maturity Range principal amount)
- -------------- -------------------
More than 9 months up to 1 year .20%
In excess of 1 year up to 2 years .40
In excess of 2 years up to 3 years .60
In excess of 3 years up to 4 years .75
In excess of 4 years up to 5 years 1.00
In excess of 5 years up to 6 years 1.50
In excess of 6 years up to 7 years 2.00
In excess of 7 years up to 10 years 2.25
In excess of 10 years up to 15 years 2.50
In excess of 15 years up to 20 years 2.75
In excess of 20 years up to 30 years 3.00
More than 30 years To be negotiated between
the Agent and the Company
at the time of such sale.
28
<PAGE>
EXHIBIT A
The following terms, if applicable, shall be agreed to by the Agent and
the Company in connection with each sale of Securities:
Principal Amount: $_____________
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread or Spread Multiplier, if any:
Interest Rate Reset Month(s):
Interest Payment Month(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Furrowed:
Interest Payment Period:
Interest Payment Date:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Date of Maturity:
Purchase Price: ____%
Settlement Date and Time:
Currency of Denomination:
Denominations (if currency is other than
U.S. dollar):
Currency of Payment:
Additional Terms:
Exceptions, if any, to Section 3(k) of
Distribution Agreement:
(Stand-off provision is applicable to
Securities.) (Stand-off provision is
inapplicable to Securities.)
(Describe other exceptions, if any)
(The following documents referred to in the
Distribution Agreement shall be delivered as a
condition to settlement:
A-1
<PAGE>
(Officer's Certificates pursuant to
Section 6(b).)
Legal Opinion pursuant to
Section 6(c).)
Comfort Letter pursuant to
Section 6(d).))
A-2
<PAGE>
EXHIBIT B
(Three copies of this Delayed Delivery Contract should be signed
and returned to the address shown below so as to arrive not later than __:00
A.M., New York time, on
________________________, 19__.)
DELAYED DELIVERY CONTRACT
-------------------------
(Insert date of offering
of Securities to be sold)
THE CHASE MANHATTAN CORPORATION
c/o (Insert name and address
of Agent)
Attention:
Gentlemen:
The undersigned hereby agrees to purchase from The Chase Manhattan
Corporation, a Delaware corporation (the "Company"), and the Company agrees
to sell to the undersigned, as of the date hereof, for delivery on
_______________ (the "Delivery Date"), $______________ principal amount of
the Company's ___________________ (hereinafter called "Securities"), offered
by the Company's Prospectus relating thereto, receipt of a copy of which is
hereby acknowledged, at _______% of the principal amount thereof plus accrued
interest, if any, and on the further terms and conditions set forth in this
Delayed Delivery Contract ("Contract").
Payment for the Securities which the undersigned has agreed to
purchase for delivery on the Delivery Date shall be made to the Company or
its order in immediately available funds in New York, New York, at 10:00
A.M., New York City time, at the offices of the Company, 1 Chase Manhattan
Plaza, New York, New York 10081, on the Delivery Date upon delivery to the
undersigned of the Securities to be purchased by the undersigned in
definitive form and in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed
to the Company not less than five full business days prior to the Delivery
Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the
B-1
<PAGE>
undersigned; that the purchase hereunder of Securities is to be regarded in
all respects as a purchase as of the date of this Contract; that the
obligation of the Company to make delivery of and accept payment for, and the
obligation of the undersigned to take delivery of and make payment for,
Securities on the Delivery Date shall be subject only to the condition that
investment in the Securities shall not at the Delivery Date be prohibited
under the laws of any jurisdiction in the United States to which the
undersigned is subject.
The undersigned represents that its investment in such Securities
is not, as of the date hereof, prohibited under the laws of any jurisdiction
to which the undersigned is subject and which govern such investment.
Promptly after receipt of a request therefor from the undersigned,
the Company will mail or deliver to the undersigned at its address set forth
below a copy of the opinion of counsel for the Company delivered to the
Company's agents in connection with the offering of the Securities to the
public through such events.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
This Contract may be executed by either of the parties hereto in
any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same
instrument.
It is understood that the acceptance of any such Contract
(including this Contract) is in the Company's sole discretion and, without
limiting the foregoing, need not be on a first-come, first-served basis. If
this Contract is acceptable to the Company, it is requested that the Company
sign the form of acceptance below and mail or deliver one of the counterparts
B-2
<PAGE>
hereof to the undersigned at its address set forth below. This will become a
binding contract between the Company and the undersigned when such
counterpart is so mailed or delivered.
Yours very truly,
______________________________
(Name of Buyer)
By____________________________
______________________________
(Name and Title of Signatory)
______________________________
______________________________
(Address of Buyer)
Accepted, as of the date
first above written
THE CHASE MANHATTAN CORPORATION
By
-----------------------------
Name:
Title:
ALF01C0E
B-3
<PAGE>
THE CHASE MANHATTAN CORPORATION
Preferred Stock
Underwriting Agreement
Standard Provisions
(November 1994)
The Chase Manhattan Corporation, a Delaware corporation (the "Company")
may from time to time enter into one or more underwriting agreements that
provide for the sale of one or more series of its preferred stock without par
value registered under the registration statement referred to in Paragraph
1(a) hereof (the "Stock"). The Stock will be authorized and issued in one or
more series, which series may vary as to the specific designation, number of
shares, stated value per share, liquidation preference, initial public
offering price, dividend rate or rates (or the method of ascertaining the
same), dividend payment dates, any redemption or sinking fund provisions, any
conversion rights and other specific terms, with all such terms for any
particular series being determined at the time of sale. The standard
provisions set forth herein may be incorporated by reference in any
underwriting agreement relating to the offering of Stock (an "Underwriting
Agreement"). An Underwriting Agreement relating to one or more particular
series of Stock, including the provisions incorporated therein by reference,
is herein referred to, with respect to such series, as "this Agreement". The
Stock involved in any such offering is hereinafter referred to as the
"Offered Stock", the firms which agree to purchase the Offered Stock pursuant
to this Agreement are hereinafter referred to as the "Underwriters" of such
Offered Stock and the representatives of the Underwriters named in this
Agreement are hereinafter referred to as the "Representatives". If no
representative or representatives are specified in the Underwriting Agreement
relating to any Offered Stock, the term "Representatives" as used herein
shall, as to such Offered Stock, be deemed to refer to the Underwriters of
such Offered Stock.
1. The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 with respect to the Stock
has been prepared by the Company in conformity with the requirements of
the Securities Act of 1933, as amended (the "Act"), and the rules and
regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder, has been filed with the
Commission under the Act and has become effective. As used in this
Agreement, "Registration Statement" means that registration statement as
amended at the date of this Agreement; "Basic Prospectus" means the
prospectus (including all documents incorporated therein by reference)
included in the Registration Statement; and "Prospectus" means the Basic
Prospectus, together with any prospectus amendment or
1
<PAGE>
supplement (including in each case all documents incorporated therein by
reference) specifically relating to the Offered Stock, in the form first
filed with the Commission pursuant to Rule 424 of the Rules and
Regulations, which amendment or supplement the Company agrees to
promptly so file. The Commission has not issued any order preventing or
suspending the use of the Prospectus.
(b) The Registration Statement and the Prospectus (excluding, for
purposes of this Paragraph 1(b), any preliminary or "red herring"
prospectus supplement) contain, and each amendment or supplement to the
Registration Statement or the Prospectus filed with the Commission prior
to the termination of the offering of the Offered Stock (including any
document filed by the Company on or after the date of this Agreement
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), prior to the termination
of the offering of the Offered Stock ("Incorporated Document")) will
contain, all statements which are required by the Act and the Rules and
Regulations and the Exchange Act and the rules and regulations of the
Commission thereunder; and the Registration Statement and the Prospectus
do not, and any amendment or supplement to the Registration Statement or
the Prospectus including Incorporated Documents) filed with the
Commission prior to the termination of the offering of the Offered Stock
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading; provided that the Company
makes no representation or warranty as to information contained in or
omitted from the Registration Statement or the Prospectus, or any
amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company through the Representatives
by or on behalf of any Underwriter specifically for inclusion therein.
(c) Except as set forth in or contemplated by the Registration
Statement and the Prospectus, since the respective dates as of which
information is given in the Registration Statement and Prospectus, there
has not been any material transaction not in the ordinary course of
business entered into by the Company or The Chase Manhattan Bank
(National Association) (the "Bank"), any material change in the
liabilities or obligations (direct or contingent) of the Company or the
Bank, or any material adverse change in, or development materially and
adversely affecting, the financial position of the Company or the Bank.
(d) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware and is duly registered as a bank
2
<PAGE>
holding company under the Bank Holding Company Act of 1956; and the Bank
has been duly organized and is in good standing under the laws of the
United States of America.
(e) The Company and the Bank have the authority (corporate and
other) to conduct their respective businesses in all material respects
as described in the Prospectus; and all of the issued and outstanding
shares of capital stock of the Bank have been duly authorized and are
validly issued and outstanding and are owned by the Company free and
clear of all liens, encumbrances, security interests and claims, except
for existing or future restrictions on the disposition or encumbrances
by the Company of the capital stock of the Bank contained in indentures,
guarantees or evidences of indebtedness of the Company.
(f) Except as set forth in or contemplated by the Registration
Statement and the Prospectus, the Company and the Bank hold all material
licenses, certificates, permits and authorizations from governmental
authorities deemed by the Company to be reasonably necessary for the
conduct of their present operations.
(g) The accountants whose reports are incorporated by reference in
the Prospectus are certified public accountants and are independent
public accountants as required by the Act and the Rules and Regulations.
(h) Except as referred to in the Registration Statement and the
Prospectus (including documents incorporated therein by reference),
there is no material litigation or governmental proceeding pending or,
to the knowledge of the Company, threatened against or involving the
Company or the Bank which would be likely to result in any material
adverse change in the financial position of the Company or the Bank.
(i) Neither the Company nor the Bank is in violation of its
certificate of incorporation or Articles of Association, as the case may
be, or by-laws, or in default in the performance of any material
obligation, agreement or condition contained in any bond, debenture,
note or any other evidence of its indebtedness or any related loan
agreement, note purchase agreement or indenture by which the Company or
the Bank is bound. The execution, delivery and performance of this
Agreement and the Additional Agreement (as hereinafter defined), if any,
relating to the Offered Stock, the issuance and sale of the Offered
Stock pursuant to this Agreement and compliance by the Company with the
provisions of the Additional Agreement, if any, and the terms of the
Offered Stock will not conflict with, or constitute a breach of, or a
default under, any material agreement, indenture or other instrument by
which the Company or the Bank is bound, or any
3
<PAGE>
applicable law, administrative regulation or court decree, violation of
which would have a material adverse effect on the operations of the
Company or the Bank, or result in the creation or imposition of any
material lien, charge or encumbrance upon any of the property or assets
of the Company or the Bank, and will not result in a violation of the
provisions of the certificate of incorporation or Articles of
Association, as the case may be, or by-laws, of the Company or the Bank.
"Additional Agreement", as used herein with respect to any Offered
Stock, shall have the meaning assigned to such term in the Underwriting
Agreement relating to such Offered Stock, or, if the term "Additional
Agreement" shall not be defined in such Underwriting Agreement, all
references herein to the Additional Agreement shall be deemed to be
deleted from this Agreement.
(j) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statement by the Act or by
the Rules and Regulations or which were required to be filed as exhibits
to any document incorporated by reference in the Prospectus by the
Exchange Act or the rules or regulations thereunder, which have not been
filed as exhibits to the Registration Statement or to such document
incorporated by reference in the Prospectus as permitted by the Rules
and Regulations or the rules and regulations under the Exchange Act, as
the case may be.
(k) The Additional Agreement, if any, has been validly authorized
and, prior to the issuance of the Offered Stock, will be duly executed
and delivered by the Company; the shares of Offered Stock, when issued,
delivered and paid for on the Delivery Date (as hereinafter defined),
will be duly authorized, validly issued and outstanding, fully paid and
nonassessable, with no personal liability attaching to the ownership
thereof; none of the shares of Offered Stock will be on the Delivery
Date subject to any lien, claim, encumbrance, preemptive rights or any
other claim of any third party; and the Offered Stock will conform to
the description thereof in the Registration Statement and the
Prospectus.
(l) Since the end of its latest fiscal year, the Company has
timely filed all documents and amendments to previously filed documents
required to be filed by it pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act. The documents incorporated by reference in the
Prospectus have been, and each Incorporated Document will be, prepared
by the Company in conformity with the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder and such
documents have been, and in the case of each Incorporated Document will
be, timely filed as required thereby. Copies of each of the documents
incorporated by reference in the
4
<PAGE>
Prospectus have been delivered by the Company to the Representatives.
2. The Company shall not be obligated to deliver any Offered Stock
except upon payment for all the Offered Stock to be purchased pursuant to
this Agreement. If any Underwriter defaults in the performance of its
obligations under this Agreement, the remaining non-defaulting Underwriters
shall be obligated to purchase the Offered Stock which the defaulting
Underwriter agreed but failed to purchase in the respective proportions which
the number of shares of Offered Stock set forth in the Underwriting Agreement
to be purchased by each remaining non-defaulting Underwriter bears to the
total number of shares of Offered Stock set forth in the Underwriting
Agreement to be purchased by all the remaining non-defaulting Underwriters;
provided that the remaining non-defaulting Underwriters shall not be
obligated to purchase any Offered Stock if the number of shares of Offered
Stock which the defaulting Underwriter or Underwriters agreed but failed to
purchase exceeds 9.09% of the total number of shares of Offered Stock, and
any remaining non-defaulting Underwriter shall not be obligated to purchase
more than 110% of the number of shares of Offered Stock set forth in the
Underwriting Agreement to be purchased by such Underwriter. If the foregoing
maximums are exceeded, the remaining non-defaulting Underwriters, or those
other underwriters satisfactory to the Representatives who so agree, shall
have the right, but shall not be obligated, to purchase, in such proportions
as may be agreed upon among them, all the Offered Stock. If the remaining
Underwriters or other underwriters satisfactory to the Representatives do not
elect to purchase the Offered Stock which the defaulting Underwriter or
Underwriters agreed but failed to purchase, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the
Company, except that the Company will continue to be liable for the payment
of expenses as set forth in Paragraphs 5(j) and 9 hereof.
3. Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company for damages caused by its default.
If other underwriters are obligated or agree to purchase the Offered Stock of
a defaulting or withdrawing Underwriter, either the Representatives or the
Company may postpone the Delivery Date for up to seven full business days in
order to effect any changes that in the opinion of counsel for the Company or
counsel for the Underwriters may be necessary in the Registration Statement,
the Prospectus or in any other document or arrangement.
4. Unless otherwise specified in the Underwriting Agreement relating to
the Offered Stock, delivery of and payment for the Offered Stock shall be
made at the offices of the Company, 1 Chase Manhattan Plaza, New York, New
York 10081, at 10:00 A.M., New York City time, on the fifth business day
following the date of this Agreement or at such other date as shall be
determined by agreement
5
<PAGE>
between the Representatives and the Company. The date and time of delivery
of and payment for the Offered Stock are sometimes referred to herein as the
"Delivery Date". On the Delivery Date the Company shall deliver the Offered
Stock to the Representatives for the account of each Underwriter against
payment to or upon the order of the Company of the purchase price in New York
Clearing House (next-day) funds. Time shall be of the essence, and delivery
at the time and place specified pursuant to this Agreement is a further
condition of the obligation of each Underwriter hereunder. Unless otherwise
specified in the Underwriting Agreement relating to the Offered Stock, upon
delivery the certificates representing the shares of the Offered Stock shall
be in such denominations and registered in such names as the Representatives
shall request in writing not less than two full business days prior to the
Delivery Date. Unless otherwise specified in the Underwriting Agreement
relating to the Offered Stock, for the purpose of expediting the checking and
packaging thereof, the Company shall make the certificates representing the
shares of each series of the Offered Stock available for inspection by the
Representatives in New York, New York not later than 2:00 P.M., New York City
time, on the business day prior to the Delivery Date.
5. The Company agrees:
(a) To furnish promptly to the Representatives and to counsel for
the Underwriters an executed copy of the Registration Statement and the
Prospectus, including the documents incorporated by reference in the
Prospectus and all consents and exhibits filed therewith;
(b) To furnish the Underwriters with copies of the Prospectus
(including the documents incorporated by reference therein) in such
quantities as the Representatives may reasonably request;
(c) To file promptly all reports and definitive proxy statements
or information statements required to be filed by the Company pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act during such
period following the date of this Agreement as a prospectus is required
to be delivered in connection with the offering and sale of the Offered
Stock;
(d) To file with the Commission during the period referred to in
(c) above any amendment to the Registration Statement or the Prospectus
or any supplement to the Prospectus that may, in the judgment of the
Company or in the reasonable judgment of the Representatives, be
required by the Act or that may be requested by the Commission and, in
each case, approved by the Representatives and by the Company;
(e) Prior to filing with the Commission during the period referred
to in (c) above (i) any amendment to the
6
<PAGE>
Registration Statement or supplement to the Prospectus, or (ii) any
Prospectus relating to the Offered Stock pursuant to Rule 424 of the
Rules and Regulations, or (iii) any Incorporated Document, to furnish a
copy thereof to the Representatives and to counsel for the Underwriters;
(f) To advise the Representatives promptly (i) when any post-
effective amendment to the Registration Statement relating to or
covering the Offered Stock becomes effective, (ii) of any request by the
Commission for an amendment or supplement to the Registration Statement
(insofar as the amendment or supplement relates to or covers the Offered
Stock), to the Prospectus, to any document incorporated by reference in
any of the foregoing or for any additional information relating to the
offering of the Offered Stock, (iii) of the issuance by the Commission
of any stop-order or any order preventing or suspending the use of the
Prospectus or any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or any
order directed to any document incorporated or deemed to be incorporated
by reference in the Prospectus or the initiation of any stop-order
proceeding or any challenge by the Commission to the accuracy or
adequacy of any document incorporated or deemed to be incorporated by
reference in the Prospectus, (iv) of receipt by the Company of any
notification with respect to the suspension of the qualification of the
Offered Stock for sale in any jurisdiction or the initiation of any
proceeding for that purpose; and (v) of the happening of any event which
makes untrue any statement of a material fact made in the Registration
Statement or the Prospectus, or which requires the making of a change in
the Registration Statement or the Prospectus in order to make any
material statement therein not misleading;
(g) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Offered Stock for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the Offered
Stock; provided, however, that in connection therewith the Company shall
not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(h) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
"effective date of the registration statement" (as defined in Rule
158(c) under the Act), an earning statement of the Company and its
subsidiaries (which
7
<PAGE>
need not be audited) complying with Section 11(a) of the Act and Rule
158 thereunder;
(i) If during the period referred to in (c) above the Commission
shall issue a stop-order suspending the effectiveness of the
Registration Statement, to make every reasonable effort to obtain the
lifting of that order at the earliest possible time;
(j) To pay the costs incident to the authorization, issuance, sale
and delivery of the Offered Stock and any taxes payable in that
connection; the costs incident to the preparation, printing and filing
under the Act of the Registration Statement and any amendments,
supplements and exhibits thereto; the costs incident to the preparation,
printing and filing of any document and any amendments and exhibits
thereto required to be filed by the Company under the Exchange Act; the
costs of distributing the Registration Statement as originally filed and
each amendment and post-effective amendment thereof (including
exhibits), any preliminary prospectus, the Prospectus and any documents
incorporated by reference in any of the foregoing documents; the costs
of distributing the terms of the agreement relating to the organization
of the underwriting syndicate to the Underwriters by mail, telex or
other means of communication; the costs of preparing this Agreement; the
costs of any filings with the National Association of Securities
Dealers, Inc.; fees paid to rating agencies in connection with the
rating of the Offered Stock; the fees and expenses of qualifying the
Offered Stock under the securities laws of the several jurisdictions as
provided in this Paragraph and of preparing and printing a Blue Sky
Memorandum (including fees of counsel to the Underwriters not in excess
of $10,000); and all other costs and expenses incident to the
performance of the Company's obligations under this Agreement; provided
that, except as provided in this Paragraph and in Paragraph 9 hereof,
the Underwriters shall pay their own costs and expenses, including the
fees and expenses of their counsel, any transfer taxes on the Offered
Stock which they may sell and the expenses of advertising any offering
of the Offered Stock made by the Underwriters; and
(k) During the period prior to the earlier of the Delivery Date
and the date on which any price restrictions on the sale of the Offered
Stock are terminated, not to offer or sell, or to cause any subsidiary
to offer or sell, in the United States, without the prior consent of the
Representatives, any preferred stock which is substantially similar to
the Offered Stock.
6. (a) The Company shall indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter
8
<PAGE>
within the meaning of the Act from and against any loss, claim, damage or
liability, joint or several, and any action in respect thereof, to which that
Underwriter or controlling person may become subject, under the Act or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, the Prospectus, any
Incorporated Document or the Registration Statement or Prospectus as amended
or supplemented, or arises out of, or is based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse
each Underwriter and each such controlling person for any legal and other
expenses reasonably incurred by that Underwriter or controlling person in
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action; provided that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement or the Prospectus or any amendment or supplement
thereto in reliance upon and in conformity with written information furnished
to the Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein. The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to any
Underwriter or any controlling person of that Underwriter.
(b) Each Underwriter shall indemnify and hold harmless the Company,
each of its directors, each of its officers who signed the Registration
Statement and any person who controls the Company within the meaning of the
Act from and against any loss, claim, damage or liability, joint or several,
or any action in respect thereof, to which the Company or any such director,
officer or controlling person may become subject, under the Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Prospectus or the
Registration Statement or Prospectus as amended or supplemented, or arises
out of, or is based upon, the omission or alleged omission to state therein a
material fact required to be stated or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company through the Representatives by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the Company or any
such director, officer of controlling person for any legal and other expenses
reasonably incurred by the Company or any such director, officer or
controlling person in investigating or defending or preparing to defend
against any such loss, claim,
9
<PAGE>
damage, liability or action. The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise have to the
Company or any of its directors, officers or controlling persons.
(c) Promptly after receipt by an indemnified party under this Paragraph
of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Paragraph, notify the indemnifying party in
writing of the claim or the commencement of that action, provided that the
failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Paragraph. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein, and, to the
extent that it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably satisfactory to
the indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Paragraph for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided that the representatives shall
have the right to employ counsel to represent the Representatives and those
other Underwriters and their respective controlling persons who may be
subject to liability arising out of any claim in respect of which indemnity
may be sought by the Underwriters against the Company under this Paragraph
if, in the reasonable judgment of counsel to the Underwriters, due to a
potential conflict of interest it is advisable for the Representatives and
those Underwriters and controlling persons to be represented by separate
counsel, and in that event the fees and expenses of such separate counsel
shall be paid by the Company; provided, however, that the Company shall not
be obligated to pay the fees and expenses of more than one such separate
counsel.
(d) If the indemnification provided for in this Paragraph shall
for any reason be unavailable to an indemnified party under Paragraph 6(a) or
6(b) in respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Offered
Stock or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate
10
<PAGE>
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters
on the other with respect to the statements or omissions which resulted in
such loss, claim, damage or liability, or action in respect thereof, as well
as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other
with respect to such offering shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Offered Stock (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters with respect to such
offering, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
the Company or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this Paragraph 6(d)
were to be determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result of
the loss, claim, damage or liability, or action in respect thereof referred
to above in this Paragraph, shall be deemed to include, for purposes of this
Paragraph, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Paragraph, no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Offered Stock underwritten by it
and distributed to the pubic were offered to the pubic exceeds the amount of
any damages which such Underwriter has otherwise paid or become liable to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Paragraph are
several in proportion to their respective underwriting obligations and not
joint.
(e) The Underwriters severally hereby confirm that the statements with
respect to the pubic offering of the Offered Stock set forth on the cover
page of the supplement to the Prospectus relating to the Offered Stock, the
statements, if any, with respect to stabilizing the market prices of the
Offered Stock of the Company in such supplement and the statements under the
caption "Underwriting" in such supplement are correct and were furnished in
11
<PAGE>
writing to the Company by or on behalf of the Underwriters for inclusion in
the Registration Statement and the Prospectus.
(f) The indemnity and contribution agreements contained in this
Paragraph and the representations, warranties and agreements of the Company
in Paragraphs 1 and 5 shall survive the delivery of the Offered Stock and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of
any indemnified party.
7. The obligations of the Underwriters under this Agreement
may be terminated by the Representatives, in their absolute discretion, by
notice given to and received by the Company prior to delivery of and payment
for any Offered Stock, if, prior to that time, (a) trading in the Company's
Common Stock on the New York Stock Exchange, Inc. is suspended and such
suspension shall be continuing on the Delivery Date, or (b) trading in
securities generally on the New York Stock Exchange, Inc. is suspended, or
minimum prices are established on that Exchange, or a banking moratorium is
declared by either Federal or New York State authorities, or (c) if there has
occurred any outbreak or escalation of hostilities or other calamity or
crisis the effect of which on the financial markets of the United States is
such as to make it, in the Representatives reasonable judgment, impracticable
to market the securities or enforce contracts for the sale of the Offered
Stock.
8. The respective obligations of the Underwriters under this
Agreement are subject to the accuracy, on the date this Agreement is executed
and on the Delivery Date, of the representations and warranties of the
Company contained herein, to performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions:
(a) At or before the Delivery Date, no stop-order suspending the
effectiveness of the Registration Statement nor any order directed to
any document incorporated by reference in the Prospectus or to any
Incorporated Document shall have been issued, and prior to that time no
stop-order proceeding shall have been initiated or threatened by the
Commission and no challenge by the Commission shall have been made to
the accuracy or adequacy of any document incorporated by reference in
the Prospectus or to any Incorporated Document; any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus shall have been complied with; and the
Company shall not have filed with the Commission any amendment or
supplement to the Registration Statement or the Prospectus without the
consent of the Representatives.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Delivery Date that the
12
<PAGE>
Registration Statement or the Prospectus or any Incorporated Document or
any amendment or supplement thereto contains an untrue statement of a
fact which, in the opinion of counsel for the Underwriters, is material
or omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make
the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Additional
Agreement, if any, and the Offered Stock, and the form of the
Registration Statement and the Prospectus and any Incorporated Document,
other than financial statements and other financial data, and all other
legal matters relating to this Agreement and the transactions
contemplated hereby shall be satisfactory in all respects to counsel for
the Underwriters, and the Company shall have furnished to such counsel
all documents and information that they may reasonably request to enable
them to pass upon such matters.
(d) Robert B. Adams, Senior Vice President and Deputy General
Counsel of the Company, or other counsel satisfactory to the
Underwriters receiving such opinion, shall have furnished to the
Representatives his opinion addressed to the Underwriters and dated the
Delivery Date to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, has the authority (corporate and other) to
conduct its business as described in the Prospectus and is duly
registered as a bank holding company under the Bank Holding Company
Act of 1956;
(ii) The Bank has been duly organized and is validly existing
under the laws of the United States of America and has the
authority (corporate and other) to conduct operations as a national
banking association and in all material respects to conduct its
business as described in the Prospectus;
(iii) All the outstanding shares of capital stock of the Bank
have been duly authorized and are validly issued and are owned by
the Company, free and clear of any perfected security interest and,
to the knowledge of such counsel, after due inquiry, any other
security interests, except as described in Paragraph 1(e) above;
(iv) This Agreement has been duly executed and delivered by
the Company;
13
<PAGE>
(v) The execution, delivery and performance of the Additional
Agreement, if any, by the Company have been authorized by all
requisite corporate action by the Company, and the Additional
Agreement, if any, has been duly executed and delivered by the
Company;
(vi) The shares of Offered Stock are duly authorized, validly
issued and outstanding, fully paid and nonassessable, with no
personal liability attaching to the ownership thereof;
(vii) The Offered Stock conforms to the description thereof
in the Registration Statement and the Prospectus;
(viii) No approval of any public regulatory body, state or
federal (except under state securities or blue sky statutes, as to
which such counsel need not express an opinion), other than those
approvals that have been obtained, is required for the valid
execution, delivery and performance by the Company of this
Agreement;
(ix) The execution, delivery and performance of this
Agreement have been authorized by all requisite corporate action by
the Company;
(x) The execution, delivery and performance of this Agreement
and the Additional Agreement, if any, the issuance and sale of the
Offered Stock pursuant to this Agreement and compliance by the
Company with the provisions of the Additional Agreement, if any,
and the terms of the Offered Stock will not result in a material
breach of any of the provisions of, or constitute a material
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the property or assets of the
Company pursuant to the terms of, any agreement or instrument known
to such counsel to which the Company is a party or by which the
Company is bound, and will not result in a violation of the
provisions of the certificate of incorporation or by-laws of the
Company, or any existing applicable law, rule, regulation,
judgment, order or decree of any governmental instrumentality or
court having jurisdiction over the Company or any of its
subsidiaries;
(xi) The Registration Statement has become effective under
the Act and, to the best of the knowledge of such counsel, no stop-
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated under the Act; no
order directed to any document incorporated by reference in the
Prospectus or to any Incorporated
14
<PAGE>
Document has been issued, and, to the best of the knowledge of such
counsel, no challenge has been made to the accuracy or adequacy of
any such document; the Registration Statement and the Prospectus
(other than the financial statements and other financial data
included therein, as to which no opinion need be expressed) comply
as to form in all material respects with the requirements of the
Act and the applicable rules and regulations of the Commission
under said Act; the documents incorporated by reference in the
Prospectus and the Incorporated Documents which have been filed
prior to the Delivery Date (except that no opinion need be
expressed as to the financial statements and other financial data
contained therein) comply as to form in all material respects with
the requirements of the Exchange Act and the rules and regulations
of the Commission thereunder; nothing has come to the attention of
such counsel that would lead him to believe that such Registration
Statement, at the time it became effective, or if an amendment to
the Registration Statement or an annual report on Form 10-K has
been filed by the Company with the Commission subsequent to the
effectiveness of the Registration Statement, then at the time of
the most recent filing (other than the financial statements and
other financial data included in any thereof, as to which no
opinion need be expressed), contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and nothing has come to the attention of such counsel
that would lead him to believe that such Prospectus, as amended or
supplemented, at the date of the Underwriting Agreement or at the
Delivery Date (other than the financial statements and other
financial data included in any thereof, as to which no opinion need
be expressed), contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required
to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(xii) To the best of the knowledge of such counsel, there are
no contracts or other documents required to be filed as exhibits to
the Registration Statement by the Act or by the Rules and
Regulations, or which were required to be filed as exhibits to any
document incorporated by reference in the Prospectus by the
Exchange Act or the rules or regulations of the Commission
thereunder, which have not been so filed or so incorporated by
reference as exhibits thereto; the descriptions in the Registration
Statement and Prospectus of the contracts and other documents
therein described
15
<PAGE>
and filed with the Registration Statement are accurate in all
material respects and fairly present the information required to be
shown; and to the best of the knowledge of such counsel there are
no legal or governmental proceedings pending or threatened against
the Company or any of its subsidiaries of a character required to
be disclosed in the Prospectus which have not been adequately
disclosed therein; and
(xiii) The statements made in the Prospectus under the
captions "Description of Preferred Stock" and "Description of
(Title of Offered Stock)", insofar as they purport to summarize the
provisions of documents or agreements specifically referred to
therein, fairly present the information called for with respect
thereto by Form S-3.
All opinions, letters, evidence and certificates mentioned above or elsewhere
in this Agreement shall be deemed to be in compliance with the provisions
hereof only if they are in form satisfactory to counsel for the Underwriters,
and in substance satisfactory to the Representatives.
(e) The Company shall have furnished to the Representatives on the
Delivery Date a certificate, dated the Delivery Date, of a principal
executive officer of the Company stating that the representations,
warranties and agreements of the Company in Paragraph 1 are true and
correct as of the Delivery Date, that the Company has complied with all
its agreements contained herein, and that the conditions set forth in
Paragraph 8(a) have been fulfilled.
(f) At the time this Agreement is executed and at the Delivery
Date, Price Waterhouse shall have furnished to the Representatives a
letter or letters, dated respectively as of the date this Agreement is
executed and as of the Delivery Date, in form and substance satisfactory
to the Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable rules and regulations of the Commission thereunder, and
stating, as of the date of each such letter (or, with respect to matters
involving changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as of a date
not more than five business days prior to the date of each such letter),
the conclusions and findings of such firm as to such financial
information and other matters as the Representatives shall reasonably
request, and, in the case of the letter dated as of the Delivery Date,
confirming in all material respects the conclusions and findings set
forth in the letter dated as of the date this Agreement is executed.
16
<PAGE>
9. If the Company shall fail to tender the Offered Stock on the
Delivery Date or if the Underwriters shall for any reason permitted under
this Agreement (other than pursuant to Paragraphs 2 and 7) decline to
purchase the Offered Stock, the sole liability of the Company to the several
Underwriters will be to reimburse the several Underwriters up to a reasonable
amount for the fees and expenses of their counsel and for such other out-of-
pocket expenses as shall have been incurred by them in connection with this
Agreement and the proposed purchase of the Offered Stock, and upon demand the
Company will pay the full amount thereof to the Representatives. The Company
will not be obligated to reimburse the several Underwriters on account of any
such expenses if this Agreement shall be terminated for the reasons set forth
in Paragraph 2 or shall be terminated by the Underwriters pursuant to
Paragraph 7.
10. The Company shall be entitled to act and rely upon any request,
consent, notice or agreement given or made by the Representatives. Any
notice by the Company to the Underwriters shall be sufficient if given in
writing or by telegraph addressed to the Representatives at the address
furnished to the Company and any notice by the Underwriters to the Company
shall be sufficient if given by the Representatives in writing or by
telegraph addressed to the Company at 1 Chase Manhattan Plaza, New York, New
York 10081, Attention of the Secretary.
11. This Agreement shall inure to the benefit of and be binding upon
the Underwriters, the Company, and their respective successors. Nothing in
this Agreement is intended or shall be construed to give any person other
than the persons mentioned in the preceding sentence any legal or equitable
right, remedy of claim under or in respect of this Agreement or any provision
contained herein, this Agreement and the terms and provisions hereof being
for the sole benefit of only those mentioned persons; except that (a) the
representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any Underwriter within the meaning of
Section 15 of the Act, and (b) the indemnity agreement of the Underwriters
contained in Paragraph 6 of this Agreement shall be deemed to be for the
benefit of directors of the Company, officers of the Company who have signed
the Registration Statement and any person controlling the Company. Nothing
in this Agreement is intended or shall be construed to give any person, other
than the persons referred to in this Paragraph, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision
contained herein.
12. For purposes of this Agreement, (a) "business day" means any day on
which the New York Stock Exchange, Inc. is open for trading, and (b)
"subsidiary" has the meaning set forth in Rule 405 of the Rules and
Regulations.
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13. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
ACE02470
18
<PAGE>
OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS HEREIN SHALL BE DETERMINED
IN CONFORMITY WITH THE APPLICABLE PROSPECTUS SUPPLEMENT OR SUPPLEMENTS
----------------------------------------------------------------
THE CHASE MANHATTAN CORPORATION
and
----------------------------------
As Debt Warrant Agent
-------------------
Debt Warrant Agreement
Dated as of
--------------------------
--------------------------
----------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
-----------------
ARTICLE I
ISSUANCE, EXECUTION AND COUNTERSIGNATURE
OF DEBT WARRANT CERTIFICATES
Section 1.1. Issuance of Debt Warrant Certificates . . . . . . . . . . 2
Section 1.2. Form of Debt Warrant Certificates . . . . . . . . . . . . 2
Section 1.3. Execution and Countersignature of Debt
Warrant Certificates . . . . . . . . . . . . . . . . . . 2
Section 1.4. Temporary Debt Warrant Certificates . . . . . . . . . . . 4
Section 1.5. Payment of Taxes . . . . . . . . . . . . . . . . . . . . . 4
Section 1.6. Definition of Holder . . . . . . . . . . . . . . . . . . . 4
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF DEBT WARRANTS
Section 2.2. Duration of Debt Warrants . . . . . . . . . . . . . . . . 5
Section 2.3. Exercise of Debt Warrants . . . . . . . . . . . . . . . . 5
ARTICLE III
(REGISTRATION), EXCHANGE, TRANSFER
AND SUBSTITUTION OF DEBT WARRANT CERTIFICATES
Section 3.1. (Registration), Exchange and Transfer
of Debt Warrant Certificates . . . . . . . . . . . . . . 7
Section 3.2. Mutilated, Destroyed, Lost or Stolen
Debt Warrant Certificates . . . . . . . . . . . . . . . 8
Section 3.3. Persons Deemed Holders . . . . . . . . . . . . . . . . . . 9
Section 3.4. Cancellation of Debt Warrant Certificates . . . . . . . . 9
ARTICLE IV
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF DEBT WARRANT CERTIFICATES
Section 4.1. No Rights as Holders of Debt Warrant
Securities Conferred by Debt Warrants
or Debt Warrant Certificates . . . . . . . . . . . . . . 10
Section 4.2. Holder of Debt Warrant Certificate
May Enforce Rights . . . . . . . . . . . . . . . . . . . 10
i
<PAGE>
ARTICLE V
CONCERNING THE DEBT WARRANT AGENT
Section 5.1. Debt Warrant Agent . . . . . . . . . . . . . . . . . . . . 11
Section 5.2. Conditions of Debt Warrant Agent's
Obligations . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.3. Resignation, Removal and Appointment
of Successor . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.4. Compliance With Applicable Laws . . . . . . . . . . . . . 15
ARTICLE VI
MISCELLANEOUS
Section 6.1. Modification, Supplementation or
Amendment . . . . . . . . . . . . . . . . . . . . . . . 16
Section 6.2. Consolidations and Mergers of the
Company and Sales, Leases and
Conveyances Permitted Subject to
Certain Conditions . . . . . . . . . . . . . . . . . . . 16
Section 6.3. Rights and Duties of Successor Corporation . . . . . . . . 16
Section 6.4. Notices and Demands to the Company
and Debt Warrant Agent . . . . . . . . . . . . . . . . . 17
Section 6.5. Governing Law . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.6. Addresses . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.7. Notices to Holders of Debt Warrant
Certificates . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.8. Delivery of Prospectus . . . . . . . . . . . . . . . . . . 18
Section 6.9. Obtaining of Governmental Approvals . . . . . . . . . . . 18
Section 6.10. Persons Having Rights Under Debt
Warrant Agreement . . . . . . . . . . . . . . . . . . . 18
Section 6.11. Headings . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.12. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.13. Inspection of Agreement . . . . . . . . . . . . . . . . . 19
EXHIBIT A -- Form of Debt Warrant Certificate
ii
<PAGE>
THIS AGREEMENT, dated as of (______, 19____), between THE CHASE
MANHATTAN CORPORATION, a corporation duly organized and existing under the
laws of the State of Delaware (the "Company"), and , a
-------------------
(corporation) (state) (banking association) (national banking association)
organized and existing under the laws of __________________, as Debt Warrant
Agent (herein called the "Debt Warrant Agent").
(WHEREAS, the Company has entered into an Indenture, dated as of
July 1, 1986, as supplemented by a First Supplemental Indenture, dated as of
November 1, 1990, and a Second Supplemental Indenture, dated as of May 1,
1991 (the "Senior Indenture"), with Bankers Trust Company, a corporation
organized and existing under the laws of the State of New York, as trustee
(such trustee, and any successors to such trustee, herein called the
"Trustee"), providing for the issuance from time to time of its unsecured
and unsubordinated notes or other evidences of senior indebtedness, to be
issued in one or more series as provided in the Indenture;)
(WHEREAS, the Company has entered into an Amended and Restated
Indenture, dated as of September 1, 1993 (the "Indenture") with Chemical
Bank, a national banking institution organized under the laws of the United
States of America, as trustee (such trustee, and any successors to such
trustee, herein called the "Trustee"), providing for the issuance from time
to time of its unsecured and subordinated notes or other evidences of
subordinated indebtedness, to be issued in one or more series as provided in
the Indenture.)
WHEREAS, the Company proposes to sell (If Offered Debt
---------------
Securities and Debt Warrants -- (title of Debt Securities being offered)
- ----------------------------
(the "Offered Debt Securities") with) warrant certificates (such warrant
certificates and other warrant certificates issued pursuant to this Agreement
herein called the "Debt Warrant Certificates") evidencing one or more
warrants (the "Debt Warrants" or, individually, a "Debt Warrant")
representing the right to purchase (title of Debt Securities purchasable
through exercise of Debt Warrants) (the "Debt Warrant Securities"); and
WHEREAS, the Company desires the Debt Warrant Agent to act on
behalf of the Company, and the Debt Warrant Agent is willing to so act, in
connection with the issuance, exchange, exercise and replacement of the Debt
Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the Debt Warrant Certificates and the
terms and conditions on which they may be issued, exchanged, exercised and
replaced;
1
<PAGE>
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE, EXECUTION AND COUNTERSIGNATURE
OF DEBT WARRANT CERTIFICATES
Section 1.1. Issuance of Debt Warrant Certificates. (If Debt
-------------------------------------
Warrants alone -- Upon issuance, each Debt Warrant Certificate shall evidence
one or more Debt Warrants.) (If Offered Debt Securities and Debt
-----------------------------------
Warrants -- Debt Warrant Certificates shall be (initially) issued in units
- --------
with the Offered Debt Securities and shall (not) be separately transferable
(before _____________, 19 __ (the "Detachable Date")). The Debt Warrant
Certificate or Certificates included in each such unit shall evidence an
aggregate of______ Debt Warrants for each $______________ principal amount of
Offered Debt Securities included in such unit.) Each Debt Warrant evidenced
thereby shall represent the right, subject to the provisions contained herein
and therein, to purchase from the Company Debt Warrant Securities in the
aggregate principal amount of $ ________.
Section 1.2. Form of Debt Warrant Certificates. The Debt
---------------------------------
Warrant Certificates (including the Form(s) of Exercise (and Assignment) to
be set forth on the reverse thereof) shall be in substantially the form set
forth in Exhibit A hereto with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement, shall be printed, lithographed or engraved on steel engraved
borders (or in any other manner determined by the officer executing such Debt
Warrant Certificates) and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange on which
the Debt Warrant Certificates may be listed or as may, consistently herewith,
be determined by the officers executing such Debt Warrant Certificates, as
evidenced by their execution of the Debt Warrant Certificates.
Section 1.3. Execution and Countersignature of Debt Warrant
----------------------------------------------
Certificates. The Debt Warrant Certificates shall be executed on behalf
- ------------
of the Company by its (___________________) or any
(______________________________), manually or by facsimile signature, under
its corporate seal reproduced thereon attested to by its Secretary or one of
its Assistant Secretaries, either manually or by facsimile signature.
Typographical and other
2
<PAGE>
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of the Debt Warrant
Certificate that has been duly executed by the Company and authenticated by
the Debt Warrant Agent.
Debt Warrant Certificates evidencing the right to purchase an
aggregate principal amount not exceeding $____________ of Debt Warrant
Securities (except as provided in Sections 1.4, 2.3(c), 3.1 and 3.2) may be
executed by the Company and delivered to the Debt Warrant Agent upon the
execution of this Debt Warrant Agreement or from time to time thereafter.
The Debt Warrant Agent shall, upon receipt of Debt Warrant Certificates duly
executed on behalf of the Company, authenticate Debt Warrant Certificates
evidencing Debt Warrants representing the right to purchase up to
$____________ aggregate principal amount of Debt Warrant Securities and shall
deliver such Debt Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Debt Warrant Certificates, the
Debt Warrant Agent shall authenticate a Debt Warrant Certificate only if the
Debt Warrant Certificate is issued in exchange or substitution for one or
more previously authenticated Debt Warrant Certificates (If registered Debt
Warrants -- or in connection with
---------------------------
their transfer), as hereinafter provided.
Each Debt Warrant Certificate shall be dated the date of its
authentication by the Debt Warrant Agent.
No Debt Warrant Certificate shall be entitled to any benefit under
this Agreement or be valid or obligatory for any purpose, and no Debt Warrant
evidenced thereby shall be exercisable, until such Debt Warrant Certificate
has been authenticated by the manual signature of a duly authorized
representative of the Debt Warrant Agent. Such signature by the Debt Warrant
Agent upon any Debt Warrant Certificate executed by the Company shall be
conclusive evidence, and the only evidence, that the Debt Warrant Certificate
so authenticated has been duly issued hereunder.
In case any officer of the Company who shall have signed the Debt
Warrant Certificate, either manually or by facsimile signature, shall cease
to be such officer before the Debt Warrant Certificate so signed shall have
been countersigned and delivered by the Debt Warrant Agent to the Company or
delivered by the Company, such Debt Warrant Certificate nevertheless may be
countersigned and delivered as though the person who signed such Debt Warrant
Certificate had not ceased to be such officer of the Company; and the Debt
Warrant Certificate may be signed on behalf of the Company by such persons
as, at the
3
<PAGE>
actual date of execution of such Debt Warrant Certificate, shall be the
proper officers of the Company, although at the date of the execution of this
Agreement any such person was not such an officer.
Section 1.4. Temporary Debt Warrant Certificates. Pending the
-----------------------------------
preparation of definitive Debt Warrant Certificates, the Company may execute,
and upon the order of the Company the Debt Warrant Agent shall authenticate
and deliver, temporary Debt Warrant Certificates which are printed,
lithographed, typewritten, mimeographed or otherwise produced substantially
of the tenor of the definitive Debt Warrant Certificates in lieu of which
they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Debt
Warrant Certificates may determine, as evidenced by their execution of such
Debt Warrant Certificates.
If temporary Debt Warrant Certificates are issued, the Company will
cause definitive Debt Warrant Certificates to be prepared without
unreasonable delay. After the preparation of definitive Debt Warrant
Certificates, the temporary Debt Warrant Certificates shall be exchangeable
for definitive Debt Warrant Certificates upon surrender of the temporary Debt
Warrant Certificates at the corporate trust office of the Debt Warrant Agent
(or_____________________), without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Debt Warrant Certificates the
Company shall execute and the Debt Warrant Agent shall authenticate and
deliver in exchange therefor definitive Debt Warrant Certificates
representing the same aggregate number of Debt Warrants. Until so exchanged,
the temporary Debt Warrant Certificates shall in all respects be entitled to
the same benefits under this Agreement as definitive Debt Warrant
Certificates.
Section 1.5. Payment of Taxes. The Company will pay all stamp
----------------
taxes and other duties, if any, to which, under the laws of the United States
of America or any state or political subdivision thereof, this Agreement or
the original issuance of the Debt Warrant Certificates may be subject.
Section 1.6. Definition of Holder. The term "Holder" as used
--------------------
herein shall mean (If Offered Debt Securities and Debt Warrants which are
-------------------------------------------------------
not immediately detachable --, prior to the Detachable Date, the (bearer)
- --------------------------
(registered owner) of the Offered Debt Security to which such Debt Warrant
Certificate was initially attached, and, after such Detachable Date,) (if
bearer Debt Warrants, the bearer of such Debt Warrant Certificate) (if
registered Debt Warrants, the person in whose name at the time such Debt
Warrant Certificate shall be registered upon the books to be maintained by
the Debt Warrant Agent for that purpose
4
<PAGE>
pursuant to Section 3.1.) (If Offered Debt Securities and Debt Warrants
--------------------------------------------
which are not immediately detachable -- Prior to the Detachable Date, the
- ------------------------------------
Company will, or will cause the registrar of the Offered Debt Securities to,
make available to the Debt Warrant Agent current information as to Holders of
the Offered Debt Securities.)
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF DEBT WARRANTS
Section 2.1. Warrant Price.<F1> During the period specified in
-------------
Section 2.2, each Debt Warrant shall entitle the Holder thereof, subject to
the provisions of this Agreement, to purchase from the Company the principal
amount of Debt Warrant Securities stated in the Debt Warrant Certificate at
the exercise price of __ % of the principal amount thereof (plus accrued
amortization, if any, of the original issue discount of the Debt Warrant
Securities) (plus accrued interest, if any, from the most recent date from
which interest shall have been paid on the Debt Warrant Securities or, if no
interest shall have been paid on the Debt Warrant Securities, from
___________, 19__).
(In each case, the original issue discount ($__________ for each
$1,000 principal amount of Debt Warrant Securities) will be amortized at a
__% annual rate, computed on a(n) (semi-)annual basis (using a 360-day year
consisting of twelve 30-day months). Such exercise price of each Debt Warrant
is referred to in this Agreement as the "Exercise Price."
Section 2.2. Duration of Debt Warrants. Any Debt Warrant
-------------------------
evidenced by a Debt Warrant Certificate may be exercised at any time, as
specified herein, on or after (the date thereof) (_________, 19__) and at or
before the close of business on _____ , 19 _ (the "Expiration Date"). Each
Debt Warrant not exercised at or before the close of business on the
Expiration Date shall become void, and all rights of the Holder of the Debt
Warrant Certificate evidencing such Debt Warrant under this Agreement or
otherwise shall cease.
Section 2.3. Exercise of Debt Warrants. (a) During the period
-------------------------
specified in Section 2.2, any whole number of Debt Warrants may be exercised
by surrendering the Warrant Certificate
- --------------------
<F1> Complete and modify the provisions of this Section as appropriate
to reflect the exact terms of the Debt Warrants and the Debt
Warrant Securities.
5
<PAGE>
evidencing such Debt Warrants at the place or at the places set forth in the
Debt Warrant Certificate, with the purchase form set forth in the Debt
Warrant Certificate duly executed, accompanied (by payment in full, in lawful
money of the United States of America, (in cash or by certified check or
official bank check in New York Clearing House funds)) (by surrender of the
(specified aggregate amount of identified securities) (by bank wire transfer
in immediately available funds), of the Exercise Price for each Debt Warrant
exercised. The date on which payment in full of the Exercise Price for a
Debt Warrant and the Debt Warrant Certificate, with the purchase form set
forth therein duly executed, are received by the Debt Warrant Agent shall be
deemed to be the date on which such Debt Warrant is exercised. The Debt
Warrant Agent shall deposit all funds received by it as payment for the
exercise of Debt Warrants to the account of the Company maintained with it
for such purpose on the date on which such Debt Warrant is deemed exercised
and shall advise the Company by telephone and in writing, by facsimile
transmission or otherwise, at the end of each day on which such a payment is
received of the amount so deposited to its account. The Debt Warrant Agent
shall promptly confirm such telephonic advice to the Company in writing.
(b) The Debt Warrant Agent shall from time to time, as promptly as
practicable after the exercise of any Debt Warrants in accordance with the
terms and conditions of this Agreement and the Debt Warrant Certificates,
advise the Company and the Trustee of (i) the number of Debt Warrants so
exercised, (ii) the instructions of each Holder of the Debt Warrant
Certificates evidencing such Debt Warrants with respect to delivery of the
Debt Warrant Securities to which such Holder is entitled upon such exercise,
and instructions of such Holder as to delivery of Debt Warrant Certificates
evidencing the balance, if any, of the Debt Warrants remaining after such
exercise, and (iii) such other information as the Company or the Trustee
shall reasonably require.
(c) As soon as practicable after the exercise of any Debt Warrants
the Company shall issue, pursuant to the Indenture, in authorized
denominations, to or upon the order of the Holder of the Debt Warrant
Certificate evidencing such Debt Warrants, the Debt Warrant Security or Debt
Warrant Securities to which such Holder is entitled in (fully registered form
registered in such name or names as may be directed by such Holder) (bearer
form); and, if fewer than all of the Debt Warrants evidenced by such Warrant
Certificate were exercised the Company shall execute and an authorized
officer of the Debt Warrant Agent shall manually authenticate and deliver to
the Holder a new Debt Warrant Certificate evidencing the number of Debt
Warrants remaining unexercised. (Unless otherwise instructed by the
6
<PAGE>
Company, Debt Warrant Securities in bearer form shall be delivered to or upon
the order of the Holder of such Debt Warrant Certificate only outside the
United States, its territories and possessions and all areas subject to its
jurisdiction.)
(d) The Company shall not be required to pay any stamp or other
tax or other governmental charge required to be paid in connection with any
transfer involved in the issue of the Debt Warrant Securities upon the order
of the Holder of the Debt Warrant Certificate evidencing the Debt Warrant
which was exercised; and in the event that any such transfer is involved, the
Company shall not be required to issue or deliver any Debt Warrant Securities
pursuant to Section 2.3(c) until such tax or other charge shall have been
paid or it has been established to the Company's satisfaction that no such
tax or other charge is due.
ARTICLE III
(REGISTRATION), EXCHANGE, TRANSFER
AND SUBSTITUTION OF DEBT WARRANT CERTIFICATES
Section 3.1. (Registration), Exchange and Transfer of Debt
---------------------------------------------
Warrant Certificates. (If registered Debt Warrants -- The Debt Warrant
- -------------------- ----------------------------
Agent shall keep, at its corporate trust office (and at ____________), books
in which, subject to such reasonable regulations as it may prescribe, it
shall register Debt Warrant Certificates and transfers of outstanding Debt
Warrant Certificates).
(If Offered Debt Securities and Debt Warrants which are not
----------------------------------------------------------
immediately detachable -- Prior to the Detachable Date, a Debt Warrant
- ----------------------
Certificate may be exchanged (or transferred) only together with the Offered
Debt Security to which such Debt Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Debt Security. Additionally, on or prior to the
Detachable Date, each (transfer or) exchange of an Offered Debt Security (on
the register of the Offered Debt Securities) shall operate also to transfer
or exchange the Debt Warrant Certificate or Certificates to which such
Offered Debt Security was initially attached. After the Detachable Date,
upon) ((If Offered Debt Securities and Debt
-----------------------------------
Warrants which are immediately detachable or if Debt Warrants alone --
- -------------------------------------------------------------------
Upon) surrender at the place or places set forth in Debt Warrant Certificate
of Debt Warrant Certificates properly endorsed (or accompanied by appropriate
instruments of transfer and accompanied by written instructions for (transfer
or) exchange, all in form reasonably satisfactory to the Company and the Debt
7
<PAGE>
Warrant Agent, such Debt Warrant Certificates may be exchanged for other Debt
Warrant Certificates (If registered Debt Warrants -- or may be
---------------------------
transferred in whole or in part)) (If bearer Debt Warrants -- the Debt
-----------------------
Warrant Certificates, and all rights thereunder, may be exchanged by delivery
to the Company and the Debt Warrant Agent may treat the bearer thereof as the
owner for all purposes); provided that Debt Warrant Certificates issued in
exchange for (or upon transfer of) surrendered Debt Warrant Certificates
shall evidence the same aggregate number of Debt Warrants as the Debt Warrant
Certificates so surrendered. No service charge shall be made for any
exchange (or transfer) of Debt Warrant Certificates, but the Company may
require payment of a sum sufficient to cover any stamp or other tax or
governmental charge that may be imposed in connection with any such exchange
(or transfer). Whenever any Debt Warrant Certificates are so surrendered for
exchange (or transfer), the Company shall execute and an authorized officer
of the Debt Warrant Agent shall manually countersign and deliver to the
person or persons entitled thereto a Debt Warrant Certificate or Debt Warrant
Certificates as so requested. The Debt Warrant Agent shall not be required
to effect any exchange (or transfer) which would result in the issuance of a
Debt Warrant Certificate evidencing a fraction of a Debt Warrant or a number
of full Debt Warrants and a fraction of a Debt Warrant. All Debt Warrant
Certificates issued upon any exchange (or transfer) of Debt Warrant
Certificates shall evidence the same obligations, and be entitled to the
same benefits under this Agreement, as the Debt Warrant Certificate
surrendered for such exchange (or transfer).
Section 3.2. Mutilated, Destroyed, Lost or Stolen Debt Warrant
-------------------------------------------------
Certificates. If any mutilated Debt Warrant Certificate is surrendered to
- ------------
the Debt Warrant Agent, the Company shall execute and an officer of the Debt
Warrant Agent shall manually countersign and deliver in exchange therefor a
new Debt Warrant Certificate of like tenor representing a like number of
unexercised Debt Warrants and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Debt Warrant
Agent (i) evidence to their satisfaction of the destruction, loss or theft of
any Debt Warrant Certificate and of the ownership thereof, (ii) such security
or indemnity as may be required by them to save each of them and any agent of
either of them harmless, and (iii) funds sufficient to cover any cost or
expense to the Company (including any fees charged by the Debt Warrant Agent)
relating to the issuance of a new Debt Warrant Certificate, then, in the
absence of notice to the Company or the Debt Warrant Agent that such Debt
Warrant Certificate has been acquired by a bona fide purchaser, the Company
shall execute and upon its request an officer of the Debt Warrant Agent shall
8
<PAGE>
manually countersign and deliver, in lieu of any such destroyed, lost or
stolen Warrant Certificate, a new Debt Warrant Certificate of like tenor
representing a like number of unexercised Debt Warrants and bearing a number
not contemporaneously outstanding.
In case the Debt Warrants evidenced by any such mutilated,
destroyed, lost or stolen Debt Warrant Certificate have been exercised or
have been or are about to be deemed to be exercised, the Company in its
discretion may, instead of issuing a new Debt Warrant Certificate, treat the
same as if it had received written irrevocable notice of exercise in good
form in respect thereof, as provided herein.
Every new Debt Warrant Certificate issued pursuant to this Section
in lieu of any mutilated, destroyed, lost or stolen Debt Warrant Certificate
shall constitute an original additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Debt Warrant
Certificate shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Agreement equally and proportionately with any
and all other Debt Warrant Certificates duly issued hereunder. The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debt Warrant Certificates.
Section 3.3. Persons Deemed Holders. (If Offered Debt
----------------------
Securities and Debt Warrants which are not immediately detachable -- Prior to
the Detachable Date, the Company, the Debt Warrant Agent and all other-------
- -------- persons may treat the Holder of any Offered Debt Security as the
owner of the Debt Warrant Certificates initially attached thereto for any
purpose and as the person entitled to exercise the rights represented by the
Debt Warrants evidenced by such Debt Warrant Certificates, any notice to the
contrary notwithstanding. After the Detachable Date) (If registered Debt
Warrants -- and prior to due
presentment of a Debt Warrant Certificate for registration of transfer or
exchange, the) (If Offered Debt Securities and Debt Warrants which are
------------------------------------------------------
immediately detachable or Debt Warrants alone -- The) Company, the Debt
- ----------------------------------------------------
Warrant Agent and may treat the Holder as the owner thereof for any purpose
and as the person entitled to exercise the rights represented by the Debt
Warrants evidenced thereby, any notice to the contrary notwithstanding.
Section 3.4. Cancellation of Debt Warrant Certificates. Any
-----------------------------------------
Debt Warrant Certificate surrendered for exchange(, transfer) or exercise of
the Debt Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Debt Warrant Agent, and (If Debt Warrant
---------------
Certificates are issued
- ------------------------
9
<PAGE>
in bearer form -- except as provided below,) all Debt Warrant Certificates
- --------------
surrendered or so delivered to the Debt Warrant Agent shall be promptly
cancelled by it and shall not be reissued and, except as expressly permitted
by this Agreement, no Debt Warrant Certificate shall be issued hereunder in
lieu or in exchange thereof. (If Debt Warrant Certificates
----------------------------
are issued in bearer form -- Debt Warrant Certificates delivered to the
- -------------------------
Debt Warrant Agent in exchange for Debt Warrant Certificates of other
denominations may be retained by the Debt Warrant Agent for reissue as
authorized hereunder.) The Company may at any time deliver to the Debt
Warrant Agent for cancellation any Debt Warrant Certificates previously
issued hereunder which the Company may have acquired in any manner
whatsoever, and all Debt Warrant Certificates so delivered shall be promptly
cancelled by the Debt Warrant Agent. All cancelled Debt Warrant Certificates
held by the Debt Warrant Agent shall be disposed of as instructed by the
Company, subject to applicable law.
ARTICLE IV
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF DEBT WARRANT CERTIFICATES
Section 4.1. No Rights as Holders of Debt Warrant Securities
-----------------------------------------------
Conferred by Debt Warrants or Debt Warrant Certificates. No Debt Warrant
- -------------------------------------------------------
Certificate or Debt Warrants evidenced thereby shall entitle the Holder
thereof to any of the rights of a Holder of the Debt Warrant Securities,
including, without limitation, the right to receive the payment of principal
of or premium, if any) or interest, if any, on the Debt Warrant Securities or
to enforce any of the covenants in the Indenture.
Section 4.2. Holder of Debt Warrant Certificate May Enforce
----------------------------------------------
Rights. Notwithstanding any of the provisions of this Agreement, any
- ------
Holder of any Debt Warrant Certificate, without the consent of the Debt
Warrant Agent, the Trustee, the Holder of any Debt Warrant Securities or the
Holder of any other Debt Warrant Certificate, may, in his own behalf and for
his own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company suitable to enforce or otherwise in respect
of, his right to exercise the Debt Warrant or Debt Warrants evidenced by his
Debt Warrant Certificate in the manner provided in the Debt Warrant
Certificates and in this Agreement.
10
<PAGE>
ARTICLE V
CONCERNING THE DEBT WARRANT AGENT
Section 5.1. Debt Warrant Agent. The Company hereby appoints
------------------
(______________) as Debt Warrant Agent of the Company in respect of the Debt
Warrants and the Debt Warrant Certificates upon the terms and subject to the
conditions set forth herein and in the Debt Warrant Certificate, and
(_____________) hereby accepts such appointment. The Debt Warrant Agent
shall have the power and authority granted to and conferred upon it in the
Debt Warrant Certificates and hereby and such further powers and authority to
act on behalf of the Company as the Company may hereafter grant to or confer
upon it. All of the terms and provisions with respect to such power and
authority contained in the Debt Warrant Certificates are subject to and
governed by the terms and provisions hereof.
Section 5.2. Conditions of Debt Warrant Agent's Obligations.
----------------------------------------------
The Debt Warrant Agent accepts its obligations herein set forth, upon the
terms and conditions hereof, including the following, to all of which the
Company agrees and to all of which the rights hereunder of the Holders from
time to time of the Debt Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
--------------------------------
promptly to pay the Debt Warrant Agent the compensation to be agreed upon
with the Company for all services rendered by the Debt Warrant Agent and to
reimburse the Debt Warrant Agent for reasonable out-of-pocket expenses
(including reasonable attorney's fees and expenses) incurred by the Debt
Warrant Agent without negligence, bad faith or breach of this Agreement on
its part in connection with the services rendered hereunder by the Debt
Warrant Agent. The Company also agrees to indemnify the Debt Warrant Agent
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence, bad faith or breach of this Agreement on the part of the
Debt Warrant Agent, arising out of or in connection with its acting as such
Debt Warrant Agent hereunder, including the reasonable costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance at any time of its powers or duties hereunder or with
respect to the Debt Warrants. The obligations of the Company under this
subsection (a) shall survive the exercise of the Debt Warrant Certificates
and the resignation or removal of the Debt Warrant Agent.
(b) Agent for the Company. In acting under this Debt Warrant
---------------------
Agreement and in connection with the Debt Warrant
11
<PAGE>
Certificates, the Debt Warrant Agent is acting solely as agent of the
Company and does not assume any obligation or relationship of agency or
trust for or with any of the owners or Holders of the Debt Warrant
Certificates.
(c) Counsel. The Debt Warrant Agent may consult with counsel,
-------
which may include counsel for the Company, and the written advice of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(d) Documents. The Debt Warrant Agent shall be protected and
---------
shall incur no liability for or in respect of any action taken or omitted by
it in reliance upon any Debt Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the
proper parties.
(e) Certain Transactions. The Debt Warrant Agent, any of its
--------------------
officers, directors and employees, in its individual or any other capacity,
may become the owner of, or acquire any interest in, any Debt Warrant
Certificates, with the same rights that it would have if it were not such
Debt Warrant Agent, officer, director, employee or other agent, and, to the
extent permitted by applicable law, it or they may engage or be interested in
any financial or other transaction with the Company and may act on, or as
depositary, trustee or agent for, any committee or body of Holders of Debt
Warrant Securities or other obligations of the Company as freely as if it
were not such Debt Warrant Agent, officer, director, employee or other
agent. Nothing in this Debt Warrant Agreement shall be deemed to prevent the
Debt Warrant Agent from acting as Trustee under the Indenture.
(f) No Liability for Interest. The Debt Warrant Agent shall
-------------------------
not be under any liability for interest on any monies at any time received by
it pursuant to any of the provisions of this Agreement or of the Debt Warrant
Certificates unless otherwise agreed to in writing by the Company and the
Debt Warrant Agent.
(g) No Liability for Invalidity. The Debt Warrant Agent shall
---------------------------
not incur any liability with respect to the validity of this Agreement or any
of the Debt Warrant Certificates.
12
<PAGE>
(h) No Responsibility for Representations. The Debt Warrant
-------------------------------------
Agent shall not be responsible for any of the recitals or representations
contained herein or in the Debt Warrant Certificates (except as to the Debt
Warrant Agent's Certificate of Authentication thereon), all of which are made
solely by the Company.
(i) No Implied Obligations. The Debt Warrant Agent shall be
----------------------
obligated to perform such duties as are herein and in the Debt Warrant
Certificates specifically set forth and no implied duties or obligations
shall be read into this Agreement or the Debt Warrant Certificates against
the Debt Warrant Agent. The Debt Warrant Agent shall not be under any
obligation to take any action hereunder which may tend to involve it in any
expense or liability, the payment of which within a reasonable time is not,
in its reasonable opinion, assured to it. The Debt Warrant Agent shall not
be accountable or under any duty or responsibility for the use by the Company
of any of the Debt Warrant Certificates authenticated by the Debt Warrant
Agent and delivered by it to the Company pursuant to this Agreement or for
the application by the Company of the proceeds of the Debt Warrant
Certificates or any exercise of the Debt Warrants evidenced thereby. The
Debt Warrant Agent shall have no duty or responsibility in case of any
default by the Company in the performance of its covenants or agreements
contained herein or in the Debt Warrant Certificates or in the Debt Warrant
Securities or in the case of the receipt of any written demand from a Holder
of a Debt Warrant Certificate with respect to such default, including,
without limiting the generality of the foregoing, any duty or responsibility
to initiate or attempt to initiate any proceeding at law or otherwise or,
except as provided in Section 6.4 hereof, to make any demand upon the
Company.
Section 5.3. Resignation, Removal and Appointment of Successor.
-------------------------------------------------
(a) The Company agrees, for the benefit of the Holders from time to time of
the Debt Warrant Certificates, that there shall at all times be a Debt
Warrant Agent hereunder until all of the Debt Warrants are no longer
exercisable.
(b) The Debt Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part,
specifying the date on which it desires its resignation to become effective;
(provided that, without the consent of the Company, such date shall not be
less than (three months) after the date on which such notice is given)
(subject to the appointment of a successor Debt Warrant Agent and the
acceptance of such appointment by such successor Debt Warrant Agent, as
hereinafter provided.) The Debt Warrant Agent
13
<PAGE>
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 on which the Company expects such removal to become effective.
Such resignation or removal shall take effect upon the appointment by the
Company of a successor Debt Warrant Agent (which shall be a bank or trust
company organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia and authorized under
such laws to exercise corporate trust powers) by an instrument in writing
filed with such successor Debt Warrant Agent and the acceptance of such
appointment by such successor Debt Warrant Agent pursuant to Section 5.3(d).
In the event a successor Debt Warrant Agent has not been appointed and has
not accepted its duties within 90 days of the Debt Warrant Agent's notice of
resignation, the Debt Warrant Agent may apply to any court of competent
jurisdiction for the designation of a successor Debt Warrant Agent.
(c) In case at any time the Debt Warrant Agent shall resign, or be
removed, or shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or shall file a voluntary petition in bankruptcy 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 of all or any substantial part of its
property shall be appointed, or if an order of any count shall be entered
approving any petition filed by or against it under the provisions of any
applicable bankruptcy or similar law or if any public officer shall have
taken charge or control of the Debt Warrant Agent or of its property or
affairs, for the purpose of rehabilitation, conservation or liquidation, a
successor Debt Warrant Agent qualified as aforesaid, shall be appointed by
the Company by an instrument in writing, filed with the successor Debt
Warrant Agent. Upon the appointment as aforesaid of a successor Debt Warrant
Agent and acceptance by the latter of such appointment, the Debt Warrant
Agent so superseded shall cease to be Debt Warrant Agent hereunder.
(d) Any successor Debt Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Debt Warrant 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
Debt Warrant Agent hereunder, and such predecessor, upon payment of its
charges and disbursements then unpaid, shall thereupon become obligated to
14
<PAGE>
transfer, deliver and pay over, and such successor Debt Warrant Agent shall
be entitled to receive all monies, securities and other property on deposit
with or held by such predecessor, as Debt Warrant Agent hereunder.
(e) Any corporation into which the Debt Warrant Agent hereunder
may be merged or converted or any corporation with which the Debt Warrant
Agent may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Debt Warrant Agent shall be a party,
or any corporation succeeding to all or substantially all the corporate trust
business of the Debt Warrant Agent, provided that it shall be qualified as
aforesaid, shall be the successor Debt Warrant 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.
(f) The Company may designate agencies for the surrender for
exercise of Debt Warrant Certificates at such place or places as the Company
may determine, and the Company shall keep the Debt Warrant Agent advised of
the names and locations of such agencies, if any are so designated. The Debt
Warrant Agent shall arrange directly with such agencies for the delivery of
Debt Warrant Securities upon exercise of Debt Warrant Certificates
surrendered for exercise at such agencies. The Debt Warrant Agent shall be
in no way responsible or accountable for the action or failure to act of any
agencies designated pursuant to this Section 5.3(f).
Section 5.4. Compliance With Applicable Laws. The Debt Warrant
-------------------------------
Agent agrees to comply with all applicable federal and state laws in respect
of the services rendered by it under this Agreement and in connection with
the Debt Warrants, including (but not limited to) the provisions of United
States federal income tax laws regarding information reporting and backup
withholding. The Debt Warrant Agent expressly assumes all liability for
failure to comply with such laws, including (but not limited to) any
liability for failure to comply with any applicable provisions of United
States federal income tax laws regarding information reporting and backup
withholding. The Debt Warrant Agent agrees to indemnify the Company for, and
hold it harmless against, any loss, liability or expense incurred by the
Company arising from the negligence, bad faith or breach of this Agreement on
the part of the Debt Warrant Agent, including the reasonable costs and
expenses of defending itself against any claim or liability in connection
therewith.
15
<PAGE>
ARTICLE VI
MISCELLANEOUS
Section 6.1. Modification, Supplementation or Amendment. (a)
------------------------------------------
This Agreement may be modified, supplemented or amended by the parties
hereto, without the consent of the Holder of any Debt Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective provision contained herein or in such Debt
Warrant Certificate, or making such provisions in regard to matters or
questions arising under this Agreement as the Company may deem necessary or
desirable; provided that such action shall not adversely affect the interests
of the Holders of the Debt Warrant Certificates in any material respect. The
Debt Warrant Agent may, but shall not be obligated to, enter into any
amendment to this Agreement which affects the Debt Warrant Agent's own
rights, duties or immunities under this Agreement or otherwise.
(b) The Company and the Debt Warrant Agent may modify or amend
this Agreement and the Debt Warrant Certificates, with the consent of the
Holders of not fewer than a majority in number of the then outstanding
unexercised Debt Warrants affected by such modification or amendment, for any
purpose; provided, however, that no such modification or amendment
-------- -------
that increases the Exercise Price or shortens the period of time during which
the Debt Warrants may be exercised, or otherwise materially and adversely
affects the exercise rights of the Holders of Debt Warrant Certificates or
reduces the number of outstanding Debt Warrants the consent of the Holders of
which is required for modification, supplementation or amendment of this
Agreement or the Debt Warrant Certificates, may be made without the consent
of each Holder affected thereby.
Section 6.2. Consolidations and Mergers of the Company and
---------------------------------------------
Sales, Leases and Conveyances Permitted Subject to Certain Conditions. To
- ---------------------------------------------------------------------
the extent permitted in the applicable Indenture, the Company may consolidate
with, or sell, lease or convey all or substantially all of its assets to, or
merge with or into any other corporation or other entity.
Section 6.3. Rights and Duties of Successor Corporation. In
------------------------------------------
case of any such consolidation, merger, sale, lease or conveyance and upon
any such assumption by the successor corporation or entity, such successor
corporation or entity shall succeed to and be substituted for the Company,
with the same effect as if it had been named herein, and the Company, except
in the event of a lease, shall be relieved of any further obligation under
this Agreement and the Debt Warrants. Such successor or assuming corporation
or entity shall expressly assume, by an
16
<PAGE>
amendment to this Agreement, executed and delivered to the Debt Warrant
Agent, in form satisfactory to such Debt Warrant Agent, the due and punctual
payment of any and all amounts payable by the Company pursuant to this
Agreement and the performance of every covenant of this Agreement on the part
of the Company to be performed or observed. Such successor corporation or
entity thereupon may cause to be signed, and may issue either in its own name
or in the name of the Company, any or all of the Debt Warrant Securities
issuable pursuant to the terms hereof. All the Debt Warrant Securities so
issued shall in all respects have the same legal rank and benefit under the
applicable Indenture as the Debt Warrant Securities theretofore or thereafter
issued in accordance with the terms of this Agreement and the applicable
Indenture.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may
be made in the Debt Warrant Securities thereafter to be issued as may be
appropriate.
Section 6.4. Notices and Demands to the Company and Debt
-------------------------------------------
Warrant Agent. If the Debt Warrant Agent shall receive any notice or
- -------------
demand addressed to the Company by the Holder of a Debt Warrant Certificate
pursuant to the provisions of the Debt Warrant Certificates, the Debt Warrant
Agent shall promptly forward such notice or demand to the Company.
Section 6.5. Governing Law. This Agreement and each Debt
-------------
Warrant Certificate issued hereunder shall be governed by and construed in
accordance with the laws of the State of New York.
Section 6.6. Addresses. Any communications from the Company to
---------
the Debt Warrant Agent with respect to this Agreement shall be addressed to
(name of Debt Warrant Agent), (address, New York, New York ___________)
(facsimile: (__________)) (telephone: (________)), Attention:________ and
any communications from the Debt Warrant Agent, to the Company with respect
to this Agreement shall be addressed to The Chase Manhattan Corporation, One
Chase Manhattan Plaza, New York, New York 10081 (facsimile: (____________))
(telephone: ____________), Attention: (_________); (or such other address as
shall be specified in writing by the Debt Warrant Agent or by the Company).
Section 6.7. Notices to Holders of Debt Warrant Certificates.
-----------------------------------------------
Any notice to Holders of Debt Warrant Certificates which by any provisions of
this Agreement is required or permitted to be given (If registered Debt
----
Warrants -- by first class mail postage prepaid at such Holder's address
- --------
as it appears on the books of the Debt Warrant Agent (or on the register of
the
17
<PAGE>
Offered Debt Securities prior to the Detachable Date)) (If bearer Debt
--------------
Warrants -- by publication at least once in a daily morning newspaper in
- --------
New York City (which, if practicable, shall be The Wall Street Journal
(Eastern Edition) and in London (which, if practicable, shall be the
Financial Times of London)).
Section 6.8. Delivery of Prospectus. The Company will furnish
----------------------
to the Debt Warrant Agent sufficient copies of a prospectus, appropriately
supplemented, relating to the Debt Warrant Securities (the "Prospectus"), and
the Debt Warrant Agent agrees that, upon the exercise of any Debt Warrant
Certificate, the Debt Warrant Agent will deliver to the person designated to
receive Debt Warrant Securities, prior to or concurrently with the delivery
of such Securities, a Prospectus.
Section 6.9. Obtaining of Governmental Approvals. The Company
-----------------------------------
will from time to time take all action which may be necessary to obtain and
keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under United States
federal and state laws (including, without limitation, the maintenance of the
effectiveness of a registration statement in respect of the Debt Warrant
Securities under the Securities Act of 1933), which may be or become required
in connection with exercise of the Debt Warrant Certificates and the original
issuance and delivery of the Debt Warrant Securities.
Section 6.10. Persons Having Rights Under Debt Warrant
----------------------------------------
Agreement. Nothing in this Agreement expressed or implied and nothing
- ---------
that may be inferred from any of the provisions hereof is intended, or shall
be construed, to confer upon, or give to, any person or corporation other
than the Company, the Debt Warrant Agent and the Holders of the Debt Warrant
Certificates any right, remedy or claim under or by reason of this Agreement
or of any covenant, condition, stipulation, promise or agreement hereof; and
all covenants, conditions, stipulations, promises and agreements in this
Agreement shall be for the sole and exclusive benefit of the Company and the
Debt Warrant Agent and their successors and of the Holders of the Debt
Warrant Certificates.
Section 6.11. Headings. The Article and Section headings
--------
herein and the Table of Contents are for convenience of reference only and
shall not affect the construction hereof.
Section 6.12. Counterparts. This Agreement may be executed in
------------
any number of counterparts, each of which so executed shall be deemed to be
an original; but such counterparts shall together constitute but one and the
same instrument.
18
<PAGE>
Section 6.13. Inspection of Agreement. A copy of this
-----------------------
Agreement shall be available at all reasonable times at the principal
corporate trust office of the Debt Warrant Agent (and at ______________ ) for
inspection by the Holder of any Debt Warrant Certificate. (If bearer Debt
Warrants -- The Debt Warrant Agent may require such Holder to submit his Debt
Warrant Certificate for inspection by it.)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed, and their respective corporate seal to be hereunto
affixed and attested, all as of the day and year first above written.
THE CHASE MANHATTAN CORPORATION
By
----------------------------------------------
(SEAL)
Attest:
- -------------------------
(NAME OF DEBT WARRANT AGENT)
By
----------------------------------------------
(SEAL)
Attest:
- -------------------------
(Assistant Secretary)
19
<PAGE>
EXHIBIT A
(FORM OF DEBT WARRANT CERTIFICATE)
(Face)
Form of Legend if Offered Debt (Prior to , this Debt
Securities with Debt Warrants which Warrant Certificate may be
are not immediately detachable: (transferred or) exchanged if and
only if the (Title of Offered
Debt Security) to which it was
initially attached is so
(transferred or) exchanged.)
Form of Legend if Debt Warrants are (Prior to , Debt
not immediately exercisable: Warrants evidenced by this Debt
Warrant Certificate cannot be
exercised.)
EXERCISABLE ONLY IF AUTHENTICATED BY THE DEBT
WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER THE CLOSE OF BUSINESS ON , 19
THE CHASE MANHATTAN CORPORATION
Warrant Certificate representing
Debt Warrants to purchase
(Title of Debt Warrant Securities)
as described herein
-----------------------------------------------
No. __________Debt Warrants
This certifies that (the bearer is
the) (__________________ or registered assigns
is the registered) owner of the above indicated
number of Debt Warrants, each Debt Warrant
entitling such (bearer (If Offered Debt Securities and Debt Warrants
which are not immediately detachable --,
subject to the bearer qualifying as a "Holder"
of this Debt Warrant Certificate, as
hereinafter defined)) (registered owner) to
purchase, at any time (after the close of
business on __________, 19__, and) at or before
the close of business on ______________, 19__,
$ _________ principal amount of (Title of Debt
Warrant
A-1
<PAGE>
Securities) (the "Debt Warrant Securities") of
The Chase Manhattan Corporation (the "Company")
issued or to be issued under the Indenture (as
hereinafter defined), on the following basis.<F1>
(During the period from _________, 19__ through
and including ___________, 19__,) each Debt
Warrant shall entitle the Holder thereof,
subject to the provisions hereof, to purchase
from the Company the principal amount of Debt
Warrant Securities stated above in this Debt
Warrant Certificate at the exercise price of __
% of the principal amount thereof (plus accrued
amortization, if any, of the original issue
discount of the Debt Warrant Securities) (plus
accrued interest, if any, from the most recent
date from which interest shall have been paid
on the Debt Warrant Securities or, if no
interest shall have been paid on the Debt
Warrant Securities, from _________ 19__); (in
each case, the original issue discount
($_________ for each $l,000 principal amount of
Debt Warrant Securities) will be amortized at a
__% annual rate, computed on a(n) (semi-)annual
basis(, using a 360-day year consisting oftwelve 30-day months)
(the "Exercise Price"). The Holder of this Debt Warrant
Certificate may exercise the Debt Warrants evidenced hereby,
in whole or in part, by surrendering this Debt Warrant Certificate, with the
purchase form set forth hereon duly completed,
accompanied (by payment in full, in lawful
money of the United States of America, (in cash
or by certified check or official bank check in
New York Clearing House funds)) (by the bank
wire transfer in immediately available funds)
(by surrender of the (specified aggregate
principal amount of (identified securities))),
of the Exercise Price for each Debt Warrant
exercised, to the Debt Warrant Agent (as
hereinafter defined), at the corporate trust
office of (name of Debt Warrant Agent), or its
successor as debt warrant agent (the "Debt
Warrant Agent") (or at _____________,) at the
addresses specified on the reverse hereof and
upon compliance with and subject to the
conditions set forth herein and in the Debt
Warrant Agreement (as hereinafter defined).
This Debt Warrant Certificate may be exercised
only for the purchase of Debt Warrant
Securities in the principal amount of ($1,000)
or any integral multiple thereof.
The term "Holder" as used herein
shall mean (If Offered Debt Securities and
------------------------------
Debt Warrants which are not immediately
- ---------------------------------------
detachable --, prior to _____________, 19__
- ----------
(the "Detachable Date"), the (bearer)
(registered owner) of the Company's (title of
Offered Debt Securities) (the "Offered Debt
Security") to which such Debt Warrant
Certificate was initially attached, and after
such Detachable Date,) (the bearer of such Debt
Warrant
- --------------------
<F1> Complete and modify the following provisions as appropriate
to reflect the terms of the Debt Warrants and the Debt
Warrant Securities.
A-2
<PAGE>
Certificate) (the person in whose name at the
time such Debt Warrant Certificate shall be
registered upon the books to be maintained by
the Debt Warrant Agent for that purpose
pursuant to Section 3.1 of the Debt Warrant Agreement
(as hereinafter defined).) Any whole number of Debt Warrants
evidenced by this Debt Warrant Certificate maybe
exercised to purchase Debt WarrantSecurities in registered form. Upon any
exercise of fewer than all of the Debt Warrants
evidenced by this Debt Warrant Certificate,
there shall be issued to the (bearer)
(registered owner) hereof a new Debt Warrant
Certificate evidencing the number of Debt
Warrants remaining unexercised.
This Debt Warrant Certificate is
issued under and in accordance with the Debt
Warrant Agreement dated as of ___________, 19__
(the "Debt Warrant Agreement"), between the
Company and the Debt Warrant Agent and is
subject to the terms and provisions contained
in the Debt Warrant Agreement, to all of which
terms and provisions the Holder of this Debt
Warrant Certificate consents by acceptance
hereof. Copies of the Debt Warrant Agreement
are on file at the above-mentioned office of
the Debt Warrant Agent (and at _____________).
The Debt Warrant Securities to be
issued and delivered upon the exercise of Debt
Warrants evidenced by this Debt Warrant
Certificate will be issued under and in
accordance with an (Indenture, dated as of July
1, 1986, as supplemented by a First
Supplemental Indenture, dated as of November 1,
1990, and a Second Supplemental Indenture,
dated as of May 1, 1991) (the "Indenture"), as
supplemented from time to time, between the
Company and Bankers Trust Company, a
corporation organized under the laws of the
State of New York, as trustee) (Amended and
Restated Indenture, dated as of September 1,
1993 (the "Indenture"), as supplemented from
time to time, between the Company and Chemical
Bank, a national banking institution organized
under the laws of the United States of America,
as trustee) (such trustee, and any successors
to such trustee, the "Trustee") and will be
subject to the terms and provisions contained
in the Debt Warrant Securities and in the
Indenture. Copies of the Indenture, including
the form of the Debt Warrant Securities, are on
file at the corporate trust office of
the Trustee (and at ________________).
(If Offered Debt Securities and Debt Warrants which are not immediately
detachable -- Prior to the Detachable Date,
this Debt Warrant Certificate may be exchanged
(or transferred) only together with the Offered
Debt Security to which this Debt Warrant
Certificate was initially attached, and only
for the purpose of effecting, or in conjunction
with, an exchange or
A-3
<PAGE>
transfer of such Offered Debt Security.
Additionally, on or prior to the Detachable
Date, each transfer of such Offered Debt
Security (on the register of the Offered Debt
Securities) shall operate also to transfer this
Debt Warrant Certificate. After the Detachable
Date, this) (If Offered
Debt Securities and Debt Warrants which are
immediately detachable or Debt Warrants
alone -- This) Debt Warrant Certificate, and
all rights hereunder, may be transferred (If
--
bearer Debt Warrants -- by delivery and the
- --------------------
Company and the Debt Warrant Agent may treat
the bearer hereof as the owner for all
purposes) (If registered Debt Warrants --
---------------------------
when surrendered at the address specified on
the reverse hereof (or______) by the registered
owner or his assigns, in person by an attorney
duly authorized in writing, in the manner and
subject to the limitations provided in the Debt
Warrant Agreement).
(If Offered Debt Securities and
------------------------------
Debt Warrants which are not immediately
- ---------------------------------------
detachable -- Except as provided in
the immediately preceding paragraph, after) (If
Offered Debt Securities and Debt Warrants which are
immediately detachable or Debt
Warrants alone -- After) authentication by
the Debt Warrant Agent and prior to the
expiration of this Debt Warrant Certificate,
this Debt Warrant Certificate may be exchanged
at the address specified on the reverse hereof
(or at ________) for Debt Warrant Certificates
representing the same aggregate number of Debt
Warrants.
This Debt Warrant Certificate shall
not entitle the (bearer) (registered owner)
hereof to any of the rights of a Holder of the
Debt Warrant Securities, including, without
limitation, the right to receive payments of
principal of (and premium, if any) or interest,
if any, on the Debt Warrant Securities or to
enforce any of the covenants of the Indenture.
Reference is hereby made to the
further provisions of this Warrant Certificate
set forth on the reverse hereof, which further
provisions shall for all purposes have the same
effect as if set forth at this place.
This Debt Warrant Certificate shall
not be valid or obligatory for any purpose
until countersigned by the Debt Warrant Agent.
A-4
<PAGE>
IN WITNESS WHEREOF, the Company has
caused this Debt Warrant Certificate to be duly
executed under its corporate seal.
Dated: __________
THE CHASE MANHATTAN CORPORATION
By --------------------------
Attest:
- ------------------------------
Countersigned:
- -------------------------------
As Debt Warrant Agent
---------------------
By
---------------------------
Authorized Signature
--------------------
A-5
<PAGE>
(REVERSE) (FORM OF DEBT WARRANT CERTIFICATE)
(Instructions for Exercise of Debt Warrants)
To exercise any Debt Warrants evidenced hereby, the Holder of
this Debt Warrant Certificate must pay (in cash or bycertified check or
official bank check in New York Clearing House funds) (by the bank wire
transfer in immediately available funds) (by the surrender of the (specified
aggregate principal amount of (identified securities))), the Exercise price
in full for each of the Debt Warrants exercised, to __________________,
Corporate Trust Department , , Attn:
--------------------- -------------------
(or ), which payment should specify the name of the
Holder of this Debt Warrant Certificate and the number of Debt Warrants
exercised by such Holder. In addition, the Holder of this Debt Warrant
Certificate should complete the information required below and
present in person or mail by registered mail this Warrant
Certificate to the Debt Warrant Agent at the addresses set forth below.
(FORM OF EXERCISE)
(To be executed upon exercise of Debt Warrants.)
The undersigned hereby irrevocably elects to exercise
__________________ Debt Warrants, represented by this Debt Warrant
Certificate, to purchase $_________ principal amount of the (Title of Debt
Warrant Securities) (the "Debt Warrant Securities") of The Chase Manhattan
Corporation and representsthat he has tendered payment for such Debt
Warrant Securities (in cash or by certified check or official bank check in
New York Clearing House funds) (by the bank wire transfer in immediately
available funds) (by the surrender of the (specified aggregate principal
amount of (identified securities))) to the order of The Chase Manhattan
Corporation, c/o:______________________________ in the amount of
$_______________________ in accordance with the terms hereof. The
undersigned requests that said principal amount of Debt Warrant
Securities be in (fully registered) (bearer) form, in the authorized
denominations(, registered in such names) and delivered, all as
specified in accordance with the instructions set forth below.
If said principal amount of Debt Warrant Securities is less than
all of the Debt Warrant Securities purchasable hereunder, the undersigned
requests that a new Debt Warrant Certificate representing the remaining
balance of the Debt Warrants evidenced hereby be issued and delivered to the
undersigned unless otherwise specified in the instructions below.
Dated: Name:
----------------
(please print)
A-6
<PAGE>
_______________________
(Insert Social Security or
Other Identifying Number of Holder)
Address_______________
_______________
Signature
(If registered Debt
Warrant -- (Signature
must conform in all
respects to name of
Holder as specified on
the face of this Debt
Warrant Certificate
and must bear a
signature guaranteed
by a bank, trust
company or member
broker of the New York
Stock Exchange or
other national stock
exchange.))
This Debt Warrant may be exercised at the
following addresses:
By hand at ______________________
______________________
______________________
______________________
By mail at ______________________
______________________
______________________
______________________
(Instructions as to form and delivery of Debt Warrant Securities
and/or Debt Warrant Certificates):
A-7
<PAGE>
(FORM OF ASSIGNMENT OF REGISTERED DEBT WARRANT)
(TO BE EXECUTED TO TRANSFER
THE DEBT WARRANT CERTIFICATE)
FOR VALUE RECEIVED __________________ hereby sells,
assigns and transfers unto
Please insert
social security or
other identifying
number
______________________
______________________________
(please print name and address
including zip code)
____________________________________________the right represented by the
within Debt Warrant Certificate and does hereby irrevocably constitute and
appoint _________________, Attorney, to transfer said Debt Warrant
Certificate on the books of the Debt Warrant Agent with full power of
substitution.
Dated:
__________________________
Signature
(Signature must
conform in all
respects to name of
Holder as specified on
the face of this Debt
Warrant Certificate
and must bear a
signature guaranteed
by a bank, trust
company or member
broker of the New York
Stock Exchange (or
other relevant stock
exchanges))
Signature Guaranteed:
_________________________
A-8
<PAGE>
OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS
HEREIN SHALL BE DETERMINED IN CONFORMITY WITH THE
APPLICABLE PROSPECTUS SUPPLEMENT OR SUPPLEMENTS
-------------------------------------------------
_________________________________________________
THE CHASE MANHATTAN CORPORATION
AND
(NAME OF CURRENCY WARRANT AGENT)
AS CURRENCY WARRANT AGENT
______________________________
CURRENCY WARRANT AGREEMENT
DATED AS OF (______________, 19__)
-------------------------------
(UP TO _______) CURRENCY (PUT/CALL) WARRANTS
EXPIRING (______________, 19__)
_________________________________________________
<PAGE>
TABLE OF CONTENTS<F1>
-----------------
Page
----
ARTICLE I
ISSUANCE, FORM, EXECUTION
DELIVERY AND REGISTRATION OF CURRENCY WARRANTS
SECTION 1.1 Issuance of Currency Warrants;
Book-Entry Procedures; Successor
Depositary; Status of Warrants . . . . . . . . . . . . . 1
SECTION 1.2 Form, Execution and Delivery of
the Currency Warrant Certificate . . . . . . . . . . . . 3
SECTION 1.3 Currency Warrant Certificate . . . . . . . . . . . . . . . 4
SECTION 1.4 Registration of Transfers and Exchanges . . . . . . . . . . 5
SECTION 1.5 Definitive Certificates . . . . . . . . . . . . . . . . . . 6
ARTICLE II
DURATION AND EXERCISE OF CURRENCY WARRANTS
SECTION 2.1 Duration of Currency Warrants;
Minimum (and Maximum) Exercise
Amounts; Notice of Exercise . . . . . . . . . . . . . . . 9
SECTION 2.2 Exercise and Delivery of Currency Warrants . . . . . . . . 11
SECTION 2.3 Automatic Exercise of the Currency Warrants . . . . . . . . 18
SECTION 2.4 Covenant of the Company . . . . . . . . . . . . . . . . . . 20
SECTION 2.5 Return of the Currency Warrant Certificate . . . . . . . . 21
SECTION 2.6 Return of Moneys Held Unclaimed for Two Years . . . . . . . 21
SECTION 2.7 Designation of Agent for Receipt of Notice . . . . . . . . 21
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF OWNERS
SECTION 3.1 Owners of Currency Warrants May Enforce Rights . . . . . . 21
SECTION 3.2 Consolidation, Merger or Other Disposition . . . . . . . . 21
- --------------------
<F1> The Table of Contents is not a part of the Currency Warrant
Agreement.
i
<PAGE>
ARTICLE IV
CANCELLATION OF CURRENCY WARRANTS
SECTION 4.1 Cancellation of Currency Warrants . . . . . . . . . . . . . 22
SECTION 4.2 Treatment of Owners . . . . . . . . . . . . . . . . . . . . 23
SECTION 4.3 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE V
CONCERNING THE CURRENCY WARRANT AGENT
SECTION 5.1 Currency Warrant Agent . . . . . . . . . . . . . . . . . . 23
SECTION 5.2 Conditions of Currency Warrant Agent's
Obligations . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 5.3 Compliance With Applicable Laws . . . . . . . . . . . . . . 26
SECTION 5.4 Resignation and Appointment of Successor . . . . . . . . . 26
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Modification, Supplementation or
Amendment . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.2 Notices and Demands to the Company
and Currency Warrant Agent . . . . . . . . . . . . . . . 29
SECTION 6.3 Addresses for Notices . . . . . . . . . . . . . . . . . . . 29
SECTION 6.4 Notices to Owners . . . . . . . . . . . . . . . . . . . . . 30
SECTION 6.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 6.6 Obtaining of Governmental Approvals . . . . . . . . . . . . 30
SECTION 6.7 Persons Having Rights Under the
Currency Warrant Agreement . . . . . . . . . . . . . . . 30
SECTION 6.8 Headings . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 6.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.10 Inspection of Agreement . . . . . . . . . . . . . . . . . . 31
EXHIBIT A - Form of Currency Warrant Certificate
EXHIBIT B - Form of Transfer of Currency Warrant Certificate
EXHIBIT C-1 - Form of Exercise Notice from Depositary
Participant
EXHIBIT C-2 - Form of Exercise Notice from Owner
EXHIBIT C-3 - Form of Notice of Rejection
EXHIBIT C-4 - Form of Confirmation of Exercise
EXHIBIT C-5 - Form of Confirmation of Exercise for Delayed
Exercise Warrants
EXHIBIT D-1 - Form of Depositary Participant Certificate
EXHIBIT D-2 - Form of Owner Certificate
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CURRENCY WARRANT AGREEMENT
THIS AGREEMENT, dated as of (__________________, 19__), between THE
CHASE MANHATTAN CORPORATION, a corporation duly incorporated and existing
under the laws of the State of Delaware (the "Company") and (name of Currency
Warrant Agent), a (banking association) duly incorporated and existing under
the laws of (_____), as Currency Warrant Agent (the "Currency Warrant
Agent"),
W I T N E S S E T H T H A T :
- - - - - - - - - - - - - -
WHEREAS, the Company proposes to sell currency warrants (the
"Currency Warrants" or, individually, a "Currency Warrant") representing the
right to receive from the Company the Cash Settlement Value (as defined
herein) in (U.S. dollars) (other currency) of the right to (purchase/sell)
(insert Base Currency) (amount) at a price determined by reference to (U.S.
dollars) (other currency) (the "Reference Currency") and the formula set
forth herein; and
WHEREAS, the Company wishes the Currency Warrant Agent to act on
behalf of the Company in connection with the issuance, transfer and exercise
of the Currency Warrants, and wishes to set forth herein, among other things,
the provisions of the Currency Warrants and the terms and conditions under
which they may be issued, transferred, exercised and cancelled;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE, FORM, EXECUTION
DELIVERY AND REGISTRATION OF CURRENCY WARRANTS
SECTION 1.1 Issuance of Currency Warrants; Book-Entry Procedures;
-----------------------------------------------------
Successor Depositary; Status of Warrants.
- ----------------------------------------
(a) The Currency Warrants will be issued in book-entry form and
represented by a single global certificate (the "Currency Warrant
Certificate"). Each Currency Warrant shall represent the right, subject to
the provisions contained herein and in the Currency Warrant Certificate, to
receive the Cash Settlement Value (as defined in Section 2.2(f) hereof), if
any, of such Currency Warrant. Such Cash Settlement Value will be payable
only in (U.S. dollars) (other currency). In no event shall any beneficial
owner of Currency Warrants (an "Owner") be entitled to receive any interest
on the Cash Settlement Value. A Currency Warrant will not require or entitle
the Owner thereof to sell, deliver, purchase or take delivery of any (insert
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designation of Base Currency), nor will the Company be under any obligation
to, nor will it, purchase or take delivery, or sell or deliver, any (insert
designation of Base Currency). Owners will not be entitled to receive
definitive certificates evidencing the Currency Warrants; provided, however,
-------- -------
that if (i) the Depositary (as defined in Section 1.1(b)) is at any time
unwilling or unable to continue as Depositary for the Currency Warrants and a
successor Depositary is not appointed by the Company within 90 days, or (ii)
the Company shall be adjudged bankrupt or insolvent or make an assignment for
the benefit of its creditors or institute proceedings to be adjudicated
bankrupt or shall consent to the filing of a bankruptcy proceeding against
it, or shall file a petition or answer or consent seeking reorganization
under applicable law, or shall 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 Company or of its property or affairs, for the purpose of
rehabilitation, conservation or liquidation, the Company will issue Currency
Warrants in definitive form in exchange for the Currency Warrant Certificate.
In addition, the Company may at any time determine not to have the Currency
Warrants represented by a Currency Warrant Certificate and, in such event,
will issue Currency Warrants in definitive form in exchange for the Currency
Warrant Certificate. In either instance, and in accordance with the
provisions of this Agreement, each Owner will be entitled to have a number of
Currency Warrants equivalent to such Owner's beneficial interest in the
Currency Warrant Certificate registered in its name and will be entitled to
physical delivery of such Currency Warrants in definitive form by the
Depositary Participant or Indirect Participant (as defined in Section 1.1(c))
through which such Owner's beneficial interest is reflected. The provisions
of Section 1.5 shall apply only if and when Currency Warrants in definitive
form ("Definitive Certificates") are issued hereunder. Unless the context
shall otherwise require, all references in this Agreement to the Currency
Warrant Certificate shall include the Definitive Certificates in the event
that Definitive Certificates are issued.
(b) The Currency Warrant Certificate shall be deposited with the
Depositary or its agent (the term "Depositary", as used herein, initially
refers to (The Depository Trust Company) and includes any successor
depository selected by the Company as provided in Section 1.1(d)) for credit
to the accounts of the Depositary Participants as shown on the records of the
Depositary from time to time.
(c) The Currency Warrant Certificate will be registered in the
name of (a nominee of) the Depositary. (The
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Company has been informed by the Depositary that initially its nominee will
be ________________.) The Currency Warrant holdings of Depositary
Participants will be recorded on the books of the Depositary. The holdings
of customers of Depositary Participants, including the holdings of Indirect
Participants, will be reflected on the books and records of such Depositary
Participants and will not be known to the Currency Warrant Agent, the Company
or to the Depositary. "Depositary Participants" include securities brokers
and dealers, banks and trust companies, clearing organizations and certain
other organizations which are participants in the Depositary system and, for
purposes of this Agreement, shall also mean participants in the book-entry
system of any successor Depositary. Access to the Depositary's system is
also available to others such as banks, securities dealers and trust
companies ("Indirect Participants") that clear or maintain a custodial
relationship with a Depositary Participant, either directly or indirectly.
The Currency Warrant holdings of Owners who are customers of Indirect
Participants will be reflected on the books and records of Depositary
Participants in the name of the respective Indirect Participants. The
Currency Warrant Certificate will be held by the Depositary or its agent.
Neither the Company nor the Currency Warrant Agent will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of an Currency
Warrant Certificate or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interest.
(d) The Company may from time to time select a new entity to act
as Depositary and, if such selection is made, the Company shall promptly give
the Currency Warrant Agent notice to such effect identifying the new
Depositary and the Currency Warrant Certificate shall be delivered to the
Currency Warrant Agent and shall be transferred to the new Depositary as
provided in Section 1.4 as promptly as possible. Appropriate changes may be
made in the Currency Warrant Certificate, the notice of exercise and the
related notices delivered in connection with an exercise of Currency Warrants
to reflect the selection of the new Depositary.
(e) The Currency Warrants will constitute direct, unconditional
and unsecured obligations of the Company and will rank on a parity with the
Company's other existing and future unsecured contractual obligations and
with the Company's existing and future unsecured and unsubordinated debt.
SECTION 1.2 Form, Execution and Delivery of the Currency Warrant
----------------------------------------------------
Certificate. Except as provided in Section 1.5, the Currency Warrant
- -----------
Certificate, whenever issued, shall be in registered form substantially in
the form set forth in Exhibit A-1 hereto, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted
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by this Agreement. The Currency Warrant Certificate may have imprinted or
otherwise reproduced thereon such letters, number or other marks of
identification or designation and such legends or endorsements as the
officers of the Company executing the same may approve (execution thereof to
be conclusive evidence of such approval) that are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto, or with any rule or
regulation of any stock exchange on which the Currency Warrants may be
listed, or of the Depositary, or to conform to usage. The Currency Warrant
Certificate shall be signed on behalf of the Company by its
(_____________________________) or any (____________________), manually or by
facsimile signature, and its corporate seal or a facsimile thereof shall be
impressed, imprinted or engraved thereon, which shall be attested by its
Secretary or any Assistant Secretary, either manually or by facsimile
signature. Typographical and other minor errors or defects in any such
reproduction of the seal or any such signature shall not affect the validity
or enforceability of the Currency Warrant Certificate that has been duly
countersigned and delivered by the Currency Warrant Agent.
In case any officer of the Company who shall have signed the
Currency Warrant Certificate, either manually or by facsimile signature,
shall cease to be such officer before the Currency Warrant Certificate so
signed shall have been countersigned and delivered by the Currency Warrant
Agent to the Company or delivered by the Company, such Currency Warrant
Certificate nevertheless may be countersigned and delivered as though the
person who signed such Currency Warrant Certificate had not ceased to be such
officer of the Company; and the Currency Warrant Certificate may be signed on
behalf of the Company by such persons as, at the actual date of the execution
of such Currency Warrant Certificate, shall be the proper officers of the
Company, although at the date of the execution of this Agreement any such
person was not such an officer.
SECTION 1.3 Currency Warrant Certificate. One or more Currency
----------------------------
Warrant Certificates (relating to no more than _____________ Currency
Warrants originally issued) may be executed by the Company and delivered to
the Currency Warrant Agent on or after the date of execution of this
Agreement; provided that only one Currency Warrant Certificate shall be
--------
outstanding at any one time. The Currency Warrant Agent is authorized, upon
receipt of a Currency Warrant Certificate from the Company, duly executed on
behalf of the Company, to countersign such Currency Warrant Certificate. The
Currency Warrant Certificate shall be manually countersigned and dated the
date of countersignature by a duly authorized representative of the Currency
Warrant Agent and shall not be valid for any purpose unless so countersigned.
The Currency Warrant Agent shall
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countersign and deliver the Currency Warrant Certificate to or upon the
written order of the Company.
The Currency Warrant Certificate may be exchanged for a new
Currency Warrant Certificate to reflect the issuance by the Company of
additional Currency Warrants (; provided, however, that in no event shall the
-------- -------
number of Currency Warrants represented by the Currency Warrant Certificate
exceed ___________ originally issued). To effect such an exchange the
Company shall deliver to the Currency Warrant Agent a new Currency Warrant
Certificate duly executed on behalf of the Company as provided in Section
1.2. The Currency Warrant Agent shall countersign the new Currency Warrant
Certificate as provided in this Section 1.3 and, upon a written order of the
Company, shall deliver the new Currency Warrant Certificate to the Depositary
in exchange for, and upon receipt of, the Currency Warrant Certificate then
held by the Depositary. The Currency Warrant Agent shall cancel the Currency
Warrant Certificate delivered to it by the Depositary and return the
cancelled Currency Warrant Certificate to the Company.
SECTION 1.4 Registration of Transfers and Exchanges. Except as
---------------------------------------
otherwise provided herein or in the Currency Warrant Certificate, the
Currency Warrant Agent shall from time to time register the transfer of the
Currency Warrant Certificate in the records of the Currency Warrant Agent
only to the Depositary, or to a nominee of the Depositary, upon surrender of
such Currency Warrant Certificate, duly endorsed and accompanied by a written
instrument or instruments of transfer in the form of Exhibit B hereto, duly
signed by the registered holder thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, such signature to be
guaranteed by a bank or trust company, by a broker or dealer which is a
member of the National Association of Securities Dealers, Inc. or by a member
of a U.S. national securities exchange. Upon any such registration of
transfer, the Company shall execute and the Currency Warrant Agent shall
countersign and deliver in the name of the designated transferee a new
Currency Warrant Certificate of like tenor and representing a like number of
unexercised Currency Warrants as evidenced by the Currency Warrant
Certificate at the time of such registration of transfer.
The Currency Warrant Certificate may be transferred as provided
above at the option of the registered holder thereof when surrendered to the
Currency Warrant Agent at its office or agency maintained for the purpose of
transferring and exercising the Currency Warrants, which shall be (south of
Chambers Street in the Borough of Manhattan, The City of New York) (the
"Currency Warrant Agent Office"), and which is, on the date of this
Agreement, (_____________, New York, New York ______, Attention: _______),
or at the office of any successor Currency Warrant Agent as provided for in
Section 5.4, for another Currency
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Warrant Certificate of like tenor and representing a like number of
unexercised Currency Warrants.
SECTION 1.5 Definitive Certificates. Any Definitive Certificates
-----------------------
issued in accordance with Section 1.1(a) shall be in registered form
substantially in the form set forth in Exhibit
A-2 hereto, with such appropriate insertions, omissions, substitutions and
other variations as are necessary or desirable for individual Definitive
Certificates, and may represent any integral multiple of Currency Warrants.
The Definitive Certificates may have imprinted or otherwise reproduced
thereon such letters, numbers or other marks of identification or designation
and such legends or endorsements as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such
approval) that are not inconsistent with the provisions of this Agreement, or
as may be required to comply with any law or with any rule or regulation made
pursuant thereto, or with any rule or regulation of any stock exchange on
which the Currency Warrants may be listed, or of the Depositary, or to
conform to usage. Definitive Certificates shall be signed on behalf of the
Company upon the same conditions, in substantially the same manner and with
the same effect as the Currency Warrant Certificate.
Each Definitive Certificate, when so signed on behalf of the
Company, shall be delivered to the Currency Warrant Agent, which shall
manually countersign and deliver the same to or upon the written order of the
Company. Each Definitive Certificate shall be dated the date of its
countersignature.
No Definitive Certificate shall be valid for any purpose, and no
Currency Warrant evidenced thereby shall be exercisable, until such
Definitive Certificate has been countersigned by the manual signature of a
duly authorized representative of the Currency Warrant Agent. Such signature
by the Currency Warrant Agent upon any Definitive Certificate executed by the
Company shall be conclusive evidence that the Definitive Certificate so
countersigned has been duly issued hereunder.
Definitive Certificates delivered in exchange for the Currency
Warrant Certificate shall be registered in such names and addresses
(including tax identification number) and in such denomination as shall be
requested in writing by the Depositary or its nominee in whose name the
Currency Warrant Certificate is registered, upon written certification to the
Company and the Currency Warrant Agent, in a form satisfactory to each of
them, of the applicable beneficial ownership interests in the Currency
Warrant Certificate.
The Company shall cause to be kept at an office of the Currency
Warrant Agent in New York City a register (the register
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maintained in such office and in any other office or agency maintained by or
on behalf of the Company for such purpose being herein sometimes collectively
referred to as the "Currency Warrant Registrar") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of and transfers of Definitive Certificates. The Currency
Warrant Agent is hereby appointed "Currency Warrant Register" for the purpose
of registering Definitive Certificates and transfers of Definitive
Certificates as herein provided.
For purposes of this Section 1.5, a "Holder of a Definitive
Certificate" at any particular time is the person in whose name such
Definitive Certificate is registered in the Currency Warrant Register at such
time.
Upon surrender for registration of transfer of any Definitive
Certificate at an office or agency of the Company maintained for such
purpose, the Company shall execute, and the Currency Warrant Agent shall
countersign and deliver, in the name of the designated transferee or
transferees, one or more new Definitive Certificates of like tenor and
representing a like number of unexercised Currency Warrants.
At the option of the Holder of a Definitive Certificate, Definitive
Certificates may be exchanged for other Definitive Certificates of like tenor
and representing a like number of unexercised Currency Warrants, upon
surrender of the Definitive Certificates to be exchanged at such office or
agency. Whenever any Definitive Certificates are so surrendered for
exchange, the Company shall execute, and the Currency Warrant Agent shall
countersign and deliver, the Definitive Certificates which the Holder of a
Definitive Certificate making the exchange is entitled to receive.
All Definitive Certificates issued upon any registration of
transfer or exchange of Definitive Certificates shall be valid obligations of
the Company, evidencing the same obligations of the Company, and entitled to
the same benefits under this Currency Warrant Agreement, as the Definitive
Certificates surrendered upon such registration of transfer or exchange.
Every Definitive Certificate presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Currency Warrant Agent) be duly endorsed, or be accompanied by a
written instrument of transfer in a form satisfactory to the Company and the
Currency Warrant Registrar duly executed, by the Holder of a Definitive
Certificate thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Definitive Certificates, but the Company
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may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration
of transfer or exchange of Definitive Certificates.
In the event that upon any exercise of Currency Warrants evidenced
by a Definitive Certificate the number of Currency Warrants exercised shall
be less than the total number of Currency Warrants evidenced by such
Definitive Certificate, there shall be issued to the Holder thereof or its
assignee a new Definitive Certificate evidencing the number of Currency
Warrants not exercised.
If any mutilated Definitive Certificate is surrendered to the
Currency Warrant Agent, the Company shall execute and the Currency Warrant
Agent shall countersign and deliver in exchange therefor a new Definitive
Certificate of like tenor representing a like number of unexercised Currency
Warrants and bearing a number not contemporaneously outstanding.
If there shall be delivered by a Holder of a Definitive Certificate
to the Company and the Currency Warrant Agent (i) evidence to their
satisfaction of the destruction, loss or theft of any Definitive Certificate
and of ownership thereof, (ii) such security or indemnity as may be required
by them to save each of them and any agent of either of them harmless, and
(iii) funds sufficient to cover any cost or expense to the Company (including
any fees charged by the Currency Warrant Agent) relating to the issuance of a
new Definitive Certificate, then, in the absence of notice to the Company or
the Currency Warrant Agent that such Definitive Certificate has been acquired
by a bona fide purchaser, the Company shall execute and upon its request the
Currency Warrant Agent shall countersign and deliver, in lieu of any such
destroyed, lost or stolen Definitive Certificate, a new Definitive
Certificate of like tenor representing a like number of unexercised Currency
Warrants and bearing a number not contemporaneously outstanding.
In case the Currency Warrants evidenced by any such mutilated,
destroyed, lost or stolen Definitive Certificate have been exercised, or have
been or are about to be deemed to be exercised, the Company in its discretion
may, instead of issuing a new Definitive Certificate, treat the same as if it
had received written irrevocable notice of exercise in good form in respect
thereof, as provided herein.
Every new Definitive Certificate issued pursuant to this Section
1.5 in lieu of any mutilated, destroyed, lost or stolen Definitive
Certificate shall constitute an original additional contractual obligation of
the Company, whether or not the mutilated, destroyed, lost or stolen
Definitive Certificate shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Currency Warrant Agreement equally
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and proportionately with any and all other Definitive Certificates duly
issued hereunder.
The provisions of this Section 1.5 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Definitive
Certificates.
Prior to due presentment of a Definitive Certificate for
registration of transfer, the Company, the Currency Warrant Agent and any
agent of the Company or the Currency Warrant Agent may treat the person in
whose name such Definitive Certificate is registered as the owner of such
Definitive Certificate for all purposes hereunder whatsoever, whether or not
such Definitive Certificate be exercised or deemed to be exercised and
neither the Company, the Currency Warrant Agent nor any agent of the Company
or the Currency Warrant Agent shall be affected by notice to the contrary.
All Definitive Certificates surrendered for exercise, registration
of transfer or exchange shall, if surrendered to any person other than the
Currency Warrant Agent, be delivered to the Currency Warrant Agent and shall
be promptly cancelled by it and shall not be reissued. The Company may at
any time deliver to the Currency Warrant Agent for cancellation any
Definitive Certificates previously countersigned and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all
Definitive Certificates so delivered shall be promptly cancelled by the
Currency Warrant Agent. No Definitive Certificates shall be countersigned in
lieu of or in exchange for any Definitive Certificate cancelled as provided
in this Section 1.5, except as expressly permitted by this Currency Warrant
Agreement. All cancelled Definitive Certificates held by the Currency
Warrant Agent shall be disposed of as directed by the Company.
ARTICLE II
DURATION AND EXERCISE OF CURRENCY WARRANTS
SECTION 2.1 Duration of Currency Warrants; Minimum (and Maximum)
----------------------------------------------------
Exercise Amounts; Notice of Exercise.
- ------------------------------------
(a) Subject to the limitations described herein, each Currency
Warrant evidenced by the Currency Warrant Certificate or Definitive
Certificates may be irrevocably exercised in whole but not in part (on any
New York Business Day from the date of issuance until (1:30 P.M.), New York
City time,) on (i) (the date upon which the right to exercise the Currency
Warrants expires or, if such date is not a New York Business Day (as defined
in Section 2.1(c) below), on the next succeeding New York Business Day)
(___________ __, 199_) (the "Expiration Date") or (ii) the
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date of automatic exercise as provided in Section 2.3. (There is no exercise
price payable by any Owner in connection with the exercise of an Currency
Warrant.) (The exercise price for each Currency Warrant is ($_____) and
shall be payable by the Owner of such Currency Warrant in (U.S. dollars)
(other currency) (the "Exercise Price")). Each Currency Warrant may be
exercised by (a) transfer of the related Currency Warrants on the records of
the Depositary free to the Currency Warrant Agent Depositary Participant
Account (entitled (______)), or such other account of the Currency Warrant
Agent at the Depositary as the Currency Warrant Agent shall specify (the
"Currency Warrant Account"), in the case of Currency Warrants represented by
the Currency Warrant Certificate, or surrender of the Definitive Certificate
or Certificates to the Currency Warrant Agent at the Currency Warrant Agent's
Office, in the case of Currency Warrants represented by Definitive
Certificates (in each case, "Proper Delivery"), (b) except in the case of
automatic exercise or cancellation, delivery of written notice (an "Exercise
Notice") to the Currency Warrant Agent from a Depositary Participant acting
on behalf of the Owner of such Currency Warrant, in the event that the
Currency Warrants are represented by the Currency Warrant Certificate, or
from the Owner, in the event that the Currency Warrants are represented by
Definitive Certificates; provided, however, that Exercise Notices are subject
-------- -------
to rejection by the Currency Warrant Agent as provided herein (and (c) the
payment in full to the Currency Warrant Agent of the Exercise Price ((in U.S.
dollars) (other currency) (in cash or by certified or official bank check in
New York Clearing House funds) (by bank wire transfer in immediately
available funds)) payable to the account of the Company).
(b) Not fewer than the minimum number (or more than the maximum
number) of Currency Warrants as set forth in the Currency Warrant Certificate
or Definitive Certificate, as the case may be, may be exercised by or on
behalf of any one Owner at any one time, except that no such minimum (or
maximum) exercise amount shall apply in the case of exercise (or deemed
exercise) on the Expiration Date. The Exercise Notice, which shall be
irrevocable, shall be in substantially the form set forth in Exhibit C-1
hereto in the case that the Currency Warrants are represented by the Currency
Warrant Certificate, and in substantially the form set forth in Exhibit C-2
hereto in the case that the Currency Warrants are represented by Definitive
Certificates, and shall be sent to the Currency Warrant Agent in writing
(which shall include facsimile transmissions, followed promptly by an
executed original, but the date and time of receipt of such transmission
shall be the effective date and time of such notice) at its address as set
forth in such Exercise Notice or at such other address as the Currency
Warrant Agent may specify from time to time. An irrevocable Exercise Notice
may be conditioned as set forth in Section 2.2(a), but shall otherwise be
unconditional.
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(c) As used herein, "New York Business Day" means any day other
than a Saturday, Sunday, legal holiday or other day on which the (New York
Stock Exchange), (American Stock Exchange) or (relevant options and futures
exchanges on which the underlying securities trade) is not open for
securities trading or banking institutions generally in The City of New York
are authorized or required by law or executive order to close (and "Currency
Country Resident" means a resident of, or any corporation or other entity
organized under the laws of, (name of Currency country), its territories, its
possessions or other areas subject to its jurisdiction). Except as provided
in Section 2.2(b), the Currency Warrant Agent and the Company shall be
entitled to rely conclusively on any Exercise Notice received by them with no
duty of inquiry by either of them.
SECTION 2.2 Exercise and Delivery of Currency Warrants.
------------------------------------------
(a) Except in the case of automatic exercise as provided in
Section 2.3, and subject to Sections 2.2(b)(i) and 2.2(e), the exercise date
(the "Exercise Date") for a Currency Warrant shall be ((i) if the Currency
Warrant Agent receives delivery of such Currency Warrant (, the Exercise
Price) and an Exercise Notice in good order at or prior to (1:30 P.M.), New
York City time on a New York Business Day, then such New York Business Day
and (ii) otherwise the New York Business Day next succeeding the day on which
the Currency Warrant Agent receives Proper Delivery of such Currency Warrant
(, such Exercise Price) and such Exercise Notice) (_____________ __, 199_).
Any Exercise Notice received after (1:30 P.M.), New York City time, on the
Expiration Date shall be void and of no effect and shall be deemed not to
have been delivered or made, as the case may be. The provisions of Section
2.3 shall apply to any Currency Warrants to which such late delivery of an
Exercise Notice applied. The "Designated Exercise Date" for a Currency
Warrant is the date that, but for Section 2.2(e), would be the Exercise Date
for such Currency Warrant. (Notwithstanding anything in this Agreement to
the contrary, if a Depositary Participant (or Owner in the event Definitive
Certificates are issued) has specified in its irrevocable Exercise Notice
that such Exercise Notice is conditional (a "Conditional Exercise Notice"),
then such Conditional Exercise Notice shall be void and of no effect (and
shall be disregarded for all purposes of this Agreement) if (the Spot Rate
(as defined in Section 2.2(f)) on the Valuation Date (as defined below) (such
Spot Rate, the "Reference Rate") is more than (____________ ) (above)<F1>
(below)<F2> the Spot Rate currency on the Designated Exercise Date (or if
such Designated
- --------------------
<F1> In case of Currency Put Warrants.
<F2> In case of Currency Call Warrants.
11
<PAGE>
Exercise Date is not a Currency Country Business Day (as defined below), on
the immediately preceding Currency Country Business Day)). As used in this
Section 2.2, the "Valuation Date" for a Currency Warrant shall be the
Currency Country Business Day next succeeding the New York Business Day on
which the Currency Warrant Agent has received (i) Proper Delivery of such
Currency Warrant (, accompanied by payment in good form of the Exercise
Price) and (ii) an Exercise Notice for such Currency Warrant in good order in
the form of Exhibit (C-1) (C-2) to the Currency Warrant Agreement, at or
prior to (1:30 P.M.) New York City time, and if the Currency Warrant Agent
shall receive such delivery of such Exercise Notice after (1:30 P.M.), New
York City time, on such date, the "Valuation Date" shall be the next Currency
Country Business Day following the New York Business Day following the New
York Business Day on which the Currency Warrant Agent received Proper
Delivery of such Currency Warrant and such Exercise Notice. In such event,
the Currency Warrants delivered to the Currency Warrant Agent with such
Conditional Exercise Notice shall be redelivered free through the facilities
of the Depositary to the account of such Depositary Participant (or returned
to the appropriate Owner by first class mail at the expense of the Company in
the event that Definitive Certificates are issued) together with a notice of
rejection substantially in the form set forth in Exhibit C-3 hereto.) As
used herein, "Currency Country Business Day" means any day other than (i) a
Saturday, Sunday, legal holiday or other day on which banking institutions
generally in (name of Currency country) are authorized or required by law or
executive order to close or (ii) a day on which the (names of relevant stock
exchanges) are not open for business.
(b) Following receipt of Proper Delivery of the Currency
Warrants(, the Exercise Price) and the Exercise Notice related to such
Currency Warrants in good form, the Currency Warrant Agent shall:
((i) deposit all funds received by it as payment for the exercise
of Currency Warrants to the account of the Company maintained with it
for such purpose on the date on which such Currency Warrant is deemed
exercised ((unless otherwise instructed in writing by the Company)),
advise the Company by telephone and in writing, by facsimile
transmission or otherwise, at the end of each day on which such payment
is received of the amount so deposited to its account.)
(ii) promptly determine whether the Definitive Certificate is in
proper form, in the case of Currency Warrants represented by a
Definitive Certificate, (whether the Exercise Price has been paid in
full in proper form) and whether the Exercise Notice has been duly
completed and is in proper form and, in the case of Currency Warrants
12
<PAGE>
represented by the Currency Warrant Certificate, promptly verify that
the entity that executed such notice is listed as a Depositary
Participant in the most recent published edition of the Depositary's
Eligible Corporate Securities Book (or comparable publication of a
successor Depositary) and, if such entity is not listed therein, the
Currency Warrant Agent shall make reasonable efforts to obtain
telephonic verification from the Depositary's (Planning) Department
(telephone no. (or comparable department of a successor Depositary) that
such entity is a Depositary Participant. If the Currency Warrant Agent
is unable through the above-described procedures to verify that such
entity is a Depositary Participant or, in any case, if the Currency
Warrant Agent determines that the Exercise Notice has not been duly
completed or is not in proper form, that the Definitive Certificate is
not in proper form, (or that the Exercise Price has not been paid in
full in proper form,) the Currency Warrant Agent shall reject the
Exercise Notice and shall send to the entity that executed such notice
(or in the event Definitive Certificates have been issued, to the
Owner), a notice of rejection substantially in the form set forth in
Exhibit C-3 hereto and redeliver the Currency Warrants to which such
rejected Exercise Notice relates free through the facilities of the
Depositary to the account from which they were transferred (or in the
event Definitive Certificates have been issued, to the Owner) (and
redeliver any payment of the Exercise Price which accompanied such
rejected Exercise Notice free through the facilities of the Depositary
to the account from which such payment was transferred (or in the event
Definitive Certificates have been issued, to the Owner));
(iii) notify the Company by 5:00 P.M., New York City time, on the
New York Business Day such Exercise Notice and Proper Delivery are
received (or deemed to have been received) of the number of Currency
Warrants in respect of which Exercise Notices, not rejected pursuant to
clause (ii) above, were received (or deemed to have been received) at or
prior to (1:30 P.M.), New York City time, on such date and the number of
Conditional Exercise Notices (and the number of Currency Warrants to
which such Conditional Exercise Notices relate);
(iv) before 5:00 P.M., New York City time, on the first Currency
Country Business Day following the Designated Exercise Date for such
Currency Warrants (or, if such Currency Country Business Day is not a
New York Business Day, on the next succeeding New York Business Day),
(x) after obtaining the Reference Rate (as defined in Section 2.2(a)),
determine whether any Conditional Exercise Notices have become void
pursuant to Section 2.2(a), and if so, promptly notify the Company and
send notice in the form of
13
<PAGE>
Exhibit C-3 hereto to the appropriate Depositary Participant or Owner,
as the case may be, and (y) determine the aggregate number of Currency
Warrants covered by Exercise Notices that have not become void pursuant
to Section 2.2(a) or been rejected pursuant to Section 2.2(b)(i) (the
"Tendered Currency Warrants");
(v) by 5:00 P.M., New York City time, on the first Currency
Country Business Day following the Designated Exercise Date for the
Tendered Currency Warrants (or the New York Business Day immediately
succeeding such Currency Country Business Day if such Currency Country
Business Day is not a New York Business Day) covered by such Exercise
Notice determine pursuant to Section 2.2(e) the number of such Tendered
Currency Warrants for which the Designated Exercise Date shall be the
Exercise Date (such Tendered Currency Warrants, "Exercised Currency
Warrants");
(vi) by 5:00 P.M., New York City time, on the Valuation Date (or
the New York Business Day immediately succeeding the Valuation Date if
the Valuation Date is not a New York Business Day) (x) obtain the Spot
Rate (as defined in Section 2.2(f)) (and the exchange rate) to be used
to determine the Cash Settlement Value, in each case, applicable to such
Exercised Currency Warrants, (y) calculate and advise the Company of the
aggregate Cash Settlement Value with respect to such Exercised Currency
Warrants and (z) send notice of confirmation of exercise in the form set
forth in Exhibit C-4 hereto (or, if applicable, Exhibit C-5 hereto) to
such Depositary Participant (or in the event Definitive Certificates
have been issued, to the Owners); and
(vii) promptly deliver a copy of such Exercise Notices to the
Company and advise the Company of such other matters relating to any of
the Currency Warrants covered thereby, whether or not they constitute
Tendered Currency Warrants or Exercised Currency Warrants, as the
Company shall reasonably request. Any notice to be given to the Company
by the Currency Warrant Agent pursuant to this Section 2.2 or Section
2.3 shall be by telephone (promptly confirmed in writing) or telecopy
(receipt to be promptly confirmed by telephone). Any notice to be given
to any Spot Rate Reference Bank (as defined in Section 2.2(f)) pursuant
to this Section 2.2 or Section 2.3 shall be by facsimile transmission to
the address of such Spot Rate Reference Bank set forth in Section 6.3.
(c) With respect to all Currency Warrants duly exercised or deemed
exercised on a date, the Company shall make available to the Currency Warrant
Agent, on or before (1:30 P.M.) New York City time, on the fifth New York
Business Day following
14
<PAGE>
the Valuation Date for the relevant Currency Warrants (or, if such Valuation
Date is not a New York Business Day, on the sixth New York Business Day after
such Valuation Date) (the "Settlement Date") funds in an amount equal to, and
for the payment of, the aggregate Cash Settlement Value of such Exercised
Currency Warrants. Provided that the Company has made adequate funds
available to the Currency Warrant Agent in a timely manner, which shall, in
no event, be later than (1:30 P.M.), New York City time, the Currency Warrant
Agent will make payment available in the form of a check (or bank wire
transfer if the payment is greater than $________) (i) in the case of
exercise of Currency Warrants represented by the Currency Warrant
Certificate, to the appropriate Depositary Participant after (1:30 P.M.), New
York City time, but prior to the close of business, on such Settlement Date,
such payment to be in the amount of the Cash Settlement Value in respect of
the Exercised Currency Warrants exercised by such Depositary Participant and
(ii) in the case of exercise of Currency Warrants represented by Definitive
Certificates, to the appropriate Owner after (1:30 P.M.), New York City time,
but prior to the close of business, on such Settlement Date, such payment to
be in the amount of the Cash Settlement Value of the Exercised Currency
Warrants exercised by such Owner. In the case of payments by the Currency
Warrant Agent to a Depositary Participant, such Depositary Participant shall
be responsible for crediting the Cash Settlement Value of such Currency
Warrants to the appropriate Owner.
(d) The Currency Warrant Agent promptly shall cause its records,
which may be kept electronically, to be marked to reflect the reduction in
the number of Currency Warrants represented by the Currency Warrant
Certificates or Definitive Certificates, as the case may be, by the number of
such Currency Warrants (i) for which it has received Exercise Notices in
proper form, (ii) that were delivered to the Currency Warrant Account, in the
case of Currency Warrants represented by the Currency Warrant Certificate, or
that were surrendered to the Currency Warrant Agent in the case of Currency
Warrants represented by Definitive Certificates and (iii) for which payment
has been made as provided in Section 2.2(c) promptly after such delivery and
payment.
(e) In the event that the aggregate number of Tendered Currency
Warrants with respect to any single Designated Exercise Date (as determined
by the Currency Warrant Agent pursuant to Section 2.2(b)(iii) shall equal or
exceed (_____) (such number, the "Maximum Exercisable Number"), the
provisions of this Section 2.2(e) shall apply to the exercise of such
Currency Warrants.
(i) The Company may, at its sole option, notify the Currency
Warrant Agent in writing (including by facsimile transmission) not later
than (_______), New York City time, on the first Currency Country
Business Day following such
15
<PAGE>
Designated Exercise Date (or, if such Currency Country Business Day is
not a New York Business Day, on the next succeeding New York Business
Day) to the effect that the Company has elected to exercise its option
under this Section 2.2(e) to limit the number of Currency Warrants for
which the Exercise Date will occur on such Designated Exercise Date to a
number (the "Elected Maximum Number") not smaller than the Maximum
Exercisable Number. If the Currency Warrant Agent shall not have
received such notice by such time, none of the following provisions in
this Sections 2.2(e) shall apply to such Tendered Currency Warrants,
such Designated Exercise Date shall be the Exercise Date for such
Tendered Currency Warrants and all of such Tendered Currency Warrants
shall be deemed to be "Exercised Currency Warrants" for purposes of
Section 2.2(b).
(ii) If the Currency Warrant Agent shall have received the notice
contemplated by clause (i) above by the time specified in such clause
(i), then prior to 5:00 P.M., New York City time, on the first Currency
Country Business Day following such Designated Exercise Date (or, if
such Currency Country Business Day is not a New York Business Day, on
the next succeeding New York Business Day), the Currency Warrant Agent
shall select (by lot or such other method as the Warrant Agent deems
appropriate) from all such Tendered Currency Warrants, subject to clause
(iii) below, Tendered Currency Warrants for which the Exercise Date will
occur on such Designated Exercise Date in an aggregate amount equal to
the Elected Maximum Number. Only the Tendered Currency Warrants so
selected shall be deemed to be "Exercised Currency Warrants" for
purposes of Section 2.2(b). The Tendered Warrants not so selected are
referred to herein as "Delayed Exercise Currency Warrants" and shall be
subject to exercise as provided in clause (iii) below.
(iii) For purposes of this Section 2.2, each Delayed Exercise
Currency Warrant shall be deemed to have a new Designated Exercise Date
on the New York Business Day next succeeding the original Designated
Exercise Date, and this Section 2.2 shall apply as if one or more
Exercise Notices with respect to the Delayed Exercise Currency Warrants
had been received by the Currency Warrant Agent prior to (1:30 P.M.),
New York City time, on such New York Business Day (except that (x) any
Delayed Exercise Currency Warrant with respect to which any such deemed
Designated Exercise Date is on or after the (_____) New York Business
Day preceding the Expiration Date will be subject to Automatic Exercise
as provided in Section 2.3, (y) the Reference Rate for any Delayed
Exercise Currency Warrant covered by a Conditional Exercise Notice shall
in any event be determined by reference to the original Designated
Exercise Date therefor
16
<PAGE>
(or, if applicable, the first Currency Country Business Day preceding
such original Designated Exercise Date) and (z) the notice of
confirmation of exercise with respect to Delayed Exercise Currency
Warrants given by the Currency Warrant Agent pursuant to Section
2.2(b)(v) shall be in the form set forth in Exhibit C-5 hereto);
provided, however, that, other than in the case of an Automatic
-------- -------
Exercise, in the event that the aggregate number of such Delayed
Exercise Currency Warrants, together with any additional Tendered
Currency Warrants for which the Designated Exercise Date is such New
York Business Day, shall again exceed the Maximum Exercisable Number,
the provisions of this Section 2.2(e) shall apply, mutatis mutandis,
------- --------
to the exercise of such Delayed Exercise Currency Warrants and such
additional Tendered Currency Warrants; and provided, further, however,
-------- ------- -------
that such Delayed Exercise Currency Warrants shall in any event be given
priority over such additional Tendered Currency Warrants in the
selection pursuant to clause (ii) above, and among such Delayed Exercise
Currency Warrants, priority in such selections shall be given to
Currency Warrants in the order of their original Designated Exercise
Dates, with Currency Warrants having the same original Designated
Exercise Date being selected by lot as described in Section 2.2(e)(ii)
above.
(iv) In connection with any issuance by the Company of additional
Currency Warrants under this Agreement, the Company has the right, but
is not obligated, to increase the Maximum Exercisable Number.
(f) For the purposes of this Currency Warrant Agreement:
Except as provided in Section 2.3, "Cash Settlement Value" of an
Exercised Currency Warrant is an amount stated in (U.S. dollars) (other
currency) which is the greater of (i) zero and (ii) the amount computed by
subtracting (from (a constant, e.g., 50))<F3> ((a constant, e.g., 50)
---- ----
from)<F4> an amount equal to (such a constant) multiplied by a fraction, the
numerator of which is (insert a pre-established amount of Base Currency per
((U.S. dollar) (other currency)) (the "Strike Price") and the denominator of
which is the Spot Rate on the Designated Exercise date. The "Spot Rate" on
such Designated Exercise Date shall mean the offered spot rate of (insert
Base Currency) per (U.S. dollar) (other currency) as quoted by
(________________) (the "Spot Rate Reference Bank") at 10:00 A.M., New York
City time, on such date or, if such bank is not quoting such rate at such
time,
- --------------------
<F3> In the case of Currency Put Warrants.
<F4> In the case of Currency Call Warrants.
17
<PAGE>
the rate quoted by such other leading bank in the foreign exchange markets as
may be selected by the Company in good faith and notified to the Currency
Warrant Agent. The offered spot rate of any applicable currency shall be
calculated to four (4) decimal places.)
(The exchange rate (or manner of calculating such rate) for
conversion of the (Strike Price), (the Exercise Price) and the (Spot Rate)
into U.S. dollars shall be (______) (set forth such rate or manner of
calculating such rate) and shall be obtained by the Currency Warrant Agent.
"U.S. dollars", "U.S.$" or "$" are references to the currency of the United
States of America. "(Currency)" ( or "_______" are references to the
currency of (name of other country)).<F5>
SECTION 2.3 Automatic Exercise of the Currency Warrants.
-------------------------------------------
(a) All Currency Warrants with respect to which (i) there has been
no Proper Delivery (, payment in good form of the Exercise Price has not been
received by the Currency Warrant Agent) or no valid Exercise Notice has been
received by the Currency Warrant Agent at or prior to (1:30 P.M.), New York
City time, on the Expiration Date for such Currency Warrants, (ii) the
Exercise Date for which has been postponed pursuant to Section 2.2(e) to a
date on or after the New York Business Day preceding the Expiration Date or
(iii) there has been no proper exercise on the New York Business Day on which
the Currency Warrants are permanently delisted or suspended from the (name of
U.S. national securities exchange) and, at or prior to such delisting or
suspension, the Currency Warrants have not been listed on another U.S.
national securities exchange or quoted through a self-regulatory organization
(a "Self Regulatory Organization") in the United States which operates
pursuant to rules and regulations of a self-regulatory organization that are
filed with the Securities and Exchange Commission (the "Commission") pursuant
to Section 19(b) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), will be deemed automatically exercised on such Expiration
Date without any requirement of notice of exercise or delivery of the
Currency Warrants to the Currency Warrant Agent. By 5:00 P.M., New York City
time, on the Expiration Date, the Currency Warrant Agent shall advise the
Company of the number of unexercised Currency Warrants outstanding after
(1:30 P.M.), New York City time, on such day. As used in this Section 2.3,
the "Valuation Date" for such Currency Warrants shall be the first Currency
Country Business Day following such Expiration Date.
(b) On the Valuation Date for the Currency Warrants (or, if such
Valuation Date is not a New York Business Day, on
- --------------------
<F5> In case of Currency Put Warrants or Currency Call Warrants.
18
<PAGE>
the next succeeding New York Business Day), the Currency Warrant Agent shall
(i) determine the Cash Settlement Value (in the manner provided in Section
2.2(f)) of the Currency Warrants to be automatically exercised, (ii) advise
the Company by 5:00 P.M., New York City time, on such Valuation Date (or, if
such Valuation Date is not a New York Business Day, on the next succeeding
New York Business Day) of the Cash Settlement Value with respect to such
Currency Warrants and (iii) advise the Company of such other matters relating
to the automatically exercised Currency Warrants as the Company shall
reasonably request. (Following the Expiration Date, the Depositary shall
deliver to the Currency Warrant Agent one or more certificates from the
appropriate Depositary Participant in the form of Exhibit D-1 attached
hereto, dated no earlier than the Expiration Date, executed by such
Depositary Participant, setting forth the total number of automatically
exercised Currency Warrants. In the event that the Currency Warrants
automatically exercised are represented by Definitive Certificates, the
appropriate Owner will deliver to the Currency Warrant Agent (x) the
Definitive Warrant Certificates to be automatically exercised and (y) a
certificate in the form of Exhibit D-2 hereto, dated no earlier than the
Expiration Date setting forth the number of Currency Warrants automatically
exercised. On the Expiration Date all the Currency Warrants will be
cancelled and will represent only a right to receive ((i)) the Cash
Settlement Value ((ii) minus the Exercise Price).
(c) Provided that the Company has made adequate funds available to
the Currency Warrant Agent in a timely manner which shall, in no event, be
later than (1:30 P.M.), New York City time, on the fifth New York Business
Day following the Valuation Date for such automatically exercised Currency
Warrants (or if such Valuation Date is not a New York Business Day, on the
sixth New York Business Day after such Valuation Date), the Currency Warrant
Agent will make payment available in the form of a check (or a bank wire
transfer if the payment is greater than $___________) (i) in the event that
the automatically exercised Currency Warrants are represented by the Currency
Warrant Certificate, to the Depositary, after (1:30 P.M.), New York City
time, but prior to the close of business, on the fifth New York Business Day
following the Valuation Date for such automatically exercised Currency
Warrants (or if such Valuation Date is not a New York Business Day, on the
sixth New York Business Day after such Valuation Date), such check to be in
the amount of ((i)) the aggregate Cash Settlement Value ((ii) minus the
Exercise Price) in respect of Currency Warrants that have been automatically
exercised and transferred to the Currency Warrant Account, and (ii) in the
event that the automatically exercised Currency Warrants are represented by
Definitive Certificates, to the appropriate Owner, after (1:30 P.M.), New
York City time, but prior to the close of business, on the fifth New York
Business Day following the Valuation Date for such automatically exercised
19
<PAGE>
Currency Warrants (or if such Valuation Date is not a New York Business Day,
on the sixth New York Business Day after such Valuation Date), such check in
the amount of ((i)) the Cash Settlement Value ((ii) minus the Exercise Price)
of the automatically exercised Currency Warrants delivered to the Currency
Warrant Agent by such Owner; provided, however, that the Currency Warrant
Agent shall withhold payment of ((i)) the Cash Settlement Value ((ii) minus
the Exercise Price) with respect to any Currency Warrants for which the
Currency Warrant Agent has not received ((i)) the related Currency Warrants
through transfer of such Currency Warrants to the Currency Warrant Account,
in the case of Currency Warrants represented by the Currency Warrant
Certificate, or through delivery of the Definitive Certificates, in the case
of Currency Warrants represented by Definitive Certificates (, and (ii)
certification that the Owner of such Currency Warrants is not a Currency
Country Resident, dated no earlier than the Expiration Date and in the form
of Exhibit D-1 hereto, in the case of Currency Warrants represented by the
Currency Warrant Certificate, or Exhibit D-2 hereto, in the case of Currency
Warrants represented by Definitive Certificates). If pursuant to the
immediately preceding sentence the Currency Warrant Agent has not withheld
payment with respect to any Currency Warrants, the Currency Warrant Agent
shall promptly cancel the Currency Warrant Certificate representing the
Currency Warrants automatically exercised pursuant to this Section and
deliver it to the Company. If the Currency Warrant Agent has withheld
payment of the ((i)) Cash Settlement Value ((ii) minus the Exercise Price)
with respect to any Currency Warrants, the Currency Warrant Agent shall act
as a successor Depositary and cancel the Currency Warrant Certificate and
deliver it to the Company only upon (receipt of certificates in the form of
Exhibit D-1 to this Agreement from the appropriate Depositary Participants
with respect to all of the Currency Warrants then evidenced by the Currency
Warrant Certificate and) payment of the total ((i)) Cash Settlement Value
((ii) minus the Exercise Price) withheld. The Currency Warrant Agent's sole
responsibility as successor Depositary with respect to the Unexercised
Currency Warrants shall be to pay the ((i)) Cash Settlement Value ((ii) minus
the Exercise Price) of such Currency Warrants upon receipt of ((i)) the
related Currency Warrants (and (ii) certificates in the form of Exhibit D-1
to this Agreement from the appropriate Depositary Participants.
SECTION 2.4 Covenant of the Company. The Company covenants, for
-----------------------
the benefit of the Owners, that (i) it will cause the Currency Warrants to be
listed on (name of U.S. national securities exchange) and (ii) until the
Expiration Date, it will not seek the delisting of the Currency Warrants
from, or permanent suspension of their trading on, (name of U.S. national
securities exchange) unless prior to such delisting or suspension the
Currency Warrants shall have been listed, and shall be
20
<PAGE>
trading, on another U.S. national securities exchange or shall be quoted
through a Self-Regulatory Organization.
SECTION 2.5 Return of the Currency Warrant Certificate. At such
------------------------------------------
time as all of the Currency Warrants have been exercised, deemed
automatically exercised or otherwise cancelled, the Currency Warrant Agent
shall return the cancelled Currency Warrant Certificate to the Company.
SECTION 2.6 Return of Moneys Held Unclaimed for Two Years. Any
---------------------------------------------
moneys deposited with or paid to the Currency Warrant Agent for the payment
of the Cash Settlement Value of any Currency Warrants and not applied but
remaining unclaimed for two years after the date upon which such Cash
Settlement Value shall have become due and payable, shall be repaid by the
Currency Warrant Agent to the Company, and the Owner of such Currency
Warrants shall thereafter look only to the Company for any payment which such
Owner may be entitled to collect and all liability of the Currency Warrant
Agent with respect to such moneys shall thereupon cease; provided, however,
-------- -------
that the Currency Warrant Agent, before making any such repayment, may at the
expense of the Company notify the Owners concerned that said moneys have not
been so applied and remain unclaimed and that after a date named therein any
unclaimed balance of said moneys then remaining will be returned to the
Company.
SECTION 2.7 Designation of Agent for Receipt of Notice. The
------------------------------------------
Company may from time to time designate in writing to the Currency Warrant
Agent a designee for receipt of all notices to be given by the Currency
Warrant Agent pursuant to this Article II and all such notices thereafter
shall be given in the manner herein provided by the Currency Warrant Agent to
such designee and each such notice shall be as effective as if given directly
to the Company.
ARTICLE III
OTHER PROVISIONS RELATING TO
RIGHTS OF OWNERS
SECTION 3.1 Owners of Currency Warrants May Enforce Rights.
----------------------------------------------
Notwithstanding any of the provisions of this Agreement, any Owner, without
the consent of the Currency Warrant Agent, may, in and for his own behalf and
for his own benefit, enforce and may institute and maintain any suit, action
or proceeding against the Company suitable to enforce, or otherwise in
respect of, his right to exercise and to receive payment for his Currency
Warrants as provided in the Currency Warrant Certificate and in this
Agreement.
SECTION 3.2 Consolidation, Merger or Other Disposition. If at any
------------------------------------------
time the Company shall consolidate with
21
<PAGE>
or merge into any other corporation or convey, transfer or lease its
properties and assets substantially as an entirety to another person, then in
any such event the successor or assuming corporation or entity shall succeed
to and be substituted for the Company, with the same effect as if it had been
named as the Company herein and in the Currency Warrants; the Company, except
in the event of a lease, shall thereupon be relieved of any further
obligation hereunder or under the Currency Warrants, and, in the event of any
such consolidation, merger, conveyance, transfer or lease, the Company as the
predecessor corporation may thereupon or at any time thereafter be dissolved,
wound up or liquidated. Such successor or assuming corporation or entity
shall expressly assume, by an amendment to this Agreement, executed and
delivered to the Currency Warrant Agent, in form satisfactory to such
Currency Warrant Agent, the due and punctual payment of any and all amounts
payable by the Company pursuant to this Agreement and the performance of
every covenant of this Agreement on the part of the Company to be performed
or observed. Such successor or assuming corporation or entity thereupon may
cause to be signed, and may issue either in its own name or in the name of
the Company, a new Currency Warrant Certificate representing the Currency
Warrants not theretofore exercised, in exchange and substitution for the
Currency Warrant Certificate theretofore issued. Such Currency Warrant
Certificate shall in all respects have the same legal rank and benefit under
this Agreement as the Currency Warrant Certificate theretofore issued in
accordance with the terms of this Agreement as though such new Currency
Warrant Certificate had been issued at the date of the execution hereof. In
any case of any such consolidation, merger, conveyance, transfer or lease of
substantially all of the assets of the Company, such changes in phraseology
and form (but not in substance) may be made in the new Currency Warrant
Certificates as may be appropriate.
The Currency Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such consolidation, merger,
conveyance, transfer or lease of substantially all of the assets of the
Company complies with the provisions of this Section 3.2.
ARTICLE IV
CANCELLATION OF CURRENCY WARRANTS
SECTION 4.1 Cancellation of Currency Warrants. In the event the
---------------------------------
Company shall purchase or otherwise acquire Currency Warrants, such Currency
Warrants may, at the option of the Company, be surrendered free through a
Depositary Participant for credit to the account of the Currency Warrant
Agent maintained at the Depositary, and if so credited, the Currency Warrant
Agent shall promptly note the cancellation of such Currency Warrants by
notation on the records of the Currency Warrant Agent. Such
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Currency Warrants may also, at the option of the Company, be resold by the
Company directly to or through any of its affiliates in lieu of being
surrendered to the Depositary. No Definitive Certificate shall be
countersigned in lieu of or in exchange for any Currency Warrant which is
cancelled as provided herein, except as otherwise expressly permitted by this
Agreement.
SECTION 4.2 Treatment of Owners. The Company, the Currency
-------------------
Warrant Agent and any agent of the Company or the Currency Warrant Agent may
deem and treat the person in whose name a Currency Warrant Certificate shall
be registered in the records of the Currency Warrant Agent as the Owner of
all right, title and interest in such Currency Warrant Certificate
(notwithstanding any notation of ownership or other writing thereon) for any
purpose and as the person entitled to exercise the rights represented by the
Currency Warrants evidenced thereby, and neither the Company nor the Currency
Warrant Agent, nor any agent of the Company or the Currency Warrant Agent
shall be affected by any notice to the contrary, except that the Currency
Warrant Agent and the Company shall be entitled to rely on and act pursuant
to instructions of Depositary Participants as contemplated by Article II of
this Agreement. This Section 4.2 shall be without prejudice to the rights of
Owners as described elsewhere herein.
SECTION 4.3 Payment of Taxes. The Company will pay all
----------------
documentary stamp taxes attributable to the initial issuance of Currency
Warrants; provided, however, that the Company shall not be required to pay
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any tax or other governmental charge which may be payable in respect of any
transfer involving any beneficial or record interest in or ownership interest
of any Currency Warrants.
ARTICLE V
CONCERNING THE CURRENCY WARRANT AGENT
SECTION 5.1 Currency Warrant Agent.
----------------------
(a) The Company hereby appoints (__________________) as Currency
Warrant Agent of the Company in respect of the Currency Warrants and the
Currency Warrant Certificate upon the terms and subject to the conditions set
forth herein and in the Currency Warrant Certificate; and (_______________)
hereby accepts such appointment. The Currency Warrant Agent shall have the
powers and authority granted to and conferred upon it in the Currency Warrant
Certificate and hereby and such further powers and authority acceptable to it
to act on behalf of the Company as the Company may hereafter grant to or
confer upon it. All of the terms and provisions with respect to such powers
and authority
23
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contained in the Currency Warrant Certificate are subject to and governed by
the terms and provisions hereof.
(b) The Currency Warrant Agent covenants and agrees to maintain
offices, staffed by qualified personnel, with adequate facilities for the
discharge of its responsibilities under this Agreement, including, without
limitation, the computation of the Cash Settlement Values, if any, and the
timely settlement of the Currency Warrants upon exercise thereof.
SECTION 5.2 Conditions of Currency Warrant Agent's Obligations.
--------------------------------------------------
The Currency Warrant Agent accepts its obligations herein set forth upon the
terms and conditions hereof and of the Currency Warrant Certificate,
including the following, to all of which the Company agrees and to all of
which the rights hereunder of the Owners from time to time of the Currency
Warrants shall be subject:
(a) The Company agrees promptly to pay the Currency Warrant Agent
the compensation to be agreed upon with the Company for all services
rendered by the Currency Warrant Agent and to reimburse the Currency
Warrant Agent for its reasonable out-of-pocket expenses (including
reasonable attorneys' fees and expenses) incurred by the Currency
Warrant Agent without negligence, bad faith or breach of this Agreement
on its part in connection with the services rendered by it hereunder.
The Company also agrees to indemnify the Currency Warrant Agent for, and
to hold it harmless against, any loss, liability or expense (including
reasonable attorneys' fees and expenses) incurred without negligence,
bad faith or breach of this Agreement on the part of the Currency
Warrant Agent, arising out of or in connection with its acting as such
Currency Warrant Agent hereunder or with respect to the Currency
Warrants, as well as the reasonable costs and expenses of defending
against any claim of liability in connection with the exercise or
performance at any time of its powers or duties hereunder or with
respect to the Currency Warrants. The obligations of the Company under
this subsection (a) shall survive the exercise of the Currency Warrant
Certificates and the resignation or removal of the Currency Warrant
Agent.
(b) In acting under this Currency Warrant Agreement and in
connection with the Currency Warrants, the Currency Warrant Agent is
acting solely as agent of the Company and does not assume any obligation
or relationship of agency or trust for or with any of the Owners or the
registered holder of the Currency Warrant Certificate.
(c) The Currency Warrant Agent may consult with counsel
satisfactory to it, which may include counsel for the Company, and the
written opinion of such counsel shall
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be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
accordance with the opinion of such counsel.
(d) The Currency Warrant Agent shall be protected and shall incur
no liability for or in respect of any action taken or omitted or thing
suffered by it in reliance upon any Currency Warrant Certificate,
notice, direction, consent, certificate, affidavit, statement or other
paper or document reasonably believed by it to be genuine and to have
been presented or signed by the proper parties.
(e) The Currency Warrant Agent, and its officers, directors and
employees, may become the Owner of, or acquire any interest in, any
Currency Warrants or other obligations of the Company, with the same
rights that it or they would have if it were not such Currency Warrant
Agent, officer, director or employee, and, to the extent permitted by
applicable law, it or they may engage or be interested in any financial
or other transaction with the Company and may act on, or as depository,
trustee or agent for, any committee or body of Owners of Currency
Warrants or other obligations of the Company as freely as if it were not
such Currency Warrant Agent, officer, director or employee.
(f) The Currency Warrant Agent shall not be under any liability
for interest on any moneys at any time received by it pursuant to any of
the provisions of this Agreement or of the Currency Warrant Certificate
nor shall it be obligated to segregate such monies from other monies
held by it, except as required by law. The Currency Warrant Agent shall
not be responsible for advancing funds on behalf of the Company.
(g) The Currency Warrant Agent shall not be under any
responsibility with respect to the validity or sufficiency of this
Agreement or the execution and delivery hereof (except the due execution
and delivery hereof by the Currency Warrant Agent) or with respect to
the validity or execution of the Currency Warrant Certificate (except
its countersignature thereof).
(h) The recitals contained herein and in the Currency Warrant
Certificate (except as to the Currency Warrant Agent's countersignature
thereon) shall be taken as the statements of the Company and Currency
Warrant Agent assumes no responsibility for the correctness of the same.
(i) The Currency Warrant Agent shall be obligated to perform only
such duties as are herein and in the Currency Warrant Certificate
specifically set forth and no implied
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duties or obligations shall be read into this Agreement or the Currency
Warrant Certificate against the Currency Warrant Agent. The Currency
Warrant Agent shall not be under any obligation to take any action
hereunder likely to involve it in any expense or liability, the payment
of which is not, in its reasonable opinion, assured to it. The Currency
Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Company of the Currency Warrant
Certificate countersigned by the Currency Warrant Agent and delivered by
it to the Company pursuant to this Agreement or for the application by
the Company of any proceeds of the Currency Warrant Certificates. The
Currency Warrant Agent shall have no duty or responsibility in case of
any default by the Company in the performance of its covenants or
agreements contained herein or in the Currency Warrant Certificate or in
the case of the receipt of any written demand from an Owner of a
Currency Warrant with respect to such default, except as provided in
Section 6.2 hereof, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt to initiate
any proceedings at law or otherwise or to make any demand upon the
Company.
(j) Unless specifically provided herein or in the Currency
Warrant Certificate, any order, certificate, notice, request, direction,
or other communication from the Company made or given by the Company
under any provision of this Agreement shall be sufficient if signed by
its ( ) or any ( ).
-------------- --------------------
SECTION 5.3 Compliance With Applicable Laws. The Currency Warrant
-------------------------------
Agent agrees to comply with all applicable federal and state laws in respect
of the services rendered by it under this Agreement and in connection with
the Currency Warrants, including (but not limited to) the provisions of
United States federal income tax laws regarding information reporting and
backup withholding. The Currency Warrant Agent expressly assumes all
liability for failure to comply with such laws, including (but not limited
to) any liability for failure to comply with any applicable provisions of
United States federal income tax laws regarding information reporting and
backup withholding.
SECTION 5.4 Resignation and Appointment of Successor.
----------------------------------------
(a) The Company agrees, for the benefit of the Owners from time to
time of the Currency Warrants, that there shall at all times be an Currency
Warrant Agent hereunder until all the Currency Warrants are not longer
exercisable.
(b) The Currency Warrant Agent may at any time resign as such
agent by giving written notice to the Company of such
26
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intention on its part, specifying the date on which its desired resignation
shall become effective, subject to the appointment of a successor Currency
Warrant Agent and acceptance of such appointment by such successor Currency
Warrant Agent, as hereinafter provided. The Currency Warrant 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 Currency Warrant Agent (which shall be a banking institution
organized under the laws of the United States of America, or one of the
states thereof or the District of Columbia, having an office or an agent's
office (south of Chambers Street) in the Borough of Manhattan, The City of
New York and authorized under such laws to exercise corporate trust powers)
by an instrument in writing filed with such successor Currency Warrant Agent
and the acceptance of such appointment by such successor Currency Warrant
Agent. In the event a successor Currency Warrant Agent has not been
appointed and has not accepted its duties within 90 days of the Currency
Warrant Agent's notice of resignation, the Currency Warrant Agent may apply
to any court of competent jurisdiction for the designation of a successor
Currency Warrant Agent.
(c) In case at any time the Currency Warrant 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 an
order of any court shall be entered approving any petition filed by or
against it under the provisions of any applicable bankruptcy or similar law,
or if any public officer shall have taken charge or control of the Currency
Warrant Agent or of its property or affairs, for the purpose of
rehabilitation, conversation or liquidation, a successor Currency Warrant
Agent, qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Currency Warrant Agent. Upon
the appointment as aforesaid of a successor Currency Warrant Agent and
acceptance by the latter of such appointment, the Currency Warrant Agent so
superseded shall cease to be Currency Warrant Agent hereunder.
(d) Any successor Currency Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Currency Warrant 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
27
<PAGE>
effect as if originally named as Currency Warrant 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 Currency Warrant Agent shall be entitled to receive, all moneys,
securities and other property on deposit with or held by such predecessor, as
Currency Warrant Agent hereunder.
(e) Any corporation into which the Currency Warrant Agent
hereunder may be merged or converted or any corporation with which the
Currency Warrant Agent may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Currency Warrant Agent
shall be a party, or any corporation to which the Currency Warrant Agent
shall sell or otherwise transfer all or substantially all of the assets and
business of the Currency Warrant Agent, provided that it shall be qualified
as aforesaid, shall be the successor Currency Warrant 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.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Modification, Supplementation or Amendment.
-------------------------------------------
(a) This Agreement may be modified, supplemented or amended by the
Company and the Currency Warrant Agent, without the consent of the registered
holder of the Currency Warrant Certificate or the Owners, for the purpose of
curing any ambiguity, or of curing, correcting or supplementing any defective
provision contained herein or in such Currency Warrant Certificate,
maintaining the listing of any Currency Warrants on any U.S. national
securities exchange or the quotation of any Currency Warrant through a Self
Regulatory Organization or registration of such Currency Warrants under the
Exchange Act, permitting the issuance of Currency Warrants in definitive form
in accordance with Section 1.1(a), reflecting the issuance by the Company of
additional Currency Warrants of the same issue or reflecting the appointment
of a successor depositary in accordance with Section 1.1(d) or in any other
manner which the Company may deem necessary or desirable; provided that such
action shall not materially adversely affect the interests of the Owners of
Currency Warrants. Notwithstanding anything in this Section 6.1 to the
contrary, this Agreement may not be amended to provide for the countersigning
by the Currency Warrant Agent of Currency Warrant Certificates evidencing in
the aggregate in excess of ( ) Currency Warrants unless and until the
Currency Warrant Agent has received notice from (name of Stock Exchange) or
any successor U.S. national securities exchange or
28
<PAGE>
Self-Regulatory Organization that the additional Currency Warrants in excess
of ( ) have been approved for listing on such exchange or quotation
----------
through such Self-Regulatory Organization.
(b) The Company and the Currency Warrant Agent may modify or amend
this Agreement and the Currency Warrant Certificate, with the consent of the
Owners of not fewer than a majority in number of the then outstanding
unexercised Currency Warrants affected by such modification or amendment, for
any purpose; provided, however, that no such modification or amendment that
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increases the Exercise Price, (decreases the Strike Price,)<F6> (increases
the Strike Price,)<F7> shortens the period of time during which the Currency
Warrants may be exercised, increases the minimum or decreases the maximum
number of Currency Warrants that may be exercised by or on behalf of any one
Owner at any one time, changes the formula for determining the Cash
Settlement Value, (insert other prohibited modifications or amendments) or
otherwise materially and adversely affects the exercise rights of the Owners
or reduces the number of outstanding Currency Warrants the consent of the
Owners of which is required for modification, supplementation or amendment of
this Agreement or the Currency Warrant Certificate, may be made without the
consent of each Owner affected thereby. Prior to the issuance of any
Definitive Certificates pursuant to Section 1.1(a), the Company and the
Currency Warrant Agent shall be entitled to rely upon any certification in
form satisfactory to each of them that any requisite consent has been
obtained from the Owners of the Currency Warrants. Such certification may be
provided by Depositary Participants acting on behalf of such Owners of
Currency Warrants, provided that any such certification is accompanied by a
certification from the Depositary as to the Currency Warrant holdings of such
Depositary Participants.
SECTION 6.2 Notices and Demands to the Company and Currency
-----------------------------------------------
Warrant Agent. If the Currency Warrant Agent shall receive any notice or
- -------------
demand addressed to the Company by any Owner pursuant to the provisions of
the Currency Warrant Certificate, the Currency Warrant Agent shall promptly
forward such notice or demand to the Company.
SECTION 6.3 Addresses for Notices. Any communications from the
---------------------
Company to the Currency Warrant Agent with respect to this Agreement shall be
addressed to (name of Currency Warrant Agent), (address, New York, New York
) (facsimile: ( )) (telephone: ( )), Attention:
Corporate Trust Department; any communications from the Currency Warrant
- --------------------
<F6> In case of Currency Put Warrants.
<F7> In case of Currency Call Warrants.
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<PAGE>
Agent to the Company with respect to this Agreement shall be addressed to The
Chase Manhattan Corporation, One Chase Manhattan Plaza, New York, New York
10081 (facsimile: ( )) (telephone: 212-( )), Attention:
( ); any communications from the Currency Warrant Agent to
the Spot Rate Reference Bank with respect to this Agreement shall be
addressed to (name of Spot Rate Reference Bank). (address), (facsimile: (
)) (telephone: ), (or such other address as shall be
specified in writing to the other parties hereto by the Currency Warrant
Agent, the Company or the Spot Rate Reference Bank, respectively).
SECTION 6.4 Notices to Owners. The Company or the Currency
-----------------
Warrant Agent may cause to have notice given to the Owners of Currency
Warrants by providing the Depositary with a from of notice to be distributed
by the Depositary to Depositary Participants in accordance with the custom
and practices of the Depositary.
SECTION 6.5 Governing Law. The validity, interpretation and
-------------
performance of this Agreement and each Currency Warrant issued hereunder and
of the respective terms and provisions thereof shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 6.6 Obtaining of Governmental Approvals. The Company will
-----------------------------------
from time to time use its best efforts to obtain and keep effective any and
all permits, consents and approvals of governmental agencies and authorities
and the (name of U.S. national securities exchange) and filings under the
United States federal and state laws, which may be or become required in
connection with the issuance, sale, trading, transfer or delivery of the
Currency Warrants, the Currency Warrant Certificate and the exercise of the
Currency Warrants.
SECTION 6.7 Persons Having Rights Under the Currency Warrant
------------------------------------------------
Agreement. Nothing in this Agreement expressed or implied and nothing that
- ---------
may be inferred from any of the provisions hereof is intended, or shall be
construed, to confer upon, or give to, any person or corporation other than
the Company, the Currency Warrant Agent, the registered holder of the
Currency Warrant Certificate and the Owners any right, remedy or claim under
or by reason of this Agreement or of any covenant, condition, stipulation,
promise or agreement hereof; and all covenants, conditions, stipulations,
promises and agreements in this Agreement shall be for the sole and exclusive
benefit of the Company and the Currency Warrant Agent and their successors
and of the registered holder of the Currency Warrant Certificate and the
Owners.
SECTION 6.8 Headings. The descriptive headings of the several
--------
Articles and Sections and the Table of Contents of this
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Agreement are for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
SECTION 6.9 Counterparts. This Agreement may be executed by the
------------
parties hereto in any number of counterparts, each of which when so executed
and delivered shall be deemed to be an original; but all such counterparts
shall together constitute but one and the same instrument.
SECTION 6.10 Inspection of Agreement. A copy of this Agreement
-----------------------
shall be available at all reasonable times at the principal corporate trust
office of the Currency Warrant Agent, for inspection by the registered holder
of the Currency Warrant Certificate, Depositary Participants, Indirect
Participants and Owners.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
THE CHASE MANHATTAN CORPORATION
By:
------------------------------
(Title)
(Name of Currency Warrant Agent)
By:
------------------------------
(Title)
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EXHIBIT A-1
-----------
(NO PAYMENT WILL BE MADE UPON THE EXERCISE OF THIS
WARRANT UNLESS THE CURRENCY WARRANT AGENT HAS
RECEIVED THE CERTIFICATION DESCRIBED IN THE
CURRENCY WARRANT AGREEMENT)
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
CURRENCY WARRANT AGENT AS PROVIDED HEREIN
No. CUSIP No. ( )
-------------
BOOK-ONLY CURRENCY WARRANT CERTIFICATE
representing
(up to ) (insert name of Currency) Currency
------------
(Put/Call) Warrants
Expiring ( , 19 )
---------- --
THE CHASE MANHATTAN CORPORATION
This certifies that ( ) or registered assigns is
------------------
the registered holder of (insert name of Currency) Currency (Put/Call)
Warrants (the "Currency Warrants") or such lesser amount as is indicated in
the records of (name of Currency Warrant Agent), as Currency Warrant Agent.
Each Currency Warrant entitles the beneficial owner thereof (an "Owner"),
subject to the provisions contained herein and in the Currency Warrant
Agreement referred to below, to receive in (U.S. dollars) (other currency)
from The Chase Manhattan Corporation (the "Company") the Cash Settlement
Value (as defined herein). In no event shall any Owners be entitled to any
interest on any Cash Settlement Value.
Subject to the terms of the Currency Warrant Agreement and the
limitations described herein, the Currency Warrants may be irrevocably
exercised (on any New York Business Day from their date of issuance until
(1:30 P.M.), New York City time,) on (i) (the date upon which the right to
exercise the Currency Warrants expires or, if such date is not a New York
Business Day (as defined in the Currency Warrant Agreement), on the next
succeeding New York Business Day) ( , 199 ) (the "Expiration Date")
------ -- -
or (ii) the date of automatic exercise or cancellation as further described
below and as provided in the Currency Warrant Agreement. Except in the case
of exercise on the Expiration Date, automatic exercise or cancellation as
described below, not fewer than ( ) (or more than) Currency
-------
A-1-1
<PAGE>
Warrants may be exercised by or on behalf of any one Owner on any one day.
References herein to "U.S. dollars" or "U.S.$" are to the currency of the
United States of America. References to "(name of currency)" or "(
)" are to the currency of the (name of Currency country). As used herein,
the term "New York Business Day" means any day other than a Saturday, Sunday,
legal holiday or other day on which the (New York Stock Exchange) (American
Stock Exchange) or (relevant futures and options exchanges on which the
underlying securities trade) is not open for securities trading or banking
institutions generally in The City of New York are authorized or required by
law or executive order to close; (and) "Currency Country Business Day" means
any day other than (i) a Saturday, Sunday, legal holiday or other day on
which banking institutions generally in (name of Currency country) are
authorized or required by law or executive order to close or (ii) a day on
which the (names of relevant stock exchanges) (is/are) not open for business
(; and "Currency Country Resident" means a resident of or any corporation or
other entity organized under the laws of, (name of Currency country), its
territories, its possessions or other areas subject to its jurisdiction).
This Currency Warrant Certificate is issued under and in accordance
with the Currency Warrant Agreement, dated as of ( , 19 )
------------- --
(the "Currency Warrant Agreement"), between the Company and the Currency
Warrant Agent, and is subject to the terms and provisions contained in the
Currency Warrant Agreement, to all of which terms and provisions all Owners
of the Currency Warrants represented by this Currency Warrant Certificate and
the registered holder of this Currency Warrant Certificate consent by
acceptance hereof by the Depositary (as defined below). Copies of the
Currency Warrant Agreement are on file at the principal corporate trust
office of the Currency Warrant Agent in New York City. Except as provided in
the Currency Warrant Agreement, Owners will not be entitled to receive
definitive certificates evidencing their Currency Warrants. Currency Warrant
holdings will be held through a depositary selected by the Company which
initially is (The Depository Trust Company) (the "Depositary", which term, as
used herein, includes any successor depositary selected by the Company) as
further provided in the Currency Warrant Agreement.
Capitalized terms included herein but not defined herein have the
meanings assigned thereto in the Currency Warrant Agreement.
The Cash Settlement Value of an exercised Currency Warrant (whether
exercised automatically or by notice) shall mean:
The "Cash Settlement Value" of an Exercised Currency Warrant is an
amount stated in (U.S. dollars) (other currency)
A-1-2
<PAGE>
which is the greater of (i) zero and (ii) the amount computed by subtracting
(from (a constant, e.g., 50))<F8> ((a constant, e.g., 50) from)<F9> an amount
--- ---
equal to (such a constant) multiplied by a fraction, the numerator of which
is (insert a pre-established amount of Base Currency per ((U.S. dollar)
(other currency)) (the "Strike Price") and the denominator of which is the
Spot Rate on the Designated Exercise Date. The "Spot Rate" on such
Designated Exercise Date shall mean the offered spot rate of (insert Base
Currency) per (U.S. dollar) (other currency) as quoted by ( )
----------------
(the "Spot Rate Reference Bank") at 10:00 A.M., New York City time, on
such date or, if such bank is not quoting such rate at such time, the rate
quoted by such other leading bank in the foreign exchange markets as may be
selected by the Company in good faith and notified to the Currency Warrant
Agent. The offered spot rate of any applicable currency shall be calculated
to four (4) decimal places.)
Except in the case of automatic exercise on the Expiration Date or
cancellation, suspension or delay as further provided below and in the
Currency Warrant Agreement, the "Valuation Date" for a Currency Warrant shall
be the Currency Country Business Day next succeeding the New York Business
Day on which the Currency Warrant Agent has received (i) delivery of such
Currency Warrant on the records of the Depositary free to the Currency
Warrant Account ("Proper Delivery") (, accompanied by payment in good form of
the Exercise Price) and (ii) an Exercise Notice for such Currency Warrant in
good order in the form of Exhibit C-1 to the Currency Warrant Agreement,
(which shall include certification that the exercising Owner is not a
Currency Country Resident,) at or prior to (1:30 P.M.), New York City time;
and if the Currency Warrant Agent shall receive such delivery of such
Exercise Notice after (1:30 P.M.), New York City time, on such date, the
Valuation Date shall be the next Currency Country Business Day following the
New York Business Day following the New York Business Day on which the
Currency Warrant Agent received such Currency Warrant and such Exercise
Notice. Any delivery of a Currency Warrant (, the Exercise Price) or
Exercise Notice received after (1:30 P.M.), New York City time, the
Expiration Date shall be void and of no effect and shall be deemed not to
have been delivered, and the Currency Warrants with respect to which such
late delivery or Exercise Notice relates shall be exercised in accordance
with the third succeeding paragraph hereof. A Depositary Participant may
specify in its irrevocable Exercise Notice that such Exercise Notice is
conditional (the "Conditional Exercise Notice"), then such Conditional
Exercise Notice shall be void and of no effect (and shall be disregarded for
all purposes of the Currency Warrant
- --------------------
<F8> In the case of Currency Put Warrants.
<F9> In the case of Currency Call Warrants.
A-1-3
<PAGE>
Agreement) if the Reference Rate (as defined in Section 2.2(a) of the
Currency Warrant Agreement) on the Valuation Date is more than ( )
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(above)<F10> (below)<F11> the Spot Rate currency on the date upon which the
Conditional Exercise Notice is received (or deemed to have been received) and
not rejected by the Currency Warrant Agent (or if such date is not a Currency
Country Business Day, on the immediately preceding Currency Country Business
Day)).
If the Exercise Notice is not rejected as provided in the Currency
Warrant Agreement, the Currency Warrant Agent will determine the Cash
Settlement Value of the exercised Currency Warrants as provided in the
Currency Warrant Agreement. Provided that the Company has made adequate
funds available to the Currency Warrant Agent in a timely manner, the
Currency Warrant Agent will make payment in the form of a check (or bank wire
transfer if the payment is greater than $ ) available to the
---------
appropriate Depositary Participant, which shall be responsible for crediting
the Cash Settlement Value of Currency Warrants to appropriate Owners, on the
fifth Business Day following the Valuation Date (or, if such Valuation Date
is not a New York Business Day, on the sixth New York Business Day after such
Valuation Date) (the "Settlement Date"), all as provided in the Currency
Warrant Agreement, such payment to be in the amount of the Cash Settlement
Value in respect of Currency Warrants exercised by such Depositary
Participant.
The Currency Warrant Agent will promptly cause its records to be
marked to reduce the number of Currency Warrants represented by this Currency
Warrant Certificate by the number of Currency Warrants (i) for which it has
received an Exercise Notice in proper form, (ii) that were delivered to the
Currency Warrant Account, and (iii) for which payment has been made.
All Currency Warrants with respect to which either (i) there has
been no Proper Delivery (, payment in good form of the Exercise Price has not
been received by the Currency Warrant Agent) or no valid Exercise Notice has
been received by the Currency Warrant Agent at or prior to (1:30 P.M.), New
York City time, on the Expiration Date for such Currency Warrants, (ii) the
Exercise Date which has been postponed pursuant to Section 2.2(e) of the
Currency Warrant Agreement to a date on or after the New York Business Day
preceding the Expiration Date or (iii) there has been no proper exercise on
the New York Business Day on which the Currency Warrants are permanently
delisted or suspended from the (name of U.S. national securities exchange)
and, at or prior to such delisting or suspension, the Currency Warrants have
not
- --------------------
<F10> In case of Currency Put Warrants.
<F11> In case of Currency Call Warrants.
A-1-4
<PAGE>
been listed on another U.S. national securities exchange or quoted through a
Self-Regulatory Organization (the "Unexercised Currency Warrants"), will be
deemed automatically exercised on such Expiration Date without any
requirement of notice of exercise or delivery of the Currency Warrant
Certificate to the Currency Warrant Agent. The Valuation Date for such
Currency Warrants shall be the first Currency Country Business Day following
such Expiration Date.
By 5:00 P.M., New York City time, on the Expiration Date, the
Currency Warrant Agent shall advise the Company of the number of Unexercised
Currency Warrants outstanding after (1:30 P.M.), New York City time, on such
day. On the Valuation Date for such Unexercised Currency Warrants (or if
such Valuation Date is not a New York Business Day, then the next succeeding
New York Business Day), the Currency Warrant Agent shall (i) determine the
Cash Settlement Value (in the manner provided in Section 2.2(f) of the
Currency Warrant Agreement) of the Currency Warrants to be automatically
exercised, (ii) advise the Company by 5:00 P.M. New York City time, on such
Valuation Date of the Cash Settlement Value with respect to such Currency
Warrants and (iii) advise the Company of such other matters relating to the
automatically exercised Currency Warrants as the Company shall reasonably
request. (Following the Expiration Date, the Depositary shall deliver to the
Currency Warrant Agent one or more certificates in the form of Exhibit D-1 to
the Currency Warrant Agreement executed by the relevant Depositary
Participants setting forth the total number of automatically exercised
Currency Warrants with respect to which such Depositary Participants have
received certification that the beneficial owners thereof are not Currency
Country Residents.)
Provided that the Company has made adequate funds available to the
Currency Warrant Agent in a timely manner which shall, in no event, be later
than (1:30 P.M.), New York City time, on the fifth New York Business Day
following the Valuation Date for such automatically exercised Currency
Warrants (or, if such Valuation Date is not a New York Business Day, on the
sixth New York Business Day after such Valuation Date), the Currency Warrant
Agent will make its check (or bank wire transfer if the payment is greater
than $ ) available to the Depositary, after (1:30 P.M.), New York
---------
City time, but prior to the close of business, on such fifth New York
Business Day following the Valuation Date for such Currency Warrants (or, if
such Valuation Date is not a New York Business Day, on the sixth New York
Business Day after such Valuation Date), such check to be in the amount of
the ((i)) aggregate Cash Settlement Value ((ii) minus the Exercise Price) in
respect of Currency Warrants that have been automatically exercised,
transferred to the Currency Warrant Account (and for which the Currency
Warrant Agent has not received certification that the Owners thereof are not
Currency Country Residents); provided, however, that the
-------- -------
A-1-5
<PAGE>
Currency Warrant Agent shall withhold payment of the ((i)) Cash Settlement
Value ((ii) minus the Exercise Price) with respect to any Currency Warrants
which have not been transferred to the Currency Warrant Account and for which
the Currency Warrant Agent has not received a certificate in the form of
Exhibit D-1 to the Currency Warrant Agreement from the appropriate Depositary
Participant until the Currency Warrant Agent has received such Currency
Warrants and certificate with respect to such Currency Warrants. If pursuant
to the immediately preceding sentence the Currency Warrant Agent has not
withheld payment with respect to any Currency Warrants, the Currency Warrant
Agent shall promptly cancel the Currency Warrant Certificate representing the
Currency Warrants automatically exercised as described above and deliver it
to the Issuer. If the Currency Warrant Agent has withheld payment of the
((i)) Cash Settlement Value ((ii) minus the Exercise Price) with respect to
any Currency Warrants, the Currency Warrant Agent shall act as a successor
Depositary and shall cancel the Currency Warrant Certificate and deliver it
to the Company only upon receipt of certificates in the form of Exhibit D-1
attached to the Currency Warrant Agreement from the appropriate Depositary
Participants with respect to all of the Currency Warrants then evidenced by
the Currency Warrant Certificate and payment of the total ((i)) Cash
Settlement Value ((ii) minus the Exercise Price) withheld. The Currency
Warrant Agent's sole responsibility as successor Depositary with respect to
the Unexercised Currency Warrants shall be to pay the ((i)) Cash Settlement
Value ((ii) minus the Exercise Price) of such Currency Warrants upon receipt
of ((i)) the related Currency Warrants and (ii) certificates in the form of
Exhibit D-1 to the Currency Warrant Agreement from the appropriate Depositary
Participants.
The Company, the Currency Warrant Agent and any agent of the
Company or the Currency Warrant Agent may deem and treat the registered
holder hereof as the absolute Owner of the Currency Warrants represented
hereby (notwithstanding any notation of ownership or other writing hereon)
for any purpose and as the person entitled to exercise the rights represented
by the Currency Warrants evidenced hereby, and neither the Company nor the
Currency Warrant Agent nor any agent of the Company or the Currency Warrant
Agent shall be affected by any notice to the contrary, subject to certain
provisions of the Currency Warrant Agreement, except that the Company and the
Currency Warrant Agent shall be entitled to rely on and act pursuant to
instructions of Depositary Participants as contemplated herein and in the
Currency Warrant Agreement.
Subject to the terms of the Currency Warrant Agreement, upon due
presentment for registration of transfer of this Currency Warrant Certificate
(at the principal corporate trust office of the Currency Warrant Agent) in
(New York City), the Company shall execute and the Currency Warrant Agent
shall
A-1-6
<PAGE>
countersign and deliver in the name of the designated transferee a new
Currency Warrant Certificate of like tenor and representing a like number of
unexercised Currency Warrants as evidenced by this Currency Warrant
Certificate at the time of such registration of transfer which shall be
issued to the designated transferee in exchange for this Currency Warrant
Certificate, subject to the limitations provided in the Currency Warrant
Agreement, without charge.
This Currency Warrant Certificate and the Currency Warrant
Agreement are subject to amendment as provided in the Currency Warrant
Agreement.
The validity, interpretation and performance of this Currency
Warrant Certificate and its terms and provisions shall be governed by and
construed in accordance with the laws of the State of New York.
This Currency Warrant Certificate shall not be valid or obligatory
for any purpose until countersigned by the Currency Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated as of ( , 19 )
----------- --
THE CHASE MANHATTAN CORPORATION
By:
----------------------------------------
(title)
(SEAL)
Attest:
-------------------------------------
(title)
Countersigned on the date
above written:
(Name of Currency Warrant Agent),
as Currency Warrant Agent
By:
--------------------------------
(title)
A-1-7
<PAGE>
EXHIBIT A-2
-----------
(NO PAYMENT WILL BE MADE UPON THE EXERCISE OF THIS
WARRANT UNLESS THE CURRENCY WARRANT AGENT HAS
RECEIVED THE CERTIFICATION DESCRIBED IN THE
CURRENCY WARRANT AGREEMENT)
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
CURRENCY WARRANT AGENT AS PROVIDED HEREIN
No. CUSIP No. ( )
-------------
CURRENCY WARRANT CERTIFICATE
representing
(up to ) (insert name of Currency) Currency
------------
(Put/Call) Warrants
Expiring ( , 19 )
---------- --
THE CHASE MANHATTAN CORPORATION
This certifies that (the bearer) ( or registered
------------------
assigns) (the "Holder") is the registered Holder of (insert name of Currency)
Currency (Put/Call) Warrants (the "Currency Warrants") or such lesser amount
as is indicated in the records of (name of Currency Warrant Agent), as
Currency Warrant Agent. Each Currency Warrant entitles the Holder, subject
to the provisions contained herein and in the Currency Warrant Agreement
referred to below, to receive in (U.S. dollars) (other currency) from The
Chase Manhattan Corporation (the "Company") the Cash Settlement Value (as
defined herein). In no event shall the Holder hereof be entitled to any
interest on any Cash Settlement Value.
Subject to the terms of the Currency Warrant Agreement and the
limitations described herein, the Currency Warrants may be irrevocably
exercised (on any New York Business Day from their date of issuance until
(1:30 P.M.), New York City time,) on (i) (the date upon which the right to
exercise the Currency Warrants expires or, if such date is not a New York
Business Day (as defined in the Currency Warrant Agreement), on the next
succeeding New York Business Day) ( , 199 ) (the "Expiration Date")
------ -- -
or (ii) the date of automatic exercise or cancellation as further described
below and as provided in the Currency Warrant Agreement. Except in the case
of exercise on the Expiration Date, automatic exercise or cancellation as
described below, not fewer than ( ) (or more than) Currency Warrants
-------
may be exercised by or on behalf of any one Holder on any one day.
References herein to "U.S. dollars" or "U.S.$" are to the currency of the
United States of America. References to
A-2-1
<PAGE>
"(name of currency)" or "( )" are to the currency of the (name of
-----------
Currency country). As used herein, the term "New York Business Day" means
any day other than a Saturday, Sunday, legal holiday or other day on which
the (New York Stock Exchange) (American Stock Exchange) or (relevant futures
and options exchanges on which the underlying securities trade) is not open
for securities trading or banking institutions generally in The City of New
York are authorized or required by law or executive order to close; (and)
"Currency Country Business Day" means any day other than (i) a Saturday,
Sunday, legal holiday or other day on which banking institutions generally in
(name of Currency country) are authorized or required by law or executive
order to close or (ii) a day on which the (names of relevant stock exchanges)
(is/are) not open for business (, and "Currency Country Resident" means a
resident of, or any corporation or other entity organized under the laws of
(name of Currency country), its territories, its possessions or other areas
subject to its jurisdiction).
This Currency Warrant Certificate is issued under and in accordance
with the Currency Warrant Agreement, dated as of ( , 19 )
------------- --
(the "Currency Warrant Agreement"), between the Company and the Currency
Warrant Agent, and is subject to the terms and provisions contained in the
Currency Warrant Agreement, to all of which terms and provisions the
registered Holder of this Currency Warrant Certificate consents by acceptance
hereof. Copies of the Currency Warrant Agreement are on file at the
principal corporate trust office of the Currency Warrant Agent in New York
City.
Capitalized terms included herein but not defined herein have the
meanings assigned thereto in the Currency Warrant Agreement.
The Cash Settlement Value of an exercised Currency Warrant (whether
exercised automatically or by notice) shall mean:
The "Cash Settlement Value" of an Exercised Currency Warrant is an
amount stated in (U.S. dollars) (other currency) which is the greater of (i)
zero and (ii) the amount computed by subtracting (from (a constant, e.g.,
---
50))<F12> ((a constant, e.g., 50) from)<F13> an amount equal to (such a
---
constant) multiplied by a fraction, the numerator of which is (insert a pre-
established amount of Base Currency per ((U.S. dollar) (other currency)) (the
"Strike Price") and the denominator of which is the Spot Rate on the
Designated Exercise Date. The "Spot Rate" on such Designated
- --------------------
<F12> In the case of Currency Put Warrants.
<F13> In the case of Currency Call Warrants.
A-2-2
<PAGE>
Exercise Date shall mean the offered spot rate of (insert Base Currency) per
(U.S. dollar) (other currency) as quoted by ( ) (the "Spot
------------------
Rate Reference Bank") at 10:00 A.M., New York City time, on such date or, if
such bank is not quoting such rate at such time, the rate quoted by such
other leading bank in the foreign exchange markets as may be selected by the
Company in good faith and notified to the Currency Warrant Agent. The
offered spot rate of any applicable currency shall be calculated to four (4)
decimal places.)
Except in the case of automatic exercise on the Expiration Date or
cancellation, suspension or delay as further provided below and in the
Currency Warrant Agreement, the "Valuation Date" for a Currency Warrant shall
be the Currency Country Business Day next succeeding the New York Business
Day on which the Currency Warrant Agent has received (i) delivery of such
Currency Warrant by delivery of this Currency Warrant Certificate ("Proper
Delivery") (, accompanied by payment in good form of the Exercise Price) and
(ii) an Exercise Notice for such Currency Warrant in good order in the form
of Exhibit C-2 to the Currency Warrant Agreement, (which shall include
certification that the Holder of this Currency Warrant Certificate is not a
Currency Country Resident,) at or prior to (1:30 P.M.), New York City time;
and if the Currency Warrant Agent shall receive such delivery of such
Exercise Notice after (1:30 P.M.), New York City time, on such date, the
Valuation Date shall be the next Currency Country Business Day following the
New York Business Day following the New York Business Day on which the
Currency Warrant Agent received such Currency Warrant and such Exercise
Notice. Any delivery of a Currency Warrant (, the Exercise Price) or
Exercise Notice received after (1:30 P.M.), New York City time, the
Expiration Date shall be void and of no effect and shall be deemed not to
have been delivered, and the Currency Warrants with respect to which such
late delivery or Exercise Notice relates shall be exercised in accordance
with the third succeeding paragraph hereof. The Holder of this Currency
Warrant Certificate may specify in its irrevocable Exercise Notice that such
Exercise Notice is conditional (the "Conditional Exercise Notice"), then such
Conditional Exercise Notice shall be void and of no effect (and shall be
disregarded for all purposes of the Currency Warrant Agreement) if the
Reference Rate (as defined in Section 2.2(a) of the Currency Warrant
Agreement) on the Valuation Date is more than ( ) (above)<F14>
-------
(below)<F15> the Spot Rate currency on the date upon which the Conditional
Exercise Notice is received (or deemed to have been received) and not
rejected by the Currency Warrant Agent (or if such date is
- --------------------
<F14> In case of Currency Put Warrants.
<F15> In case of Currency Call Warrants.
A-2-3
<PAGE>
not a Currency Country Business Day, on the immediately preceding Currency
Country Business Day)).
If the Exercise Notice is not rejected as provided in the Currency
Warrant Agreement, the Currency Warrant Agent will determine the Cash
Settlement Value of the exercised Currency Warrants as provided in the
Currency Warrant Agreement. Provided that the Company has made adequate
funds available to the Currency Warrant Agent in a timely manner, the
Currency Warrant Agent will make payment in the form of a check (or bank wire
transfer if the payment is greater than $ ) available to the Holder
---------
of this Currency Warrant Certificate, on the fifth Business Day following the
Valuation Date (or, if such Valuation Date is not a New York Business Day, on
the sixth New York Business Day after such Valuation Date) (the "Settlement
Date"), all as provided in the Currency Warrant Agreement, such payment to be
in the amount of the Cash Settlement Value in respect of Currency Warrants
exercised by such Holder.
The Currency Warrant Agent will promptly cause its records to be
marked to reduce the number of Currency Warrants represented by this Currency
Warrant Certificate by the number of Currency Warrants (i) for which it has
received an Exercise Notice in proper form, (ii) that were delivered to the
Currency Warrant Agent, and (iii) for which payment has been made.
All Currency Warrants with respect to which either (i) there has
been no Proper Delivery (, payment in good form of the Exercise Price has not
been received by the Currency Warrant Agent) or no valid Exercise Notice has
been received by the Currency Warrant Agent at or prior to (1:30 P.M.), New
York City time, on the Expiration Date for such Currency Warrants, (ii) the
Exercise Date which has been postponed pursuant to Section 2.2(e) of the
Currency Warrant Agreement to a date on or after the New York Business Day
preceding the Expiration Date or (iii) there has been no proper exercise on
the New York Business Day on which the Currency Warrants are permanently
delisted or suspended from the (name of U.S. national securities exchange)
and, at or prior to such delisting or suspension, the Currency Warrants have
not been listed on another U.S. national securities exchange or quoted
through a Self-Regulatory Organization (the "Unexercised Currency Warrants"),
will be deemed automatically exercised on such Expiration Date without any
requirement of notice of exercise or delivery of this Currency Warrant
Certificate to the Currency Warrant Agent. The Valuation Date for such
Currency Warrants shall be the first Currency Country Business Day following
such Expiration Date.
By 5:00 P.M., New York City time, on the Expiration Date, the
Currency Warrant Agent shall advise the Company of the number of Unexercised
Currency Warrants outstanding after (1:30 P.M.), New York City time, on such
day. On the Valuation Date
A-2-4
<PAGE>
for such Unexercised Currency Warrants (or if such Valuation Date is not a
New York Business Day, then the next succeeding New York Business Day), the
Currency Warrant Agent shall (i) determine the Cash Settlement Value (in the
manner provided in Section 2.2(f) of the Currency Warrant Agreement) of the
Currency Warrants to be automatically exercised, (ii) advise the Company by
5:00 P.M. New York City time, on such Valuation Date of the Cash Settlement
Value with respect to such Currency Warrants and (iii) advise the Company of
such other matters relating to the automatically exercised Currency Warrants
as the Company shall reasonably request. (Following the Expiration Date,
the Holder of this Currency Warrant Certificate shall deliver to the Currency
Warrant Agent one or more certificates in the form of Exhibit D-2 to the
Currency Warrant Agreement setting forth the total number of automatically
exercised Currency Warrants with respect to which such Holder certifies that
it is not a Currency Country Resident.)
Provided that the Company has made adequate funds available to the
Currency Warrant Agent in a timely manner which shall, in no event, be later
than (1:30 P.M.), New York City time, on the fifth New York Business Day
following the Valuation Date for such automatically exercised Currency
Warrants (or, if such Valuation Date is not a New York Business Day, on the
sixth New York Business Day after such Valuation Date), the Currency Warrant
Agent will make its check (or bank wire transfer if the payment is greater
than $ ) available to the Holder, after (1:30 P.M.), New York City
---------
time, but prior to the close of business, on such fifth New York Business
Day following the Valuation Date for such Currency Warrants (or, if such
Valuation Date is not a New York Business Day, on the sixth New York Business
Day after such Valuation Date), such check to be in the amount of the ((i))
aggregate Cash Settlement Value ((ii) minus the Exercise Price) in respect of
Currency Warrants that have been automatically exercised, delivered to the
Currency Warrant Agent (and with respect to which the Currency Warrant Agent
has received certification that such Holder is not a Currency Country
Resident); provided, however, that the Currency Warrant Agent shall withhold
-------- -------
payment of the ((i)) Cash Settlement Value ((ii) minus the Exercise Price)
with respect to any Currency Warrant Certificate which has not been received
by the Currency Warrant Agent and for which the Currency Warrant Agent has
not received a certificate in the form of Exhibit D-2 to the Currency Warrant
Agreement from the Holder of this Currency Warrant Certificate until the
Currency Warrant Agent has received such Currency Warrant Certificate and
certificate with respect to such Currency Warrants. If pursuant to the
immediately preceding sentence the Currency Warrant Agent has not withheld
payment with respect to any Currency Warrants, the Currency Warrant Agent
shall promptly cancel the Currency Warrant Certificate representing the
Currency Warrants automatically exercised as described above and deliver it
to the Issuer. If the Currency Warrant Agent has withheld
A-2-5
<PAGE>
payment of the ((i)) Cash Settlement Value ((ii) minus the Exercise Price)
with respect to any Currency Warrants, the Currency Warrant Agent shall
cancel this Currency Warrant Certificate and deliver it to the Company only
upon receipt of a certificate in the form of Exhibit D-2 attached to the
Currency Warrant Agreement from the Holder of this Currency Warrant
Certificate with respect to all of the Currency Warrants then evidenced by
this Currency Warrant Certificate and payment of the total ((i)) Cash
Settlement Value ((ii) minus the Exercise Price) withheld. The Currency
Warrant Agent's sole responsibility with respect to the Unexercised Currency
Warrants shall be to pay the ((i)) Cash Settlement Value ((ii) minus the
Exercise Price) of such Currency Warrants upon receipt of (i) the related
Currency Warrants and (ii) a certificate in the form of Exhibit D-2 to the
Currency Warrant Agreement from the Holder of this Currency Warrant
Certificate.
The Company, the Currency Warrant Agent and any agent of the
Company or the Currency Warrant Agent may deem and treat the registered
Holder hereof as the absolute owner of the Currency Warrants represented
hereby (notwithstanding any notation of ownership or other writing hereon)
for any purpose and as the person entitled to exercise the rights represented
by the Currency Warrants evidenced hereby, and neither the Company nor the
Currency Warrant Agent nor any agent of the Company or the Currency Warrant
Agent shall be affected by any notice to the contrary, subject to certain
provisions of the Currency Warrant Agreement.
Subject to the terms of the Currency Warrant Agreement, upon due
presentment for registration of transfer of this Currency Warrant Certificate
at (the principal corporate trust office of the Currency Warrant Agent) in
(New York City), the Company shall execute and the Currency Warrant Agent
shall countersign and deliver in the name of the designated transferee a new
Currency Warrant Certificate of like tenor and representing a like number of
unexercised Currency Warrants as evidenced by this Currency Warrant
Certificate at the time of such registration of transfer which shall be
issued to the designated transferee in exchange for this Currency Warrant
Certificate, subject to the limitations provided in the Currency Warrant
Agreement, without charge.
This Currency Warrant Certificate and the Currency Warrant
Agreement are subject to amendment as provided in the Currency Warrant
Agreement.
The validity, interpretation and performance of this Currency
Warrant Certificate and its terms and provisions shall be governed by and
construed in accordance with the laws of the State of New York.
A-2-6
<PAGE>
This Currency Warrant Certificate shall not be valid or obligatory
for any purpose until countersigned by the Currency Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated as of ( , 19 )
----------- --
THE CHASE MANHATTAN CORPORATION
By:
----------------------------------------
(title)
(SEAL)
Attest:
-------------------------------------
(title)
Countersigned on the date
above written:
(Name of Currency Warrant Agent),
as Currency Warrant Agent
By:
--------------------------------
(title)
A-2-7
<PAGE>
EXHIBIT B
---------
Form of Transfer of Currency Warrant Certificate
------------------------------------------------
( ), as Currency Warrant Agent
------------------------
Corporate Trust Department
(address)
(Telex: )
------------------
(Facsimile: )
--------------
( ), the registered holder of the Currency
-------------------
Warrant Certificate representing all unexercised The Chase Manhattan
Corporation (name of Currency) (Put/Call) Warrants Expiring ( , 19
---------
), hereby requests the transfer of such Currency Warrant Certificate to __.
Dated: (NAME OF REGISTERED HOLDER)
------------
By:
--------------------------
GUARANTY OF SIGNATURE
(NAME OF GUARANTOR)
By:
---------------------
Name:
Title:
B-1
<PAGE>
EXHIBIT C-1
-----------
Form of Exercise Notice from Depositary Participant
---------------------------------------------------
, as Currency Warrant Agent
- --------------------
Attention:
---------------------------------
(Facsimile: )
--------------------------------
(Telephone: )
--------------------------------
(Telex: )
------------------------------------
Re: Exercise of The Chase Manhattan Corporation
(name of Currency) (Put/Call) Warrants
Expiring , 19 ("Currency Warrants")
--------------------------------------------------
1. We refer to the Currency Warrant Agreement dated as of (
-----
, 19 ) (the "Currency Warrant Agreement") between The Chase
- --------- --
Manhattan Corporation (the "Company") and (_____________) (the "Currency
Warrant Agent"). On behalf of certain clients, each of whom is exercising
(no fewer than) ( ) Currency Warrants (or more than ( ) Currency
--------- -----
Warrants) and whose Currency Warrants are held in our name, we hereby
irrevocably exercise ( ) Currency Warrants (the "Tendered Warrants").
---------
2. This Exercise Notice (is) (is not) a Conditional Exercise
Notice. We hereby acknowledge that a Conditional Exercise Notice will be
void and of no effect (and shall be disregarded for all purposes under the
Currency Warrant Agreement) if the Spot Rate on the Valuation Date is more
than ( ) (above)1 (below)2 the closing value of the (name of
Currency) on the date this Exercise Notice is received by you (or deemed to
have been received by you) and not rejected (or if such date is not a
Currency Country Business Day, on the immediately preceding Currency Country
Business Day).
3. We have instructed the Depositary to deliver the Exercised
Warrants (and the Exercise Price) free through the Depositary to the Currency
Warrant Account. (Account No. ( )).
------------------
- ----------------
1. In case of Currency Put Warrants.
2. In case of Currency Call Warrants.
C-1-1
<PAGE>
4. We hereby acknowledge that this Exercise Notice (, the Exercise
Price) and the Tendered Warrants must be received by you by (1:30 P.M.), New
York City time, on the date hereof in order for the Valuation Date of the
Tendered Warrants to be the next succeeding Currency Country Business Day and
that if this Exercise Notice (, the Exercise Price) or the Tendered Warrants
are received by you after (1:30 P.M.), New York City time, but prior to the
close of business on such date, the Valuation Date of the Tendered Warrants
shall be the next Currency Country Business Day following the New York
Business Day on which such Exercise Notice is received. (We further
acknowledge that if this Conditional Exercise Notice (, the Exercise Price)
or the Tendered Warrants are received by you after (1:30 P.M.), New York City
time, but prior to the close of business on the date hereof, that for
purposes of making the determinations required by such Conditional Exercise
Notice, the Currency Warrants will be deemed to be exercised on the next
succeeding New York Business Day following the date hereof.)<F3>
5. We hereby certify that we are a participant of (The Depository
Trust Company) (the "Depositary") with the present right to use and receive
its services.
6. We hereby acknowledge that if you determine that this Exercise
Notice has not been fully completed, or is not in proper form, or you are
unable to verify that we are a participant of the Depositary as provided
above, this Exercise Notice will be void and of no effect and will be deemed
not to have been delivered.
- ----------------
<F3> In case of Conditional Exercise Notice.
C-1-2
<PAGE>
(7. We hereby certify that none of the clients on whose behalf we
are exercising the above referenced Currency Warrants are Currency Country
Residents.)
Capitalized terms used herein and not defined have the meanings
assigned thereto in the Currency Warrant Agreement.
Dated: , 19
------------ -- ---
(NAME OF DEPOSITARY
PARTICIPANT)
(Participant Number)
By
----------------------------
Authorized Signature
(Address)
Telephone:
------------------
Facsimile:
------------------
C-1-3
<PAGE>
EXHIBIT C-2
-----------
Form of Exercise Notice from Owner
----------------------------------
, as Currency Warrant Agent
- --------------------
(Address)
Attention:
---------------------------------
(Facsimile: )
--------------------------------
(Telephone: )
--------------------------------
(Telex: )
------------------------------------
Re: Exercise of The Chase Manhattan Corporation
(name of Currency) (Put/Call)
Warrants Expiring , 19 (" Currency Warrants")
----------------------------------------------------------
1. We refer to the Currency Warrant Agreement dated as of (
-----
, 19 ) (the "Currency Warrant Agreement") between The Chase
- -------------- --
Manhattan Corporation (the "Company") and ( ) (the
-------------------------
"Currency Warrant Agent"). We hereby irrevocably exercise (no fewer than) (
) Currency Warrants (or more than ( ) Currency
--------------- ---------------
Warrants) (the "Tendered Warrants") and deliver to you herewith a Definitive
Certificate or Certificates, registered in the name of the undersigned,
representing a number of Currency Warrants at least equal to the Number of
Exercised Warrants (, accompanied by payment in full of the Exercise Price
((, in U.S. Dollars) (other currency) (in cash or certified or official bank
check in New York Clearing House funds) (by wire transfer in immediately
available funds) payable to the account of the Company).
2. This Exercise Notice (is) (is not) a Conditional Exercise
Notice. We hereby acknowledge that a Conditional Exercise Notice will be
void and of no effect (and shall be disregarded for all purposes under the
Currency Warrant Agreement) if the closing value of the (name of Currency) on
the Valuation Date is more than ( ) (above)<F1> (below)<F2> the closing
---------
value of the (name of Currency) on the date of this Exercise Notice was
received (or deemed to have been received)
- -----------------
<F1> In case of Currency Put Warrants.
<F2> In case of Currency Call Warrants.
C-2-1
<PAGE>
and not rejected (or if such date is not a Currency Country Business Day, on
the immediately preceding Currency Country Business Day).
3. We hereby acknowledge that this Exercise Notice (, the Exercise
Price) and the related Definitive Certificates must be received by you by
(1:30 P.M.), New York City time, on the date hereof in order for the
Valuation Date of the Tendered Warrants to be the next succeeding Currency
Country Business Day and that if this Exercise Notice (, the Exercise Price)
or such Definitive Certificates is received by you after (1:30 P.M.), New
York City time, the Valuation Date of the Tendered Warrants shall be the next
Currency Country Business Day following the New York Business Day following
the New York Business Day on which this Exercise Notice (, the Exercise
Price) and such Definitive Certificates are received. (We further
acknowledge that if this Conditional Exercise Notice (, the Exercise Price)
or the Definitive Certificates are received by you after (1:30 P.M.), New
York City time, but prior to the close of business on the date hereof, that
for purposes of making the determinations required by such Conditional
Exercise Notice, the Currency Warrants will be deemed to be exercised on the
next succeeding New York Business Day following the date hereof.)<F3>
(4. We hereby certify that none of the undersigned Owners who are
exercising the above referenced Currency Warrants is a Currency Country
Resident.)
Capitalized terms used herein and not defined have the meanings
assigned thereto in the Currency Warrant Agreement.
Dated: , 199
------------ -- --
(NAME OF OWNER)
By
----------------------------
Authorized Signature
(Address)
Telephone:
------------------
Facsimile:
------------------
- --------------------
<F3> In case of Conditional Exercise Notice.
C-2-2
<PAGE>
EXHIBIT C-3
-----------
Notice of Rejection
-------------------
(Choose paragraph A or B)
(A) You are hereby notified that (the Exercise Notice delivered by
you was determined by us not to have been (duly completed) (in proper form))
(the Definitive Certificate delivered by you was determined by us not to have
been in proper form) (the Exercise Price delivered by you with the Exercise
Notice was determined by us not to have been in proper form) (we were not
able to verify that you are a participant of (The Depository Trust Company)
in the manner, and pursuant to the procedures), as set forth in the Currency
Warrant Agreement, dated as of ( , 19 ), between The
--------------- --
Chase Manhattan Corporation and ( ), as Currency Warrant
--------------------
Agent. Accordingly, we have rejected your Exercise Notice as being
unsatisfactory as to form.
(B) You are hereby notified that we have rejected your Conditional
Exercise Notice, because (the closing value of the Currency on the Valuation
Date was ( ), and the closing value of the Currency on the date upon
----------
which we received (or were deemed to have received) such Exercise Notice was
( )).
--------------------
Dated: ( , 199 )
--------------------- --
, as
-------------------------
Currency Warrant Agent
By:
-------------------------------
Authorized Agent
C-3-1
<PAGE>
EXHIBIT C-4
-----------
Confirmation of Exercise
------------------------
We hereby confirm receipt of your Currency Warrants and your
Exercise Notice (and Exercise Price) with respect to such Currency Warrants
(the "Exercised Warrants"), which Exercise Notice (and Exercise Price) we
have found to be duly completed and in good order, (and we have verified, in
the manner provided in the Currency Warrant Agreement, that you are a
Depositary Participant.)<F1> The Valuation Date of the Exercised Warrant is
( ).
---------------
We hereby confirm that the Exercised Warrants have been exercised
at the (Currency Value of ( )) and that the aggregate Cash
----------
Settlement Value of ( ) ((payment currency) ( ) per
--------------- ----------
Currency Warrant) will be made available to you in the form of a check, five
New York Business Days after the Valuation Date (or six New York Business
Days in the case that the Valuation Date for the exercised Currency Warrants
was not a New York Business Day) in accordance with the terms of the Currency
Warrant Agreement.
Capitalized terms included herein but not defined have the meanings
assigned thereto in the Currency Warrant Agreement dated as of (
-----------
, 19 ) between The Chase Manhattan Corporation and ( ), as
- --- -- ----------
Currency Warrant Agent.
Dated: ( , 199 )
--------------------- --
, as
-------------------------
Currency Warrant Agent
By:
-------------------------------
Authorized Agent
- ------------------
<F1> Not necessary with respect to Currency Warrants represented
by Definitive Certificates.
C-4-1
<PAGE>
EXHIBIT C-5
-----------
Confirmation of Exercise
------------------------
for Delayed Exercise Warrants
-----------------------------
We hereby confirm receipt of your Currency Warrants and your
Exercise Notice (and Exercise Price) with respect to such Currency Warrants
(the "Tendered Warrants"), which Exercise Notice (and Exercise Price) we have
found to be duly completed and in good order, (and we have verified, in the
manner provided in the Currency Warrant Agreement, that you are a Depositary
Participant.)<F1> The Valuation Date of the Exercised Warrant is
( ).
---------------
(The Company has elected to limit the number of Currency Warrants
that may have an Exercise Date on ( , 19 ) to ( ).
Of the Tendered Warrants, ( ) Currency Warrants have been selected
to be Currency Warrants that will have an Exercise Date on
( , 19 ) (such Currency Warrants, the "Exercised Warrants").
--------------- --
The remaining ( ) Tendered Warrants are deemed to be Delayed
----------
Exercise Warrants.) All of the Tendered Warrants will have an Exercise Date
on ( , 19 ) and are hereinafter referred to as "Exercised
--------------- --
Warrants".)
We hereby confirm that the Exercised Warrants have been exercised
at the Currency Value of ( ) and that the aggregate Cash Settlement
----------
Value of ( ) (( ) per Currency Warrant) will
---------------- --------------
be made available to you in the form of a check, five New York Business Days
after the Valuation Date (or six New York Business Days in the case that the
Valuation Date for the exercised Currency Warrants was not a New York
Business Day) in accordance with the terms of the Currency Warrant Agreement.
- ------------------
<F1> Not necessary with respect to Currency Warrants represented
by Definitive Certificates.
C-5-1
<PAGE>
Capitalized terms included herein but not defined have the meanings
assigned thereto in the Currency Warrant Agreement dated as of (
-----------
, 19 ) between The Chase Manhattan Corporation and ( ), as
- --- -- ---------------
Currency Warrant Agent.
Dated: ( , 199 )
--------------------- --
, as
-------------------------
Currency Warrant Agent
By:
-------------------------------
Authorized Agent
C-5-2
<PAGE>
EXHIBIT D-1
-----------
Form of Depositary Participant Certificate
------------------------------------------
( ),
-----------------------------
as Currency Warrant Agent
(Department)
(Address)
Attention:___________________
Facsimile:___________________
Telephone:___________________
Telex: _______________________
Re: Automatic Exercise of The Chase Manhattan Corporation (Name of
Currency)
(Put/Call) Warrants Expiring
, 19 (the "Currency Warrants")
------------------------------------------------
We refer to the Currency Warrant Agreement dated as of (
---------
, 19 ) (the "Currency Warrant Agreement") between The Chase Manhattan
- ----- --
Corporation (the "Company") and (_______________________) (the "Currency
Warra nt
Agent"). We hereby certify that we own on behalf of our clients ( )
-------
Currency Warrants which have been automatically exercised pursuant to the
Currency Warrant Agreement. (We hereby further certify that none of such
Currency Warrants are beneficially owned by Owners who are Currency Country
Residents (as defined in the Currency Warrant Agreement).)
Dated: ( , 199 )
---------------- -- --
(NAME OF DEPOSITARY PARTICIPANT)
By
---------------------------------
Authorized Agent
(Address)
Telephone:
-----------------------
Facsimile:
-----------------------
D-1-1
<PAGE>
EXHIBIT D-2
-----------
Form of Owner Certificate
-------------------------
( ),
-----------------------------
as Currency Warrant Agent
(Department)
(Address)
Attention:
------------------
Facsimile:
------------------
Telephone:
------------------
Telex:
----------------------
Re: Automatic Exercise of The Chase Manhattan Corporation (Name of
Currency)
(Put/Call) Warrants Expiring
, 19 (the "Currency Warrants")
------------------------------------------------
We refer to the Currency Warrant Agreement dated as of (
---------
, 19 ) (the "Currency Warrant Agreement") between The Chase Manhattan
- ----- --
Corporation (the "Company") and (___________________) (the "Currency Warrant
Agent"). We hereby certify that we own ( ) Currency Warrants which
-------
have been automatically exercised pursuant to the Currency Warrant Agreement
and which we have delivered to you. (We hereby further certify that, as of
the date hereof, we are not a resident of, nor a corporation or other entity
organized under the laws of, (name of Currency country), its territories, its
possessions or other areas subject to its jurisdiction.)
Dated: ( , 199 )
---------------- -- --
(NAME OF OWNER)
By:
-------------------------------
Authorized Agent
(Address)
Telephone:
-----------------------
Facsimile:
-----------------------
Bank Account Designated for
Payment:
--------------------------
D-2-1
<PAGE>
OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS HEREIN SHALL BE
DETERMINED IN CONFORMITY WITH THE APPLICABLE PROSPECTUS SUPPLEMENT
OR SUPPLEMENTS.
------------------------------------------------------------------
---------------------------------------------------
THE CHASE MANHATTAN CORPORATION
and
(Name of Index Warrant Agent)
as Index Warrant Agent
------------------------------------
INDEX WARRANT AGREEMENT
dated as of ( , 19 )
--------------- --
------------------------------------
(UP TO ) INDEX (PUT/CALL/SPREAD) WARRANTS
---------
EXPIRING ( , 19 )
--------------- --
-------------------------------------
<PAGE>
TABLE OF CONTENTS<F1>
-----------------
ARTICLE I
ISSUANCE, FORM, EXECUTION,
DELIVERY AND REGISTRATION OF INDEX WARRANTS
SECTION 1.1 Issuance of Index Warrants; Book-Entry
Procedures; Successor Depository;
Status of Warrants . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Form, Execution and Delivery of the
Index Warrant Certificate . . . . . . . . . . . . . . . . 3
SECTION 1.3 Index Warrant Certificate . . . . . . . . . . . . . . . . . 4
SECTION 1.4 Registration of Transfers and Exchanges . . . . . . . . . . 5
SECTION 1.5 Definitive Certificates . . . . . . . . . . . . . . . . . . 6
ARTICLE II
DURATION AND EXERCISE OF INDEX WARRANTS
SECTION 2.1 Duration of Index Warrants; Minimum
(and Maximum) Exercise Amounts;
Notice of Exercise . . . . . . . . . . . . . . . . . . . 9
SECTION 2.2 Exercise and Delivery of Index Warrants . . . . . . . . . . 11
SECTION 2.3 Automatic Exercise of the Index Warrants . . . . . . . . . 18
SECTION 2.4 Discontinuance or Modification of (the)
(an) Index . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.5 Covenant of the Company . . . . . . . . . . . . . . . . . . 22
SECTION 2.6 Return of the Index Warrant Certificate . . . . . . . . . . 22
SECTION 2.7 Return of Moneys Held Unclaimed for
Two Years . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.8 Designation of Agent for Receipt of Notice . . . . . . . . 22
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF OWNERS
SECTION 3.1 Owners of Index Warrants May Enforce Rights . . . . . . . . 22
SECTION 3.2 Consolidation, Merger or Other Disposition . . . . . . . . 23
- --------------------
<F1>This Table of Contents is not a part of the Index Warrant Agreement.
i
<PAGE>
ARTICLE IV
CANCELLATION OF INDEX WARRANTS
SECTION 4.1 Cancellation of Index Warrants . . . . . . . . . . . . . . 24
SECTION 4.2 Treatment of Owners . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.3 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE V
CONCERNING THE INDEX WARRANT AGENT
SECTION 5.1 Index Warrant Agent . . . . . . . . . . . . . . . . . . . . 24
SECTION 5.2 Conditions of Index Warrant Agent's
Obligations . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 5.3 Compliance With Applicable Laws . . . . . . . . . . . . . . 27
SECTION 5.4 Resignation and Appointment of Successor . . . . . . . . . 28
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Modification, Supplementation or Amendment . . . . . . . . 29
SECTION 6.2 Notices and Demands to the Company
and Index Warrant Agent . . . . . . . . . . . . . . . . . 30
SECTION 6.3 Addresses for Notices . . . . . . . . . . . . . . . . . . . 31
SECTION 6.4 Notices to Owners . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.6 Obtaining of Governmental Approvals . . . . . . . . . . . . 31
SECTION 6.7 Persons Having Rights Under the
Index Warrant Agreement . . . . . . . . . . . . . . . . . 31
SECTION 6.8 Headings . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.10 Inspection of Agreement . . . . . . . . . . . . . . . . . . 32
EXHIBIT A - Form of Index Warrant Certificate
EXHIBIT B - Form of Transfer of Index Warrant Certificate
EXHIBIT C-1 - Form of Exercise Notice from Depositary Participant
EXHIBIT C-2 - Form of Exercise Notice from Owner
EXHIBIT C-3 - Form of Notice of Rejection
EXHIBIT C-4 - Form of Confirmation of Exercise
EXHIBIT C-5 - Form of Confirmation of Exercise for Delayed Exercise Warrants
EXHIBIT D-1 - Form of Depositary Participant Certificate
EXHIBIT D-2 - Form of Owner Certificate
ii
<PAGE>
INDEX WARRANT AGREEMENT
THIS AGREEMENT, dated as of ( , 19 ), between THE
---------------- --
CHASE MANHATTAN CORPORATION, a corporation duly incorporated and existing
under the laws of the State of Delaware (the "Company") and (name of Index
Warrant Agent), a (banking association) duly incorporated and existing under
the laws of ( ), as Index Warrant Agent (the "Index Warrant Agent"),
-------
W I T N E S S E T H T H A T :
- - - - - - - - - - - - - -
WHEREAS, the Company proposes to sell index warrants (the "Index
Warrants" or, individually, an "Index Warrant") representing the right to
receive from the Company an amount in (U.S. dollars) (other currency) to be
determined by (reference to movements in the (name of Index) (the "Index"))
(reference to the differential between the (name of Reference Index) (the
"Reference Index") and the (name of Base Index) (the "Base Index")); and
WHEREAS, the Company wishes the Index Warrant Agent to act on
behalf of the Company in connection with the issuance, transfer and exercise
of the Index Warrants, and wishes to set forth herein, among other things,
the provisions of the Index Warrants and the terms and conditions under which
they may be issued, transferred, exercised and cancelled;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE, FORM, EXECUTION,
DELIVERY AND REGISTRATION OF INDEX WARRANTS
SECTION 1.1 Issuance of Index Warrants; Book-Entry Procedures;
--------------------------------------------------
Successor Depository; Status of Warrants.
- ----------------------------------------
(a) The Index Warrants will be issued in book-entry form and
represented by a single global certificate (the "Index Warrant Certificate").
Each Index Warrant shall represent the right, subject to the provisions
contained herein and in the Index Warrant Certificate, to receive the Cash
Settlement Value (as defined in Section 2.2(f) hereof), if any, of such Index
Warrant. Such Cash Settlement Value will be payable only in (U.S. dollars)
(other currency). In no event shall any beneficial owner of Index Warrants
(an "Owner") be entitled to receive any interest on the Cash Settlement
Value, and the Index Warrants will not entitle the Owners to any of the
rights of the Holder of any stock underlying the Index (an "Underlying
Stock") or any other securities. An Index Warrant will not require or
1
<PAGE>
entitle the Owner thereof to sell, deliver, purchase or take delivery of any
currency, security or other instrument underlying such Index Warrant to or
from the Company, nor will the Company be under any obligation to, nor will
it, purchase or take delivery, or sell or deliver, any currency, security or
other instrument underlying such Index Warrant to or from the Owners. Owners
will not be entitled to receive definitive certificates evidencing the Index
Warrants; provided, however, that if (i) the Depositary (as defined in
-------- -------
Section 1.1(b)) is at any time unwilling or unable to continue as Depositary
for the Index Warrants and a successor Depositary is not appointed by the
Company within 90 days, or (ii) the Company shall be adjudged bankrupt or
insolvent or make an assignment for the benefit of its creditors or institute
proceedings to be adjudicated bankrupt or shall consent to the filing of a
bankruptcy proceeding against it, or shall file a petition or answer or
consent seeking reorganization under applicable law, or shall 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 Company or of its property or affairs, for the
purpose of rehabilitation, conservation or liquidation,
the Company will issue Index Warrants in definitive form in exchange for the
Index Warrant Certificate. In addition, the Company may at any time
determine not to have the Index Warrants represented by an Index Warrant
Certificate and, in such event, will issue Index Warrants in definitive form
in exchange for the Index Warrant Certificate. In either instance, and in
accordance with the provisions of this Agreement, each Owner will be entitled
to have a number of Index Warrants equivalent to such Owner's beneficial
interest in the Index Warrant Certificate registered in its name and will be
entitled to physical delivery of such Index Warrants in definitive form by
the Depositary Participant or Indirect Participant (as defined in Section
1.1(c)) through which such Owner's beneficial interest is reflected. The
provisions of Sections 1.5 shall apply only if and when Index Warrants in
definitive form ("Definitive Certificates") are issued hereunder. Unless the
context shall otherwise require, all references in this Agreement to the
Index Warrant Certificate shall include the Definitive Certificates in the
event that Definitive Certificates are issued.
(b) The Index Warrant Certificate shall be deposited with the
Depositary or its agent (the term "Depositary," as used herein, initially
refers to (The Depository Trust Company) and includes any successor
depository selected by the Company as provided in Section 1.1(d)) for credit
to the accounts of the Depositary Participants as shown on the records of the
Depositary from time to time.
2
<PAGE>
(c) The Index Warrant Certificate will be registered in the name
of (a nominee of) the Depositary. (The Company has been informed by the
Depositary that initially its nominee will be .) The
-----------------------
Index Warrant holdings of Depositary Participants will be recorded on the
books of the Depositary. The holdings of customers of Depositary
Participants, including the holdings of Indirect Participants, will be
reflected on the books and records of such Depositary Participants and will
not be known to the Index Warrant Agent, the Company or to the Depositary.
"Depositary Participants" include securities brokers and dealers, banks and
trust companies, clearing organizations and certain other organizations which
are participants in the Depositary system and, for purposes of this
Agreement, shall also mean participants in the book-entry system of any
successor Depositary. Access to the Depositary's system is also available to
others such as banks, securities dealers and trust companies ("Indirect
Participants") that clear or maintain a custodial relationship with a
Depositary Participant, either directly or indirectly. The Index Warrant
holdings of Owners who are customers of Indirect Participants will be
reflected on the books and records of Depositary Participants in the name of
the respective Indirect Participants. The Index Warrant Certificate will be
held by the Depositary or its agent. Neither the Company nor the Index
Warrant Agent will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of an Index Warrant Certificate or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interest.
(d) The Company may from time to time select a new entity to act
as Depositary and, if such selection is made, the Company shall promptly give
the Index Warrant Agent notice to such effect identifying the new Depositary
and the Index Warrant Certificate shall be delivered to the Index Warrant
Agent and shall be transferred to the new Depositary as provided in Section
1.4 as promptly as possible. Appropriate changes may be made in the Index
Warrant Certificate, the notice of exercise and the related notices delivered
in connection with an exercise of Index Warrants to reflect the selection of
the new Depositary.
(e) The Index Warrants will constitute direct, unconditional and
unsecured obligations of the Company and will rank on a parity with the
Company's other existing and future unsecured contractual obligations and
with the Company's existing and future unsecured and unsubordinated debt.
SECTION 1.2 Form, Execution and Delivery of the Index Warrant
-------------------------------------------------
Certificate. Except as provided in Section 1.5, the Index Warrant
- -----------
Certificate, whenever issued, shall be in registered form substantially in
the form set forth in Exhibit
3
<PAGE>
A-1 hereto, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Agreement. The Index
Warrant Certificate may have imprinted or otherwise reproduced thereon such
letters, number or other marks of identification or designation and such
legends or endorsements as the officers of the Company executing the same may
approve (execution thereof to be conclusive evidence of such approval) that
are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto, or with any rule or regulation of any stock exchange on which the
Index Warrants may be listed, or of the Depositary, or to conform to usage.
The Index Warrant Certificate shall be signed on behalf of the Company by its
( ) or any ( ), manually
----------------------------- -------------------------
or by facsimile signature, and its corporate seal or a facsimile thereof
shall be impressed, imprinted or engraved thereon, which shall be attested by
its Secretary or any Assistant Secretary, either manually or by facsimile
signature. Typographical and other minor errors or defects in any such
reproduction of the seal or any such signature shall not effect the validity
or enforceability of the Index Warrant Certificate that has been duly
countersigned and delivered by the Index Warrant Agent.
In case any officer of the Company who shall have signed the Index
Warrant Certificate, either manually or by facsimile signature, shall cease
to be such officer before the Index Warrant Certificate so signed shall have
been countersigned and delivered by the Index Warrant Agent to the Company or
delivered by the Company, such Index Warrant Certificate nevertheless may be
countersigned and delivered as though the person who signed such Index
Warrant Certificate had not ceased to be such officer of the Company; and the
Index Warrant Certificate may be signed on behalf of the Company by such
persons as, at the actual date of execution of such Index Warrant
Certificate, shall be the proper officers of the Company, although at the
date of the execution of this Agreement any such person was not such an
officer.
SECTION 1.3 Index Warrant Certificate. One or more Index Warrant
-------------------------
Certificates (relating to no more than Index Warrants originally
-------------
issued) may be executed by the Company and delivered to the Index Warrant
Agent on or after the date of execution of this Agreement; provided that only
--------
one Index Warrant Certificate shall be outstanding at any one time. The
Index Warrant Agent is authorized, upon receipt of an Index Warrant
Certificate from the Company, duly executed on behalf of the Company, to
countersign such Index Warrant Certificate. The Index Warrant Certificate
shall be manually countersigned and dated the date of the countersignature by
a duly authorized representative of the Index Warrant Agent and shall not be
valid for any purpose unless so countersigned. The Index Warrant Agent
4
<PAGE>
shall countersign and deliver the Index Warrant Certificate to or upon the
written order of the Company.
The Index Warrant Certificate may be exchanged for a new Index
Warrant Certificate to reflect the issuance by the Company of additional
Index Warrants (; provided, however, that in no event shall the number of
-------- -------
Index Warrants represented by the Index Warrant Certificate exceed
--------
originally issued). To effect such an exchange the Company shall
- -----
deliver to the Index Warrant Agent a new Index Warrant Certificate duly
executed on behalf of the Company as provided in Section 1.2. The Index
Warrant Agent shall countersign the new Index Warrant Certificate as provided
in this Section 1.3 and, upon a written order of the Company, shall deliver
the new Index Warrant Certificate to the Depositary in exchange for, and upon
receipt of, the Index Warrant Certificate then held by the Depositary. The
Index Warrant Agent shall cancel the Index Warrant Certificate delivered to
it by the Depositary and return the cancelled Index Warrant Certificate to
the Company.
SECTION 1.4 Registration of Transfers and Exchanges. Except as
---------------------------------------
otherwise provided herein or in the Index Warrant Certificate, the Index
Warrant Agent shall from time to time register the transfer of the Index
Warrant Certificate in the records of the Index Warrant Agent only to the
Depositary, or to a nominee of the Depositary, upon surrender of such Index
Warrant Certificate, duly endorsed and accompanied by a written instrument or
instruments of transfer in the form of Exhibit B hereto, duly signed by the
registered holder thereof or by the duly appointed legal representative
thereof or by a duly authorized attorney, such signature to be guaranteed by
a bank or trust company, by a broker or dealer which is a member of the
National Association of Securities Dealers, Inc. or by a member of a U.S.
national securities exchange. Upon any such registration of transfer, the
Company shall execute and the Index Warrant Agent shall countersign and
deliver in the name of the designated transferee a new Index Warrant
Certificate of like tenor and representing a like number of unexercised Index
Warrants as evidenced by the Index Warrant Certificate at the time of such
registration of transfer.
The Index Warrant Certificate may be transferred as provided above
at the option of the registered holder thereof when surrendered to the Index
Warrant Agent at its office or agency maintained for the purpose of
transferring and exercising the Index Warrants, which shall be (south of
Chambers Street in the Borough of Manhattan, the City of New York) (the
"Index Warrant Agent Office"), and which is, on the date of this Agreement, (
, New York, New York , Attention: ),
---------------- ------------ -------------
or at the office of any successor Index Warrant Agent as provided for in
Section 5.4, for another
5
<PAGE>
Index Warrant Certificate of like tenor and representing a like number
unexercised Index Warrants.
SECTION 1.5 Definitive Certificates. Any Definitive Certificates
-----------------------
issued in accordance with Section 1.1(a) shall be in registered form
substantially in the form set forth in Exhibit A-2 hereto, with such
appropriate insertions, omissions, substitutions and other variations as are
necessary or desirable for individual Definitive Certificates, and may
represent any integral multiple of Index Warrants. The Definitive
Certificates may have imprinted or otherwise reproduced thereon such letters,
numbers or other marks of identification or designation and such legends or
endorsements as the officers of the Company executing the same may approve
(execution thereof to be conclusive evidence of such approval) that are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto, or
with any rule or regulation of any stock exchange on which the Index Warrants
may be listed, or of the Depositary, or to conform to usage. Definitive
Certificates shall be signed on behalf of the Company upon the same
conditions, in substantially the same manner and with the same effect as the
Index Warrant Certificate.
Each Definitive Certificate, when so signed on behalf of the
Company, shall be delivered to the Index Warrant Agent, which shall manually
countersign and deliver the same to or upon the written order of the Company.
Each Definitive Certificate shall be dated the date of its countersignature.
No Definitive Certificate shall be valid for any purpose, and no
Index Warrant evidenced thereby shall be exercisable, until such Definitive
Certificate has been countersigned by the manual signature of a duly
authorized representative of the Index Warrant Agent. Such signature by the
Index Warrant Agent upon any Definitive Certificate executed by the Company
shall be conclusive evidence that the Definitive Certificate so countersigned
has been duly issued hereunder.
Definitive Certificates delivered in exchange for the Index Warrant
Certificate shall be registered in such names and addresses (including tax
identification number) and in such denomination as shall be requested in
writing by the Depositary or its nominee in whose name the Index Warrant
Certificate is registered, upon written certification to the Company and the
Index Warrant Agent, in a form satisfactory to each of them, of the
applicable beneficial ownership interests in the Index Warrant Certificate.
The Company shall cause to be kept at an office of the Index
Warrant Agent in New York City a register (the register maintained in such
office and in any other office or agency maintained by or on behalf of the
Company for such purpose being
6
<PAGE>
herein sometimes collectively referred to as the "Index Warrant Register") in
which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of and transfers of Definitive
Certificates. The Index Warrant Agent is hereby appointed "Index Warrant
Registrar" for the purpose of registering Definitive Certificates and
transfers of Definitive Certificates as herein provided.
For purposes of this Section 1.5, a "Holder of a Definitive
Certificate" at any particular time is the person in whose name such
Definitive Certificate is registered in the Index Warrant Register at such
time.
Upon surrender for registration of transfer of any Definitive
Certificate at an office or agency of the Company maintained for such
purpose, the Company shall execute, and the Index Warrant Agent shall
countersign and deliver, in the name of the designated transferee or
transferees, one or more new Definitive Certificates of like tenor and
representing a like number of unexercised Index Warrants.
At the option of the Holder of a Definitive Certificate, Definitive
Certificates may be exchanged for other Definitive Certificates of like tenor
and representing a like number of unexercised Index Warrants, upon surrender
of the Definitive Certificates to be exchanged at such office or agency.
Whenever any Definitive Certificates are so surrendered for exchange, the
Company shall execute, and the Index Warrant Agent shall countersign and
deliver, the Definitive Certificates which the Holder of a Definitive
Certificate making the exchange is entitled to receive.
All Definitive Certificates issued upon any registration of
transfer or exchange of Definitive Certificates shall be valid obligations of
the Company, evidencing the same obligations of the Company, and entitled to
the same benefits under this Index Warrant Agreement, as the Definitive
Certificates surrendered upon such registration of transfer or exchange.
Every Definitive Certificate presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Index Warrant Agent) be duly endorsed, or be accompanied by a written
instrument of transfer in a form satisfactory to the Company and the Index
Warrant Registrar duly executed, by the Holder of a Definitive Certificate
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Definitive Certificates, but the Company may require payment of a
sum sufficient to cover any tax or other
7
<PAGE>
governmental charge that may be imposed in connection with any registration
of transfer or exchange of Definitive Certificates.
In the event that upon any exercise of the Index Warrants evidenced
by a Definitive Certificate the number of Index Warrants exercised shall be
less than the total number of Index Warrants evidenced by such Definitive
Certificate, there shall be issued to the Holder thereof or its assignee a
new definitive Certificate evidencing the number of Index Warrants not
exercised.
If any mutilated Definitive Certificate is surrendered to the Index
Warrant Agent, the Company shall execute and the Index Warrant Agent shall
countersign and deliver in exchange therefor a new Definitive Certificate of
like tenor representing a like number of unexercised Index Warrants and
bearing a number not contemporaneously outstanding.
If there shall be delivered by a Holder of a Definitive Certificate
to the Company and the Index Warrant Agent (i) evidence to their satisfaction
of the destruction, loss or theft of any Definitive Certificate and of
ownership thereof, (ii) such security or indemnity as may be required by them
to save each of them and any agent of either of them harmless, and (iii)
funds sufficient to cover any cost or expense to the Company (including any
fees charged by the Index Warrant Agent) relating to the issuance of a new
Definitive Certificate, then, in the absence of notice to the Company or the
Index Warrant Agent that such Definitive Certificate has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the Index
Warrant Agent shall countersign and deliver, in lieu of any such destroyed,
lost or stolen Definitive Certificate, a new Definitive Certificate of like
tenor representing a like number of unexercised Index Warrants and bearing a
number not contemporaneously outstanding.
In case the Index Warrants evidenced by any such mutilated,
destroyed, lost or stolen Definitive Certificate have been exercised or have
been or are about to be deemed to be exercised, the Company in its discretion
may, instead of issuing a new Definitive Certificate, treat the same as if it
had received written irrevocable notice of exercise in good form in respect
thereof, as provided herein.
Every new Definitive Certificate issued pursuant to this Section
1.5 in lieu of any mutilated, destroyed, lost or stolen Definitive
Certificate shall constitute an original additional contractual obligation of
the Company, whether or not the mutilated, destroyed, lost or stolen
Definitive Certificate shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Index Warrant Agreement equally and
8
<PAGE>
proportionately with any and all other Definitive Certificates duly issued
hereunder.
The provisions of this Section 1.5 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Definitive
Certificates.
Prior to due presentment of a Definitive Certificate for
registration of transfer, the Company, the Index Warrant Agent and any agent
of the Company or the Index Warrant Agent may treat the person in whose name
such Definitive Certificate is registered as the owner of such Definitive
Certificate for all purposes hereunder whatsoever, whether or not such
Definitive Certificate be exercised or deemed to be exercised and neither the
Company, the Index Warrant Agent nor any agent of the Company or the Index
Warrant Agent shall be affected by notice to the contrary.
All Definitive Certificates surrendered for exercise, registration
of transfer or exchange shall, if surrendered to any person other than the
Index Warrant Agent, be delivered to the Index Warrant Agent and shall be
promptly cancelled by it and shall not be reissued. The Company may at any
time deliver to the Index Warrant Agent for cancellation any Definitive
Certificates previously countersigned and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Definitive
Certificates so delivered shall be promptly cancelled by the Index Warrant
Agent. No Definitive Certificates shall be countersigned in lieu of or in
exchange for any Definitive Certificate cancelled as provided in this Section
1.5, except as expressly permitted by this Index Warrant Agreement. All
cancelled Definitive Certificates held by the Index Warrant Agent shall be
disposed of as directed by the Company.
ARTICLE II
DURATION AND EXERCISE OF INDEX WARRANTS
SECTION 2.1 Duration of Index Warrants; Minimum (and Maximum)
-------------------------------------------------
Exercise Amounts; Notice of Exercise.
- ------------------------------------
(a) Subject to the limitations described herein, each Index
Warrant evidenced by the Index Warrant Certificate or Definitive Certificates
may be irrevocably exercised in whole but not in part (on any New York
Business Day from the date of issuance until (1:30 P.M.), New York City
time,) on (i) (the date upon which the right to exercise the Index Warrants
expires or, if such date is not a New York Business Day (as defined in
Section 2.1(c) below), on the next succeeding New York Business Day) (
-----
), 199 ) (the "Expiration Date") or (ii) the date of
- ---------------------- -
automatic exercise as provided in
9
<PAGE>
Section 2.3 or cancellation as provided in Section 2.4. (There is no
exercise price payable by any Owner in connection with the exercise of an
Index Warrant.) (The exercise price for each Index Warrant is ($ ) and
------
shall be payable by the Owner of such Index Warrant in (U.S. dollars) (other
currency) (the "Exercise Price")). Each Index Warrant may be exercised by
(a) transfer of the related Index Warrants on the records of the Depositary
free to the Index Warrant Agent Depositary Participant Account (entitled (
-
)), or such other account of the Index Warrant Agent at the Depositary
- -------
as the Index Warrant Agent shall specify (the "Index Warrant Account"), in
the case of Index Warrants represented by the Index Warrant Certificate, or
surrender of the Definitive Certificate or Certificates to the Index Warrant
Agent at the Index Warrant Agent's Office, in the care of Index Warrants
represented by Definitive Certificates (in each case, "Proper Delivery"), (b)
except in the case of automatic exercise or cancellation, delivery of written
notice (an "Exercise Notice") to the Index Warrant Agent from a Depositary
Participant acting on behalf of the Owner of such Index Warrant, in the event
that the Index Warrants are represented by the Index Warrant Certificate, or
from the Owner, in the event that the Index Warrants are represented by
Definitive Certificates; provided, however, that Exercise Notices are subject
-------- -------
to rejection by the Index Warrant Agent as provided herein (and (c) the
payment in full to the Index Warrant Agent of the Exercise Price ((in U.S.
dollars) (other currency) (in cash or by certified or official bank check in
New York Clearing House funds) (by bank wire transfer in immediately
available funds)) payable to the account of the Company).
(b) Not fewer than the minimum number (or more than the maximum
number) of Index Warrants as set forth in the Index Warrant Certificate or
Definitive Certificate, as the case may be, may be exercised by or on behalf
of any one Owner at any one time, except that no such minimum (or maximum)
exercise amount shall apply in the case of exercise (or deemed exercise) on
the Expiration Date. The Exercise Notice, which shall be irrevocable, shall
be in substantially the form set forth in Exhibit C-1 hereto in the case that
the Index Warrants are represented by the Index Warrant Certificate, and in
substantially the form set forth in Exhibit C-2 hereto in the case that the
Index Warrants are represented by Definitive Certificates, (shall include a
certification by the Depositary Participant that the Owners on whose behalf
the Depositary Participant is exercising the Index Warrants affected by such
Exercise Notice are not Index Country Residents (as defined in Section 2.1(c)
below), in the case the Index Warrants are represented by the Index Warrant
Certificate, and certification that such exercising Owner is not an Index
Country Resident, in the case of Index Warrants represented by Definitive
Certificates,) and shall be sent to the Index Warrant Agent in writing (which
shall include facsimile transmissions, followed
10
<PAGE>
promptly by an executed original, but the date and the time of the receipt of
such transmission shall be the effective date and time of such notice) at its
address as set forth in such Exercise Notice or at such other address as the
Index Warrant Agent may specify from time to time. An irrevocable Exercise
Notice may be conditioned as set forth in Section 2.2(a), but shall otherwise
be unconditional.
(c) As used herein, "New York Business Day" means any day other
than a Saturday, Sunday, legal holiday or other day on which the (New York
Stock Exchange), (American Stock Exchange) or (relevant options and futures
exchanges on which the underlying securities trade) is not open for
securities trading or banking institutions generally in The City of New York
are authorized or required by law or executive order to close(; and "Index
Country Resident" means a resident of, or any corporation or other entity
organized under the laws of, (name of Index country) ( name of Base Index
country or Reference Index country), its territories, its possessions or
other areas subject to its jurisdiction). Except as provided in Section
2.2(b), the Index Warrant Agent and the Company shall be entitled to rely
conclusively on any Exercise Notice received by them with no duty of inquiry
for either of them.
SECTION 2.2 Exercise and Delivery of Index Warrants.
---------------------------------------
(a) Except in the case of automatic exercise as provided in
Section 2.3, and subject to Sections 2.2(b)(i) and 2.2(e), the exercise date
(the "Exercise Date") for an Index Warrant shall be ((i) if the Index Warrant
Agent receives delivery of such Index Warrant (, the Exercise Price) and an
Exercise Notice in good order at or prior to (1:30 P.M.), New York City time
on a New York Business Day, then such New York Business Day and (ii)
otherwise the New York Business Day next succeeding the day on which the
Index Warrant Agent receives Proper Delivery of such Index Warrant(, such
Exercise Price) and such Exercise Notice) ( ,
199 ). Any Exercise Notice received after (1:30 P.M.) New York City time,
on the Expiration Date shall be void and of no effect and shall be deemed not
to have been delivered or made, as the case may be. The provisions of
Section 2.3 shall apply to any Index Warrants to which such late delivery of
an Exercise Notice applied. The "Designated Exercise Date" for an Index
Warrant is the date that, but for Section 2.2(e), would be the Exercise Date
for such Index Warrant. (Notwithstanding anything in this Agreement to the
contrary, if a Depositary Participant (or Owner in the event Definitive
Certificates are issued) has specified in its irrevocable Exercise Notice
that such Exercise Notice is conditional (a "Conditional Exercise Notice"),
then such Conditional Exercise Notice shall be void and of no effect (and
shall be disregarded for all purposes of this Agreement) if (the closing
value of the Index on the Valuation Date (as defined
11
<PAGE>
below) (such Index value, the "Reference Value") is more than (
------------
) (above)<F1> (below)<F2> the closing value of the Index on the
- -------
Designated Exercise Date (or if such Designated Exercise Date is not an Index
Country Business Day (as defined below), on the immediately preceding Index
Country Business Day)) (describe conditions applicable to Index Spread
Warrants)<F3>. As used in this Section 2.2, the "Valuation Date" for an
Index Warrant shall be the Index Country Business Day next succeeding the New
York Business Day on which the Index Warrant Agent has received (i) Proper
Delivery of such Index Warrant (, accompanied by payment in good form of the
Exercise Price) and (ii) an Exercise Notice for such Index Warrant in good
order in the form of Exhibit (C-1) (C-2) to the Index Warrant Agreement, at
or prior to (1:30 P.M.) New York City time and if the Index Warrant Agent
shall receive such delivery of such Exercise Notice after (1:30 P.M.), New
York City time, on such date, the "Valuation Date" shall be the next Index
Country Business Day following the New York Business Day following the New
York Business Day on which the Index Warrant Agent received Proper Delivery
of such Index Warrant and such Exercise Notice. In such event, the Index
Warrants delivered to the Index Warrant Agent with such Conditional Exercise
Notice shall be redelivered free through the facilities of the Depositary to
the account of such Depositary Participant (or returned to the appropriate
Owner by first class mail at the expense of the Company in the event that
Definitive Certificates are issued) together with a notice of rejection
substantially in the form set forth in Exhibit C-3 hereto.) As used herein,
"Index Country Business Day" means any day other than (i) a Saturday, Sunday,
legal holiday or other day on which banking institutions generally in (name
of Index country) (name of Base Index country and Reference Index country)
are authorized and required by law or executive order to close or (ii) a day
on which the (names of relevant stock exchanges) are not open for business.
(b) Following receipt of Proper Delivery of the Index Warrants(,
the Exercise Price) and the Exercise Notice related to such Index Warrants in
good form, the Index Warrant Agent shall:
((i) deposit all funds received by it as payment for the exercise
of Index Warrants to the account of the Company maintained with it for such
purpose on the date on which such Index Warrant is deemed exercised ((unless
otherwise instructed in writing by the Company)), advise the Company by
telephone and in writing, by facsimile transmission or otherwise, at the end
of
- --------------------
<F1> In case of Index Put Warrants.
<F2> In case of Index Call Warrants.
<F3>In case of Index Spread Warrants.
12
<PAGE>
each day on which such payment is received of the amount so deposited to its
account.)
(ii) promptly determine whether the Definitive Certificate is in
proper form, in the case of Index Warrants represented by a Definitive
Certificate, (whether the Exercise Price has been paid in full in proper
form) and whether the Exercise Notice has been duly completed and is in
proper form and, in the case of Index Warrants represented by the Index
Warrant Certificate, promptly verify that the entity that executed such
notice is listed as a Depositary Participant in the most recent published
edition of the Depositary's Eligible Corporate Securities Book (or comparable
publication of a successor Depositary ) and, if such entity is not listed
therein, the Index Warrant Agent shall make reasonable efforts to obtain
telephonic verification from the Depositary's (Planning) Department
(telephone no. (( ) )) (or comparable department of a successor
Depositary) that such entity is a Depositary Participant. If the Index
Warrant Agent is unable through the above-described procedures to verify that
such entity is a Depositary Participant or, in any case, if the Index Warrant
Agent determines that the Exercise Notice has not been duly completed or is
not in proper form, that the Definitive Certificate is not in proper form,
(or that the Exercise Price has not been paid in full in proper form,) the
Index Warrant Agent shall reject the Exercise Notice and shall send to the
entity that executed such notice (or in the event Definitive Certificates
have been issued, to the Owner), a notice of rejection substantially in the
form set forth in Exhibit C-3 hereto and redeliver the Index Warrants to
which such rejected Exercise Notice relates free through the facilities of
the Depositary to the account from which they were transferred (or in the
event Definitive Certificates have been issued, to the Owner) (and redeliver
any payment of the Exercise Price which accompanied such rejected Exercise
Notice free through the facilities of the Depositary to the account from
which such payment was transferred (or in the event Definitive Certificates
have been issued, to the Owner));
(iii) notify the Company by 5:00 P.M., New York City time, on the
New York Business Day such Exercise Notice and Proper Delivery are received
(or deemed to have been received) of the number of Index Warrants in respect
of which Exercise Notices, not rejected pursuant to clause (ii) above, were
received (or deemed to have been received) at or prior to (1:30 P.M.), New
York City time, on such date and the number of Conditional Exercise Notices
(and the number of Index Warrants to which such Conditional Exercise Notices
relate);
(iv) before 5:00 P.M., New York City time, on the first Index
Country Business Day following the Designated Exercise Date for such Index
Warrants (or, if such Index Country Business Day
13
<PAGE>
is not a New York Business Day, on the next succeeding New York Business
Day), (x) after obtaining the Reference Value, determine whether any
Conditional Exercise Notices have become void pursuant to Section 2.2(a), and
if so promptly notify the Company and send notice in the form of Exhibit C-3
hereto to the appropriate Depositary Participant or Owner, as the case may
be, and (y) determine the aggregate number of Index Warrants covered by
Exercise Notices that have not become void pursuant to Section 2.2(a) or been
rejected pursuant to Section 2.2(b)(i) (the "Tendered Index Warrants");
(v) by 5:00 P.M., New York City time, on the first Index Country
Business Day following the Designated Exercise Date for the Tendered Index
Warrants (or the New York Business Day immediately succeeding such Index
Country Business Day if such Index Country Business Day is not a New York
Business Day) covered by such Exercise Notice determine pursuant to Section
2.2(e) the number of such Tendered Index Warrants for which the Designated
Exercise Date shall be the Exercise Date (such Tendered Index Warrants,
"Exercised Index Warrants");
(vi) by 5:00 P.M., New York City time, on the Valuation Date (or
the New York Business Day immediately succeeding the Valuation Date if the
Valuation Date is not a New York Business Day) (x) obtain the Index Value
(and the exchange rate) to be used to determine the Cash Settlement Value, in
each case, applicable to such Exercised Index Warrants, (y) calculate and
advise the Company of the aggregate Cash Settlement Value with respect to
such Exercised Index Warrants and (z) send notice of confirmation of exercise
in the form set forth in Exhibit C-4 hereto (or, if applicable, Exhibit C-5
hereto) to such Depositary Participant (or in the event Definitive
Certificates have been issued, to the Owners); and
(vii) promptly deliver a copy of such Exercise Notices to the
Company and advise the Company of such other matters relating to any of the
Index Warrants covered thereby, whether or not they constitute Tendered Index
Warrants or Exercised Index Warrants, as the Company shall reasonably
request. Any notice to be given to the Company by the Index Warrant Agent
pursuant to this Section 2.2 or Section 2.3 shall be by telephone (promptly
confirmed in writing) or telecopy (receipt to be promptly confirmed by
telephone).
(c) With respect to all Index Warrants duly exercised or deemed
exercised on a date, the Company shall make available to the Index Warrant
Agent, on or before (1:30 P.M.) New York City time, on the fifth New York
Business Day following the Valuation Date for the relevant Index Warrants
(or, if such Valuation Date is not a New York Business Day, on the sixth New
York Business Day after such Valuation Date) (the "Settlement Date") funds in
an amount equal to, and for the payment of, the
14
<PAGE>
aggregate Cash Settlement Value of such Exercised Index Warrants. Provided
that the Company has made adequate funds available to the Index Warrant Agent
in a timely manner, which shall, in no event, be later than (1:30 P.M.), New
York City time, the Index Warrant Agent will make payment available in the
form of a check (or bank wire transfer if the payment is greater than $
----
) (i) in the case of exercise of Index Warrants represented by the Index
- ----
Warrant Certificate, to the appropriate Depositary Participant after (1:30
P.M.), New York City time, but prior to the close of business, on such
Settlement Date, such payment to be in the amount of the Cash Settlement
Value in respect of the Exercised Index Warrants exercised by such Depositary
Participant and (ii) in the case of exercise of Index Warrants represented by
Definitive Certificates, to the appropriate Owner after (1:30 P.M.), New York
City time, but prior to the close of business, on such Settlement Date, such
payment to be in the amount of the Cash Settlement Value of the Exercised
Index Warrants exercised by such Owner. In the case of payments by the Index
Warrant Agent to a Depositary Participant, such Depositary Participant shall
be responsible for crediting the Cash Settlement Value of such Index Warrants
to the appropriate Owner.
(d) The Index Warrant Agent promptly shall cause its records,
which may be kept electronically, to be marked to reflect the reduction in
the number of Index Warrants represented by the Index Warrant Certificates or
Definitive Certificates, as the case may be, by the number of such Index
Warrants (i) for which it has received Exercise Notices in proper form, (ii)
that were delivered to the Index Warrant Account, in the case of Index
Warrants represented by the Index Warrant Certificate, or that were
surrendered to the Index Warrant Agent in the case of Index Warrants
represented by Definitive Certificates and (iii) for which payment has been
made as provided in Section 2.2(c) promptly after such delivery and payment.
(e) In the event that the aggregate number of Tendered Index
Warrants with respect to any single Designated Exercise Date (as determined
by the Index Warrant Agent pursuant to Section 2.2(b) (iii)) shall equal or
exceed ( ) (such number, the "Maximum Exercisable Number"), the
-------
provisions of this Sections 2.2(e) shall apply to the exercise of such Index
Warrants.
(i) The Company may at its sole option, notify the Index Warrant
Agent in writing (including by facsimile transmission) not later than (
) New York City time, on the first Index Country Business Day
following such Designated Exercise Date (or, if such Index Country
Business Day is not a New York Business Day, on the next succeeding New
York Business Day) to the effect that the Company has elected to
exercise its option under this Section 2.2(e) to limit the number of
Index Warrants for which the Exercise
15
<PAGE>
Date will occur on such Designated Exercise Date to a number (the
"Elected Maximum Number") not smaller than the Maximum Exercisable
Number. If the Index Warrant Agent shall not have received such notice
by such time, none of the following provisions in this Section 2.2(e)
shall apply to such Tendered Index Warrants, such Designated Exercise
Date shall be the Exercise Date for such Tendered Index Warrants and all
of such Tendered Index Warrants shall be deemed to be "Exercised Index
Warrants" for purposes of Section 2.2(b).
(ii) If the Index Warrant Agent shall have received the notice
contemplated by clause (i) above by the time specified in such clause
(i), then prior to 5:00 P.M., New York City time on the first Index
Country Business Day following such Designated Exercise Date (or, if
such Index Country Business Day is not a New York Business Day, on the
next succeeding New York Business Day), the Index Warrant Agent shall
select (by lot or such other method as the Warrant Agent deems
appropriate) from all such Tendered Index Warrants, subject to clause
(iii) below, Tendered Index Warrants for which the Exercise Date will
occur on such Designated Exercise Date in an aggregate amount equal to
the Elected Maximum Number. Only the Tendered Index Warrants so
selected shall be deemed to be "Exercised Index Warrants" for purposes
of Section 2.2(b). The Tendered Warrants not so selected are referred
to herein as "Delayed Exercise Index Warrants" and shall be subject to
exercise as provided in clause (iii) below.
(iii) For purposes of this Section 2.2, each Delayed Exercise
Index Warrant shall be deemed to have a new Designated Exercise Date on
the New York Business Day next succeeding the original Designated
Exercise Date, and this Section 2.2 shall apply as if one or more
Exercise Notices with respect to the Delayed Exercise Index Warrants had
been received by the Index Warrant Agent prior to (1:30 P.M.), New York
City time, on such New York Business Day (except that (x) any Delayed
Exercise Index Warrant with respect to which any such deemed Designated
Exercise Date is on or after the ( ) New York Business Day
------
preceding the Expiration Date will be subject to Automatic Exercise as
provided in Section 2.3, (y) the Reference Value for any Delayed
Exercise Index Warrant covered by a Conditional Exercise Notice shall in
any event be determined by reference to the original Designated Exercise
Date therefor (or, if applicable, the first Index Country Business Day
preceding such original Designated Exercise Date) and (z) the notice of
confirmation of exercise with respect to Delayed Exercise Index Warrants
given by the Index Warrant Agent pursuant to Section 2.2(b)(v) shall be in
the form set forth in Exhibit C-5 hereto); provided, however, that, other
16
<PAGE>
than in the case of an Automatic Exercise, in the event that the
aggregate number of such Delayed Exercise Index Warrants, together with
any additional Tendered Index Warrants for which the Designated Exercise
Date is such New York Business Day, shall again exceed the Maximum
Exercisable Number, the provisions of this Section 2.2(e) shall apply,
mutatis mutandis, to the exercise of such Delayed Exercise Index
------- --------
Warrants and such additional Tendered Index Warrants; and provided,
further, however, that such Delayed Exercises Index Warrants shall in
any event be given priority over such additional Tendered Index Warrants
in the selection pursuant to clause (ii) above, and among such Delayed
Exercise Index Warrants, priority in such selections shall be given to
Index Warrants in the order of their original Designated Exercise Dates,
with Index Warrants having the same original Designated Exercise Date
being selected by lot as described in Section 2.2(e)(ii) above.
(iv) In connection with any issuance by the Company of additional
Index Warrants under this Agreement, the Company has the right, but is
not obligated, to increase the Maximum Exercisable Number.
(f) For the purposes of this Index Warrant Agreement:
The "Cash Settlement Value" of an Exercised Index Warrant (whether
exercised automatically or by Exercise Notice) shall mean ( )
---------
(fraction of excess amount) (of the U.S. dollar equivalent (rounded to the
nearest (dollar) (cent))) (other currency) of (the amount, if any by which
(i) the Fixed Amount exceeds (ii) the Index Value)<F4> (the amount, if any,
by which (i) the Index Value exceeds (ii) the Fixed Amount)<F5> (the amount,
if any, by which (insert formula for determining Cash Settlement Value for
Index Spread Warrants))<F6>; provided that if such amount is less than zero,
--------
then the Cash Settlement Value shall be zero.
(The "Fixed Amount" for any exercised Index Warrant shall be
(insert the definition set forth in the Prospectus Supplement)).<F7>
(The "Index Value" for any exercised Index Warrant shall be the
closing value of the Index on the Valuation Date for
- --------------------
<F4>In case of Index Put Warrants.
<F5>In case of Index Call Warrants.
<F6>In case of Index Spread Warrants.
<F7>In case of Index Put Warrants or Index Call Warrants.
17
<PAGE>
such Index Warrants (where ( ) point(s) of the Index is treated as
--------
(fraction of Index currency unit)) and shall be obtained by the Index Warrant
Agent.)<F8>
(The exchange rate (or manner of calculating such rate) for
conversation of the (Fixed Amount), (the Exercise Price) and the (Index
Value) into U.S. dollars shall be ( ) (set forth such rate or manner
--------
of calculating such rate) and shall be obtained by the Index Warrant Agent.
"U.S. dollars", "U.S.$" or "$" are references to the currency of the United
States of America. "(Index currency)" (or " " are references to the
-------
currency of (name of other country)).<F9>
(Insert definitions used to determine the Cash Settlement Value for
Index Spread Warrants).<F10>
SECTION 2.3 Automatic Exercise of the Index Warrants.
----------------------------------------
(a) All Index Warrants with respect to which (i) there has been no
Proper Delivery (, payment in good form of the Exercise Price has not been
received by the Index Warrant Agent) or no valid Exercise Notice has been
received by the Index Warrant Agent at or prior to (1:30 P.M.), New York City
time, on the Expiration Date for such Index Warrants, (ii) the Exercise Date
for which has been postponed pursuant to Section 2.2(e) to a date on or after
the New York Business Day preceding the Expiration Date or (iii) there has
been no proper exercise on the New York Business Day on which the Index
Warrants are permanently delisted or suspended from the (name of U.S.
national securities exchange) and, at or prior to such delisting or
suspension, the Index Warrants have not been listed on another U.S. national
securities exchange or quoted through a self-regulatory organization (a
"Self-Regulatory Organization") in the United States which operates pursuant
to rules and regulations of a self-regulatory organization that are filed
with the Securities and Exchange Commission (the "Commission") pursuant to
Section 19(b) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), will be deemed automatically exercised on such Expiration
Date without any requirement of notice of exercise or delivery of the Index
Warrants to the Index Warrant Agent. By 5:00 P.M., New York City time, on
the Expiration Date, the Index Warrant Agent shall advise the Company of the
number of unexercised Index Warrants outstanding after (1:30 P.M.), New York
City time, on such day. As used in this Section 2.3, the
- --------------------
<F8>In case of Index Put Warrants or Index Call Warrants.
<F9>In case of Index Put Warrants or Index Call Warrants.
<F10>In case of Index Spread Warrants.
18
<PAGE>
"Valuation Date" for such Index Warrants shall be the first Index Country
Business Day following such Expiration Date.
(b) On the Valuation Date for the Index Warrants (or if such
Valuation Date is not a New York Business Day, on the next succeeding New
York Business Day), the Index Warrant Agent shall (i) determine the Cash
Settlement Value (in the manner provided in Section 2.2(f)) of the Index
Warrants to be automatically exercised, (ii) advise the Company by 5:00 P.M.,
New York City time, on such Valuation Date (or, if such Valuation Date is not
a New York Business Day, on the next succeeding New York Business Day) of the
Cash Settlement Value with respect to such Index Warrants and (iii) advise
the Company of such other matters relating to the automatically exercised
Index Warrants as the Company shall reasonably request. (Following the
Expiration Date, the Depositary shall deliver to the Index Warrant Agent one
or more certificates from the appropriate Depositary Participant in the form
of Exhibit D-1 attached hereto, dated no earlier than the Expiration Date,
executed by such Depositary Participant, setting forth the total number of
automatically exercised Index Warrants with respect to which the Depositary
Participant has received certification that the beneficial owners thereof are
not Index Country Residents. In the event that the Index Warrants
automatically exercised are represented by Definitive Certificates, the
appropriate Owner will deliver to the Index Warrant Agent (x) the Definitive
Warrant Certificates to be automatically exercised and (y) a certificate in
the form of Exhibit D-2 hereto, dated no earlier than the Expiration Date
setting forth the number of Index Warrants automatically exercised, and
confirming that such Owner is not an Index Country Resident.) On the
Expiration Date all the Index Warrants will be cancelled and will represent
only a right to receive ((i)) the Cash Settlement Value ((ii) minus the
Exercise Price).
(c) Provided that the Company has made adequate funds available to
the Index Warrant Agent in a timely manner which shall, in no event, be later
than (1:30 P.M.), New York City time, on the fifth New York Business Day
following the Valuation Date for such automatically exercised Index Warrants
(or if such Valuation Date is not a New York Business Day, on the sixth New
York Business Day after such Valuation Date), the Index Warrant Agent will
make payment available in the form of a check (or a bank wire transfer if the
payment is greater than $ ) (i) in the event that
-------------
the automatically exercised Index Warrants are represented by the Index
Warrant Certificate, to the Depositary, after (1:30 P.M.), New York City
time, but prior to the close of business, on the fifth New York Business Day
following the Valuation Date for such automatically exercised Index Warrants
(or if such Valuation Date is not a New York Business Day, on the sixth New
York Business Day after such Valuation Date), such check to be in the amount
of ((i)) the aggregate Cash Settlement Value ((ii) minus the Exercise Price)
19
<PAGE>
in respect of Index Warrants that have been automatically exercised and
transferred to the Index Warrant Account (and with respect to which the
Depositary has notified the Index Warrants Agent that the Depositary has
received certification that the beneficial owners have thereof are not Index
Country Residents), and (ii) in the event that the automatically exercised
Index Warrants are represented by Definitive Certificates, to the appropriate
Owner, after (1:30 P.M.), New York City time, but prior to the close of
business, on the fifth New York Business Day following the Valuation Date for
such automatically exercised Index Warrants (or if such Valuation Date is not
a New York Business Day, on the sixth New York Business Day after such
Valuation Date) such check in the amount of ((i)) the Cash Settlement Value
((ii) minus the Exercise Price) of the automatically exercised Index Warrants
delivered to the Index Warrant Agent by such Owner (and for which the Index
Warrant Agent has received certification that the appropriate Owner is not an
Index Country Resident); provided, however, that the Index Warrant Agent
-------- -------
shall withhold payment of ((i)) the Cash Settlement Value ((ii) minus the
Exercise Price) with respect to any Index Warrants for which the Index
Warrant Agent has not received ((i)) the related Index Warrants through
transfer of such Index Warrants to the Index Warrant Account, in the case of
Index Warrants represented by the Index Warrant Certificate, or through
delivery of the Definitive Certificates, in the case of Index Warrants
represented by Definitive Certificates (, and (ii) certification that the
beneficial owner of such Index Warrants is not an Index Country Resident,
dated no earlier than the Expiration Date and in the form of Exhibit D-1
hereto, in the case of Index Warrants represented by the Index Warrant
Certificate, or Exhibit D-2 hereto, in the case of the Index Warrants
represented by Definitive Certificates). If pursuant to the immediately
preceding sentence the Index Warrant Agent has not withheld payment with
respect to any Index Warrants, the Index Warrant Agent shall promptly cancel
the Index Warrant Certificate representing the Index Warrants automatically
exercised to this Section and deliver it to the Company. If the Index
Warrant Agent has withheld payment of the ((i)) Cash Settlement Value ((ii)
minus the Exercise Price) with respect to any Index Warrants, the Index
Warrant Agent shall act as a successor Depositary and cancel the Index
Warrant Certificate and deliver it to the Company only upon (receipt of
certificates in the form of Exhibit D-1 to this Agreement from the
appropriate Depositary Participants with respect to all of the Index Warrants
then evidenced by the Index Warrant Certificate and) payment of the total
((i)) Cash Settlement Value ((ii) minus the Exercise Price) withheld. The
Index Warrant Agent's sole responsibility as successor Depositary with
respect to the Unexercised Index Warrants shall be to pay the ((i)) Cash
Settlement Value ((ii) minus the Exercise Price) of such Index Warrants upon
receipt of ((i)) the related Index Warrants (and (ii) certificates in the
20
<PAGE>
form of Exhibit D-1 to this Agreement from the appropriate Depositary
Participants.)
SECTION 2.4 Discontinuance or Modification of (the) (an) Index.
--------------------------------------------------
(a) In the event that (the) (an) (Index is not calculated and
announced by (name of Index publisher) (the "Index Publisher")) (Base Index
is not calculated and announced by (name of Base Index Publisher) or the
Reference Index is not calculated and announced by (name of Reference Index
publisher) (each an "Index Publisher")) on a Valuation Date but is calculated
and publicly announced by another person or party not affiliated with the
Company and acceptable to the Company (the "Third Party"), the applicable
Cash Settlement Value shall nevertheless be calculated by reference to the
value of the closing quotation for the (Index) (Base Index or Reference
Index) so calculated and announced by the Third Party.
(b) In the event that prior to a Valuation Date (the) (an) Index
Publisher or the Third Party makes a material change in the formula for or
the method of calculating the (relevant) Index, the Company shall promptly
appoint an investment or commercial bank of international standing that is
not an affiliate of the Company (the "Independent Expert") who shall make
such calculations as may be required to determine the applicable Cash
Settlement Value using the formula and method of calculating (the) (such)
Index as in effect prior to such change or modification.
(c) If on a Valuation Date neither (the) (an) Index Publisher nor
any Third Party is calculating and disseminating the (relevant) Index and
neither has provided any successor index, the Company shall promptly appoint
an Independent Expert who shall make such calculations as it determines may
be required to determine the applicable Cash Settlement Value using the
formula and method of calculating the (relevant) Index as in effect on the
date (the) (such) Index was last so calculated.
(d) If any of the events referred to in Sections 2.4(a) through
(c) occur, the Company shall promptly make available information regarding
the composition, method of calculation and current level of the (relevant)
Index or successor index upon written request to the Company's offices at One
Chase Manhattan Plaza, New York, New York 10081, Attention:
( ). In addition, the Company will undertake reasonable efforts
-----------
to ensure that such information is publicly available. In the event (the)
(an) Index Publisher elects to suspend or discontinue calculating or
announcing the (relevant) Index, the Company will so notify Owners by giving
notice to the Depositary.
21
<PAGE>
SECTION 2.5 Covenant of the Company. The Company covenants, for
-----------------------
the benefit of the Owners, that (i) it will cause the Index Warrants to be
listed on (name of U.S. national securities exchange) and (ii) until the
Expiration Date, it will not seek the delisting of the Index Warrants from,
or permanent suspension of their trading on, (name of U.S. national
securities exchange) unless prior to such delisting or suspension the Index
Warrants shall have been listed, and shall be trading, on another U.S.
national securities exchange or shall be quoted through a Self-Regulatory
Organization.
SECTION 2.6 Return of the Index Warrant Certificate. At such time
---------------------------------------
as all of the Index Warrants have been exercised, deemed automatically
exercised or otherwise cancelled, the Index Warrant Agent shall return the
cancelled Index Warrant Certificate to the Company.
SECTION 2.7 Return of Moneys Held Unclaimed for Two Years. Any
---------------------------------------------
moneys deposited with or paid to the Index Warrant Agent for the payment of
the Cash Settlement Value of any Index Warrants and not applied but remaining
unclaimed for two years after the date upon which such Cash Settlement Value
shall have become due and payable, shall be repaid by the Index Warrant Agent
to the Company, and the Owner of such Index Warrants shall thereafter look
only to the Company for any payment which such Owner may be entitled to
collect and all liability of the Index Warrant Agent with respect to such
moneys shall thereupon cease; provided, however, that the Index Warrant
Agent, before making any such repayment, may at the expense of the Company
notify the Owners concerned that said moneys have not been so applied and
remain unclaimed and that after a date named therein any unclaimed balance of
said moneys then remaining will be returned to the Company.
SECTION 2.8 Designation of Agent for Receipt of Notice. The
------------------------------------------
Company may from time to time designate in writing to the Index Warrant Agent
a designee for receipt of all notices to be given by the Index Warrant Agent
pursuant to this Article II and all such notices thereafter shall be given in
the manner herein provided by the Index Warrant Agent to such designee and
each such notice shall be as effective as if given directly to the Company.
ARTICLE III
OTHER PROVISIONS RELATING TO
RIGHTS OF OWNERS
SECTION 3.1 Owners of Index Warrants May Enforce Rights.
-------------------------------------------
Notwithstanding any of the provisions of this Agreement, any Owner, without
the consent of the Index Warrant Agent, may, in and for his own behalf and
for his own benefit, enforce and
22
<PAGE>
may institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, his right to exercise and to
receive payment for his Index Warrants as provided in the Index Warrant
Certificate and in this Agreement.
SECTION 3.2 Consolidation, Merger or Other Disposition. If at any
------------------------------------------
time the Company shall consolidate with or merge into any other corporation
or convey, transfer or lease its properties and assets substantially as an
entirety to another person, then in any such event the successor or assuming
corporation or entity shall succeed to and be substituted for the Company,
with the same effect as if it had been named as the Company herein and in the
Index Warrants; the Company, except in the event of a lease, shall thereupon
be relieved of any further obligation hereunder or under the Index Warrants,
and, in the event of any such consolidation, merger, conveyance, transfer or
lease, the Company as the predecessor corporation may thereupon or at any
time thereafter be dissolved, wound up or liquidated. Such successor or
assuming corporation or entity shall expressly assume, by an amendment to
this Agreement, executed and delivered to the Index Warrant Agent, in form
satisfactory to such Index Warrant Agent, the due and punctual payment of any
and all amounts payable by the Company pursuant to this Agreement and the
performance of every covenant of this Agreement on the part of the Company to
be performed or observed. Such successor or assuming corporation or entity
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company, a new Index Warrant Certificate representing the
Index Warrants not theretofore exercised, in exchange and substitution for
the Index Warrant Certificate theretofore issued. Such Index Warrant
Certificate shall in all respects have the same legal rank and benefit under
this Agreement as the Index Warrant Certificate theretofore issued in
accordance with the terms of this Agreement as though such new Index Warrant
Certificate had been issued at the date of the execution hereof. In any case
of any such consolidation, merger, conveyance, transfer or lease of
substantially all of the assets of the Company, such changes in phraseology
and form (but not in substance) may be made in the new Index Warrant
Certificates as may be appropriate.
The Index Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such consolidation, merger,
conveyance, transfer or lease of substantially all of the assets of the
Company complies with the provisions of this Section 3.2.
23
<PAGE>
ARTICLE IV
CANCELLATION OF INDEX WARRANTS
SECTION 4.1 Cancellation of Index Warrants. In the event the
------------------------------
Company shall purchase or otherwise acquire Index Warrants, such Index
Warrants may, at the option of the Company, be surrendered free through a
Depositary Participant for credit to the account of the Index Warrant Agent
maintained at the Depositary, and if so credited, the Index Warrant Agent
shall promptly note the cancellation of such Index Warrants by notation on
the records of the Index Warrant Agent. Such Index Warrants may also, at the
option of the Company, be resold by the Company directly to or through any of
its affiliates in lieu of being surrendered to the Depositary. No Definitive
Certificate shall be countersigned in lieu of or in exchange for any Index
Warrant which is cancelled as provided herein, except as otherwise expressly
permitted by this Agreement.
SECTION 4.2 Treatment of Owners. The Company, the Index Warrant
-------------------
Agent and any agent of the Company or the Index Warrant Agent may deem and
treat the person in whose name an Index Warrant Certificate shall be
registered in the records of the Index Warrant Agent as the Owner of all
right, title and interest in such Index Warrant Certificate (notwithstanding
any notation of ownership or other writing thereon) for any purpose and as
the person entitled to exercise the right represented by the Index Warrants
evidenced thereby, and neither the Company nor the Index Warrant Agent, nor
any agent of the Company or the Index Warrant Agent shall be affected by any
notice to the contrary, except that the Index Warrant Agent and the Company
shall be entitled to rely on and act pursuant to instructions of Depositary
Participants as contemplated by Article II of this Agreement. This Section
4.2 shall be without prejudice to the rights of Owners as described elsewhere
herein.
SECTION 4.3 Payment of Taxes. The Company will pay all
----------------
documentary stamp taxes attributable to the initial issuance of Index
Warrants; provided, however, that the Company shall not be required to pay
-------- -------
any tax or other governmental charge which may be payable in respect of any
transfer involving any beneficial or record interest in or ownership interest
of any Index Warrants.
ARTICLE V
CONCERNING THE INDEX WARRANT AGENT
SECTION 5.1 Index Warrant Agent.
-------------------
(a) The Company hereby appoints ( ) as Index
-------------------
Warrant Agent of the Company in respect of the Index Warrants and the Index
Warrant Certificate upon the terms and subject to the conditions set forth
herein and in the Index
24
<PAGE>
Warrant Certificate; and ( ) hereby accepts such appointment.
---------------
The Index Warrant Agent shall have the powers and authority granted to and
conferred upon it in the Index Warrant Certificate and hereby and such
further powers and authority acceptable to it to act on behalf of the Company
as the Company amy hereafter grant to or confer upon it. All of the terms
and provisions with respect to such powers and authority contained in the
Index Warrant Certificate are subject to and governed by the terms and
provisions hereof.
(b) The Index Warrant Agent covenants and agrees to maintain
offices, staffed by qualified personnel, with adequate facilities for the
discharge of its responsibilities under this Agreement, including, without
limitation, the computation of the Cash Settlement Values, if any, and the
timely settlement of the Index Warrants upon exercise thereof.
SECTION 5.2 Conditions of Index Warrant Agent's Obligations. The
-----------------------------------------------
Index Warrant Agent accepts its obligations herein set forth upon the terms
and conditions hereof and of the Index Warrant Certificate, including the
following, to all of which the Company agrees and to all of which the rights
hereunder of the Owners from time to time of the Index Warrants shall be
subject:
(a) The Company agrees promptly to pay the Index Warrant Agent the
compensation to be agreed upon with the Company for all services
rendered by the Index Warrant Agent and to reimburse the Index Warrant
Agent for its reasonable out-of-pocket expenses (including reasonable
attorneys' fees and expenses) incurred by the Index Warrant Agent
without negligence, bad faith or breach of this Agreement on its part in
connection with the services rendered by it hereunder. The Company also
agrees to indemnify the Index Warrant Agent for, and to hold it harmless
against, any loss, liability or expense (including reasonable attorneys'
fees and expenses) incurred without negligence, bad faith or breach of
this Agreement on the part of the Index Warrant Agent, arising out of or
in connection with its acting as such Index Warrant Agent hereunder or
with respect to the Index Warrants, as well as the reasonable costs and
expenses of defending against any claim of liability in connection with
the exercise or performance at any time of its power or duties hereunder
or with respect to the Index Warrants. The obligations of the Company
under this subsection (a) shall survive the exercise of the Index
Warrant Certificates and the resignation or removal of the Index Warrant
Agent.
(b) In acting under this Index Warrant Agreement and in connection
with the Index Warrants, the Index Warrant Agent is acting solely as
agent of the Company and does not assume any obligation or relationship
of agency or trust for
25
<PAGE>
or with any of the Owners or the registered holder of the Index Warrant
Certificate.
(c) The Index Warrant Agent may consult with counsel satisfactory
to it, which may include counsel for the Company, and the written
opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion of such
counsel.
(d) The Index Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or omitted or thing
suffered by it in reliance upon any Index Warrant Certificate, notice,
direction, consent, certificate, affidavit, statement or other paper of
document reasonably believed by it to be genuine and to have been
presented or signed by the proper parties.
(e) The Index Warrant Agent, and its officers, directors and
employees, may become the Owner of, or acquire any interest in, any
Index Warrants or other obligations of the Company, with the same rights
that it or they would have if it were not such Index Warrant Agent,
officer, director or employee, and, to the extent permitted by
applicable law, it or they may engage or be interested in any financial
or other transaction with the Company and may act on, or as depository,
trustee or agent for, any committee or body of Owners of Index Warrants
or other obligations of the Company as freely as if it were not such
Index Warrant Agent, officer, director or employee.
(f) The Index Warrant Agent shall not be under any liability for
interest on any moneys at any time received by it pursuant to any of the
provisions of this Agreement or of the Index Warrant Certificate nor
shall it be obligated to segregate such monies from other monies held by
it, except as required by law. The Index Warrant Agent shall not be
responsible for advancing funds on behalf of the Company.
(g) The Index Warrant Agent shall not be under any responsibility
with respect to the validity or sufficiency of this Agreement or the
execution and delivery hereof (except the due execution and delivery
hereof by the Index Warrant Agent) or with respect to the validity or
execution of the Index Warrant Certificate (except its countersignature
thereof).
(h) The recitals contained herein and in the Index Warrant
Certificate (except as to the Index Warrant Agent's countersignature
thereon) shall be taken as the statements
26
<PAGE>
of the Company and the Index Warrant Agent assumes no responsibility for
the correctness of the same.
(i) The Index Warrant Agent shall be obligated to perform only
such duties as are herein and in the Index Warrant Certificate
specifically set forth and no implied duties or obligations shall be
read into this Agreement or the Index Warrant Certificate against the
Index Warrant Agent. The Index Warrant Agent shall not be under any
obligation to take any action hereunder likely to involve it in any
expense or liability, the payment of which is not, in its reasonable
opinion, assured to it. The Index Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the
Company of the Index Warrant Certificate countersigned by the Index
Warrant Agent and delivered by it to the Company pursuant to this
Agreement or for the application by the Company of any proceeds of the
Index Warrant Certificates. The Index Warrant Agent shall have no duty
or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in the
Index Warrant Certificate or in the case of the receipt of any written
demand from an Owner of an Index Warrant with respect to such default,
except as provided in Section 6.2 hereof, including, without limiting
the generality of the foregoing, any duty or responsibility to initiate
or attempt to initiate any proceedings at law or otherwise or to make
any demand upon the Company.
(j) Unless specifically provided herein or in the Index Warrant
Certificate, any order, certificate, notice, request, direction or other
communication from the Company made or given by the Company under any
provision of this Agreement shall be sufficient if signed by its (
----
) or any ( ).
------ -------------------
SECTION 5.3 Compliance With Applicable Laws. The Index Warrant
-------------------------------
Agent agrees to comply with all applicable federal and state laws in respect
of the services rendered by it under this Agreement and in connection with
the Index Warrants, including (but not limited to) the provisions of United
States federal income tax laws regarding information reporting and backup
withholding. The Index Warrant Agent expressly assumes all liability for
failure to comply with such laws, including (but not limited to) any
liability for failure to comply with any applicable provisions of United
States federal income tax laws regarding information reporting and backup
withholding.
SECTION 5.4 Resignation and Appointment of Successor.
----------------------------------------
(a) The Company agrees, for the benefit of the Owners from time to
time of the Index Warrants, that there shall at all
27
<PAGE>
times be an Index Warrant Agent hereunder until all the Index Warrants are no
longer exercisable.
(b) The Index Warrant Agent may at any time resign as such agent
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 Index Warrant Agent and acceptance
of such appointment by such successor Index Warrant Agent, as hereinafter
provided. The Index Warrant 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 Index
Warrant Agent (which shall be a banking institution organized under the laws
of the United States of America, or one of the states thereof or the District
of Columbia, having an office or an agent's office (south of Chambers Street)
in the Borough of Manhattan, The City of New York and authorized under such
laws to exercise corporate trust powers) by an instrument in writing filed
with such successor Index Warrant Agent and the acceptance of such
appointment by such successor Index Warrant Agent. In the event a successor
Index Warrant Agent has not been appointed and has not accepted its duties
within 90 days of the Index Warrant Agent's notice of resignation, the Index
Warrant Agent may apply to any court of competent jurisdiction for the
designation of a successor Index Warrant Agent.
(c) In case at any time the Index Warrant 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 an
order of any court shall be entered approving any petition filed by or
against it under the provisions of any applicable bankruptcy or similar law,
or if any public officer shall have taken charge or control of the Index
Warrant Agent or its property or affairs, for the purpose of rehabilitation,
conservation, or liquidation, a successor Index Warrant Agent, qualified as
aforesaid, shall be appointed by the Company by an instrument in writing,
filed with the successor Index Warrant Agent. Upon the appointment as
aforesaid of a successor Index Warrant Agent and acceptance by the latter of
such appointment, the Index Warrant Agent so superseded shall cease to be
Index Warrant Agent hereunder.
(d) Any successor Index Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its
28
<PAGE>
predecessor and to the Company an instrument accepting such appointment
hereunder, and thereupon such successor Index Warrant 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 Index Warrant 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 Index Warrant Agent shall be
entitled to receive, all moneys, securities and other property on deposit
with or held by such predecessor, as Index Warrant Agent hereunder.
(e) Any corporation into which the Index Warrant Agent hereunder
may be merged or converted or any corporation with which the Index Warrant
Agent may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Index Warrant Agent shall be a
party, or any corporation to which the Index Warrant Agent shall sell or
otherwise transfer all or substantially all of the assets and business of the
Index Warrant Agent, provided that it shall be qualified as aforesaid, shall
be the successor Index Warrant 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.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Modification, Supplementation or Amendment.
------------------------------------------
(a) This Agreement may be modified, supplemented or amended by the
Company and the Index Warrant Agent, without the consent of the registered
holder of the Index Warrant Certificate or the Owners, for the purpose of
curing any ambiguity, or of curing, correcting or supplementing any defective
provision contained herein or in such Index Warrant Certificate, maintaining
the listing of any Index Warrants on any U.S. national securities exchange or
the quotation of any Index Warrant through a Self-Regulatory Organization or
registration of such Index Warrants under the Exchange Act, permitting the
issuance of Index Warrants in definitive form in accordance with Section
1.1(a), reflecting the issuance by the Company of additional Index Warrants
of the same issue or reflecting the appointment of a successor depositary in
accordance with Section 1.1(d) or in any other manner which the Company may
deem necessary or desirable; provided that such action shall not materially
adversely affect the interests of the Owners of Index Warrants.
Notwithstanding anything in this Section 6.1 to the contrary, this Agreement
may not be amended to provide for the
29
<PAGE>
countersigning by the Index Warrant Agent of Index Warrant Certificates
evidencing in the aggregate in excess of ( ) Index Warrants unless and
-------
until the Index Warrant Agent has received notice from (name of Stock
Exchange) or any successor U.S. national securities exchange or Self-
Regulatory Organization that the additional Index Warrants in excess of (
) have been approved for listing on such exchange or quotation
----------
through such Self-Regulatory Organization.
(b) The Company and the Index Warrant Agent may modify or amend
this Agreement and the Index Warrant Certificate, with the consent of the
Owners of not fewer than a majority in number of the then outstanding
unexercised Index Warrants affected by such modification or amendment, for
any purpose; provided, however, that no such modification or amendment that
--------
increases the Exercise Price, (decreases the Fixed Amount,)<F11> (increases
the Fixed Amount,)<F12> (describe prohibited modifications to Index Spread
Warrants)<F13> shortens the period of time during which the Index Warrants
may be exercised, increases the minimum or decreases the maximum number of
Index Warrants that may be exercised by or on behalf of any one Owner at any
one time, changes the formula for determining the Cash Settlement Value,
(insert other prohibited modifications or amendments) or otherwise materially
and adversely affects the exercise rights of the Owners or reduces the number
of outstanding Index Warrants the consent of the Owners of which is required
for modification, supplementation or amendment of this Agreement or the Index
Warrant Certificate, may be made without the consent of each Owner affected
thereby. Prior to the issuance of any Definitive Certificates pursuant to
Section 1.1(a), the Company and the Index Warrant Agent shall be entitled to
rely upon any certification in form satisfactory to each of them that any
requisite consent has been obtained from the Owners of the Index Warrants.
Such certification may be provided by Depositary Participants acting on
behalf of such Owners of Index Warrants, provided that any such certification
is accompanied by a certification from the Depositary as to the Index Warrant
holdings of such Depositary Participants.
SECTION 6.2 Notices and Demands to the Company and Index Warrant
----------------------------------------------------
Agent. If the Index Warrant Agent shall receive any notice or demand
- -----
addressed to the Company by any Owner pursuant to the provisions of the Index
Warrant Certificate, the Index Warrant Agent shall promptly forward such
notice or demand to the Company.
- --------------------
<F11> In case of Index Put Warrants.
<F12> In case of Index Call Warrants.
<F13> In case of Index Spread Warrants.
30
<PAGE>
SECTION 6.3 Addresses for Notices. Any communications from the
---------------------
Company to the Index Warrant Agent with respect to this Agreement shall be
addressed to (name of Index Warrant Agent), (address, New York, New York
--
) (facsimile: ( )) (telephone: ( )), Attention:
- -- ------------- ------------
Corporate Trust Department; any communications from the Index Warrant Agent
to the Company with respect to this Agreement shall be addressed to The Chase
Manhattan Corporation, One Chase Manhattan Plaza, New York, New York 10081
(facsimile: ( )) (telephone: 212-( )), Attention: (
----------
) (or such other address as shall be specified in writing to the other
parties hereto by the Index Warrant Agent or the Company, respectively).
SECTION 6.4 Notices to Owners. The Company or the Index Warrant
-----------------
Agent may cause to have notice given to the Owners of Index Warrants by
providing the Depositary with a form of notice to be distributed by the
Depositary to Depositary Participants in accordance with the custom and
practices of the Depositary.
SECTION 6.5 Governing Law. The validity, interpretation and
-------------
performance of this Agreement and each Index Warrant issued hereunder and of
the respective terms and provisions thereof shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 6.6 Obtaining of Governmental Approvals. The Company will
-----------------------------------
from time to time use its best efforts to obtain and keep effective any and
all permits, consents and approvals of governmental agencies and authorities
and the (name of U.S. national securities exchange) and filings under the
United States federal and state laws, which may be or become required in
connection with the issuance, sale, trading, transfer or delivery of the
Index Warrants, the Index Warrant Certificate and the exercise of the Index
Warrants.
SECTION 6.7 Persons Having Rights Under the Index Warrant
---------------------------------------------
Agreement. Nothing in this Agreement expressed or implied and nothing that
- ---------
may be inferred from any of the provisions hereof is intended, or shall be
construed, to confer upon, or give to, any person or corporation other than
the Company, the Index Warrant Agent, the registered holder of the Index
Warrant Certificate and the Owners any right, remedy or claim under or by
reason of this Agreement or of any covenant, condition, stipulation, promise
or agreement hereof; and all covenants, conditions, stipulations, promises
and agreements in this Agreement shall be for the sole and exclusive benefit
of the Company and the Index Warrant Agent and their successors and of the
registered holder of the Index Warrant Certificate and the Owners.
31
<PAGE>
SECTION 6.8 Headings. The descriptive headings of the several
--------
Articles and Sections and the Table of Contents of this Agreement are for
convenience only and shall not control or affect the meaning or construction
of any of the provisions hereof.
SECTION 6.9 Counterparts. This Agreement may be executed by the
------------
parties hereto in any number of counterparts, each of which when so executed
and delivered shall be deemed to be an original; but all such counterparts
shall together constitute but one and the same instrument.
SECTION 6.10 Inspection of Agreement. A copy of this Agreement
-----------------------
shall be available at all reasonable times at the principal corporate trust
office of the Index Warrant Agent, for inspection by the registered holder of
the Index Warrant Certificate, Depositary Participants, Indirect Participants
and Owners.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
THE CHASE MANHATTAN CORPORATION
By:
-------------------------------
(Title)
(Name of Index Warrant Agent)
By:
-------------------------------
(Title)
32
<PAGE>
EXHIBIT A-1
-----------
(Legend Required By Depositary)
(NO PAYMENT WILL BE MADE UPON THE EXERCISE OF THIS
WARRANT UNLESS THE INDEX WARRANT AGENT HAS
RECEIVED THE CERTIFICATION DESCRIBED IN THE
INDEX WARRANT AGREEMENT)
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
INDEX WARRANT AGENT AS PROVIDED HEREIN
No. CUSIP No. (__________)
BOOK-ENTRY INDEX WARRANT CERTIFICATE
representing
(up to __________) (insert name of index/indices)Index
(Put/Call/Spread) Warrants
Expiring (__________, 19___)
THE CHASE MANHATTAN CORPORATION
This certifies that (____________________) or registered assigns is the
registered holder of (insert name of Index/Indices) Index (Put/Call/Spread)
Warrants (the "Index Warrants") or such lesser amount as is indicated in the
records of (name of Index Warrant Agent), as Index Warrant Agent. Each Index
Warrant entitles the beneficial owner thereof (an "Owner"), subject to the
provisions contained herein and in the Index Warrant Agreement referred to
below, to receive the (U.S. dollars) (other currency) from The Chase
Manhattan Corporation (the "Company") the Cash Settlement Value (as defined
herein). In no event shall any Owners be entitled to any interest on any
Cash Settlement Value.
Subject to the terms of the Index Warrant Agreement and the limitations
described herein, the Index Warrants may be irrevocably exercised (on any New
York Business Day from their date of issuance until (1:30 P.M.), New York
City time,) on (i) (the date upon which the right to exercise the Index
Warrants expires or, if such date is not a New York Business Day (as defined
in the Index Warrant Agreement), on the next succeeding New York Business
Day) (__________, 199_) (the "Expiration Date") or (ii) the date of automatic
exercise or cancellation as further described below and as provided in the
Index Warrant Agreement. Except in the case of exercise on the Expiration
Date, automatic exercise or cancellation as described below, not fewer than
(__________) (or more than) Index Warrants may be exercised by or on behalf
of any one Owner on any one day. References herein to
A-1-1
<PAGE>
"U.S. dollars" or "U.S.$" are to the currency of the United States of
America. References to "(name of Index currency)" or "(__________)" are to
the currency of (name of Index country). As used herein, the term "New York
Business Day" means any day other than a Saturday, Sunday, legal holiday or
other day on which the (New York Stock Exchange) (American Stock Exchange) or
(relevant futures and options exchanges on which the underlying securities
trade) is not open for securities trading or banking institutions generally
in The City of New York are authorized or required by law or executive order
to close; (and) "Index Country Business Day" means any day other than (i) a
Saturday, Sunday, legal holiday or other day on which banking institutions
generally in (name of Index country) (name of Base Index country or Reference
Index country) are authorized or required by law or executive order to close
or (ii) a day on which the (names of relevant stock exchanges) (is/are) not
open for business(; and "Index Country Resident" means a resident of, or any
corporation or other entity organized under the laws of, (name of Index
country) (name of Base Index country or Reference Index country), its
territories, its possessions or other areas subject to its jurisdiction).
This Index Warrant Certificate is issued under and in accordance with
the Index Warrant Agreement, dated as of (__________, 19_) (the "Index
Warrant Agreement"), between the Company and the Index Warrant Agent, and is
subject to the terms and provisions contained in the Index Warrant Agreement,
to all of which terms and provisions all Owners of the Index Warrants
represented by this Index Warrant Certificate and the registered holder of
this Index Warrant Certificate consent by acceptance hereof by the Depositary
(as defined below). Copies of the Index Warrant Agreement are on file at the
principal corporate trust office of the Index Warrant Agent in New York City.
Except as provided in the Index Warrant Agreement, Owners will not be
entitled to receive definitive certificates evidencing their Index Warrants.
Index Warrant holdings will be held through a depositary selected by the
Company which initially is (The Depositary Trust Company) (the "Depositary",
which term, as used herein, includes any successor depositary selected by the
Company) as further provided in the Index Warrant Agreement.
Capitalized terms included herein but not defined herein have the
meanings assigned thereto in the Index Warrant Agreement.
The Cash Settlement Value of an exercised Index Warrant (whether
exercised automatically or by notice) shall mean (insert fraction) of (the
U.S. dollar equivalent (rounded to the nearest (dollar)(cent))) of (the
amount, if any, by which (i) the Fixed
A-1-2
<PAGE>
Amount exceeds (ii) the Index Value)<F14> (the amount, if any, by which (i)
the Index Value exceeds (ii) the Fixed Amount)<F15> (the amount, if any, by
which (insert formula for determining cash settlement value of Index Spread
Warrants)<F16>; provided that, if such amount is less than
--------
zero, then the Cash Settlement shall be zero. The "Index Value" for any
exercised Index Warrants shall be the closing value of the Index on the
Valuation Date (as defined herein) for such Index Warrants (where ( )
point(s) of the Index is treated as (fraction of Index currency unit)) and
shall be obtained by the Index Warrant Agent. The "Fixed Amount" for any
exercised Index Warrant shall be (insert the definition set forth in the
Prospectus Supplement)<F17>. (Insert definitions used to determine the Cash
Settlement Value for Index Spread Warrants.)<F18> (The exchange rate (or
manner of calculating such rate) for conversion of the (Fixed Amount), (the
Exercise Price) and the (Index Value) into U.S. dollars shall be (_____) (set
forth such rate or manner of calculating such rate) and shall be obtained by
the Index Warrant Agent.) ("Index currency") or (" ") are
references to the currency of (Name of other
----------
country)).<F19> (Insert definitions used to determine the Cash Settlement
value for Index Spread Warrants)<F20>
Except in the case of automatic exercise on the Expiration Date or
cancellation, suspension or delay as further provided below and in the Index
Warrant Agreement, the "Valuation Date" for an Index Warrant shall be the
Index Country Business Day next succeeding the New York Business Day on which
the Index Warrant Agent has received (i) delivery of such Index Warrant on
the records of the Depositary free to the Index Warrant Account ("Proper
Delivery") (, accompanied by payment in good form of the Exercise Price) and
(ii) an Exercise Notice for such Index Warrant in good order in the form of
Exhibit C-1 to the Index Warrant Agreement, (which shall include
certification that the exercising Owner is not an Index Country Resident,) at
or prior
- --------------------
<F14> In case of Index Put Warrants.
<F15> In case of Index Call Warrants.
<F16> In case of Index Spread Warrants.
<F17> In case of Index Put Warrants or Index Call Warrants.
<F18> In case of Index Spread Warrants.
<F19> In the case of Index Put Warrants or Index Call Warrants.
<F20> In case of Index Spread Warrants.
A-1-3
<PAGE>
to (1:30 P.M.), New York City time and if the Index Warrant Agent shall
receive such delivery of such Exercise Notice after (1:30 P.M.), New York
City time, on such date, the Valuation Date shall be the next Index Country
Business Day following the New York Business Day following the New York
Business Day on which the Index Warrant Agent received such Index Warrant and
such Exercise Notice. Any delivery of an Index Warrant (, the Exercise
Price) or Exercise Notice received after (1:30 P.M.), New York City time, on
the Expiration Date shall be void and of no effect and shall be deemed not to
have been delivered, and the Index Warrants with respect to which such late
delivery or Exercise Notice relates shall be exercised in accordance with the
third succeeding paragraph hereof. A Depositary Participant may specify in
its irrevocable Exercise Notice that such Exercise Notice is conditional (the
"Conditional Exercise Notice"), then such Conditional Exercise Notice shall
be void and of no effect (and shall be disregarded for all purposes of the
Index Warrant Agreement) if the closing value of the Index on the Valuation
Date is more than (________) (above)<F21> (below),<F22> the closing value of
the Index on the date upon which the Conditional Exercise Notice is received
(or deemed to have been received) and not rejected by the Index Warrant Agent
(or if such date is not an Index Country Business Day, on the immediately
preceding Index Country Business Day)) (describe conditions applicable to
Index Spread Warrants).<F23>
If the Exercise Notice is not rejected as provided in the Index Warrant
Agreement, the Index Warrant Agent will determine the Cash Settlement Value
of the exercised Index Warrants as provided in the Index Warrant Agreement.
Provided that the Company has made adequate funds available to the Index
Warrant Agent in a timely manner, the Index Warrant Agent will make payment
in the form of a check (or bank wire transfer if the payment is greater than
$______) available to the appropriate Depositary Participant which shall be
responsible for crediting the Cash Settlement Value of Index Warrants to
appropriate Owners, on the fifth Business Day following the Valuation Date
(or, if such Valuation Date is not a New York Business Day, on the sixth New
York Business Day after such Valuation Date) (the "Settlement Date"), all as
provided in the Index Warrant Agreement, such payment to be in the amount of
the Cash Settlement Value in respect of Index Warrants exercised by such
Depositary Participant.
- --------------------
<F21> In case of Index Put Warrants.
<F22> In case of Index Call Warrants.
<F23> In case of Index Spread Warrants.
A-1-4
<PAGE>
The Index Warrant Agent will promptly cause its records to be marked to
reduce the number of Index Warrants represented by this Index Warrants
Certificate by the number of Index Warrants (i) for which it has received an
Exercise Notice in proper form, (ii) that were delivered to the Index Warrant
Account, and (iii) for which payment has been made.
All Index Warrants with respect to which either (i) there has been no
Proper Delivery (, payment in good form of the Exercise Price has not been
received by the Index Warrant Agent) or no valid Exercise Notice has been
received by the Index Warrant Agent at or prior to (1:30 P.M.), New York City
time, on the Expiration Date for such Index Warrants, (ii) the Exercise Date
which has been postponed pursuant to Section 2.2(e) of the Index Warrant
Agreement to a date on or after the New York Business Day preceding the
Expiration Date or (iii) there has been no proper exercise on the New York
Business Day on which the Index Warrants are permanently delisted or
suspended from the (name of U.S. national securities exchange) and, at or
prior to such delisting or suspension, the Index Warrants have not been
listed on another U.S. national securities exchange or quoted through a Self-
Regulatory Organization (the "Unexercised Index Warrants"), will be deemed
automatically exercised on such Expiration Date without any requirement of
notice of exercise or delivery of the Index Warrant Certificate to the Index
Warrant Agent. The Valuation Date for such Index Warrants shall be the first
Index Country Business Day following such Expiration Date.
By 5:00 P.M., New York City time, on the Expiration Date, the Index
Warrant Agent shall advise the Company of the number of Unexercised Index
Warrants outstanding after (1:30 P.M.), New York City time, on such day. On
the Valuation Date for such Unexercised Index Warrants (or if such Valuation
Date is not a New York Business Day, then the next succeeding New York
Business Day), the Index Warrant Agent shall (i) determine the Cash
Settlement Value (in the manner provided in Section 2.2(f) of the Index
Warrant Agreement) of the Index Warrants to be automatically exercised, (ii)
advise the Company by 5:00 P.M., New York City time, on such Valuation Date
of the Cash Settlement Value with respect to such Index Warrants and (iii)
advise the Company of such other matters relating to the automatically
exercised Index Warrants as the Company shall reasonably request. (Following
the Expiration Date, the Depositary shall deliver to the Index Warrant Agent
one or more certificates in the form of Exhibit D-1 to the Index Warrant
Agreement executed by the relevant Depositary Participants setting forth the
total number of automatically exercised Index Warrants with respect to which
such Depository Participants have received certification that the beneficial
owners thereof are not Index Country Residents.)
A-1-5
<PAGE>
Provided that the Company has made adequate funds available to the Index
Warrant Agent in a timely manner which shall, in no event, be later than
(1:30 P.M.), New York City time, on the fifth New York Business Day following
the Valuation Date for such automatically exercised Index Warrants (or, if
such Valuation Date is not a New York Business Day, on the sixth New York
Business Day after such Valuation Date), the Index Warrant Agent will make
its check (or bank wire transfer if the payment is greater than $_________)
available to the Depositary, after (1:30 P.M.), New York City time, but prior
to the close of business, on such fifth New York Business Day following the
Valuation Date for such Index Warrants (or, if such Valuation Date is not a
New York Business Day, on the sixth New York Business Day after such
Valuation Date), such check to be in the amount of the ((i)) aggregate Cash
Settlement Value ((ii) minus the Exercise Price) in respect of Index Warrants
that have been automatically exercised, transferred to the Index Warrant
Account (and with respect to which the Depositary has notified the Index
Warrant Agent that the Depositary has received certification that the Owners
thereof are not Index Country Residents); provided, however, that the Index
Warrant Agent shall withhold payment of the ((i)) Cash Settlement Value ((ii)
minus the Exercise Price) with respect to any Index Warrants which have not
been transferred to the Index Warrant Account and for which the Index Warrant
Agent has not received a certificate in the form of Exhibit D-1 to the Index
Warrant Agreement from the appropriate Depositary Participant until the Index
Warrant Agent has received such Index Warrants and certificate with respect
to such Index Warrants. If pursuant to the immediately preceding sentence
the Index Warrant Agent has not withheld payment with respect to any Index
Warrants, the Index Warrant Agent shall promptly cancel the Index Warrant
Certificate representing the Index Warrants automatically exercised as
described above and deliver it to the Issuer. If the Index Warrant Agent has
withheld payment of the ((i)) Cash Settlement Value ((ii) minus the Exercise
Price) with respect to any Index Warrants, the Index Warrant Agent shall act
as a successor Depositary and shall cancel the Index Warrant Certificate and
deliver it to the Company only upon receipt of certificates in the form of
Exhibit D-1 attached to the Index Warrant Agreement from the appropriate
Depositary Participants with respect to all of the Index Warrants then
evidenced by the Index Warrant Certificate and payment of the total ((i))
Cash Settlement Value ((ii) minus the Exercise Price) withheld. The Index
Warrant Agent's sole responsibility as successor Depositary with respect to
the Unexercised Index Warrants shall be to pay the ((i)) Cash Settlement
Value ((ii) minus the Exercise Price) of such Index Warrants upon receipt of
((i)) the related Index Warrants and (ii) certificates in the form of Exhibit
D-1 to the Index Warrant Agreement from the appropriate Depositary
Participants.
<PAGE> A-1-6
In the event that (the) (an) Index is not calculated and announced by
(the) (an) Index Publisher on a Valuation Date but is calculated and publicly
announced by another person or party not affiliated with the Company (the
"Third Party"), the applicable Cash Settlement Value shall nevertheless be
calculated by reference to the value of the closing quotation for the Index
so calculated and announced by the Third Party.
In the event that prior to a Valuation Date (the) (an) Index Publisher
or the Third Party makes a material change in the formula for or the method
of calculating the (relevant) Index, the Company shall promptly appoint an
investment or commercial bank of international standing that is not an
affiliate of the Company (the "Independent Expert") who shall make such
calculations as may be required to determine the applicable Cash Settlement
Value using the formula and method of calculating the (relevant) Index as in
effect prior to such change or modification.
If on a Valuation Date neither (the) (an) Index Publisher nor any Third
Party is calculating and disseminating (the) (an) Index and neither has
provided any successor index, the Company shall promptly appoint an
Independent Expert who shall make such calculations as it determines may be
required to determine the applicable Cash Settlement Value using the formula
and method of calculating the (relevant) Index as in effect on the date (the)
(such) Index was last so calculated.
If any of the events referred to above with respect to the calculation
of (the) (an) Index occur, the Company shall promptly make available
information regarding the composition, method of calculation and current
level of the (relevant) Index or successor index upon written request to the
Company's offices at The Chase Manhattan Corporation, One Chase Manhattan
Plaza, New York, New York 10081 attention: (___________). In addition, the
Company will undertake reasonable efforts to ensure that such information is
publicly available. In the event (the) (an) Index Publisher elects to
suspend or discontinue calculating or announcing the (relevant) Index, the
Company will so notify the Owners by giving notice to the Depositary.
The Company, the Index Warrant Agent and any agent of the Company or the
Index Warrant Agent may deem and treat the registered holder hereof as the
absolute Owner of the Index Warrants represented hereby (notwithstanding any
notation of ownership or other writing hereon) for any purpose and as the
person entitled to exercise the rights represented by the Index Warrants
evidenced hereby, and neither the Company nor the Index Warrant Agent nor any
agent of the Company or the Index Warrant Agent shall be affected by any
notice to the contrary, subject to
A-1-7
<PAGE>
certain provisions of the Index Warrant Agreement, except that the Company
and the Index Warrant Agent shall be entitled to rely on and act pursuant to
instructions of Depositary Participants as contemplated herein and in the
Index Warrant Agreement.
Subject to the terms of the Index Warrant Agreement, upon due
presentment for registration of transfer of this Index Warrant Certificate at
(the principal corporate trust office of the Index Warrant Agent) in (New
York City), the Company shall execute and the Index Warrant Agent shall
countersign and deliver in the name of the designated transferee a new Index
Warrant Certificate of like tenor and representing a like number of
unexercised Index Warrants as evidenced by this Index Warrant Certificate at
the time of such registration of transfer which shall be issued to the
designated transferee in exchange for this Index Warrant Certificate, subject
to the limitations provided in the Index Warrant Agreement, without charge.
This Index Warrant Certificate and the Index Warrant Agreement are
subject to amendment as provided in the Index Warrant Agreement.
The validity, interpretation and performance of this Index Warrant
Certificate and its terms and provisions shall be governed by and construed
in accordance with the laws of the State of New York.
This Index Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Index Warrant Agent.
A-1-8
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated as of (_____________, 19___)
THE CHASE MANHATTAN CORPORATION
By: ________________________
(title)
Attest: ____________________
(title)
(SEAL)
Countersigned on the date
above written:
(Name of Index Warrant Agent),
as Index Warrant Agent
By: ____________________________
(title)
A-1-9
<PAGE>
EXHIBIT A-2
-----------
(NO PAYMENT WILL BE MADE UPON THE EXERCISE OF THIS
WARRANT UNLESS THE INDEX WARRANT AGENT HAS
RECEIVED THE CERTIFICATION DESCRIBED IN THE
INDEX WARRANT AGREEMENT)
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
INDEX WARRANT AGENT AS PROVIDED HEREIN
No. CUSIP No. (__________)
INDEX WARRANT CERTIFICATE
representing
(up to __________) (insert name of index/indices)Index
(Put/Call/Spread) Warrants
Expiring (__________, 19___)
THE CHASE MANHATTAN CORPORATION
This certifies that (the bearer) (____________________ or registered
assigns) (the "Holder") is the registered Holder of (insert name of
Index/Indices) Index (Put/Call/Spread) Warrants (the "Index Warrants") or
such lesser amount as is indicated in the records of (name of Index Warrant
Agent), as Index Warrant Agent. Each Index Warrant entitles the Holder,
subject to the provisions contained herein and in the Index Warrant Agreement
referred to below, to receive the (U.S. dollars) (other currency) from The
Chase Manhattan Corporation (the "Company") the Cash Settlement Value (as
defined herein). In no event shall the Holder hereof be entitled to any
interest on any Cash Settlement Value.
Subject to the terms of the Index Warrant Agreement and the limitations
described herein, the Index Warrants may be irrevocably exercised (on any New
York Business Day from their date of issuance until (1:30 P.M.), New York
City time,) on (i) (the date upon which the right to exercise the Index
Warrants expires or, if such date is not a New York Business Day (as defined
in the Index Warrant Agreement), on the next succeeding New York Business
Day) (__________, 199_) (the "Expiration Date") or (ii) the date of automatic
exercise or cancellation as further described below and as provided in the
Index Warrant Agreement. Except in the case of exercise on the Expiration
Date, automatic exercise or cancellation as described below, not fewer than
(__________) (or more than) Index Warrants may be exercised by or on behalf
of any one Holder on any one day. References herein to "U.S. dollars" or
"U.S.$" are to the currency of the United
A-2-1
<PAGE>
States of America. References to "(name of Index currency)" or
"(__________)" are to the currency of (name of Index country). As used
herein, the term "New York Business Day" means any day other than a Saturday,
Sunday, legal holiday or other day on which the (New York Stock Exchange)
(American Stock Exchange) or (relevant futures and options exchanges on which
the underlying securities trade) is not open for securities trading or
banking institutions generally in The City of New York are authorized or
required by law or executive order to close; (and) "Index Country Business
Day" means any day other than (i) a Saturday, Sunday, legal holiday or other
or a day on which banking institutions generally in (name of Index country)
(name of Base Index country or Reference Index country) are authorized or
required by law or executive order to close or (ii) a day on which the (names
of relevant stock exchanges) (is/are) not open for business(; and "Index
Country Resident" means a resident of, or any corporation or other entity
organized under the laws of, (name of Index country) (name of Base Index
country or Reference Index country), its territories, its possessions or
other areas subject to its jurisdiction).
This Index Warrant Certificate is issued under and in accordance with
the Index Warrant Agreement, dated as of (__________, 19_) (the "Index
Warrant Agreement"), between the Company and the Index Warrant Agent, and is
subject to the terms and provisions contained in the Index Warrant Agreement,
to all of which terms and provisions the registered Holder of this Index
Warrant Certificate consents by acceptance hereof. Copies of the Index
Warrant Agreement are on file at the principal corporate trust office of the
Index Warrant Agent in New York City.
Capitalized terms included herein but not defined herein have the
meanings assigned thereto in the Index Warrant Agreement.
The Cash Settlement Value of an exercised Index Warrant (whether
exercised automatically or by notice) shall mean (insert fraction) of (the
U.S. dollar equivalent (rounded to the nearest (dollar)(cent))) of (the
amount, if any, by which (i) the Fixed Amount exceeds (ii) the Index
Value)<F24> (the amount, if any, by which (i) the Index Value exceeds (ii)
the Fixed Amount)<F25> (the amount, if any, by which (insert formula for
determining cash settlement value of Index Spread Warrants)<F26>; provided
--------
- --------------------
<F24> In case of Index Put Warrants.
<F25> In case of Index Call Warrants.
<F26> In case of Index Spread Warrants.
A-2-2
<PAGE>
that, if such amount is less than zero, then the Cash Settlement shall be
zero. The "Index Value" for any exercised Index Warrants shall be the
closing value of the Index on the Valuation Date (as defined herein) for such
Index Warrants (where ( ) point(s) of the Index is treated as (fraction
of Index currency unit)) and shall be obtained by the Index Warrant Agent.
The "Fixed Amount" for any exercised Index Warrant shall be (insert the
definition set forth in the Prospectus Supplement)<F27>. (Insert definitions
used to determine the Cash Settlement Value for Index Spread Warrants.)<F28>
(The exchange rate (or manner of calculating such rate) for conversion of the
(Fixed Amount), (the Exercise Price) and the (Index Value) into U.S. dollars
shall be (_____) (set forth such rate or manner of calculating such rate) and
shall be obtained by the Index Warrant Agent.) ("Index Currency") or
(" ") are references to
- -------------
the currency of (Name of other country)).<F29> (Insert definitions used to
determine the Cash Settlement value for Index Spread Warrants)<F30>
Except in the case of automatic exercise on the Expiration Date or
cancellation, suspension or delay as further provided below and in the Index
Warrant Agreement, the "Valuation Date" for an Index Warrant shall be the
Index Country Business Day next succeeding the New York Business Day on which
the Index Warrant Agent has received (i) delivery of such Index Warrant by
delivery of this Index Warrant Certificate ("Proper Delivery") (, accompanied
by payment in good form of the Exercise Price) and (ii) an Exercise Notice
for such Index Warrant in good order in the form of Exhibit C-2 to the Index
Warrant Agreement, (which shall include certification that the Holder of this
Index Warrant Certificate is not an Index Country Resident,) at or prior to
(1:30 P.M.), New York City time and if the Index Warrant Agent shall receive
such delivery of such Exercise Notice after (1:30 P.M.), New York City time,
on such date, the Valuation Date shall be the next Index Country Business Day
following the New York Business Day following the New York Business Day on
which the Index Warrant Agent received such Index Warrant and such Exercise
Notice. Any delivery of an Index Warrant (, the Exercise Price) or Exercise
Notice received after (1:30 P.M.), New York City time, on the Expiration Date
shall be void and of no effect and shall be deemed not to have been
delivered, and the Index
- --------------------
<F27> In case of Index Put Warrants or Index Call Warrants.
<F28> In case of Index Spread Warrants.
<F29> In the case of Index Put Warrants or Index Call Warrants.
<F30> In case of Index Spread Warrants.
A-2-3
<PAGE>
Warrants with respect to which such late delivery or Exercise Notice relates
shall be exercised in accordance with the third succeeding paragraph hereof.
The Holder of this Index Warrant Certificate may specify in its irrevocable
Exercise Notice that such Exercise Notice is conditional (the "Conditional
Exercise Notice"), then such Conditional Exercise Notice shall be void and of
no effect (and shall be disregarded for all purposes of the Index Warrant
Agreement) if the closing value of the Index on the Valuation Date is more
than (________) (above)<F31> (below),<F32> the closing value of the Index on
the date upon which the Conditional Exercise Notice is received (or deemed to
have been received) and not rejected by the Index Warrant Agent (or if such
date is not an Index Country Business Day, on the immediately preceding Index
Country Business Day)) (describe conditions applicable to Index Spread
Warrants).<F33>
If the Exercise Notice is not rejected as provided in the Index Warrant
Agreement, the Index Warrant Agent will determine the Cash Settlement Value
of the exercised Index Warrants as provided in the Index Warrant Agreement.
Provided that the Company has made adequate funds available to the Index
Warrant Agent in a timely manner, the Index Warrant Agent will make payment
in the form of a check (or bank wire transfer if the payment is greater than
$______) available to the Holder of this Index Warrant Certificate on the
fifth Business Day following the Valuation Date (or, if such Valuation Date
is not a New York Business Day, on the sixth New York Business Day after such
Valuation Date) (the "Settlement Date"), all as provided in the Index Warrant
Agreement, such payment to be in the amount of the Cash Settlement Value in
respect of Index Warrants exercised by such Holder.
The Index Warrant Agent will promptly cause its records to be marked to
reduce the number of Index Warrants represented by this Index Warrants
Certificate by the number of Index Warrants (i) for which it has received an
Exercise Notice in proper form, (ii) that were delivered to the Index Warrant
Agent, and (iii) for which payment has been made.
All Index Warrants with respect to which either (i) there has been no
Proper Delivery (, payment in good form of the Exercise Price has not been
received by the Index Warrant Agent) or no valid Exercise Notice has been
received by the Index
- --------------------
<F31> In case of Index Put Warrants.
<F32> In case of Index Call Warrants.
<F33> In case of Index Spread Warrants.
A-2-4
<PAGE>
Warrant Agent at or prior to (1:30 P.M.), New York City time, on the
Expiration Date for such Index Warrants, (ii) the Exercise Date which has
been postponed pursuant to Section 2.2(e) of the Index Warrant Agreement to a
date on or after the New York Business Day preceding the Expiration Date or
(iii) there has been no proper exercise on the New York Business Day on which
the Index Warrants are permanently delisted or suspended from the (name of
U.S. national securities exchange) and, at or prior to such delisting or
suspension, the Index Warrants have not been listed on another U.S. national
securities exchange or quoted through a Self-Regulatory Organization (the
"Unexercised Index Warrants"), will be deemed automatically exercised on such
Expiration Date without any requirement of notice of exercise or the delivery
of this Index Warrant Certificate to the Index Warrant Agent. The Valuation
Date for such Index Warrants shall be the first Index Country Business Day
following such Expiration Date.
By 5:00 P.M., New York City time, on the Expiration Date, the Index
Warrant Agent shall advise the Company of the number of Unexercised Index
Warrants outstanding after (1:30 P.M.), New York City time, on such day. On
the Valuation Date for such Unexercised Index Warrants (or if such Valuation
Date is not a New York Business Day, then the next succeeding New York
Business Day), the Index Warrant Agent shall (i) determine the Cash
Settlement Value (in the manner provided in Section 2.2(f) of the Index
Warrant Agreement) of the Index Warrants to be automatically exercised, (ii)
advise the Company by 5:00 P.M., New York City time, on such Valuation Date
of the Cash Settlement Value with respect to such Index Warrants and (iii)
advise the Company of such other matters relating to the automatically
exercised Index Warrants as the Company shall reasonably request. (Following
the Expiration Date, the Holder of this Index Warrant Certificate shall
deliver to the Index Warrant Agent one or more certificates in the form of
Exhibit D-2 to the Index Warrant Agreement setting forth the total number of
automatically exercised Index Warrants with respect to which such Holder
certifies that it is not an Index Country Resident.)
Provided that the Company has made adequate funds available to the Index
Warrant Agent in a timely manner which shall, in no event, be later than
(1:30 P.M.), New York City time, on the fifth New York Business Day following
the Valuation Date for such automatically exercised Index Warrants (or, if
such Valuation Date is not a New York Business Day, on the sixth New York
Business Day after such Valuation Date), the Index Warrant Agent will make
its check (or bank wire transfer if the payment is greater than $_________)
available to the Holder of this Index Warrant Certificate, after (1:30 P.M.),
New York City time, but prior to the close of business, on such fifth New
York Business
A-2-5
<PAGE>
Day following the Valuation Date for such Index Warrants (or, if such
Valuation Date is not a New York Business Day, on the sixth New York Business
Day after such Valuation Date), such check to be in the amount of the ((i))
aggregate Cash Settlement Value ((ii) minus the Exercise Price) in respect of
Index Warrants that have been automatically exercised, delivered to the Index
Warrant Agent (and with respect to which the Index Warrant Agent has received
certification that such Holder is not an Index Country Resident); provided,
however, that the Index Warrant Agent shall
withhold payment of the ((i)) Cash Settlement Value ((ii) minus the Exercise
Price) with respect to any Index Warrant Certificate which has not been
received by the Index Warrant Agent and for which the Index Warrant Agent has
not received a certificate in the form of Exhibit D-2 to the Index Warrant
Agreement until the Index Warrant Agent has received such Index Warrant
Certificate and certificate with respect to such Index Warrants. If pursuant
to the immediately preceding sentence the Index Warrant Agent has not
withheld payment with respect to any Index Warrants, the Index Warrant Agent
shall promptly cancel the Index Warrant Certificate representing the Index
Warrants automatically exercised as described above and deliver it to the
Issuer. If the Index Warrant Agent has withheld payment of the ((i)) Cash
Settlement Value ((ii) minus the Exercise Price) with respect to any Index
Warrants, the Index Warrant Agent shall cancel this Index Warrant Certificate
and deliver it to the Company only upon receipt of a certificate in the form
of Exhibit D-2 attached to the Index Warrant Agreement from the Holder of
this Index Warrant Certificate with respect to all of the Index Warrants then
evidenced by this Index Warrant Certificate and payment of the total ((i))
Cash Settlement Value ((ii) minus the Exercise Price) withheld. The Index
Warrant Agent's sole responsibility with respect to the Unexercised Index
Warrants shall be to pay the ((i)) Cash Settlement Value ((ii) minus the
Exercise Price) of such Index Warrants upon receipt of (i) the related Index
Warrants and (ii) a certificate in the form of Exhibit D-2 to the Index
Warrant Agreement from the Holder of this Index Warrant Certificate.
In the event that (the) (an) Index is not calculated and announced by
(the) (an) Index Publisher on a Valuation Date but is calculated and publicly
announced by another person or party not affiliated with the Company (the
"Third Party"), the applicable Cash Settlement Value shall nevertheless be
calculated by reference to the value of the closing quotation for the Index
so calculated and announced by the Third Party.
In the event that prior to a Valuation Date (the) (an) Index Publisher
or the Third Party makes a material change in the formula for or the method
of calculating the (relevant) Index, the Company shall promptly appoint an
investment or commercial
A-2-6
<PAGE>
bank of international standing that is not an affiliate of the Company (the
"Independent Expert") who shall make such calculations as may be required to
determine the applicable Cash Settlement Value using the formula and method
of calculating the (relevant) Index as in effect prior to such change or
modification.
If on a Valuation Date neither (the) (an) Index Publisher nor any Third
Party is calculating and disseminating (the) (an) Index and neither has
provided any successor index, the Company shall promptly appoint an
Independent Expert who shall make such calculations as it determines may be
required to determine the applicable Cash Settlement Value using the formula
and method of calculating the (relevant) Index as in effect on the date (the)
(such) Index was last so calculated.
If any of the events referred to above with respect to the calculation
of (the) (an) Index occur, the Company shall promptly make available
information regarding the composition, method of calculation and current
level of the (relevant) Index or successor index upon written request to the
Company's offices at The Chase Manhattan Corporation, One Chase Manhattan
Plaza, New York, New York 10081 attention: (___________). In addition, the
Company will undertake reasonable efforts to ensure that such information is
publicly available. In the event (the) (an) Index Publisher elects to
suspend or discontinue calculating or announcing the (relevant) Index, the
Company will so notify the Holder by mailing notice to the Holder at its
address appearing on the Index Warrant Register.
The Company, the Index Warrant Agent and any agent of the Company or the
Index Warrant Agent may deem and treat the registered Holder hereof as the
absolute owner of the Index Warrants represented hereby (notwithstanding any
notation of ownership or other writing hereon) for any purpose and as the
person entitled to exercise the rights represented by the Index Warrants
evidenced hereby, and neither the Company nor the Index Warrant Agent nor any
agent of the Company or the Index Warrant Agent shall be affected by any
notice to the contrary, subject to certain provisions of the Index Warrant
Agreement.
Subject to the terms of the Index Warrant Agreement, upon due
presentment for registration of transfer of this Index Warrant Certificate at
(the principal corporate trust office of the Index Warrant Agent) in (New
York City), the Company shall execute and the Index Warrant Agent shall
countersign and deliver in the name of the designated transferee a new Index
Warrant Certificate of like tenor and representing a like number of
unexercised Index Warrants as evidenced by this Index Warrant Certificate at
the time of such registration of transfer which
A-2-7
<PAGE>
shall be issued to the designated transferee in exchange for this Index
Warrant Certificate, subject to the limitations provided in the Index Warrant
Agreement, without charge.
This Index Warrant Certificate and the Index Warrant Agreement are
subject to amendment as provided in the Index Warrant Agreement.
The validity, interpretation and performance of this Index Warrant
Certificate and its terms and provisions shall be governed by and construed
in accordance with the laws of the State of New York.
This Index Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Index Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated as of (_____________, 19___)
THE CHASE MANHATTAN
CORPORATION
By: ________________________
(title)
Attest: ____________________
(title)
(SEAL)
Countersigned on the date
above written:
(Name of Index Warrant Agent),
as Index Warrant Agent
By: ____________________________
(title)
A-2-8
<PAGE>
EXHIBIT B
---------
Form of Transfer of Index Warrant Certificate
---------------------------------------------
(______________________), as Index Warrant Agent
Corporate Trust Department
(address)
(Telex:__________________)
(Facsimile:______________)
(________________), the registered holder of the Index Warrant
Certificate representing all unexercised The Chase Manhattan Corporation
(name of Index/Indices) (Put/Call/Spread) Warrants Expiring (_______________,
19__), hereby requests the transfer of such Index Warrant Certificate to
__________________.
Dated: _________ (NAME OF REGISTERED HOLDER)
By:__________________________
GUARANTY OF SIGNATURE
(NAME OF GUARANTOR)
By: ___________________________
Name:
Title:
B-1
<PAGE>
EXHIBIT C-1
-----------
Form of Exercise Notice from Depositary Participant
---------------------------------------------------
______________, as Index Warrant Agent
Attention: ______________________
(Facsimile): ___________________)
(Telephone: ___________________)
(Telex: ___________________)
Re: Exercise of The Chase Manhattan Corporation
(name of Index/Indices) (Put/Call/Spread) Warrants
Expiring , 19 ("Index Warrants")
--------------------------------------------------
1. We refer to the Index Warrant Agreement dated as of (_____________,
19__) (the "Index Warrant Agreement") between The Chase Manhattan Corporation
(the "Company") and (_______) the ("Index Warrant Agent"). On behalf of
certain clients, each of whom is exercising no fewer than ( ) Index
Warrants (or more than (____) Index Warrants) and whose Index Warrants are
held in our name, we hereby irrevocably exercise (_______) Index Warrants
(the "Tendered Warrants").
2. This Exercise Notice (is) (is not) a Conditional Exercise Notice.
We hereby acknowledge that a Conditional Exercise Notice will be void and of
no effect (and shall be disregarded for all purposes under the Index Warrant
Agreement) if the closing value of the (name of Index) on the Valuation Date
is more than (___________) (above)<F1> (below)<F2> the closing value of the
(name of Index) (describe conditions applicable to Index Spread Warrants)<F3>
on the date this Exercise Notice is received by you (or deemed to have been
received by you) and not rejected (or if such date is not an Index Country
Business Day, on the immediately preceding Index Country Business Day).
3. We have instructed the Depositary to deliver the Exercised Warrants
(and the Exercise Price) free through the Depositary to the Index Warrant
Account. (Account No. (________)).
- --------------------
<F1> In case of Index Put Warrants.
<F2> In case of Index Call Warrants.
<F3> In case of Index Spread Warrants.
C-1-1
<PAGE>
4. We hereby acknowledge that this Exercise Notice (, the Exercise
Price) and the Tendered Warrants must be received by you by (1:30 P.M.), New
York City time, on the date hereof in order for the Valuation Date of the
Tendered Warrants to be the next succeeding Index Country Business Day and
that if this Exercise Notice (, the Exercise Price) or the Tendered Warrants
are received by you after (1:30 P.M.), New York City time, but prior to the
close of business on such date, the Valuation Date of the Tendered Warrants
shall be the next Index Country Business Day following the New York Business
Day on which such Exercise Notice is received. (We further acknowledge that
if this Conditional Exercise Notice (, the Exercise Price) or the Tendered
Warrants are received by you after (1:30 P.M.), New York City time, but prior
to the close of business on the date hereof, that for purposes of making the
determinations required by such Conditional Exercise Notice, the Index
Warrants will be deemed to be exercised on the next succeeding New York
Business Day following the date hereof.)<F4>
5. We hereby certify that we are a participant of (The Depository
Trust Company) (the "Depositary") with the present right to use and receive
its services.
6. We hereby acknowledge that if you determine that this Exercise
Notice has not been fully completed, or is not in proper form, or you are
unable to verify that we are a participant of the Depositary as provided
above, this Exercise Notice will be void and of no effect and will be deemed
not to have been delivered.
(7. We hereby certify that none of the clients on whose behalf we are
exercising the above referenced Index Warrants are Index Country Residents.)
- ------------------------
<F4> In case of Conditional Exercise Notice.
C-1-2
<PAGE>
Capitalized terms used herein and not defined have the meanings assigned
thereto in the Index Warrant Agreement.
Dated: _______________, 19___
(NAME OF DEPOSITARY
PARTICIPANT)
(Participant Number)
By______________________
Authorized Signature
(Address)
Telephone: ____________
Facsimile: ____________
C-1-3
<PAGE>
EXHIBIT C-2
-----------
Form of Exercise Notice from Owner
----------------------------------
_______________, as Index Warrant Agent
(Address)
Attention: ________________________________
(Facsimile: _______________________________)
(Telephone: _______________________________)
(Telex: _______________________________)
Re: Exercise of The Chase Manhattan Corporation
(name of Index/Indices) (Put/Call/Spread)
Warrants Expiring , 19 ("Index Warrants")
--------------------------------------------------
1. We refer to the Index Warrant Agreement dated as of (___________,
19__) (the "Index Warrant Agreement") between The Chase Manhattan Corporation
(the "Company") and (________________) (the "Index Warrant Agent"). We
hereby irrevocably exercise (no fewer than (_____________) Index Warrants)
(or more than (_____________) Index Warrants) (the "Tendered Warrants") and
deliver to you herewith a Definitive Certificate or Certificates, registered
in the name of the undersigned, representing a number of Index Warrants at
least equal to the Number of Exercised Warrants (, accompanied by payment in
full of the Exercise Price ((, in U.S. Dollars) (other currency)(in cash or
certified or official bank check in New York Clearing House funds) (by wire
transfer in immediately available funds) payable to the account of the
Company).
2. This Exercise Notice (is) (is not) a Conditional Exercise Notice.
We hereby acknowledge that a Conditional Exercise Notice will be void and of
no effect (and shall be disregarded for all purposes under the Index Warrant
Agreement) if the closing value of the (name of Index) on the Valuation Date
is more than (________) (above) (below) the closing value of the (name of
Index) (describe conditions applicable to Index Spread Warrants) on the date
of this Exercise Notice was received (or deemed to have been received) and
not rejected (or
- -------------------
<F1> In case of Index Put Warrants.
<F2> In case of Index Call Warrants.
<F3> In case of Index Spread Warrants.
C-2-1
<PAGE>
if such date is not an Index Country Business Day, on the immediately
preceding Index Country Business Day).
3. We hereby acknowledge that this Exercise Notice (, the Exercise
Price) and the related Definitive Certificates must be received you by (1:30
P.M.), New York City time, on the date hereof in order for the Valuation Date
of the Tendered Warrants to be the next succeeding Index Country Business Day
and that if this Exercise Notice (, the Exercise Price) or such Definitive
Certificates is received by you after (1:30 P.M.), New York City time, the
Valuation Date of the Tendered Warrants shall be the next Index Country
Business Day following the New York Business Day following the New York
Business Day on which this Exercise Notice (, the Exercise Price) and such
Definitive Certificates are received. (We further acknowledge that if this
Conditional Exercise Notice (, the Exercise Price) or the Definitive
Certificates are received by you after (1:30 P.M.), New York City time, but
prior to the close of business on the date hereof, that for purposes of
making the determinations required by such Conditional Exercise Notice, the
Index Warrants will be deemed to be exercised on the next succeeding New York
Business Day following the date hereof.)<F4>
(4. We hereby certify that none of the undersigned Owners who are
exercising the above referenced Index Warrants is an Index Country Resident.)
Capitalized terms used herein and not defined have the meanings assigned
thereto in the Index Warrant Agreement.
Dated: ________________, 19__
(NAME OF OWNERS)
By________________________
Authorized Signature
(Address)
Telephone: _______________
Facsimile: _______________
- -------------------
<F4> In case of Conditional Exercise Notice.
C-2-2
<PAGE>
EXHIBIT C-3
-----------
Notice of Rejection
-------------------
(Choose paragraph A or B)
(A) You are hereby notified that (the Exercise Notice delivered by you
was determined by us not to have been (duly completed) (in proper form)) (the
Definitive Certificate delivered by you was determined by us not to have been
in proper form) (the Exercise Price delivered by you with the Exercise Notice
was determined by us not to have been in proper form) (we were not able to
verify that you are a participant of (The Depository Trust Company) in the
manner, and pursuant to the procedures), as set forth in the Index Warrant
Agreement, dated as of (__________________, 19__), between The Chase
Manhattan Corporation and (_________________), as Index Warrant Agent.
Accordingly, we have rejected your Exercise Notice as being unsatisfactory as
to form.
(B) You are hereby notified that we have rejected your Conditional
Exercise Notice, because (the closing value of the Index on the Valuation
Date was (_________), and the closing value of the Index on the date upon
which we received (or was deemed to have received) such Exercise Notice was
(__________________))<F1> (describe conditions for rejecting a Conditional
Exercise Notice applicable to Index Spread Warrants).<F2>
Dated: (___________________, 199___)
______________________, as
Index Warrant Agent
By:_______________________
Authorized Agent
- -----------------------
<F1> In case of Index Put Warrants and Index Call Warrants.
<F2> In case of Index Spread Warrants.
C-3-1
<PAGE>
EXHIBIT C-4
-----------
Confirmation of Exercise
------------------------
We hereby confirm receipt of your Index Warrants and your Exercise
Notice (and Exercise Price) with respect to such Index Warrants (the
"Exercised Warrants"), which Exercise Notice (and Exercise Price) we have
found to be duly completed and in good order, (and we have verified, in the
manner provided in the Index Warrant Agreement, that you are a Depositary
Participant.)<F1> The Valuation Date of the Exercised Warrant is
(___________________).
We hereby confirm that the Exercised Warrants have been exercised at the
(Index Value of (______________))<F2> (describe the exercise value of the
index/indices applicable to Index Spread Warrants)<F3> and that the aggregate
Cash Settlement Value of (payment currency) (___________) (payment currency)
(_________) per Index Warrant) will be made available to you in the form of a
check, five New York Business Days after the Valuation Date (or six New York
Business Days in the case that the Valuation Date for the exercised Index
Warrants was not a New York Business Day) in accordance with the terms of the
Index Warrant Agreement.
Capitalized terms included herein but not defined have the meanings
assigned thereto in the Index Warrant Agreement dated as of (___________,
19__) between The Chase Manhattan Corporation and (__________), as Index
Warrant Agent.
Dated: (_____________, 199__)
______________________, as
Index Warrant Agent
By:_______________________
Authorized Agent
- ----------------------
<F1> Not necessary with respect to Index Warrants represented by
Definitive Certificates.
<F2> In case of Index Put Warrants and Index Call Warrants.
<F3> In case of Index Spread Warrants.
C-4-1
<PAGE>
EXHIBIT C-5
-----------
Confirmation of Exercise
------------------------
for Delayed Exercise Warrants
-----------------------------
We hereby confirm receipt of your Index Warrants and your Exercise
Notice (and Exercise Price) with respect to such Index Warrants (the
"Tendered Warrants"), which Exercise Notice (and Exercise Price) we have
found to be duly completed and in good order, (and we have verified, in the
manner provided in the Index Warrant Agreement, that you are a Depositary
Participant.)<F1> The Valuation Date of the Exercised Warrant is
(____________).
(The Company has elected to limit the number of Index Warrants that may
have an Exercise Date on (_________________, 19__) to (_____________). Of
the Tendered Warrants, (_________) Index Warrants have been selected to be
Index Warrants that will have an Exercise Date on (_______________, 19__)
(such Index Warrants, the "Exercised Warrants"). The remaining (__________)
Tendered Warrants are deemed to be Delayed Exercise Warrants.) All of the
Tendered Warrants will have an Exercise Date on (___________________, 19__)
and are hereinafter referred to as "Exercised Warrants.")
We hereby confirm that the Exercised Warrants have been exercised at the
Index Value of (___________) and that the aggregate Cash Settlement Value of
(_________________) ((_______) per Index Warrant) will be made available to
you in the form of a check, five New York Business Days after the Valuation
Date (or six New York Business Days in the case that the Valuation Date for
the exercised Index Warrants was not a New York Business Day) in accordance
with the terms of the Index Warrant Agreement.
- -----------------------
<F1> Not necessary with respect to Index Warrants represented by
Definitive Certificates.
C-5-1
<PAGE>
Capitalized terms included herein but not defined have the meanings
assigned thereto in the Index Warrant Agreement dated as of (___________,
19__) between The Chase Manhattan Corporation and (__________), as Index
Warrant Agent.
Dated: (_____________, 199__)
______________________, as
Index Warrant Agent
By:_______________________
Authorized Agent
C-5-2
<PAGE>
EXHIBIT D-1
-----------
Form of Depositary Participant Certificate
------------------------------------------
( ),
-----------------------------
as Index Warrant Agent
(Department)
(Address)
Attention:
------------------
Facsimile:
------------------
Telephone:
------------------
Telex:
----------------------
Re: Automatic Exercise of The Chase Manhattan
Corporation (Name of Index/Indices)
(Put/Call/Spread) Warrants Expiring ________________
, 19 (the "Index Warrants")
--- -- -----------------------------------------
We refer to the Index Warrant Agreement dated as of
( , 19 ) (the "Index Warrant Agreement") between The Chase
--------------- --
Manhattan Corporation (the "Company") and
( ) (the "Index Warrant Agent"). We hereby certify
--------------------
that we own on behalf of our clients ( ) Index Warrants which have
------
been automatically exercised pursuant to the Index Warrant Agreement. (We
hereby further certify that none of such Index Warrants are beneficially
owned by Owners who are Index Country Residents (as defined in the Index
Warrant Agreement).)
Dated: ( , 199 )
------------------- --
(NAME OF DEPOSITARY PARTICIPANT)
By:
-------------------------------
Authorized Agent
(Address)
Telephone:
------------------------
Facsimile:
------------------------
D-1-1
<PAGE>
EXHIBIT D-2
-----------
Form of Owner Certificate
-------------------------
( ),
-----------------------------
as Index Warrant Agent
(Department)
(Address)
Attention:
------------------
Facsimile:
------------------
Telephone:
------------------
Telex:
----------------------
Re: Automatic Exercise of The Chase Manhattan Corporation
(Name of Index/Indices) (Put/Call/Spread) Warrants
Expiring
, 19 (the "Index Warrants")
-------- -- --------------------------
We refer to the Index Warrant Agreement dated as of
( , 19 ) (the "Index Warrant Agreement") between
--------------- --
The Chase Manhattan Corporation (the "Company") and
( ) (the "Index Warrant Agent"). We hereby certify
--------------------
that we own ( ) Index Warrants which have been automatically
-----------
exercised pursuant to the Index Warrant Agreement and which we have delivered
to you. (We hereby further certify that, as of the date hereof, we are not a
resident of, nor a corporation or other entity organized under the laws of
(name of Index country), its territories, its possessions or other areas
subject to its jurisdiction.)
Dated: ( , 199 )
-------------------- --
(NAME OF OWNER)
By:
------------------------------
Authorized Agent
(Address)
Telephone:
-----------------------
Facsimile:
-----------------------
Bank Account Designated for
Payment:
-------------------------
D-2-1
<PAGE>
OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS
HEREIN SHALL BE DETERMINED IN CONFORMITY WITH THE
APPLICABLE PROSPECTUS SUPPLEMENT OR SUPPLEMENTS
---------------------------------------------------
-------------------------------------------------
THE CHASE MANHATTAN CORPORATION
AND
(NAME OF INTEREST RATE WARRANT AGENT)
AS INTEREST RATE WARRANT AGENT
------------------------------
INTEREST RATE WARRANT AGREEMENT
DATED AS OF (______________, 19__)
_______________________________
(UP TO _______) INTEREST RATE (PUT/CALL) WARRANTS
EXPIRING (______________, 19__)
_________________________________________________
<PAGE>
TABLE OF CONTENTS<F1>
-----------------
Page
----
ARTICLE I
ISSUANCE, FORM, EXECUTION
DELIVERY AND REGISTRATION OF INTEREST RATE WARRANTS
SECTION 1.1 Issuance of Interest Rate Warrants;
Book-Entry Procedures; Successor Depositary . . . . . . . 1
SECTION 1.2 Form, Execution and Delivery of the
Interest Rate Warrant Certificate . . . . . . . . . . . . 3
SECTION 1.3 Interest Rate Warrant Certificate . . . . . . . . . . . . . 4
SECTION 1.4 Registration of Transfers and Exchanges . . . . . . . . . . 5
SECTION 1.5 Definitive Certificates . . . . . . . . . . . . . . . . . . 6
ARTICLE II
DURATION AND EXERCISE OF INTEREST RATE WARRANTS
SECTION 2.1 Duration of Interest Rate Warrants;
Minimum (and Maximum) Exercise Amounts;
Notice of Exercise . . . . . . . . . . . . . . . . . . . 10
SECTION 2.2 Exercise and Delivery of Interest Rate
Warrants . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.3 Automatic Exercise of the Interest Rate
Warrants . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.4 Covenant of the Company . . . . . . . . . . . . . . . . . . 21
SECTION 2.5 Return of the Interest Rate Warrant
Certificate . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.6 Return of Moneys Held Unclaimed for
Two Years . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.7 Designation of Agent for Receipt of Notice . . . . . . . . 22
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF OWNERS
SECTION 3.1 Owners of Interest Rate Warrants
May Enforce Rights . . . . . . . . . . . . . . . . . . . 22
SECTION 3.2 Consolidation, Merger or Other Disposition . . . . . . . . 22
- --------------------
<F1> The Table of Contents is not a part of the Interest Rate Warrant
Agreement
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ARTICLE IV
CANCELLATION OF INTEREST RATE WARRANTS
SECTION 4.1 Cancellation of Interest Rate Warrants . . . . . . . . . . 23
SECTION 4.2 Treatment of Owners . . . . . . . . . . . . . . . . . . . . 23
SECTION 4.3 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE V
CONCERNING THE INTEREST RATE WARRANT AGENT
SECTION 5.1 Interest Rate Warrant Agent . . . . . . . . . . . . . . . . 24
SECTION 5.2 Conditions of Interest Rate Warrant
Agent's Obligations . . . . . . . . . . . . . . . . . . . 24
SECTION 5.3 Compliance With Applicable Laws . . . . . . . . . . . . . . 27
SECTION 5.4 Resignation and Appointment of Successor . . . . . . . . . 27
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Modification, Supplementation or Amendment . . . . . . . . 29
SECTION 6.2 Notices and Demands to the Company and
Interest Rate Warrant Agent . . . . . . . . . . . . . . . 30
SECTION 6.3 Addresses for Notices . . . . . . . . . . . . . . . . . . . 30
SECTION 6.4 Notices to Owners . . . . . . . . . . . . . . . . . . . . . 30
SECTION 6.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.6 Obtaining of Governmental Approvals . . . . . . . . . . . . 31
SECTION 6.7 Persons Having Rights Under the Interest
Rate Warrant Agreement . . . . . . . . . . . . . . . . . 31
SECTION 6.8 Headings . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.10 Inspection of Agreement . . . . . . . . . . . . . . . . . . 31
EXHIBIT A - Form of Interest Rate Warrant Certificate
EXHIBIT B - Form of Transfer of Interest Rate Warrant Certificate
EXHIBIT C-1 - Form of Exercise Notice from Depositary
Participant
EXHIBIT C-2 - Form of Exercise Notice from Owner
EXHIBIT C-3 - Form of Notice of Rejection
EXHIBIT C-4 - Form of Confirmation of Exercise
EXHIBIT C-5 - Form of Confirmation of Exercise for Delayed Exercise Warrants
EXHIBIT D-1 - Form of Depositary Participant Certificate
EXHIBIT D-2 - Form of Owner Certificate
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INTEREST RATE WARRANT AGREEMENT
THIS AGREEMENT, dated as of (__________________, 19__), between THE
CHASE MANHATTAN CORPORATION, a corporation duly incorporated and existing
under the laws of the State of Delaware (the "Company") and (name of Interest
Rate Warrant Agent), a (banking association) duly incorporated and existing
under the laws of (_____), as Interest Rate Warrant Agent (the "Interest Rate
Warrant Agent"),
W I T N E S S E T H T H A T :
----------------------------
WHEREAS, the Company proposes to sell interest rate warrants (the
"Interest Rate Warrants" or, individually, an "Interest Rate Warrant")
representing the right to receive from the Company an amount in (U.S.
dollars) (other currency) to be determined by references to (increase)
(decrease) in the Spot Amount (as defined herein); and
WHEREAS, the Company wishes the Interest Rate Warrant Agent to act
on behalf of the Company in connection with the issuance, transfer and
exercise of the Interest Rate Warrants, and wishes to set forth herein, among
other things, the provisions of the Interest Rate Warrants and the terms and
conditions under which they may be issued, transferred, exercised and
cancelled;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE, FORM, EXECUTION
DELIVERY AND REGISTRATION OF INTEREST RATE WARRANTS
SECTION 1.1 Issuance of Interest Rate Warrants; Book-Entry Procedures;
----------------------------------------------------------
Successor Depositary; Status of Warrants.
- ----------------------------------------
(a) The Interest Rate Warrants will be issued in book-entry form
and represented by a single global certificate (the "Interest Rate Warrant
Certificate"). Each Interest Rate Warrant shall represent the right, subject
to the provisions contained herein and in the Interest Rate Warrant
Certificate, to receive the Cash Settlement Value (as defined in Section
2.2(f) hereof), if any, of such Interest Rate Warrant. Such Cash Settlement
Value will be payable only in (U.S. dollars) (other currency). In no event
shall any beneficial owner of Interest Rate Warrants (an "Owner") be entitled
to receive any interest on the Cash Settlement Value. An Interest Rate
Warrant will not require or entitle the Owner thereof to sell, deliver,
purchase or take
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delivery of any instrument underlying such Interest Rate Warrant to or from
the Company, nor will the Company be under any obligation to, nor will it,
purchase or take delivery, or sell or deliver, any instrument underlying such
Interest Rate Warrant to or from the Owners. Owners will not be entitled to
receive definitive certificates evidencing the Interest Rate Warrants;
provided, however, that if (i) the Depositary (as defined in Section 1.1(b))
- -------- -------
is at any time unwilling or unable to continue as Depositary for the Interest
Rate Warrants and a successor Depositary is not appointed by the Company
within 90 days, or (ii) the Company shall be adjudged bankrupt or insolvent
or make an assignment for the benefit of its creditors or institute
proceedings to be adjudicated bankrupt or shall consent to the filing of a
bankruptcy proceeding against it, or shall file a petition or answer or
consent seeking reorganization under applicable law, or shall 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 Company or of its property or affairs, for the
purpose of rehabilitation, conservation or liquidation, the Company will
issue Interest Rate Warrants in definitive form in exchange for the Interest
Rate Warrant Certificate. In addition, the Company may at any time determine
not to have the Interest Rate Warrants represented by an Interest Rate
Warrant Certificate and, in such event, will issue Interest Rate Warrants in
definitive form in exchange for the Interest Rate Warrant Certificate. In
either instance, and in accordance with the provisions of this Agreement,
each Owner will be entitled to have a number of Interest Rate Warrants
equivalent to such Owner's beneficial interest in the Interest Rate Warrant
Certificate registered in its name and will be entitled to physical delivery
of such Interest Rate Warrants in definitive form by the Depositary
Participant or Indirect Participant (as defined in Section 1.1(c)) through
which such Owner's beneficial interest is reflected. The provisions of
Section 1.5 shall apply only if and when Interest Rate Warrants in definitive
form ("Definitive Certificates") are issued hereunder. Unless the context
shall otherwise require, all references in this Agreement to the Interest
Rate Warrant Certificate shall include the Definitive Certificates in the
event that Definitive Certificates are issued.
(b) The Interest Rate Warrant Certificate shall be deposited with
the Depositary or its agent (the term "Depositary", as used herein, initially
refers to (The Depository Trust Company) and includes any successor
depository selected by the Company as provided in Section 1.1(d)) for credit
to the accounts of the Depositary Participants as shown on the records of the
Depositary from time to time.
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(c) The Interest Rate Warrant Certificate will be registered in
the name of (a nominee of) the Depositary. (The Company has been informed by
the Depositary that initially its nominee will be ________________.) The
Interest Rate Warrant holdings of Depositary Participants will be recorded on
the books of the Depositary. The holdings of customers of Depositary
Participants, including the holdings of Indirect Participants, will be
reflected on the books and records of such Depositary Participants and will
not be known to the Interest Rate Warrant Agent, the Company or to the
Depositary. "Depositary Participants" include securities brokers and
dealers, banks and trust companies, clearing organizations and certain other
organizations which are participants in the Depositary system and, for
purposes of this Agreement, shall also mean participants in the book-entry
system of any successor Depositary. Access to the Depositary's system is
also available to others such as banks, securities dealers and trust
companies ("Indirect Participants") that clear or maintain a custodial
relationship with a Depositary Participant, either directly or indirectly.
The Interest Rate Warrant holdings of Owners who are customers of Indirect
Participants will be reflected on the books and records of Depositary
Participants in the name of the respective Indirect Participants. The
Interest Rate Warrant Certificate will be held by the Depositary or its
agent. Neither the Company nor the Interest Rate Warrant Agent will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of an Interest
Rate Warrant Certificate or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest.
(d) The Company may from time to time select a new entity to act
as Depositary and, if such selection is made, the Company shall promptly give
the Interest Rate Warrant Agent notice to such effect identifying the new
Depositary and the Interest Rate Warrant Certificate shall be delivered to
the Interest Rate Warrant Agent and shall be transferred to the new
Depositary as provided in Section 1.4 as promptly as possible. Appropriate
changes may be made in the Interest Rate Warrant Certificate, the notice of
exercise and the related notices delivered in connection with an exercise of
Interest Rate Warrants to reflect the selection of the new Depositary.
(e) The Interest Rate Warrants will constitute direct,
unconditional and unsecured obligations of the Company and will rank on a
parity with the Company's other existing and future unsecured contractual
obligations and with the Company's existing and future unsecured and
unsubordinated debt.
SECTION 1.2 Form, Execution and Delivery of the Interest Rate
-------------------------------------------------
Warrant Certificate. Except as provided in Section 1.5, the Interest Rate
- -------------------
Warrant Certificate, whenever issued,
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shall be in registered form substantially in the form set forth in Exhibit A-
1 hereto, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Agreement. The
Interest Rate Warrant Certificate may have imprinted or otherwise reproduced
thereon such letters, number or other marks of identification or designation
and such legends or endorsements as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such
approval) that are not inconsistent with the provisions of this Agreement, or
as may be required to comply with any law or with any rule or regulation made
pursuant thereto, or with any rule or regulation of any stock exchange on
which the Interest Rate Warrants may be listed, or of the Depositary, or to
conform to usage. The Interest Rate Warrant Certificate shall be signed on
behalf of the Company by its (_____________________________) or any
(____________________), manually or by facsimile signature, and its corporate
seal or a facsimile thereof shall be impressed, imprinted or engraved
thereon, which shall be attested by its Secretary or any Assistant Secretary,
either manually or by facsimile signature. Typographical and other minor
errors or defects in any such reproduction of the seal or any such signature
shall not affect the validity or enforceability of the Interest Rate Warrant
Certificate that has been duly countersigned and delivered by the Interest
Rate Warrant Agent.
In case any officer of the Company who shall have signed the
Interest Rate Warrant Certificate, either manually or by facsimile signature,
shall cease to be such officer before the Interest Rate Warrant Certificate
so signed shall have been countersigned and delivered by the Interest Rate
Warrant Agent to the Company or delivered by the Company, such Interest Rate
Warrant Certificate nevertheless may be countersigned and delivered as though
the person who signed such Interest Rate Warrant Certificate had not ceased
to be such officer of the Company; and the Interest Rate Warrant Certificate
may be signed on behalf of the Company by such persons as, at the actual date
of the execution of such Interest Rate Warrant Certificate, shall be the
proper officers of the Company, although at the date of the execution of this
Agreement any such person was not such an officer.
SECTION 1.3 Interest Rate Warrant Certificate. One or more
---------------------------------
Interest Rate Warrant Certificates (relating to no more than _____________
Interest Rate Warrants originally issued) may be executed by the Company and
delivered to the Interest Rate Warrant Agent on or after the date of
execution of this Agreement; provided that only one Interest Rate Warrant
--------
Certificate shall be outstanding at any one time. The Interest Rate Warrant
Agent is authorized, upon receipt of an Interest Rate Warrant Certificate
from the Company, duly executed on behalf of the Company, to countersign such
Interest Rate Warrant
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Certificate. The Interest Rate Warrant Certificate shall be manually
countersigned and dated the date of countersignature by a duly authorized
representative of the Interest Rate Warrant Agent and shall not be valid for
any purpose unless so countersigned. The Interest Rate Warrant Agent shall
countersign and deliver the Interest Rate Warrant Certificate to or upon the
written order of the Company.
The Interest Rate Warrant Certificate may be exchanged for a new
Interest Rate Warrant Certificate to reflect the issuance by the Company of
additional Interest Rate Warrants (; provided, however, that in no event
-------- -------
shall the number of Interest Rate Warrants represented by the Interest Rate
Warrant Certificate exceed ___________ originally issued). To effect such an
exchange the Company shall deliver to the Interest Rate Warrant Agent a new
Interest Rate Warrant Certificate duly executed on behalf of the Company as
provided in Section 1.2. The Interest Rate Warrant Agent shall countersign
the new Interest Rate Warrant Certificate as provided in this Section 1.3
and, upon a written order of the Company, shall deliver the new Interest Rate
Warrant Certificate to the Depositary in exchange for, and upon receipt of,
the Interest Rate Warrant Certificate then held by the Depositary. The
Interest Rate Warrant Agent shall cancel the Interest Rate Warrant
Certificate delivered to it by the Depositary and return the cancelled
Interest Rate Warrant Certificate to the Company.
SECTION 1.4 Registration of Transfers and Exchanges. Except as
---------------------------------------
otherwise provided herein or in the Interest Rate Warrant Certificate, the
Interest Rate Warrant Agent shall from time to time register the transfer of
the Interest Rate Warrant Certificate in the records of the Interest Rate
Warrant Agent only to the Depositary, or to a nominee of the Depositary, upon
surrender of such Interest Rate Warrant Certificate, duly endorsed and
accompanied by a written instrument or instruments of transfer in the form of
Exhibit B hereto, duly signed by the registered holder thereof or by the duly
appointed legal representative thereof or by a duly authorized attorney, such
signature to be guaranteed by a bank or trust company, by a broker or dealer
which is a member of the National Association of Securities Dealers, Inc. or
by a member of a U.S. national securities exchange. Upon any such
registration of transfer, the Company shall execute and the Interest Rate
Warrant Agent shall countersign and deliver in the name of the designated
transferee a new Interest Rate Warrant Certificate of like tenor and
representing a like number of unexercised Interest Rate Warrants as evidenced
by the Interest Rate Warrant Certificate at the time of such registration of
transfer.
The Interest Rate Warrant Certificate may be transferred as
provided above at the option of the registered holder thereof when
surrendered to the Interest Rate Warrant
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Agent at its office or agency maintained for the purpose of transferring and
exercising the Interest Rate Warrants, which shall be (south of Chambers
Street in the Borough of Manhattan, The City of New York) (the "Interest Rate
Warrant Agent Office"), and which is, on the date of this Agreement,
(_____________, New York, New York ______, Attention: _______), or at the
office of any successor Interest Rate Warrant Agent as provided for in
Section 5.4, for another Interest Rate Warrant Certificate of like tenor and
representing a like number of unexercised Interest Rate Warrants.
SECTION 1.5 Definitive Certificates. Any Definitive Certificates
-----------------------
issued in accordance with Section 1.1(a) shall be in registered form
substantially in the form set forth in Exhibit
A-2 hereto, with such appropriate insertions, omissions, substitutions and
other variations as are necessary or desirable for individual Definitive
Certificates, and may represent any integral multiple of Interest Rate
Warrants. The Definitive Certificates may have imprinted or otherwise
reproduced thereon such letters, numbers or other marks of identification or
designation and such legends or endorsements as the officers of the Company
executing the same may approve (execution thereof to be conclusive evidence
of such approval) that are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto, or with any rule or regulation of any stock
exchange on which the Interest Rate Warrants may be listed, or of the
Depositary, or to conform to usage. Definitive Certificates shall be signed
on behalf of the Company upon the same conditions, in substantially the same
manner and with the same effect as the Interest Rate Warrant Certificate.
Each Definitive Certificate, when so signed on behalf of the
Company, shall be delivered to the Interest Rate Warrant Agent, which shall
manually countersign and deliver the same to or upon the written order of the
Company. Each Definitive Certificate shall be dated the date of its
countersignature.
No Definitive Certificate shall be valid for any purpose, and no
Interest Rate Warrant evidenced thereby shall be exercisable, until such
Definitive Certificate has been countersigned by the manual signature of a
duly authorized representative of the Interest Rate Warrant Agent. Such
signature by the Interest Rate Warrant Agent upon any Definitive Certificate
executed by the Company shall be conclusive evidence that the Definitive
Certificate so countersigned has been duly issued hereunder.
Definitive Certificates delivered in exchange for the Interest Rate
Warrant Certificate shall be registered in such names and addresses
(including tax identification number) and in such denomination as shall be
requested in writing by the
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Depositary or its nominee in whose name the Interest Rate Warrant Certificate
is registered, upon written certification to the Company and the Interest
Rate Warrant Agent, in a form satisfactory to each of them, of the applicable
beneficial ownership interests in the Interest Rate Warrant Certificate.
The Company shall cause to be kept at an office of the Interest
Rate Warrant Agent in New York City a register (the register maintained in
such office and in any other office or agency maintained by or on behalf of
the Company for such purpose being herein sometimes collectively referred to
as the "Interest Rate Warrant Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the
registration of and transfers of Definitive Certificates. The Interest Rate
Warrant Agent is hereby appointed "Interest Rate Warrant Registrar" for the
purpose of registering Definitive Certificates and transfers of Definitive
Certificates as herein provided.
For purposes of this Section 1.5, a "Holder of a Definitive
Certificate" at any particular time is the person in whose name such
Definitive Certificate is registered in the Interest Rate Warrant Register at
such time.
Upon surrender for registration of transfer of any Definitive
Certificate at an office or agency of the Company maintained for such
purpose, the Company shall execute, and the Interest Rate Warrant Agent shall
countersign and deliver, in the name of the designated transferee or
transferees, one or more new Definitive Certificates of like tenor and
representing a like number of unexercised Interest Rate Warrants.
At the option of the Holder of a Definitive Certificate, Definitive
Certificates may be exchanged for other Definitive Certificates of like tenor
and representing a like number of unexercised Interest Rate Warrants, upon
surrender of the Definitive Certificates to be exchanged at such office or
agency. Whenever any Definitive Certificates are so surrendered for
exchange, the Company shall execute, and the Interest Rate Warrant Agent
shall countersign and deliver, the Definitive Certificates which the Holder
of a Definitive Certificate making the exchange is entitled to receive.
All Definitive Certificates issued upon any registration of
transfer or exchange of Definitive Certificates shall be valid obligations of
the Company, evidencing the same obligations of the Company, and entitled to
the same benefits under this Interest Rate Warrant Agreement, as the
Definitive Certificates surrendered upon such registration of transfer or
exchange.
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Every Definitive Certificate presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Interest Rate Warrant Agent) be duly endorsed, or be accompanied by a
written instrument of transfer in a form satisfactory to the Company and the
Interest Rate Warrant Registrar duly executed, by the Holder of a Definitive
Certificate thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Definitive Certificates, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Definitive Certificates.
In the event that upon any exercise of Interest Rate Warrants
evidenced by a Definitive Certificate the number of Interest Rate Warrants
exercised shall be less than the total number of Interest Rate Warrants
evidenced by such Definitive Certificate, there shall be issued to the Holder
thereof or its assignee a new Definitive Certificate evidencing the number of
Interest Rate Warrants not exercised.
If any mutilated Definitive Certificate is surrendered to the
Interest Rate Warrant Agent, the Company shall execute and the Interest Rate
Warrant Agent shall countersign and deliver in exchange therefor a new
Definitive Certificate of like tenor representing a like number of
unexercised Interest Rate Warrants and bearing a number not contemporaneously
outstanding.
If there shall be delivered by a Holder of a Definitive Certificate
to the Company and the Interest Rate Warrant Agent (i) evidence to their
satisfaction of the destruction, loss or theft of any Definitive Certificate
and of ownership thereof, (ii) such security or indemnity as may be required
by them to save each of them and any agent of either of them harmless, and
(iii) funds sufficient to cover any cost or expense to the Company (including
any fees charged by the Interest Rate Warrant Agent) relating to the issuance
of a new Definitive Certificate, then, in the absence of notice to the
Company or the Interest Rate Warrant Agent that such Definitive Certificate
has been acquired by a bona fide purchaser, the Company shall execute and
upon its request the Interest Rate Warrant Agent shall countersign and
deliver, in lieu of any such destroyed, lost or stolen Definitive
Certificate, a new Definitive Certificate of like tenor representing a like
number of unexercised Interest Rate Warrants and bearing a number not
contemporaneously outstanding.
In case the Interest Rate Warrants evidenced by any such mutilated,
destroyed, lost or stolen Definitive Certificate have been exercised, or have
been or are about to be deemed to be
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exercised, the Company in its discretion may, instead of issuing a new
Definitive Certificate, treat the same as if it had received written
irrevocable notice of exercise in good form in respect thereof, as provided
herein.
Every new Definitive Certificate issued pursuant to this Section
1.5 in lieu of any mutilated, destroyed, lost or stolen Definitive
Certificate shall constitute an original additional contractual obligation of
the Company, whether or not the mutilated, destroyed, lost or stolen
Definitive Certificate shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Interest Rate Warrant Agreement
equally and proportionately with any and all other Definitive Certificates
duly issued hereunder.
The provisions of this Section 1.5 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Definitive
Certificates.
Prior to due presentment of a Definitive Certificate for
registration of transfer, the Company, the Interest Rate Warrant Agent and
any agent of the Company or the Interest Rate Warrant Agent may treat the
person in whose name such Definitive Certificate is registered as the owner
of such Definitive Certificate for all purposes hereunder whatsoever, whether
or not such Definitive Certificate be exercised or deemed to be exercised and
neither the Company, the Interest Rate Warrant Agent nor any agent of the
Company or the Interest Rate Warrant Agent shall be affected by notice to the
contrary.
All Definitive Certificates surrendered for exercise, registration
of transfer or exchange shall, if surrendered to any person other than the
Interest Rate Warrant Agent, be delivered to the Interest Rate Warrant Agent
and shall be promptly cancelled by it and shall not be reissued. The Company
may at any time deliver to the Interest Rate Warrant Agent for cancellation
any Definitive Certificates previously countersigned and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all
Definitive Certificates so delivered shall be promptly cancelled by the
Interest Rate Warrant Agent. No Definitive Certificates shall be
countersigned in lieu of or in exchange for any Definitive Certificate
cancelled as provided in this Section 1.5, except as expressly permitted by
this Interest Rate Warrant Agreement. All cancelled Definitive Certificates
held by the Interest Rate Warrant Agent shall be disposed of as directed by
the Company.
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ARTICLE II
DURATION AND EXERCISE OF INTEREST RATE WARRANTS
SECTION 2.1 Duration of Interest Rate Warrants; Minimum (and
------------------------------------------------
Maximum) Exercise Amounts; Notice of Exercise.
- ---------------------------------------------
(a) Subject to the limitations described herein, each Interest
Rate Warrant evidenced by the Interest Rate Warrant Certificate or Definitive
Certificates may be irrevocably exercised in whole but not in part (on any
New York Business Day from the date of issuance until (1:30 P.M.), New York
City time,) on (i) (the date upon which the right to exercise the Interest
Rate Warrants expires or, if such date is not a New York Business Day (as
defined in Section 2.1(c) below), on the next succeeding New York Business
Day) (___________ __, 199_) (the "Expiration Date") or (ii) the date of
automatic exercise as provided in Section 2.3. (There is no exercise price
payable by any Owner in connection with the exercise of an Interest Rate
Warrant.) (The exercise price for each Interest Rate Warrant is ($_____) and
shall be payable by the Owner of such Interest Rate Warrant in (U.S.
dollars)(other currency) (the "Exercise Price")). Each Interest Rate Warrant
may be exercised by (a) transfer of the related Interest Rate Warrants on the
records of the Depositary free to the Interest Rate Warrant Agent Depositary
Participant Account (entitled (______)), or such other account of the
Interest Rate Warrant Agent at the Depositary as the Interest Rate Warrant
Agent shall specify (the "Interest Rate Warrant Account"), in the case of
Interest Rate Warrants represented by the Interest Rate Warrant Certificate,
or surrender of the Definitive Certificate or Certificates to the Interest
Rate Warrant Agent at the Interest Rate Warrant Agent's Office, in the case
of Interest Rate Warrants represented by Definitive Certificates (in each
case, "Proper Delivery"), (b) except in the case of automatic exercise or
cancellation, delivery of written notice (an "Exercise Notice") to the
Interest Rate Warrant Agent from a Depositary Participant acting on behalf of
the Owner of such Interest Rate Warrant, in the event that the Interest Rate
Warrants are represented by the Interest Rate Warrant Certificate, or from
the Owner, in the event that the Interest Rate Warrants are represented by
Definitive Certificates; provided, however, that Exercise Notices are
-------- -------
subject to rejection by the Interest Rate Warrant Agent as provided herein
(and (c) the payment in full to the Interest Rate Warrant Agent of the
Exercise Price ((in U.S. dollars) (other currency) (in cash or by certified
or official bank check in New York Clearing House funds) (by bank wire
transfer in immediately available funds)) payable to the account of the
Company).
(b) Not fewer than the minimum number (or more than the maximum
number) of Interest Rate Warrants as set forth in the Interest Rate Warrant
Certificate or Definitive Certificate, as the case may be, may be exercised
by or on behalf of any one
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Owner at any one time, except that no such minimum (or maximum) exercise
amount shall apply in the case of exercise (or deemed exercise) on the
Expiration Date. The Exercise Notice, which shall be irrevocable, shall be
in substantially the form set forth in Exhibit C-1 hereto in the case that
the Interest Rate Warrants are represented by the Interest Rate Warrant
Certificate, and in substantially the form set forth in Exhibit C-2 hereto in
the case that the Interest Rate Warrants are represented by Definitive
Certificates, and shall be sent to the Interest Rate Warrant Agent in writing
(which shall include facsimile transmissions, followed promptly by an
executed original, but the date and time of receipt of such transmission
shall be the effective date and time of such notice) at its address as set
forth in such Exercise Notice or at such other address as the Interest Rate
Warrant Agent may specify from time to time. An irrevocable Exercise Notice
may be conditioned as set forth in Section 2.2(a), but shall otherwise be
unconditional.
(c) As used herein, "New York Business Day" means any day other
than a Saturday, Sunday, legal holiday or other day on which the (New York
Stock Exchange), (American Stock Exchange) or (relevant options and futures
exchanges on which the underlying securities trade) is not open for
securities trading or banking institutions generally in The City of New York
are authorized or required by law or executive order to close (and ("Payment
Currency Country Resident") ("Interest Rate Country Resident") means a
resident of or corporation or other entity organized under the laws of (name
of country of payment currency) (name of Interest Rate country), its
territories, its possessions or other areas subject to its jurisdiction).
Except as provided in Section 2.2(b), the Interest Rate Warrant Agent and the
Company shall be entitled to rely conclusively on any Exercise Notice
received by them with no duty of inquiry by either of them.
SECTION 2.2 Exercise and Delivery of Interest Rate Warrants.
-----------------------------------------------
(a) Except in the case of automatic exercise as provided in
Section 2.3, and subject to Sections 2.2(b)(i) and 2.2(e), the exercise date
(the "Exercise Date") for an Interest Rate Warrant shall be ((i) if the
Interest Rate Warrant Agent receives delivery of such Interest Rate Warrant
(, the Exercise Price) and an Exercise Notice in good order at or prior to
(1:30 P.M.), New York City time on a New York Business Day, then such New
York Business Day and (ii) otherwise the New York Business Day next
succeeding the day on which the Interest Rate Warrant Agent receives Proper
Delivery of such Interest Rate Warrant (, such Exercise Price) and such
Exercise Notice) (_____________ __, 199_). Any Exercise Notice received
after (1:30 P.M.), New York City time, on the Expiration Date shall be void
and of no effect and shall be deemed not to have been delivered or made, as
the
11
<PAGE>
case may be. The provisions of Section 2.3 shall apply to any Interest Rate
Warrants to which such late delivery of an Exercise Notice applied. The
"Designated Exercise Date" for an Interest Rate Warrant is the date that, but
for Section 2.2(e), would be the Exercise Date for such Interest Rate
Warrant. (Notwithstanding anything in this Agreement to the contrary, if a
Depositary Participant (or Owner in the event Definitive Certificates are
issued) has specified in its irrevocable Exercise Notice that such Exercise
Notice is conditional (a "Conditional Exercise Notice"), then such
Conditional Exercise Notice shall be void and of no effect (and shall be
disregarded for all purposes of this Agreement) if the Spot Amount (as
defined in Section 2.2(f)) on the Valuation Date (as defined below) (such
Spot Amount, the "Reference Value") is more than (____________) (above)<F1>
(below)<F2> the Spot Amount on the Designated Exercise Date (or if such
Designated Exercise Date is not an Interest Rate Country Business Day (as
defined below), on the immediately preceding Interest Rate Country Business
Day)). As used in this Section 2.2, the "Valuation Date" for an Interest
Rate Warrant shall be the Interest Rate Country Business Day next succeeding
the New York Business Day on which the Interest Rate Warrant Agent has
received (i) Proper Delivery of such Interest Rate Warrant (, accompanied by
payment in good form of the Exercise Price) and (ii) an Exercise Notice for
such Interest Rate Warrant in good order in the form of Exhibit (C-1) (C-2)
to the Interest Rate Warrant Agreement, at or prior to (1:30 P.M.) New York
City time, and if the Interest Rate Warrant Agent shall receive such delivery
of such Exercise Notice after (1:30 P.M.), New York City time, on such date,
the "Valuation Date" shall be the next Interest Rate Country Business Day
following the New York Business Day following the New York Business Day on
which the Interest Rate Warrant Agent received Proper Delivery of such
Interest Rate Warrant and such Exercise Notice. In such event, the Interest
Rate Warrants delivered to the Interest Rate Warrant Agent with such
Conditional Exercise Notice shall be redelivered free through the facilities
of the Depositary to the account of such Depositary Participant (or returned
to the appropriate Owner by first class mail at the expense of the Company in
the event that Definitive Certificates are issued) together with a notice of
rejection substantially in the form set forth in Exhibit C-3 hereto. As used
herein, "Interest Rate Country Business Day" means any day other than (i) a
Saturday, Sunday, legal holiday or other day on which banking institutions
generally in (name of Interest Rate country) are authorized or required by
law or executive order to close or (ii) a day on which the (names of relevant
stock exchanges) are not open for business.
- --------------------
<F1> In case of Interest Rate Put Warrants.
<F2> In case of Interest Rate Call Warrants.
12
<PAGE>
(b) Following receipt of Proper Delivery of the Interest Rate
Warrants(, the Exercise Price) and the Exercise Notice related to such
Interest Rate Warrants in good form, the Interest Rate Warrant Agent shall:
((i) deposit all funds received by it as payment for the exercise
of Interest Rate Warrants to the account of the Company maintained with
it for such purpose on the date on which such Interest Rate Warrant is
deemed exercised ((unless otherwise instructed in writing by the
Company)), advise the Company by telephone and in writing, by facsimile
transmission or otherwise, at the end of each day on which such payment
is received of the amount so deposited to its account.)
(ii) promptly determine whether the Definitive Certificate is in
proper form, in the case of Interest Rate Warrants represented by a
Definitive Certificate, (whether the Exercise Price has been paid in
full in proper form) and whether the Exercise Notice has been duly
completed and is in proper form and, in the case of Interest Rate
Warrants represented by the Interest Rate Warrant Certificate, promptly
verify that the entity that executed such notice is listed as a
Depositary Participant in the most recent published edition of the
Depositary's Eligible Corporate Securities Book (or comparable
publication of a successor Depositary) and, if such entity is not listed
therein, the Interest Rate Warrant Agent shall make reasonable efforts
to obtain telephonic verification from the Depositary's (Planning)
Department (telephone no. ( )) (or comparable department of a
successor Depositary) that such entity is a Depositary Participant. If
the Interest Rate Warrant Agent is unable through the above-described
procedures to verify that such entity is a Depositary Participant or, in
any case, if the Interest Rate Warrant Agent determines that the
Exercise Notice has not been duly completed or is not in proper form,
that the Definitive Certificate is not in proper form, (or that the
Exercise Price has not been paid in full in proper form,) the Interest
Rate Warrant Agent shall reject the Exercise Notice and shall send to
the entity that executed such notice (or in the event Definitive
Certificates have been issued, to the Owner), a notice of rejection
substantially in the form set forth in Exhibit C-3 hereto and redeliver
the Interest Rate Warrants to which such rejected Exercise Notice
relates free through the facilities of the Depositary to the account
from which they were transferred (or in the event Definitive
Certificates have been issued, to the Owner) (and redeliver any payment
of the Exercise Price which accompanied such rejected Exercise Notice
free through the facilities of the Depositary to the account from which
such payment was
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<PAGE>
transferred (or in the event Definitive Certificates have been issued,
to the Owner));
(iii) notify the Company by 5:00 P.M., New York City time, on the
New York Business Day such Exercise Notice and Proper Delivery are
received (or deemed to have been received) of the number of Interest
Rate Warrants in respect of which Exercise Notices, not rejected
pursuant to clause (ii) above, were received (or deemed to have been
received) at or prior to (1:30 P.M.), New York City time, on such date
and the number of Conditional Exercise Notices (and the number of
Interest Rate Warrants to which such Conditional Exercise Notices
relate);
(iv) before 5:00 P.M., New York City time, on the first Interest
Rate Country Business Day following the Designated Exercise Date for
such Interest Rate Warrants (or, if such Interest Rate Country Business
Day is not a New York Business Day, on the next succeeding New York
Business Day), (x) after obtaining the Reference Value (as defined in
Section 2.2(a)), determine whether any Conditional Exercise Notices
have become void pursuant to Section 2.2(a), and if so, promptly notify
the Company and send notice in the form of Exhibit C-3 hereto to the
appropriate Depositary Participant or Owner, as the case may be, and (y)
determine the aggregate number of Interest Rate Warrants covered by
Exercise Notices that have not become void pursuant to Section 2.2(a) or
been rejected pursuant to Section 2.2(b)(i) (the "Tendered Interest Rate
Warrants");
(v) by 5:00 P.M., New York City time, on the first Interest Rate
Country Business Day following the Designated Exercise Date for the
Tendered Interest Rate Warrants (or the New York Business Day
immediately succeeding such Interest Rate Country Business Day if such
Interest Rate Country Business Day is not a New York Business Day)
covered by such Exercise Notice determine pursuant to Section 2.2(e) the
number of such Tendered Interest Rate Warrants for which the Designated
Exercise Date shall be the Exercise Date (such Tendered Interest Rate
Warrants, "Exercised Interest Rate Warrants");
(vi) by 5:00 P.M., New York City time, on the Valuation Date (or
the New York Business Day immediately succeeding the Valuation Date if
the Valuation Date is not a New York Business Day) (x) obtain the Spot
Amount (as defined in Section 2.2(f)) (and the exchange rate) to be used
to determine the Cash Settlement Value, in each case, applicable to such
Exercised Interest Rate Warrants, (y) calculate and advise the Company
of the aggregate Cash Settlement Value with respect to such Exercised
Interest Rate Warrants and (z) send notice of confirmation of
14
<PAGE>
exercise in the form set forth in Exhibit C-4 hereto (or, if applicable,
Exhibit C-5 hereto) to such Depositary Participant (or in the event
Definitive Certificates have been issued, to the Owners); and
(vii) promptly deliver a copy of such Exercise Notices to the
Company and advise the Company of such other matters relating to any of
the Interest Rate Warrants covered thereby, whether or not they
constitute Tendered Interest Rate Warrants or Exercised Interest Rate
Warrants, as the Company shall reasonably request. Any notice to be
given to the Company by the Interest Rate Warrant Agent pursuant to this
Section 2.2 or Section 2.3 shall be by telephone (promptly confirmed in
writing) or telecopy (receipt to be promptly confirmed by telephone).
(c) With respect to all Interest Rate Warrants duly exercised or
deemed exercised on a date, the Company shall make available to the Interest
Rate Warrant Agent, on or before (1:30 P.M.) New York City time, on the fifth
New York Business Day following the Valuation Date for the relevant Interest
Rate Warrants (or, if such Valuation Date is not a New York Business Day, on
the sixth New York Business Day after such Valuation Date) (the "Settlement
Date") funds in an amount equal to, and for the payment of, the aggregate
Cash Settlement Value of such Exercised Interest Rate Warrants. Provided
that the Company has made adequate funds available to the Interest Rate
Warrant Agent in a timely manner, which shall, in no event, be later than
(1:30 P.M.), New York City time, the Interest Rate Warrant Agent will make
payment available in the form of a check (or bank wire transfer if the
payment is greater than $________) (i) in the case of exercise of Interest
Rate Warrants represented by the Interest Rate Warrant Certificate, to the
appropriate Depositary Participant after (1:30 P.M.), New York City time, but
prior to the close of business, on such Settlement Date, such payment to be
in the amount of the Cash Settlement Value in respect of the Exercised
Interest Rate Warrants exercised by such Depositary Participant and (ii) in
the case of exercise of Interest Rate Warrants represented by Definitive
Certificates, to the appropriate Owner after (1:30 P.M.), New York City time,
but prior to the close of business, on such Settlement Date, such payment to
be in the amount of the Cash Settlement Value of the Exercised Interest Rate
Warrants exercised by such Owner. In the case of payments by the Interest
Rate Warrant Agent to a Depositary Participant, such Depositary Participant
shall be responsible for crediting the Cash Settlement Value of such Interest
Rate Warrants to the appropriate Owner.
(d) The Interest Rate Warrant Agent promptly shall cause its
records, which may be kept electronically, to be marked to reflect the
reduction in the number of Interest Rate Warrants represented by the Interest
Rate Warrant Certificates or
15
<PAGE>
Definitive Certificates, as the case may be, by the number of such Interest
Rate Warrants (i) for which it has received Exercise Notices in proper form,
(ii) that were delivered to the Interest Rate Warrant Account, in the case of
Interest Rate Warrants represented the Interest Rate Warrant Certificate, or
that were surrendered to the Interest Rate Warrant Agent in the case of
Interest Rate Warrants represented by Definitive Certificates and (iii) for
which payment has been made as provided in Section 2.2(c) promptly after such
delivery and payment.
(e) In the event that the aggregate number of Tendered Interest
Rate Warrants with respect to any single Designated Exercise Date (as
determined by the Interest Rate Warrant Agent pursuant to Section 2.2(b)(iii)
shall equal or exceed (_____) (such number, the "Maximum Exercisable
Number"), the provisions of this Section 2.2(e) shall apply to the exercise
of such Interest Rate Warrants.
(i) The Company may, at its sole option, notify the Interest Rate
Warrant Agent in writing (including by facsimile transmission) not later
than (_____), New York City time, on the first Interest Rate Country
Business Day following such Designated Exercise Date (or, if such
Interest Rate Country Business Day is not a New York Business Day, on
the next succeeding New York Business Day) to the effect that the
Company has elected to exercise its option under this Section 2.2(e) to
limit the number of Interest Rate Warrants for which the Exercise Date
will occur on such Designated Exercise Date to a number (the "Elected
Maximum Number") not smaller than the Maximum Exercisable Number. If
the Interest Rate Warrant Agent shall not have received such notice by
such time, none of the following provisions in this Sections 2.2(e)
shall apply to such Tendered Interest Rate Warrants, such Designated
Exercise Date shall be the Exercise Date for such Tendered Interest Rate
Warrants and all of such Tendered Interest Rate Warrants shall be deemed
to be "Exercised Interest Rate Warrants" for purposes of Section 2.2(b).
(ii) If the Interest Rate Warrant Agent shall have received the
notice contemplated by clause (i) above by the time specified in such
clause (i), then prior to 5:00 P.M., New York City time on the first
Interest Rate Country Business Day following such Designated Exercise
Date (or, if such Interest Rate Country Business Day is not a New York
Business Day, on the next succeeding New York Business Day), the
Interest Rate Warrant Agent shall select (by lot or such other method as
the Warrant Agent deems appropriate) from all such Tendered Interest
Rate Warrants, subject to clause (iii) below, Tendered Interest Rate
Warrants for which the Exercise Date will occur on such Designated
Exercise Date in
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<PAGE>
an aggregate amount equal to the Elected Maximum Number. Only the
Tendered Interest Rate Warrants so selected shall be deemed to be
"Exercised Interest Rate Warrants" for purposes of Section 2.2(b). The
Tendered Warrants not so selected are referred to herein as "Delayed
Exercise Interest Rate Warrants" and shall be subject to exercise as
provided in clause (iii) below.
(iii) For purposes of this Section 2.2, each Delayed Exercise
Interest Rate Warrant shall be deemed to have a new Designated Exercise
Date on the New York Business Day next succeeding the original
Designated Exercise Date, and this Section 2.2 shall apply as if one or
more Exercise Notices with respect to the Delayed Exercise Interest Rate
Warrants had been received by the Interest Rate Warrant Agent prior to
(1:30 P.M.), New York City time, on such New York Business Day (except
that (x) any Delayed Exercise Interest Rate Warrant with respect to
which any such deemed Designated Exercise Date is on or after the
(_____) New York Business Day preceding the Expiration Date will be
subject to Automatic Exercise as provided in Section 2.3, (y) the
Reference Value for any Delayed Exercise Interest Rate Warrant covered
by a Conditional Exercise Notice shall in any event be determined by
reference to the original Designated Exercise Date therefor (or, if
applicable, the first Interest Rate Country Business Day preceding such
original Designated Exercise Date) and (z) the notice of confirmation of
exercise with respect to Delayed Exercise Interest Rate Warrants given
by the Interest Rate Warrant Agent pursuant to Section 2.2(b)(v) shall
be in the form set forth in Exhibit C-5 hereto); provided,
however, that, other than in the case of an Automatic Exercise, in the
event that the aggregate number of such Delayed Exercise Interest Rate
Warrants, together with any additional Tendered Interest Rate Warrants
for which the Designated Exercise Date is such New York Business Day,
shall again exceed the Maximum Exercisable Number, the provisions of
this Section 2.2(e) shall apply, mutatis mutandis, to the exercise of
such Delayed Exercise Interest Rate Warrants and such additional
Tendered Interest Rate Warrants; and provided, further, however, that
such Delayed Exercise Interest Rate Warrants shall in any event be given
priority over such additional Tendered Interest Rate Warrants in the
selection pursuant to clause (ii) above, and among such Delayed Exercise
Interest Rate Warrants, priority in such selections shall be given to
Interest Rate Warrants in the order of their original Designated
Exercise Dates, with Interest Rate Warrants having the same original
Designated Exercise Date being selected by lot as described in Section
2.2(e)(ii) above.
(iv) In connection with any issuance by the Company of additional
Interest Rate Warrants under this Agreement, the
17
<PAGE>
Company as the right, but is not obligated, to increase the Maximum
Exercisable Number.
(f) For the purposes of this Interest Rate Warrant Agreement:
The "Cash Settlement Value" of an Exercised Interest Rate Warrant
(whether exercised automatically or by Exercise Notice) shall mean (_______)
(fraction of excess amount) (of the U.S. dollar equivalent (rounded to the
nearest (dollar)(cent))) (other currency) of (the amount, if any, by which
(i) the Strike Amount exceeds (ii) the Spot Amount)<F3> (the amount, if any,
by which (i) the Spot Amount exceeds (ii) the Strike Amount)<F4>; provided
--------
that if such amount is less than zero, then the Cash Settlement Value shall
be zero.
The "Strike Amount" means (insert definition from the Prospectus
Supplement).
The "Spot Amount" on any date means (insert definition from the
Prospectus Supplement).
References in this Agreement to "U.S. Dollars" or "$" are to the
lawful currency of the United States of America. References in this
Agreement to a "yield" of any (Treasury Bonds) are to the yield to maturity
of such (Treasury Bonds.)
(The exchange rate (or manner of calculating such rate) for
conversion of the (Fixed Amount), (the Exercise Price) and the (Interest Rate
Value) into U.S. dollars shall be (______) (set forth such rate or manner of
calculating such rate) and shall be obtained by the Interest Rate Warrant
Agent. "(Interest Rate currency)" ( or "_______" are references to the
currency of (name of other country)).<F5>
SECTION 2.3 Automatic Exercise of the Interest Rate Warrants.
------------------------------------------------
(a) All Interest Rate Warrants with respect to which (i) there has
been no Proper Delivery (, payment in good form of the Exercise Price has not
been received by the Interest Rate Warrant Agent) or no valid Exercise Notice
has been received by the Interest Rate Warrant Agent at or prior to (1:30
P.M.), New York City time, on the Expiration Date for such Interest Rate
- --------------------
<F3> In case of Interest Rate Put Warrants.
<F4> In case of Interest Rate Call Warrants.
<F5> In case of Interest Rate Put Warrants or Interest Rate Call
Warrants.
18
<PAGE>
Warrants, (ii) the Exercise Date for which has been postponed pursuant to
Section 2.2(e) to a date on or after the New York Business Day preceding the
Expiration Date or (iii) there has been no proper exercise on the New York
Business Day on which the Interest Rate Warrants are permanently delisted or
suspended from the (name of U.S. national securities exchange) and, at or
prior to such delisting or suspension, the Interest Rate Warrants have not
been listed on another U.S. national securities exchange or quoted through a
self-regulatory organization (a "Self-Regulatory Organization") in the United
States which operates pursuant to rules and regulations of a self-regulatory
organization that are filed with the Securities and Exchange Commission (the
"Commission") pursuant to Section 19(b) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), will be deemed automatically exercised
on such Expiration Date without any requirement of notice of exercise or
delivery of the Interest Rate Warrants to the Interest Rate Warrant Agent.
By 5:00 P.M., New York City time, on the Expiration Date, the Interest Rate
Warrant Agent shall advise the Company of the number of unexercised Interest
Rate Warrants outstanding after (1:30 P.M.), New York City time, on such day.
As used in this Section 2.3, the "Valuation Date" for such Interest Rate
Warrants shall be the first Interest Rate Country Business Day following such
Expiration Date.
(b) On the Valuation Date for the Interest Rate Warrants (or, if
such Valuation Date is not a New York Business Day, on the next succeeding
New York Business Day), the Interest Rate Warrant Agent shall (i) determine
the Cash Settlement Value (in the manner provided in Section 2.2(f)) of the
Interest Rate Warrants to be automatically exercised, (ii) advise the Company
by 5:00 P.M., New York City time, on such Valuation Date (or, if such
Valuation Date is not a New York Business Day, on the next succeeding New
York Business Day) of the Cash Settlement Value with respect to such Interest
Rate Warrants and (iii) advise the Company of such other matters relating to
the automatically exercised Interest Rate Warrants as the Company shall
reasonably request. (Following the Expiration Date, the Depositary shall
deliver to the Interest Rate Warrant Agent one or more certificates from the
appropriate Depositary Participant in the form of Exhibit D-1 attached
hereto, dated no earlier than the Expiration Date, executed by such
Depositary Participant, setting forth the total number of automatically
exercised Interest Rate Warrants. In the event that the Interest Rate
Warrants automatically exercised are represented by Definitive Certificates,
the appropriate Owner will deliver to the Interest Rate Warrant Agent (x) the
Definitive Warrant Certificates to be automatically exercised and (y) a
certificate in the form of Exhibit D-2 hereto, dated no earlier than the
Expiration Date setting forth the number of Interest Rate Warrants
automatically exercised. On the Expiration Date all the Interest Rate
Warrants
19
<PAGE>
will be cancelled and will represent only a right to receive ((i)) the Cash
Settlement Value ((ii) minus the Exercise Price).
(c) Provided that the Company has made adequate funds available to
the Interest Rate Warrant Agent in a timely manner which shall, in no event,
be later than (1:30 P.M.), New York City time, on the fifth New York Business
Day following the Valuation Date for such automatically exercised Interest
Rate Warrants (or if such Valuation Date is not a New York Business Day, on
the sixth New York Business Day after such Valuation Date), the Interest Rate
Warrant Agent will make payment available in the form of a check (or a bank
wire transfer if the payment is greater than $___________) (i) in the event
that the automatically exercised Interest Rate Warrants are represented by
the Interest Rate Warrant Certificate, to the Depositary, after (1:30 P.M.),
New York City time, but prior to the close of business, on the fifth New York
Business Day following the Valuation Date for such automatically exercised
Interest Rate Warrants (or if such Valuation Date is not a New York Business
Day, on the sixth New York Business Day after such Valuation Date), such
check to be in the amount of ((i)) the aggregate Cash Settlement Value ((ii)
minus the Exercise Price) in respect of Interest Rate Warrants that have been
automatically exercised and transferred to the Interest Rate Warrant Account,
and (ii) in the event that the automatically exercised Interest Rate Warrants
are represented by Definitive Certificates, to the appropriate Owner, after
(1:30 P.M.), New York City time, but prior to the close of business, on the
fifth New York Business Day following the Valuation Date for such
automatically exercised Interest Rate Warrants (or if such Valuation Date is
not a New York Business Day, on the sixth New York Business Day after such
Valuation Date), such check in the amount of ((i)) the Cash Settlement Value
((ii) minus the Exercise Price) of the automatically exercised Interest Rate
Warrants delivered to the Interest Rate
Warrant Agent by such Owner; provided, however, that the Interest Rate
-------- -------
Warrant Agent shall withhold payment of ((i)) the Cash Settlement Value ((ii)
minus the Exercise Price) with respect to any Interest Rate Warrants for
which the Interest Rate Warrant Agent has not received ((i)) the related
Interest Rate Warrants through transfer of such Interest Rate Warrants to the
Interest Rate Warrant Account, in the case of Interest Rate Warrants
represented by the Interest Rate Warrant Certificate, or through delivery of
the Definitive Certificates, in the case of Interest Rate Warrants
represented by Definitive Certificates (, and (ii) certification that the
Owner of such Interest Rate Warrants is not a (Payment Currency Country
Resident) (Interest Rate Country Resident), dated no earlier than the
Expiration Date and in the form of Exhibit D-1 hereto, in the case of
Interest Rate Warrants represented by the Interest Rate Warrant Certificate,
or Exhibit D-2 hereto, in the case of Interest Rate Warrants represented by
Definitive Certificates). If pursuant to the immediately preceding sentence
the Interest Rate Warrant Agent has not
20
<PAGE>
withheld payment with respect to any Interest Rate Warrants, the Interest
Rate Warrant Agent shall promptly cancel the Interest Rate Warrant
Certificate representing the Interest Rate Warrants automatically exercised
pursuant to this Section and deliver it to the Company. If the Interest Rate
Warrant Agent has withheld payment of the ((i)) Cash Settlement Value ((ii)
minus the Exercise Price) with respect to any Interest Rate Warrants, the
Interest Rate Warrant Agent shall act as a successor Depositary and cancel
the Interest Rate Warrant Certificate and deliver it to the Company only upon
(receipt of Certificates in the form of Exhibit D-1 to this Agreement from
the appropriate Depositary Participants with respect to all of the Interest
Rate Warrants then evidenced by the Interest Rate Warrant Certificate and)
payment of the total ((i)) Cash Settlement Value ((ii) minus the Exercise
Price) withheld. The Interest Rate Warrant Agent's sole responsibility as
successor Depositary with respect to the Unexercised Interest Rate Warrants
shall be to pay the ((i)) Cash Settlement Value ((ii) minus the Exercise
Price) of such Interest Rate Warrants upon receipt of ((i)) the related
Interest Rate Warrants (and (ii) certificates in the form of Exhibit D-1 to
this Agreement from the appropriate Depositary Participants.)
SECTION 2.4 Covenant of the Company. The Company covenants, for
-----------------------
the benefit of the Owners, that (i) it will cause the Interest Rate Warrants
to be listed on (name of U.S. national securities exchange) and (ii) until
the Expiration Date, it will not seek the delisting of the Interest Rate
Warrants from, or permanent suspension of their trading on, (name of U.S.
national securities exchange) unless prior to such delisting or suspension
the Interest Rate Warrants shall have been listed, and shall be trading, on
another U.S. national securities exchange or shall be quoted through a Self-
Regulatory Organization.
SECTION 2.5 Return of the Interest Rate Warrant Certificate. At
-----------------------------------------------
such time as all of the Interest Rate Warrants have been exercised, deemed
automatically exercised or otherwise cancelled, the Interest Rate Warrant
Agent shall return the cancelled Interest Rate Warrant Certificate to the
Company.
SECTION 2.6 Return of Moneys Held Unclaimed for Two Years. Any
---------------------------------------------
moneys deposited with or paid to the Interest Rate Warrant Agent for the
payment of the Cash Settlement Value of any Interest Rate Warrants and not
applied but remaining unclaimed for two years after the date upon which such
Cash Settlement Value shall have become due and payable, shall be repaid by
the Interest Rate Warrant Agent to the Company, and the Owner of such
Interest Rate Warrants shall thereafter look only to the Company for any
payment which such Owner may be entitled to collect and all liability of the
Interest Rate Warrant Agent with respect to such moneys shall thereupon
cease; provided, however, that the Interest Rate Warrant Agent, before making
-------- -------
any such repayment, may at the expense of the Company notify the Owners
concerned
21
<PAGE>
that said moneys have not been so applied and remain unclaimed and that after
a date named therein any unclaimed balance of said moneys then remaining will
be returned to the Company.
SECTION 2.7 Designation of Agent for Receipt of Notice. The
------------------------------------------
Company may from time to time designate in writing to the Interest Rate
Warrant Agent a designee for receipt of all notices to be given by the
Interest Rate Warrant Agent pursuant to this Article II and all such notices
thereafter shall be given in the manner herein provided by the Interest Rate
Warrant Agent to such designee and each such notice shall be as effective as
if given directly to the Company.
ARTICLE III
OTHER PROVISIONS RELATING TO
RIGHTS OF OWNERS
SECTION 3.1 Owners of Interest Rate Warrants May Enforce Rights.
---------------------------------------------------
Notwithstanding any of the provisions of this Agreement, any Owner, without
the consent of the Interest Rate Warrant Agent, may, in and for his own
behalf and for his own benefit, enforce and may institute and maintain any
suit, action or proceeding against the Company suitable to enforce, or
otherwise in respect of, his right to exercise and to receive payment for his
Interest Rate Warrants as provided in the Interest Rate Warrant Certificate
and in this Agreement.
SECTION 3.2 Consolidation, Merger or Other Disposition. If at any
------------------------------------------
time the Company shall consolidate with or merge into any other corporation
or convey, transfer or lease its properties and assets substantially as an
entirety to another person, then in any such event the successor or assuming
corporation or entity shall succeed to and be substituted for the Company,
with the same effect as if it had been named as the Company herein and in the
Interest Rate Warrants; the Company, except in the event of a lease, shall
thereupon be relieved of any further obligation hereunder or under the
Interest Rate Warrants, and, in the event of any such consolidation, merger,
conveyance, transfer or lease, the Company as the predecessor corporation may
thereupon or at any time thereafter be dissolved, wound up or liquidated.
Such successor or assuming corporation or entity shall expressly assume, by
an amendment to this Agreement, executed and delivered to the Interest Rate
Warrant Agent, in form satisfactory to such Interest Rate Warrant Agent, the
due and punctual payment of any and all amounts payable by the Company
pursuant to this Agreement and the performance of every covenant of this
Agreement on the part of the Company to be performed or observed. Such
successor or assuming corporation or entity thereupon may cause to be signed,
and may issue either in its own name or in the name of the Company, a new
Interest Rate Warrant Certificate representing the Interest Rate Warrants not
22
<PAGE>
theretofore exercised, in exchange and substitution for the Interest Rate
Warrant Certificate theretofore issued. Such Interest Rate Warrant
Certificate shall in all respects have the same legal rank and benefit under
this Agreement as the Interest Rate Warrant Certificate theretofore issued in
accordance with the terms of this Agreement as though such new Interest Rate
Warrant Certificate had been issued at the date of the execution hereof. In
any case of any such consolidation, merger, conveyance, transfer or lease of
substantially all of the assets of the Company, such changes in phraseology
and form (but not in substance) may be made in the new Interest Rate Warrant
Certificates as may be appropriate.
The Interest Rate Warrant Agent may receive a written opinion of
legal counsel as conclusive evidence that any such consolidation, merger,
conveyance, transfer or lease of substantially all of the assets of the
Company complies with the provisions of this Section 3.2.
ARTICLE IV
CANCELLATION OF INTEREST RATE WARRANTS
SECTION 4.1 Cancellation of Interest Rate Warrants. In the event
--------------------------------------
the Company shall purchase or otherwise acquire Interest Rate Warrants, such
Interest Rate Warrants may, at the option of the Company, be surrendered free
through a Depositary Participant for credit to the account of the Interest
Rate Warrant Agent maintained at the Depositary, and if so credited, the
Interest Rate Warrant Agent shall promptly note the cancellation of such
Interest Rate Warrants by notation on the records of the Interest Rate
Warrant Agent. Such Interest Rate Warrants may also, at the option of the
Company, be resold by the Company directly to or through any of its
affiliates in lieu of being surrendered to the Depositary. No Definitive
Certificate shall be countersigned in lieu of or in exchange for any Interest
Rate Warrant which is cancelled as provided herein, except as otherwise
expressly permitted by this Agreement.
SECTION 4.2 Treatment of Owners. The Company, the Interest Rate
-------------------
Warrant Agent and any agent of the Company or the Interest Rate Warrant Agent
may deem and treat the person in whose name an Interest Rate Warrant
Certificate shall be registered in the records of the Interest Rate Warrant
Agent as the Owner of all right, title and interest in such Interest Rate
Warrant Certificate (notwithstanding any notation of ownership or other
writing thereon) for any purpose and as the person entitled to exercise the
rights represented by the Interest Rate Warrants evidenced thereby, and
neither the Company nor the Interest Rate Warrant Agent, nor any agent of the
Company or the Interest Rate Warrant Agent shall be affected by any notice to
the contrary, except that the Interest Rate Warrant Agent and the Company
shall
23
<PAGE>
be entitled to rely on and act pursuant to instructions of Depositary
Participants as contemplated by Article II of this Agreement. This Section
4.2 shall be without prejudice to the rights of Owners as described elsewhere
herein.
SECTION 4.3 Payment of Taxes. The Company will pay all
-----------------
documentary stamp taxes attributable to the initial issuance of Interest Rate
Warrants; provided, however, that the Company shall not be required to pay
-----------------
any tax or other governmental charge which may be payable in respect of any
transfer involving any beneficial or record interest in or ownership interest
of any Interest Rate Warrants.
ARTICLE V
CONCERNING THE INTEREST RATE WARRANT AGENT
SECTION 5.1 Interest Rate Warrant Agent.
---------------------------
(a) The Company hereby appoints (__________________) as Interest
Rate Warrant Agent of the Company in respect of the Interest Rate Warrants
and the Interest Rate Warrant Certificate upon the terms and subject to the
conditions set forth herein and in the Interest Rate Warrant Certificate; and
(_______________) hereby accepts such appointment. The Interest Rate Warrant
Agent shall have the powers and authority granted to and conferred upon it in
the Interest Rate Warrant Certificate and hereby and such further powers and
authority acceptable to it to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. All of the terms and provisions with
respect to such powers and authority contained in the Interest Rate Warrant
Certificate are subject to and governed by the terms and provisions hereof.
(b) The Interest Rate Warrant Agent covenants and agrees to
maintain offices, staffed by qualified personnel, with adequate facilities
for the discharge of its responsibilities under this Agreement, including,
without limitation, the computation of the Cash Settlement Values, if any,
and the timely settlement of the Interest Rate Warrants upon exercise
thereof.
SECTION 5.2 Conditions of Interest Rate Warrant Agent's
-------------------------------------------
Obligations. The Interest Rate Warrant Agent accepts its obligations herein
- -----------
set forth upon the terms and conditions hereof and of the Interest Rate
Warrant Certificate, including the following, to all of which the Company
agrees and to all of which the rights hereunder of the Owners from time to
time of the Interest Rate Warrants shall be subject:
(a) The Company agrees promptly to pay the Interest Rate Warrant
Agent the compensation to be agreed upon with the Company for all
services rendered by the Interest Rate Warrant Agent and to reimburse
the Interest Rate Warrant
24
<PAGE>
Agent for its reasonable out-of-pocket expenses (including reasonable
attorneys' fees and expenses) incurred by the Interest Rate Warrant
Agent without negligence, bad faith or breach of this Agreement on its
part in connection with the services rendered by it hereunder. The
Company also agrees to indemnify the Interest Rate Warrant Agent for,
and to hold it harmless against, any loss, liability or expense
(including reasonable attorneys' fees and expenses) incurred without
negligence, bad faith or breach of this Agreement on the part of the
Interest Rate Warrant Agent, arising out of or in connection with its
acting as such Interest Rate Warrant Agent hereunder or with respect to
the Interest Rate Warrants, as well as the reasonable costs and expenses
of defending against any claim of liability in connection with the
exercise or performance at any time of its powers or duties hereunder or
with respect to the Interest Rate Warrants. The obligations of the
Company under this subsection (a) shall survive the exercise of the
Interest Rate Warrant Certificates and the resignation or removal of the
Interest Rate Warrant Agent.
(b) In acting under this Interest Rate Warrant Agreement and in
connection with the Interest Rate Warrants, the Interest Rate Warrant
Agent is acting solely as agent of the Company and does not assume any
obligation or relationship of agency or trust for or with any of the
Owners or the registered holder of the Interest Rate Warrant
Certificate.
(c) The Interest Rate Warrant Agent may consult with counsel
satisfactory to it, which may include counsel for the Company, and the
written opinion of such counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion of such
counsel.
(d) The Interest Rate Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or omitted or
thing suffered by it in reliance upon any Interest Rate Warrant
Certificate, notice, direction, consent, certificate, affidavit,
statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) The Interest Rate Warrant Agent, and its officers, directors
and employees, may become the Owner of, or acquire any interest in, any
Interest Rate Warrants or other obligations of the Company, with the
same rights that it or they would have if it were not such Interest Rate
Warrant Agent, officer, director or employee, and, to the extent
permitted by applicable law, it or they may engage or be
25
<PAGE>
interested in any financial or other transaction with the Company and
may act on, or as depository, trustee or agent for, any committee or
body of Owners of Interest Rate Warrants or other obligations of the
Company as freely as if it were not such Interest Rate Warrant Agent,
officer, director or employee.
(f) The Interest Rate Warrant Agent shall not be under any
liability for interest on any moneys at any time received by it pursuant
to any of the provisions of this Agreement or of the Interest Rate
Warrant Certificate, nor shall it be obligated to segregate such monies
from other monies held by it, except as required by law. The Interest
Rate Warrant Agent shall not be responsible for advancing funds on
behalf of the Company.
(g) The Interest Rate Warrant Agent shall not be under any
responsibility with respect to the validity or sufficiency of this
Agreement or the execution and delivery hereof (except the due execution
and delivery hereof by the Interest Rate Warrant Agent) or with respect
to the validity or execution of the Interest Rate Warrant Certificate
(except its countersignature thereof).
(h) The recitals contained herein and in the Interest Rate Warrant
Certificate (except as to the Interest Rate Warrant Agent's
countersignature thereon) shall be taken as the statements of the
Company and the Interest Rate Warrant Agent assumes no responsibility
for the correctness of the same.
(i) The Interest Rate Warrant Agent shall be obligated to perform
only such duties as are herein and in the Interest Rate Warrant
Certificate specifically set forth and no implied duties or obligations
shall be read into this Agreement or the Interest Rate Warrant
Certificate against the Interest Rate Warrant Agent. The Interest Rate
Warrant Agent shall not be under any obligation to take any action
hereunder likely to involve it in any expense or liability, the payment
of which is not, in its reasonable opinion, assured to it. The Interest
Rate Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Company of the Interest Rate Warrant
Certificate countersigned by the Interest Rate Warrant Agent and
delivered by it to the Company pursuant to this Agreement or for the
application by the Company of any proceeds of the Interest Rate Warrant
Certificates. The Interest Rate Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the performance
of its covenants or agreements contained herein or in the Interest Rate
Warrant Certificate or in the case of the receipt of any written demand
from an Owner of an Interest Rate Warrant
26
<PAGE>
with respect to such default, except as provided in Section 6.2 hereof,
including, without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings at law
or otherwise or to make any demand upon the Company.
(j) Unless specifically provided herein or in the Interest Rate
Warrant Certificate, any order, certificate, notice, request, direction
or other communication from the Company made or given by the Company
under any provision of this Agreement shall be sufficient if signed by
its (______________ or any (____________________).
SECTION 5.3 Compliance With Applicable Laws. The Interest Rate
-------------------------------
Warrant Agent agrees to comply with all applicable federal and state laws in
respect of the services rendered by it under this Agreement and in connection
with the Interest Rate Warrants, including (but not limited to) the
provisions of United States federal income tax laws regarding information
reporting and backup withholding. The interest Rate Warrant Agent expressly
assumes all liability for failure to comply with such laws, including (but
not limited to) any liability for failure to comply with any applicable
provisions of United States federal income tax laws regarding information
reporting and backup withholding.
SECTION 5.4 Resignation and Appointment of Successor.
----------------------------------------
(a) The Company agrees, for the benefit of the Owners from time to
time of the Interest Rate Warrants, that there shall at all times be an
Interest Rate Warrant Agent hereunder until all the Interest Rate Warrants
are not longer exercisable.
(b) The Interest Rate Warrant Agent may at any time resign as such
agent 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 Interest Rate Warrant Agent and
acceptance of such appointment by such successor Interest Rate Warrant Agent,
as hereinafter provided. The Interest Rate Warrant 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
Interest Rate Warrant Agent (which shall be a banking institution organized
under the laws of the United States of America, or one of the states thereof
or the District of Columbia, having an office or an agent's office (south of
Chambers Street) in the Borough of Manhattan, The City of New York and
authorized under such laws to exercise corporate trust powers) by an
instrument in writing filed with such Successor
27
<PAGE>
Interest Rate Warrant Agent and the acceptance of such appointment by such
successor Interest Rate Warrant Agent. In the event a successor Interest
Rate Warrant Agent has not been appointed and has not accepted its duties
within 90 days of the Interest Rate Warrant Agent's notice of resignation,
the Interest Rate Warrant Agent may apply to any court of competent
jurisdiction for the designation of a successor Interest Rate Warrant Agent.
(c) In case at any time the Interest Rate Warrant 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 an
order of any court shall be entered approving any petition filed by or
against it under the provisions of any applicable bankruptcy or similar law,
or if any public officer shall have taken charge or control of the Interest
Rate Warrant Agent or of its property or affairs, for the purpose of
rehabilitation, conversation or liquidation, a successor Interest Rate
Warrant Agent, qualified as aforesaid, shall be appointed by the Company by
an instrument in writing, filed with the successor Interest Rate Warrant
Agent. Upon the appointment as aforesaid of a successor Interest Rate
Warrant Agent and acceptance by the latter of such appointment, the Interest
Rate Warrant Agent so superseded shall cease to be Interest Rate Warrant
Agent hereunder.
(d) Any successor Interest Rate Warrant Agent appointed hereunder
shall execute, acknowledge and deliver to its predecessor and to the Company
an instrument accepting such appointment hereunder, and thereupon such
successor Interest Rate Warrant 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 Interest Rate Warrant 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 Interest Rate Warrant Agent shall be entitled to receive, all
moneys, securities and other property on deposit with or held by such
predecessor, as Interest Rate Warrant Agent hereunder.
(e) Any corporation into which the Interest Rate Warrant Agent
hereunder may be merged or converted or any corporation with which the
Interest Rate Warrant Agent my be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Interest Rate
Warrant Agent shall be a party, or any corporation to which the Interest
28
<PAGE>
Rate Warrant Agent shall sell or otherwise transfer all or substantially all
of the assets and business of the Interest Rate Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Interest Rate
Warrant Agent under this Agreement without the execution or filing of any
paper or nay further act on the part of any of the parties hereto.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Modification, Supplementation or Amendment.
------------------------------------------
(a) This Agreement may be modified, supplemented or amended by the
Company and the Interest Rate Warrant Agent, without the consent of the
registered holder of the Interest Rate Warrant Certificate or the Owners, for
the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective provision contained herein or in such Interest
Rate Warrant Certificate, maintaining the listing of any Interest Rate
Warrants on any U.S. national securities exchange or the quotation of any
Interest Rate Warrant through a Self-Regulatory Organization or registration
of such Interest Rate Warrants under the Exchange Act, permitting the
issuance of Interest Rate Warrants in definitive form in accordance with
Section 1.1(a), reflecting the issuance by the Company of additional Interest
Rate Warrants of the same issue or reflecting the appointment of a successor
depositary in accordance with Section 1.1(d) or in any other manner which the
Company may deem necessary or desirable; provided that such action shall not
materially adversely affect the interests of the Owners of Interest Rate
Warrants. Notwithstanding anything in this Section 6.1 to the contrary, this
Agreement may not be amended to provide for the countersigning by the
Interest Rate Warrant Agent of Interest Rate Warrant Certificates evidencing
in the aggregate in excess of (________) Interest Rate Warrants unless and
until the Interest Rate Warrant Agent has received notice from (name of Stock
Exchange) or any successor U.S. national securities exchange or Self-
Regulatory Organization that the additional Interest Rate Warrants in excess
of (____________) have been approved for listing on such exchange or
quotation through such Self-Regulatory Organization.
(b) The Company and the Interest Rate Warrant Agent may modify or
amend this Agreement and the Interest Rate Warrant Certificate, with the
consent of the Owners of not fewer than a majority in number of the then
outstanding unexercised Interest Rate Warrants affected by such modification
or amendment, for any purpose; provided, however, that no such modification
--------
or amendment that increases the Exercise Price, (decreases the
29
<PAGE>
Strike Amount)<F6> (increases the Strike Amount,)<F7> shortens the period of
time during which the Interest Rate Warrants may be exercised, increases the
minimum or decreases the maximum number of Interest Rate Warrants that may be
exercised by or on behalf of any one Owner at any one time, changes the
formula for determining the Cash Settlement Value, (insert other prohibited
modifications or amendments) or otherwise materially and adversely affects
the exercise rights of the Owners or reduces the number of outstanding
Interest Rate Warrants the consent of the Owners of which is required for
modification, supplementation or amendment of this Agreement or the Interest
Rate Warrant Certificate, may be made without the consent of each Owner
affected thereby. Prior to the issuance of any Definitive Certificates
pursuant to Section 1.1(a), the Company and the Interest Rate Warrant Agent
shall be entitled to rely upon any certification in form satisfactory to each
of them that any requisite consent has been obtained from the Owners of the
Interest Rate Warrants. Such certification may be provided by Depositary
Participants acting on behalf of such Owners of Interest Rate Warrants,
provided that any such certification is accompanied by a certification from
the Depositary as to the Interest Rate Warrant holdings of such Depositary
Participants.
SECTION 6.2 Notices and Demands to the Company and Interest Rate
----------------------------------------------------
Warrant Agent. If the Interest Rate Warrant Agent shall receive any notice
- -------------
or demand addressed to the Company by any Owner pursuant to the provisions of
the Interest Rate Warrant Certificate, the Interest Rate Warrant Agent shall
promptly forward such notice or demand to the Company.
SECTION 6.3 Addresses for Notices. Any communications from the
---------------------
Company to the Interest Rate Warrant Agent with respect to this Agreement
shall be addressed to (name of Interest Rate Warrant Agent), (address, New
York, New York _____) (facsimile: (_________________)) (telephone:
(_____________)), Attention: Corporate Trust Department; any communications
from the Interest Rate Warrant Agent to the Company with respect to this
Agreement shall be address to The Chase Manhattan Corporation, One Chase
Manhattan Plaza, New York, New York 10081 (facsimile: (___________))
(telephone: 212-( )), Attention: (or such other address as shall be
specified in writing to the other parties hereto by the Interest Rate Warrant
Agent or the Company, respectively).
SECTION 6.4 Notices to Owners. The Company or the Interest Rate
-----------------
Warrant Agent may cause to have notice given to the Owners of Interest Rate
Warrants by providing the Depositary with
- --------------------
<F6> In case of Interest Rate Put Warrants.
<F7> In case of Interest Rate Call Warrants.
30
<PAGE>
a from of notice to be distributed by the Depositary to Depositary
Participants in accordance with the custom and practices of the Depositary.
SECTION 6.5 Governing Law. The validity, interpretation and
-------------
performance of this Agreement and each Interest Rate Warrant issued hereunder
and of the respective terms and provisions thereof shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 6.6 Obtaining of Governmental Approvals. The Company will
-----------------------------------
from time to time use its best efforts to obtain and keep effective any and
all permits, consents and approvals of governmental agencies and authorities
and the (name of U.S. national securities exchange) and filings under the
United States federal and state laws, which may be or become required in
connection with the issuance, sale, trading, transfer or delivery of the
Interest Rate Warrants, the Interest Rate Warrant Certificate and the
exercise of the Interest Rate Warrants.
SECTION 6.7 Persons Having Rights Under the Interest Rate Warrant
-----------------------------------------------------
Agreement. Nothing in this Agreement expressed or implied and nothing that
- ---------
may be inferred from any of the provisions hereof is intended, or shall be
construed, to confer upon, or give to, any person or corporation other than
the Company, the Interest Rate Warrant Agent, the registered holder of the
Interest Rate Warrant Certificate and the Owners any
right, remedy or claim under or by reason of this Agreement or of any
covenant, condition, stipulation, promise or agreement hereof; and all
covenants, conditions, stipulations, promises and agreements in this
Agreement shall be for the sole and exclusive benefit of the Company and the
Interest Rate Warrant Agent and their successors and of the registered holder
of the Interest Rate Warrant Certificate and the Owners.
SECTION 6.8 Headings. The descriptive headings of the several
--------
Articles and Sections and the Table of Contents of this Agreement are for
convenience only and shall not control or affect the meaning or construction
of any of the provisions hereof.
SECTION 6.9 Counterparts. This Agreement may be executed by the
------------
parties hereto in any number of counterparts, each of which when so executed
and delivered shall be deemed to be an original; but all such counterparts
shall together constitute but one and the same instrument.
SECTION 6.10 Inspection of Agreement. A copy of this Agreement
-----------------------
shall be available at all reasonable times at the principal corporate trust
office of the Interest Rate Warrant Agent, for inspection by the registered
holder of the Interest
31
<PAGE>
Rate Warrant Certificate, Depositary Participants, Indirect Participants and
Owners.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
THE CHASE MANHATTAN CORPORATION
By:
---------------------------------------
(Title)
(Name of Interest Rate Warrant
Agent)
By:
---------------------------------------
(Title)
32
<PAGE>
(Legend Required By Depositary)
EXHIBIT A-1
-----------
(NO PAYMENT WILL BE MADE UPON THE EXERCISE OF THIS
WARRANT UNLESS THE INTEREST RATE WARRANT AGENT HAS
RECEIVED THE CERTIFICATION DESCRIBED IN THE
INTEREST RATE WARRANT AGREEMENT)
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
INTEREST RATE WARRANT AGENT AS PROVIDED HEREIN
No. CUSIP No. ( )
-------------
BOOK-ENTRY INTEREST RATE WARRANT CERTIFICATE
representing
(up to ____________) (insert name of interest rate)Interest Rate
(Put/Call) Warrants
Expiring (__________, 19__)
THE CHASE MANHATTAN CORPORATION
This certifies that (__________________) or registered assigns is the
registered holder of (insert name of Interest Rate) Interest Rate (Put/Call)
Warrants (the "Interest Rate Warrants") or such lesser amount as is indicated
in the records of (name of Interest Rate Warrant Agent), as Interest Rate
Warrant Agent. Each Interest Rate Warrant entitles the beneficial owner
thereof (an "Owner"), subject to the provisions contained herein and in the
Interest Rate Warrant Agreement referred to below, to receive in (U.S.
dollars) (other currency) from The Chase Manhattan Corporation (the
"Company") the Cash Settlement Value (as defined herein). In no event shall
any Owners be entitled to any interest on any Cash Settlement Value.
Subject to the terms of the Interest Rate Warrant Agreement and the
limitations described herein, the Interest Rate Warrants may be irrevocably
exercised (on any New York Business Day from their date of issuance until
(1:30 P.M.), New York City time,) on (i) (the date upon which the right to
exercise the Interest Rate Warrants expires or, if such date is not a New
York Business Day (as defined in the Interest Rate Warrant Agreement), on the
next succeeding new York Business Day) (_________, 199_) (the "Expiration
Date") or (ii) the date of automatic exercise or cancellation as further
described below and as provided in the Interest Rate Warrant Agreement.
Except in the case of exercise on the Expiration Date, automatic exercise or
cancellation as described below, not fewer than (_______) (or more than)
Interest Rate Warrants may be exercised by or on behalf of any one Owner on
any one day. References herein to "U.S. dollars" or "U.S.$"
<PAGE>
are to the currency of the United States of America. References to "(name of
Interest Rate currency)" or "(_________)" are to the currency of (name of
Interest Rate country). As used herein, the term "New York Business Day"
means any day other than a Saturday, Sunday, legal holiday or other day on
which the (New York Stock Exchange) (American Stock Exchange) or (relevant
futures and options exchanges on which the underlying securities trade) is
not open for securities trading or banking institutions generally in the City
of New York are authorized or required by law or executive order to close;
(and) "Interest Rate Country Business Day" means any day other than (i) a
Saturday, //Sunday, legal holiday or other day on which banking institutions
generally in (name of Interest Rate country) (name of Base Interest Rate
country or Reference Interest Rate country) are authorized or required by law
or executive order to close or (ii) a day on which the (names of relevant
stock exchanges) (is/are) not open for business (; and ("Payment Currency
Country Resident") ("Interest Rate Country Resident") means a resident of, or
any corporation or other entity organized under the laws of, (name of country
of payment currency) (name of Interest Rate country), its territories, its
possessions or other areas subject to its jurisdiction).
This Interest Rate Warrant Certificate is issued under and in
accordance with the Interest Rate Warrant Agreement, dated as of
(____________, 19__) (the "Interest Rate Warrant Agreement"), among the
Company and the Interest Rate Warrant Agent, and is subject to the terms and
provisions contained in the Interest Rate Warrant Agreement, to all of which
terms and provisions all Owners of the Interest Rate Warrants represented by
this Interest Rate Warrant Certificate and the registered holder of this
Interest Rate Warrant Certificate consent by acceptance hereof by the
Depositary (as defined below). Copies of the Interest Rate Warrant Agreement
are on file at the principal corporate trust office of the Interest Rate
Warrant Agent in New York City. Except as provided in the Interest Rate
Warrant Agreement, Owners will not be entitled to receive definitive
certificates evidencing their Interest Rate Warrants. Interest Rate Warrant
holdings will be held through a depositary selected by the Company which
initially is (The Depository Trust Company) (the "Depositary", which term, as
used herein, includes any successor depositary selected by the Company) as
further provided in the Interest Rate Warrant Agreement.
Capitalized terms included herein but not defined herein have the
meanings assigned thereto in the Interest Rate Warrant Agreement.
The Cash Settlement Value of an exercised Interest Rate Warrant
(whether exercised automatically or by notice) shall mean (insert fraction)
of (the U.S. dollar equivalent (rounded to the nearest (dollar) (cent))) of
(the amount, if any, as quoted in
A-1-2
<PAGE>
whole basis points, by which (i) the Strike Amount exceeds (ii) the Spot
Amount)<F8> (the amount, if any, by which (i) the Spot Amount exceeds (ii)
the Strike Amount)<F9>; provided that, if such amount if less than zero, then
--------
the Cash Settlement shall be zero.
The "Strike Amount" means (insert definition from the Prospectus
Supplement).
The "Spot Amount" on any date means (insert definition from the
Prospectus Supplement).
Except in the case of automatic exercise on the Expiration Date or
cancellation, suspension or delay as further provided below and in the
Interest Rate Warrant Agreement, the "Valuation Date" for an Interest Rate
Warrant shall be the Interest Rate Country Business Day next succeeding the
New York Business Day on which the Interest Rate Warrant Agent has received
(i) delivery of such Interest Rate Warrant on the records of the Depositary
free to the Interest Rate Warrant Account ("Proper Delivery") (,accompanied
by payment in good form of the Exercise Price) and (ii) an Exercise Notice
for such Interest Rate Warrant in good order in the form of Exhibit C-1 to
the Interest Rate Warrant Agreement (which shall include certification that
the exercising Owner is not a (Payment Currency Country Resident (Interest
Rate Country Resident)), at or prior to (1:30 P.M.), New York City time; and
if the Interest Rate Warrant Agent shall receive such delivery of such
Exercise Notice after (1:30 P.M.), New York City time, on such date, the
Valuation Date shall be the next Interest Rate Country Business Day following
the New York Business Day following the New York Business Day on which the
Interest Rate Warrant Agent received such Interest Rate Warrant and such
Exercise Notice. Any delivery of an Interest Rate Warrant (, the Exercise
Price) or Exercise Notice received after (1:30 P.M.), New York City time, on
the Expiration Date shall be void and of no effect and shall be deemed not to
have been delivered, and the Interest Rate Warrants with respect to which
such late delivery or Exercise Notice relates shall be exercised in
accordance with the third succeeding paragraph hereof. A Depositary
Participant may specify in its irrevocable Exercise Notice that such Exercise
Notice is conditional (the "Conditional Exercise Notice"), then such
Conditional Exercise Notice shall be void and of no effect (and shall be
disregarded for all purposes of the Interest Rate Warrant Agreement) if the
Reference Value (as defined in Section 2.1(a) of the Interest Rate Warrant
Agreement) on the Valuation
- --------------------
<F8> In case of Interest Rate Put Warrants.
<F9> In case of Interest Rate Call Warrants.
A-1-3
<PAGE>
Date is more than (_______) (above)<F10> (below)<F11> the Spot Amount on the
date upon which the Conditional Exercise Notice is received (or deemed to
have been received) and not rejected by the Interest Rate Warrant Agent (or
if such date is not an Interest Rate Country Business Day, on the immediately
preceding Interest Rate Country Business Day)).
If the Exercise Notice is not rejected as provided in the Interest
Rate Warrant Agreement, the Interest Rate Warrant Agent will determine the
Cash Settlement Value of the exercised Interest Rate Warrants as provided in
the Interest Rate Warrant Agreement. Provided that the Company has made
adequate funds available to the Interest Rate Warrant Agent in a timely
manner, the Interest Rate Warrant Agent will make payment in the form of a
check (or bank wire transfer if the payment is greater than $__________)
available to the appropriate Depositary Participant which shall be
responsible for crediting the Cash Settlement Value of Interest Rate Warrants
to appropriate Owners, on the fifth Business Day following the Valuation Date
(or, if such Valuation Date is not a New York Business Day, on the sixth New
York Business Day after such Valuation Date) (the "Settlement Date"), all as
provided in the Interest Rate Warrant Agreement, such payment to be in the
amount of the Cash Settlement Value in respect of Interest Rate Warrants
exercised by such Depositary Participant.
The Interest Rate Warrant Agent will promptly cause its records to
be marked to reduce the number of Interest Rate Warrants represented by this
Interest Rate Warrants Certificate by the number of Interest Rate Warrants
(i) for which it has received an Exercise Notice in proper form, (ii) that
were delivered to the Interest Rate Warrant Account, and (iii) for which
payment has been made.
All Interest Rate Warrants with respect to which either (i) there
has been no Proper Delivery (, payment in good form of the Exercise Price has
not been received by the Interest Rate Warrant Agent) or no valid Exercise
Notice has been received by the Interest Rate Warrant Agent at or prior to
(1:30 P.M.), New York City time, on the Expiration Date for such Interest
Rate Warrants, (ii) the Exercise Date which has been postponed pursuant to
Section 2.2(e) of the Interest Rate Warrant Agreement to a date on or after
the New York Business Day preceding the Expiration Date or (iii) there has
been no proper exercise on the New York Business Day on which the Interest
Rate Warrants are permanently delisted or suspended from the (name of U.S.
national securities exchange) and, at or prior to such delisting or
- --------------------
<F10> In case of Interest Rate Put Warrants.
<F11> In case of Interest Rate Call Warrants.
A-1-4
<PAGE>
suspension, the Interest Rate Warrants have not been listed on another U.S.
national securities exchange or quoted through a Self-Regulatory Organization
(the "Unexercised Interest Rate Warrants"), will be deemed automatically
exercised on such Expiration Date without any requirement of notice of
exercise or delivery of the Interest Rate Warrant Certificate to the Interest
Rate Warrant Agent. The Valuation Date for such Interest Rate Warrants shall
be the first Interest Rate Country Business Day following such Expiration
Date.
By 5:00 P.M., New York City time, on the Expiration Date, the
Interest Rate Warrant Agent shall advise the Company of the number of
Unexercised Interest Rate Warrants outstanding after (1:30 P.M.), New York
City time, on such day. On the Valuation for such Unexercised Interest Rate
Warrants (or if such Valuation Date is not a New York Business Day, then the
next succeeding New York Business Day), the Interest Rate Warrant Agent shall
(i) determine the Cash Settlement Value (in the manner provided in Section
2.2(f) of the Interest Rate Warrant Agreement) of the Interest Rate Warrants
to be automatically exercised, (ii) advise the Company by 5:00 P.M. New York
City time, on such Valuation Date of the Cash Settlement Value with respect
to such Interest Rate Warrants and (iii) advise the Company of such other
matters relating to the automatically exercised Interest Rate Warrants as the
Company shall reasonably request. (Following the Expiration Date, the
Depositary shall deliver to the Interest Rate Warrant Agent one or more
certificates in the form of Exhibit D-1 to the Interest Rate Warrant
Agreement executed by the relevant Depositary Participants setting forth the
total number of automatically exercised Interest Rate Warrants with respect
to which such Depositary Participants have received certification that the
beneficial owners thereof are not (Payment Currency Country Residents)
(Interest Rate Country Residents).)
Provided that the Company has made adequate funds available to the
Interest Rate Warrant Agent in a timely manner which shall, in no event, be
later than (1:30 P.M.), New York City time, on the fifth New York Business
Day following the Valuation Date for such automatically exercised Interest
Rate Warrants (or, if such Valuation Date is not a New York Business Day, on
the sixth New York business Day after such Valuation Date), the Interest Rate
Warrant Agent will make its check (or bank wire transfer if the payment is
greater than $_______) available to the Depositary, after (1:30 P.M.), New
York City time, but prior to the close of business, on such fifth New York
Business Day following the Valuation Date for such Interest Rate Warrants
(or, if such Valuation Date is not a New York Business Day, on the sixth New
York Business Day after such Valuation Date), such check to be in the amount
of the ((i)) aggregate Cash Settlement Value ((ii) minus the Exercise Price)
in respect of Interest Rate Warrants that have been automatically exercised,
A-1-5
<PAGE>
transferred to the Interest Rate Warrant Account (and for which the Interest
Rate Warrant Agent has not received certification that the Owners thereof are
not (Payment Currency Country Residents) (Interest Rate Country Residents));
provided, however, that the Interest Rate Warrant Agent shall withhold
- -------- -------
payment of the ((i)) Cash Settlement Value ((ii) minus the Exercise Price)
with respect to any Interest Rate Warrants which have not been transferred to
the Interest Rate Warrant Account and for which the Interest Rate Warrant
Agent has not received a certificate in the form of Exhibit D-1 to the
Interest Rate Warrant Agreement from the appropriate Depositary Participant
until the Interest Rate Warrant Agent has received such Interest Rate
Warrants and certificate with respect to such Interest Rate Warrants. If
pursuant to the immediately preceding sentence the Interest Rate Warrant
Agent has not withheld payment with respect to any Interest Rate Warrants,
the Interest Rate Warrant Agent shall promptly cancel the Interest Rate
Warrant Certificate representing the Interest Rate Warrants automatically
exercised as described above and deliver it to the Issuer. If the Interest
Rate Warrant Agent has withheld payment of the ((i)) Cash Settlement Value
((ii) minus the Exercise Price) with respect to any Interest Rate Warrants,
the Interest Rate Warrant Agent shall act as a successor Depositary and shall
cancel the Interest Rate Warrant Certificate and deliver it to the Company
only upon receipt of certificates in the form of Exhibit D-1 attached to the
Interest Rate Warrant Agreement from the appropriate Depositary Participants
with respect to all of the Interest Rate Warrants then evidenced by the
Interest Rate Warrant Certificate and payment of the total ((i)) Cash
Settlement Value ((ii) minus the Exercise price) withheld. The Interest Rate
Warrant Agent's sole responsibility as successor Depositary with respect to
the Unexercised Interest Rate Warrants shall be to pay the ((i)) Cash
Settlement Value ((ii) minus the Exercise Price) of such Interest Rate
Warrants upon receipt of ((i)) the related Interest Rate Warrants and (ii)
certificates in the form of Exhibit D-1 to the Interest Rate Warrant
Agreement from the appropriate Depositary Participants.
The Company, the Interest Rate Warrant Agent and any agent of the
Company or the Interest Rate Warrant Agent may deem and treat the registered
holder hereof as the absolute Owner of the Interest Rate Warrants represented
hereby (notwithstanding any notation of ownership or other writing hereon)
for any purpose and as the person entitled to exercise the rights represented
by the Interest Rate Warrants evidenced hereby, and neither the Company nor
the Interest Rate Warrant Agent nor any agent of the Company or the Interest
Rate Warrant Agent shall be affected by any notice to the contrary, subject
to certain provisions of the Interest Rate Warrant Agreement, except that the
Company and the Interest Rate Warrant Agent shall be entitled to rely on and
act pursuant to instructions of Depositary
A-1-6
<PAGE>
Participants as contemplated herein and in the Interest Rate Warrant
Agreement.
Subject to the terms of the Interest Rate Warrant Agreement, upon
due presentment for registration of transfer of this Interest Rate Warrant
Certificate at (the principal corporate trust office of the Interest Rate
Warrant Agent) in (New York City), the Company shall execute and the Interest
Rate Warrant Agent shall countersign and deliver in the name of the
designated transferee a new Interest Rate Warrant Certificate of like tenor
and representing a like number of unexercised Interest Rate Warrants as
evidenced by this Interest Rate Warrant Certificate at the time of such
registration of transfer which shall be issued to the designated transferee
in exchange for this Interest Rate Warrant Certificate, subject to the
limitations provided in the Interest Rate Warrant Agreement, without charge.
This Interest Rate Warrant Certificate and the Interest Rate
Warrant Agreement are subject to amendment as provided in the Interest Rate
Warrant Agreement.
The validity, interpretation and performance of this Interest Rate
Warrant Certificate and its terms and provisions shall be governed by and
construed in accordance with the laws of the State of New York.
This Interest Rate Warrant Certificate shall not be valid or
obligatory for any purpose until countersigned by the Interest Rate Warrant
Agent.
A-1-7
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated as of (_________, 19__)
THE CHASE MANHATTAN CORPORATION
By:
---------------------------------------------
(title)
(SEAL)
Attest:
------------------------------------------
(title)
Countersigned on the date
above written:
(Name of Interest Rate Warrant Agent),
as Interest Rate Warrant Agent
By:
---------------------------
(title)
A-1-8
<PAGE>
EXHIBIT A-2
-----------
(NO PAYMENT WILL BE MADE UPON THE EXERCISE OF THIS
WARRANT UNLESS THE INTEREST RATE WARRANT AGENT HAS
RECEIVED THE CERTIFICATION DESCRIBED IN THE
INTEREST RATE WARRANT AGREEMENT)
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
INTEREST RATE WARRANT AGENT AS PROVIDED HEREIN
No. CUSIP No. ( )
-------------
INTEREST RATE WARRANT CERTIFICATE
representing
(up to ____________) (insert name of interest rate)Interest Rate
(Put/Call) Warrants
Expiring (__________, 19__)
THE CHASE MANHATTAN CORPORATION
This certifies that (the bearer) (__________________ or registered
assigns) (the "Holder") is the registered Holder of (insert name of Interest
Rate) Interest Rate (Put/Call) Warrants (the "Interest Rate Warrants") or
such lesser amount as is indicated in the records of (name of Interest Rate
Warrant Agent), as Interest Rate Warrant Agent. Each Interest Rate Warrant
entitles the Holder, subject to the provisions contained herein and in the
Interest Rate Warrant Agreement referred to below, to receive in (U.S.
dollars) (other currency) from The Chase Manhattan Corporation (the
"Company") the Cash Settlement Value (as defined herein). In no event shall
the Holder hereof be entitled to any interest on any Cash Settlement Value.
Subject to the terms of the Interest Rate Warrant Agreement and the
limitations described herein, the Interest Rate Warrants may be irrevocably
exercised (on any New York Business Day from their date of issuance until
(1:30 P.M.), New York City time,) on (i) (the date upon which the right to
exercise the Interest Rate Warrants expires or, if such date is not a New
York Business Day (as defined in the Interest Rate Warrant Agreement), on the
next succeeding new York Business Day) (_________, 199_) (the "Expiration
Date") or (ii) the date of automatic exercise or cancellation as further
described below and as provided in the Interest Rate Warrant Agreement.
Except in the case of exercise on the Expiration Date, automatic exercise or
cancellation as described below, not fewer than (_______) (or more than)
Interest Rate Warrants may be exercised by or on behalf of any one Holder on
any one day. References herein to "U.S. dollars" or "U.S.$" are to the
currency of the United States of America. References to "(name of Interest
Rate currency)" or "(_________)" are to the currency of (name of Interest
Rate country). As used herein, the
A-2-1
<PAGE>
term "New York Business Day" means any day other than a Saturday, Sunday,
legal holiday or other day on which the (New York Stock Exchange) (American
Stock Exchange) or (relevant futures and options exchanges on which the
underlying securities trade) is not open for securities trading or banking
institutions generally in the City of New York are authorized or required by
law or executive order to close; (and) "Interest Rate Country Business Day"
means any day other than (i) a Saturday, //Sunday, legal holiday or other day
on which banking institutions generally in (name of Interest Rate country)
(name of Base Interest Rate country or Reference Interest Rate country) are
authorized or required by law or executive order to close or (ii) a day on
which the (names of relevant stock exchanges) (is/are) not open for business
(; and ("Payment Currency Country Resident") ("Interest Rate Country
Resident") means a resident of, or any corporation or other entity organized
under the laws of, (name of country of payment currency) (name of Interest
Rate country), its territories, its possessions or other areas subject to its
jurisdiction).
This Interest Rate Warrant Certificate is issued under and in
accordance with the Interest Rate Warrant Agreement, dated as of
(____________, 19__) (the "Interest Rate Warrant Agreement"), among the
Company and the Interest Rate Warrant Agent, and is subject to the terms and
provisions contained in the Interest Rate Warrant Agreement, to all of which
terms and provisions the registered Holder of this Interest Rate Warrant
Certificate consents by acceptance hereof. Copies of the Interest Rate
Warrant Agreement are on file at the principal corporate trust office of the
Interest Rate Warrant Agent in New York City.
Capitalized terms included herein but not defined herein have the
meanings assigned thereto in the Interest Rate Warrant Agreement.
The Cash Settlement Value of an exercised Interest Rate Warrant
(whether exercised automatically or by notice) shall mean (insert fraction)
of (the U.S. dollar equivalent (rounded to the nearest (dollar) (cent))) of
(the amount, if any, as quoted in whole basis points, by which (i) the Strike
Amount exceeds (ii) the Spot Amount)<F12> (the amount, if any, by which (i)
the Spot Amount exceeds (ii) the Strike Amount)<F13>; provided that, if such
--------
amount if less than zero, then the Cash Settlement shall be zero.
The "Strike Amount" means (insert definition from the Prospectus
Supplement).
- --------------------
<F12> In case of Interest Rate Put Warrants.
<F13> In case of Interest Rate Call Warrants.
A-2-2
<PAGE>
The "Spot Amount" on any date means (insert definition from the
Prospectus Supplement).
Except in the case of automatic exercise on the Expiration Date or
cancellation, suspension or delay as further provided below and in the
Interest Rate Warrant Agreement, the "Valuation Date" for an Interest Rate
Warrant shall be the Interest Rate Country Business Day next succeeding the
New York Business Day on which the Interest Rate Warrant Agent has received
(i) delivery of such Interest Rate Warrant by delivery of this Interest Rate
Warrant Certificate ("Proper Delivery") (,accompanied by payment in good form
of the Exercise Price) and (ii) an Exercise Notice for such Interest Rate
Warrant in good order in the form of Exhibit C-2 to the Interest Rate Warrant
Agreement (which shall include certification that the Holder of this Interest
Rate Warrant Certificate is not a (Payment Currency Country Resident)
(Interest Rate Country Resident)), at or prior to (1:30 P.M.), New York City
time; and if the Interest Rate Warrant Agent shall receive such delivery of
such Exercise Notice after (1:30 P.M.), New York City time, on such date, the
Valuation Date shall be the next Interest Rate Country Business Day following
the New York Business Day following the New York Business Day on which the
Interest Rate Warrant Agent received such Interest Rate Warrant and such
Exercise Notice. Any delivery of an Interest Rate Warrant (, the Exercise
Price) or Exercise Notice received after (1:30 P.M.), New York City time, on
the Expiration Date shall be void and of no effect and shall be deemed not to
have been delivered, and the Interest Rate Warrants with respect to which
such late delivery or Exercise Notice relates shall be exercised in
accordance with the third succeeding paragraph hereof. The Holder of this
Interest Rate Warrant Certificate may specify in its irrevocable Exercise
Notice that such Exercise Notice is conditional (the "Conditional Exercise
Notice"), then such Conditional Exercise Notice shall be void and of no
effect (and shall be disregarded for all purposes of the Interest Rate
Warrant Agreement) if the Reference Value (as defined in Section 2.1(a) of
the Interest Rate Warrant Agreement) on the Valuation Date is more than
(_______) (above)<F14> (below)<F15> the Spot Amount on the date upon which
the Conditional Exercise Notice is received (or deemed to have been received)
and not rejected by the Interest Rate Warrant Agent (or if such date is not
an Interest Rate Country Business Day, on the immediately preceding Interest
Rate Country Business Day)).
If the Exercise Notice is not rejected as provided in the Interest
Rate Warrant Agreement, the Interest Rate Warrant Agent will determine the
Cash Settlement Value of the exercised
- --------------------
<F14> In case of Interest Rate Put Warrants.
<F15> In case of Interest Rate Call Warrants.
A-2-3
<PAGE>
Interest Rate Warrants as provided in the Interest Rate Warrant Agreement.
Provided that the Company has made adequate funds available to the Interest
Rate Warrant Agent in a timely manner, the Interest Rate Warrant Agent will
make payment in the form of a check (or bank wire transfer if the payment is
greater than $__________) available to the Holder of this Interest Rate
Warrant Certificate on the fifth Business Day following the Valuation Date
(or, if such Valuation Date is not a New York Business Day, on the sixth New
York Business Day after such Valuation Date) (the "Settlement Date"), all as
provided in the Interest Rate Warrant Agreement, such payment to be in the
amount of the Cash Settlement Value in respect of Interest Rate Warrants
exercised by such Holder.
The Interest Rate Warrant Agent will promptly cause its records to
be marked to reduce the number of Interest Rate Warrants represented by this
Interest Rate Warrants Certificate by the number of Interest Rate Warrants
(i) for which it has received an Exercise Notice in proper form, (ii) that
were delivered to the Interest Rate Warrant Agent, and (iii) for which
payment has been made.
All Interest Rate Warrants with respect to which either (i) there
has been no Proper Delivery (, payment in good form of the Exercise Price has
not been received by the Interest Rate Warrant Agent) or no valid Exercise
Notice has been received by the Interest Rate Warrant Agent at or prior to
(1:30 P.M.), New York City time, on the Expiration Date for such Interest
Rate Warrants, (ii) the Exercise Date which has been postponed pursuant to
Section 2.2(e) of the Interest Rate Warrant Agreement to a date on or after
the New York Business Day preceding the Expiration Date or (iii) there has
been no proper exercise on the New York Business Day on which the Interest
Rate Warrants are permanently delisted or suspended from the (name of U.S.
national securities exchange) and, at or prior to such delisting or
suspension, the Interest Rate Warrants have not been listed on another U.S.
national securities exchange or quoted through a Self-Regulatory Organization
(the "Unexercised Interest Rate Warrants"), will be deemed automatically
exercised on such Expiration Date without any requirement of notice of
exercise or delivery of this Interest Rate Warrant Certificate to the
Interest Rate Warrant Agent. The Valuation Date for such Interest Rate
Warrants shall be the first Interest Rate Country Business Day following such
Expiration Date.
By 5:00 P.M., New York City time, on the Expiration Date, the
Interest Rate Warrant Agent shall advise the Company of the number of
Unexercised Interest Rate Warrants outstanding after (1:30 P.M.), New York
City time, on such day. On the Valuation for such Unexercised Interest Rate
Warrants (or if such Valuation Date is not a New York Business Day, then the
next
A-2-4
<PAGE>
succeeding New York Business Day), the Interest Rate Warrant Agent shall (i)
determine the Cash Settlement Value (in the manner provided in Section 2.2(f)
of the Interest Rate Warrant Agreement) of the Interest Rate Warrants to be
automatically exercised, (ii) advise the Company by 5:00 P.M. New York City
time, on such Valuation Date of the Cash Settlement Value with respect to
such Interest Rate Warrants and (iii) advise the Company of such other
matters relating to the automatically exercised Interest Rate Warrants as the
Company shall reasonably request. (Following the Expiration Date, the Holder
of this Interest Rate Warrant Certificate shall deliver to the Interest Rate
Warrant Agent one or more certificates in the form of Exhibit D-2 to the
Interest Rate Warrant Agreement setting forth the total number of
automatically exercised Interest Rate Warrants with respect to which such
Holder certifies that it is not a (Payment Currency Country Resident)
(Interest Rate Country Resident).)
Provided that the Company has made adequate funds available to the
Interest Rate Warrant Agent in a timely manner which shall, in no event, be
later than (1:30 P.M.), New York City time, on the fifth New York Business
Day following the Valuation Date for such automatically exercised Interest
Rate Warrants (or, if such Valuation Date is not a New York Business Day, on
the sixth New York business Day after such Valuation Date), the Interest Rate
Warrant Agent will make its check (or bank wire transfer if the payment is
greater than $_______) available to the Holder of this Interest Rate Warrant
Certificate, after (1:30 P.M.), New York City time, but prior to the close of
business, on such fifth New York Business Day following the Valuation Date
for such Interest Rate Warrants (or, if such Valuation Date is not a New York
Business Day, on the sixth New York Business Day after such Valuation Date),
such check to be in the amount of the ((i)) aggregate Cash Settlement Value
((ii) minus the Exercise Price) in respect of Interest Rate Warrants that
have been automatically exercised, delivered to the Interest Rate Warrant
Agent (and with respect to which the Interest Rate Warrant Agent has received
certification that such Holder is not a (Payment Currency Country Resident)
(Interest Rate Country Resident); provided, however, that the Interest Rate
-------- -------
Warrant Agent shall withhold payment of the ((i)) Cash Settlement Value ((ii)
minus the Exercise Price) with respect to any Interest Rate Warrant
Certificate which has not been received by the Interest Rate Warrant Agent
and for which the Interest Rate Warrant Agent has not received a certificate
in the form of Exhibit D-2 to the Interest Rate Warrant Agreement until the
Interest Rate Warrant Agent has received such Interest Rate Warrant
Certificate and certificate with respect to such Interest Rate Warrants. If
pursuant to the immediately preceding sentence the Interest Rate Warrant
Agent has not withheld payment with respect to any Interest Rate Warrants,
the Interest Rate Warrant Agent shall promptly cancel the Interest Rate
Warrant Certificate representing the Interest Rate Warrants automatically
exercised
A-2-5
<PAGE>
as described above and deliver it to the Issuer. If the Interest Rate
Warrant Agent has withheld payment of the ((i)) Cash Settlement Value ((ii)
minus the Exercise Price) with respect to any Interest Rate Warrants, the
Interest Rate Warrant Agent shall cancel this Interest Rate Warrant
Certificate and deliver it to the Company only upon receipt of a certificate
in the form of Exhibit D-2 attached to the Interest Rate Warrant Agreement
from the Holder of this Interest Rate Warrant Certificate with respect to all
of the Interest Rate Warrants then evidenced by this Interest Rate Warrant
Certificate and payment of the total ((i)) Cash Settlement Value ((ii) minus
the Exercise price) withheld. The Interest Rate Warrant Agent's sole
responsibility with respect to the Unexercised Interest Rate Warrants shall
be to pay the ((i)) Cash Settlement Value ((ii) minus the Exercise Price) of
such Interest Rate Warrants upon receipt of (i) the related Interest Rate
Warrants and (ii) a certificate in the form of Exhibit D-2 to the Interest
Rate Warrant Agreement from the Holder of this Interest Rate Warrant
Certificate.
The Company, the Interest Rate Warrant Agent and any agent of the
Company or the Interest Rate Warrant Agent may deem and treat the registered
Holder hereof as the absolute owner of the Interest Rate Warrants represented
hereby (notwithstanding any notation of ownership or other writing hereon)
for any purpose and as the person entitled to exercise the rights represented
by the Interest Rate Warrants evidenced hereby, and neither the Company nor
the Interest Rate Warrant Agent nor any agent of the Company or the Interest
Rate Warrant Agent shall be affected by any notice to the contrary, subject
to certain provisions of the Interest Rate Warrant Agreement.
Subject to the terms of the Interest Rate Warrant Agreement, upon
due presentment for registration of transfer of this Interest Rate Warrant
Certificate at (the principal corporate trust office of the Interest Rate
Warrant Agent) in (New York City), the Company shall execute and the Interest
Rate Warrant Agent shall countersign and deliver in the name of the
designated transferee a new Interest Rate Warrant Certificate of like tenor
and representing a like number of unexercised Interest Rate Warrants as
evidenced by this Interest Rate Warrant Certificate at the time of such
registration of transfer which shall be issued to the designated transferee
in exchange for this Interest Rate Warrant Certificate, subject to the
limitations provided in the Interest Rate Warrant Agreement, without charge.
This Interest Rate Warrant Certificate and the Interest Rate
Warrant Agreement are subject to amendment as provided in the Interest Rate
Warrant Agreement.
The validity, interpretation and performance of this Interest Rate
Warrant Certificate and its terms and provisions
A-2-6
<PAGE>
shall be governed by and construed in accordance with the laws of the State
of New York.
This Interest Rate Warrant Certificate shall not be valid or
obligatory for any purpose until countersigned by the Interest Rate Warrant
Agent.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated as of (_________, 19__)
THE CHASE MANHATTAN CORPORATION
By:
---------------------------------------------
(title)
(SEAL)
Attest:
------------------------------------------
(title)
Countersigned on the date
above written:
(Name of Interest Rate Warrant Agent),
as Interest Rate Warrant Agent
By:
---------------------------
(title)
A-2-7
<PAGE>
EXHIBIT B
---------
Form of Transfer of Interest Rate Warrant Certificate
-----------------------------------------------------
(______________________), as Interest Rate Warrant Agent
Corporate Trust Department
(address)
(Telex:__________________)
(Facsimile:______________)
(_________________), the registered holder of the Interest Rate
Warrant Certificate representing all unexercised The Chase Manhattan
Corporation (name of Interest Rate) (Put/Call) Warrants Expiring
(_____________, 19___), hereby requests the transfer of such Interest Rate
Warrant Certificate to _______________________________.
Dated:_________ (NAME OF REGISTERED HOLDER)
By:
------------------------------------
GUARANTY OF SIGNATURE
(NAME OF GUARANTOR)
By:
---------------------------
Name:
Title:
B-1
<PAGE>
EXHIBIT C-1
-----------
Form of Exercise Notice from Depositary Participant
---------------------------------------------------
_________________, as Interest Rate Warrant Agent
Attention:______________________________
(Facsimile:_____________________________)
(Telephone:_____________________________)
(Telex:_________________________________)
Re: Exercise of The Chase Manhattan Corporation
(name of Interest Rate) (Put/Call) Warrants
Expiring , 19 ("Interest Rate Warrants")
--------------------------------------------------
1. We refer to the Interest Rate Warrant Agreement dated as of
(________________, 19__) (the "Interest Rate Warrant Agreement") between The
Chase Manhattan Corporation (the "Company") and (______) (the "Interest Rate
Warrant Agent"). On behalf of certain clients, each of whom is exercising no
fewer than ( ) Interest Rate (or more than (____) Interest Rate Warrants)
and whose Interest Rate Warrants are held in our name, we hereby irrevocably
exercise (________) Interest Rate Warrants (the "Tendered Warrants").
2. This Exercise Notice (is) (is not) a Conditional Exercise
Notice. We hereby acknowledge that a Conditional Exercise Notice will be
void and of no effect (and shall be disregarded for all purposes under the
Interest Rate Warrant Agreement) if the Spot Amount on the Valuation Date is
more than (__________) (above)<F1> (below)<F2> the closing value of the (name
of Interest Rate) on the date this Exercise Notice is received by you (or
deemed to have been received by you) and not rejected (or if such date is not
an Interest Rate Country Business Day, on the immediately preceding Interest
Rate Country Business Day).
3. We have instructed the Depositary to deliver the Exercised
Warrants (and the Exercise Price) free through the Depositary to the Interest
Rate Warrant Account. (Account No. (__________________)).
4. We hereby acknowledge that this Exercise Notice (, the
Exercise Price) and the Tendered Warrants must be received by you by (1:30
P.M.), New York City time, on the date hereof in order for the Valuation Date
of the Tendered Warrants to be the
- --------------------
<F1> In case of Interest Rate Put Warrants.
<F2> In case of Interest Rate Call Warrants.
C-1-1
<PAGE>
next succeeding Interest Rate Country Business Day and that if this Exercise
Notice (, the Exercise Price) or the Tendered Warrants are received by you
after (1:30 P.M.), New York City time, but prior to the close of business on
such date, the Valuation Date of the Tendered Warrants shall be the next
Interest Rate Country Business Day following the New York Business Day on
which such Exercise Notice is received. (We further acknowledge that if this
Conditional Exercise Notice (, the Exercise Price) or the Tendered Warrants
are received by you after (1:30 P.M.), New York City time, but prior to the
close of business on the date hereof, that for purposes of making the
determinations required by such Conditional Exercise Notice, the Interest
Rate Warrants will be deemed to be exercised on the next succeeding New York
Business Day following the date hereof.)<F3>
5. We hereby certify that we are a participant of (The Depository
Trust Company) (the "Depositary") with the present right to use and receive
its services.
6. We hereby acknowledge that if you determine that this Exercise
Notice has not been fully completed, or is not in proper form, or you are
unable to verify that we are a participant of the Depositary as provided
above, this Exercise Notice will be void and of no effect and will be deemed
not to have been delivered.
(7. We hereby certify that none of the clients on whose behalf we
are exercising the above referenced Interest Rate Warrants are (Payment
Currency Country Residents) (Interest Rate Country Residents).)
Capitalized terms used herein and not defined have the meanings
assigned thereto in the Interest Rate Warrant Agreement.
Dated:________________ __, 19__
(NAME OF DEPOSITARY
PARTICIPANT)
(Participant Number)
By
------------------------------------------
Authorized Signature
(Address)
Telephone:_______________
Facsimile:_______________
- ----------------
<F3> In case of Conditional Excerise Notices.
C-1-2
<PAGE>
EXHIBIT C-2
-----------
Form of Exercise Notice from Owner
----------------------------------
_________________, as Interest Rate Warrant Agent
(Address):
Attention:______________________________
(Facsimile:_____________________________)
(Telephone:_____________________________)
(Telex:_________________________________)
Re: Exercise of The Chase Manhattan Corporation
(name of Interest Rate) (Put/Call) Warrants
Expiring , 19 ("Interest Rate Warrants")
--------------------------------------------------
1. We refer to the Interest Rate Warrant Agreement dated as of
(________________, 19__) (the "Interest Rate Warrant Agreement") between The
Chase Manhattan Corporation (the "Company") and (______) (the "Interest Rate
Warrant Agent"). We hereby irrevocably exercise (no fewer than) (________)
Interest Rate Warrants (or more than (_____) Interest Rate Warrants) (the
"Tendered Warrants") and deliver to you herewith a Definitive Certificate or
Certificates, registered in the name of the undersigned, representing a
number of Interest Rate Warrants at least equal to the Number of Exercised
Warrants (, accompanied by payment in full of the Exercise Price (, in U.S.
Dollars (other currency) (in cash or certified or official bank check in New
York Clearing House funds) (by wire transfer in immediately available funds)
payable to the account of the Company.).
2. This Exercise Notice (is) (is not) a Conditional Exercise
Notice. We hereby acknowledge that a Conditional Exercise Notice will be
void and of no effect (and shall be disregarded for all purposes under the
Interest Rate Warrant Agreement) if the closing value of the (name of
Interest Rate) on the date the Valuation Date is more than (__________)
(above)<F1> (below)<F2> the closing value of the (name of Interest Rate) on
the date this Exercise Notice was received (or deemed to have been received)
and not rejected (or if such date is not an Interest Rate Country Business
Day, on the immediately preceding Interest Rate Country Business Day).
3. We hereby acknowledge that this Exercise Notice (, the
Exercise Price) and the related Definitive Certificates must be received by
you by (1:30 P.M.), New York City time, on the
C-2-1
- -------------
<F1> In case of Interest Rate Put Warrants.
<F2> In case of Interest Rate Call Warrants.
<PAGE>
date hereof in order for the Valuation Date of the Tendered Warrants to be
the next succeeding Interest Rate Country Business Day and that if this
Exercise Notice (, the Exercise Price) or such Definitive Certificates are
received by you after (1:30 P.M.), New York City time, the Valuation Date of
the Tendered Warrants shall be the next Interest Rate Country Business Day
following the New York Business Day on which this Exercise Notice (, the
Exercise Price) and such Definitive Certificates are received. (We further
acknowledge that if this Conditional Exercise Notice or the Definitive
Certificates are received by you after (1:30 P.M.), New York City time, but
prior to the close of business on the date hereof, that for purposes of
making the determinations required by such Conditional Exercise Notice, the
Interest Rate Warrants will be deemed to be exercised on the next succeeding
New York Business Day following the date hereof.)<F3>
(4. We hereby certify that none of the undersigned Owners who are
exercising the above referenced Interest Rate Warrants is a (Payment Currency
Country Resident) (Interest Rate Country Resident).)
Capitalized terms used herein and not defined have the meanings
assigned thereto in the Interest Rate Warrant Agreement.
Dated:________________ __, 19__
(NAME OF OWNER)
By
------------------------------------------
Authorized Signature
(Address)
Telephone:_______________
Facsimile:_______________
- ------------
<F3> In case of Conditional Exercise Notice.
C-2-2
<PAGE>
EXHIBIT C-3
-----------
Notice of Rejection
-------------------
(Choose paragraph A or B)
(A) You are hereby notified that (the Exercise Notice delivered by
you was determined by us not to have been (duly completed) (in proper form)
(the Definitive Certificate delivered by you was determined by us not to have
been in proper form) (the Exercise price delivered by you with the Exercise
Notice was determined by us not to have been in proper form) (we were not
able to verify that you are a participant of (The Depository Trust Company)
in the manner, and pursuant to the procedures), as set forth in the Interest
Rate Warrant Agreement, dated as of (_______________, 19___), between The
Chase Manhattan Corporation, and ( ), as Interest Rate Warrant
Agent. Accordingly, we have rejected your Exercise Notice as being
unsatisfactory as to form.
(B) You are hereby notified that we have rejected your Conditional
Exercise Notice, because (the closing value of the Interest Rate on the
Valuation Date was (__________), and the closing value of the Interest Rate
on the date upon which we received (or was deemed to have received) such
Exercise Notice was (____________________).
Dated: (___________________________, 199__)
______________________, as
Interest Rate Warrant Agent
By:
------------------------------------
Authorized Agent
C-3-1
<PAGE>
EXHIBIT C-4
-----------
Confirmation of Exercise
We hereby confirm receipt of your Interest Rate Warrants and your
Exercise Notice (and Exercise Price) with respect to such Interest Rate
Warrants (the "Exercised Warrants"), which Exercise Notice (and Exercise
Price) we have found to be duly completed and in good order, (and we have
verified, in the manner provided in the Interest Rate Warrant Agreement, that
you are a Depositary Participant.)<F1> The Valuation Date of the Exercised
Warrant is (_____________________________________).
We hereby confirm that the Exercised Warrants have been exercised
at the (Interest Rate Value of (___________)) and that the aggregate Cash
Settlement Value of (payment currency) (_______________) ((payment currency)
(__________) per Interest Rate Warrant will be made available to you in the
form of a check, five New York Business Days after the Valuation Date (or six
New York Business Days in the case that the Valuation Date for the exercised
Interest Rate Warrants was not a New York Business Day) in accordance with
the terms of the Interest Rate Warrant Agreement.
Capitalized terms included herein but not defined have the meanings
assigned thereto in the Interest Rate Warrant Agreement dated as of
(_______________, 19__) between The Chase Manhattan Corporation and
(__________), as Interest Rate Warrant Agent.
Dated: (__________________________ , 199__)
______________________, as
Interest Rate Warrant Agent
By:
------------------------------------
Authorized Agent
- ---------------
<F1> Not necessary with respect to Interest Rate Warrants
represented by Definitive Certificates.
C-4-1
<PAGE>
EXHIBIT C-5
-----------
Confirmation of Exercise
------------------------
for Delayed Exercise Warrants
-----------------------------
We hereby confirm receipt of your Interest Rate Warrants and your
Exercise Notice (and Exercise Price) with respect to such Interest Rate
Warrants (the "Tendered Warrants"), which Exercise Notice (and Exercise
Price) we have found to be duly completed and in good order, (and we have
verified, in the manner provided in the Interest Rate Warrant Agreement, that
you are a Depositary Participant.)<F1> The Valuation Date of the Exercised
Warrant is (_____________________________________).
(The Company has elected to limit the number of Interest Rate
Warrants that may have an Exercise Date on (____________, 19__) to
(______________). Of the Tendered Warrants, (_____________) Interest Rate
Warrants have been selected to be Interest Rate Warrants that will have an
Exercise Date on _______________, 19__) (such Interest Rate Warrants, the
"Exercised Warrants"). The remaining (_______________) Tendered Warrants are
deemed to be Delayed Exercise Warrants.) All of the Tendered Warrants will
have an Exercise Date on (______________, 19___) and are hereinafter referred
to as "Exercised Warrants".)
We hereby confirm that the Exercised Warrants have been exercised
at the Interest Rate Value of (___________) and that the aggregate Cash
Settlement Value of ( ) (_______________) ((payment currency)
per Interest Rate Warrant will be made available to you in the form of a
check, five New York Business Days after the Valuation Date (or six New York
Business Days in the case that the Valuation Date for the exercised Interest
Rate Warrants was not a New York Business Day) in accordance with the terms
of the Interest Rate Warrant Agreement.
Capitalized terms included herein but not defined have the meanings
assigned thereto in the Interest Rate Warrant Agreement dated as of
(_______________, 19__) between The Chase
- ------------------
<F1> Not necessary with respect to Interest Rate Warrants
represented by Definitive Certificates.
C-5-1
<PAGE>
Manhattan Corporation and (__________), as Interest Rate Warrant Agent.
Dated: (___________________________, 199__)
______________________, as
Interest Rate Warrant Agent
By:
------------------------------------
Authorized Agent
C-5-2
<PAGE>
EXHIBIT D-1
-----------
Form of Depositary Participant Certificate
------------------------------------------
(______________________________________________),
as Interest Rate Warrant Agent
(Department)
(Address)
Attention:______________________________
(Facsimile:_____________________________)
(Telephone:_____________________________)
(Telex:_________________________________)
Re: Automatic Exercise of The Chase Manhattan Corporation (name of
Interest Rate) (Put/Call) Warrants Expiring
, 19 (the "Interest Rate Warrants")
------------------------------------------------
We refer to the Interest Rate Warrant Agreement dated as of
(________________, 19__) (the "Interest Rate Warrant Agreement") between The
Chase Manhattan Corporation (the "Company") and (______) (the "Interest Rate
Warrant Agent"). We hereby certify that we own on behalf of our clients
(________) Interest Rate Warrants which have been automatically exercised
pursuant to the Interest Rate Warrant Agreement. (We hereby further certify
that none of such Interest Rate Warrants are beneficially owned by Owners who
are (Payment Currency Country Residents) (Interest Rate Country Residents)
(as defined in the Interest Rate Warrant Agreement).)
Dated:________________ __, 19__
(NAME OF DEPOSITARY PARTICIPANT)
By
------------------------------------------
Authorized Signature
(Address)
Telephone:_______________
Facsimile:_______________
D-1-1
<PAGE>
EXHIBIT D-2
-----------
Form of Owner Certificate
-------------------------
(_______________________________),
as Interest Rate Warrant Agent
(Department)
(Address)
Attention:______________________________
(Facsimile:_____________________________)
(Telephone:_____________________________)
(Telex:_________________________________)
Re: Automatic Exercise of The Chase Manhattan
Corporation (name of Interest Rate)
(Put/Call) Warrants Expiring
19 (the "Interest Rate Warrants")
--------------------------------------------------
We refer to the Interest Rate Warrant Agreement dated as of
_________________, 19__) (the "Interest Rate Warrant Agreement") between The
Chase Manhattan Corporation (the "Company") and (______) (the "Interest Rate
Warrant Agent"). We hereby certify that we own (________) Interest Rate
Warrants which have been automatically exercised pursuant to the Interest
Rate Warrant Agreement and which we have delivered to you. (We hereby
further certify that, as of the date hereof, we are not a resident of, nor a
corporation or other entity organized under the laws of (name of country of
payment currency) (name of Interest Rate country), its territories, its
possessions or other areas subject to its jurisdiction.)
Dated:________________ __, 19__
(NAME OF OWNER)
By
------------------------------------------
Authorized Signature
(Address)
Telephone:_______________
Facsimile:_______________
Bank Account Designated for
Payment:___________________
D-2-1
<PAGE> 1
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
AND PREFERRED STOCK DIVIDEND REQUIREMENTS
The Chase Manhattan Corporation (Consolidated)
<TABLE>
<CAPTION>
_______________________________________________________________________________
Nine Months Ended Year Ended
September 30, December 31,
_______________________________________________________________________________
($ in millions) 1994 1993 1993 1992 1991 1990 1989
_______________________________________________________________________________
EARNINGS:
<S> <C> <C> <C> <C> <C> <C> <C>
Net Income
(Loss) Applicable
to Common Stock $ 880 $ 544 $ 826 $ 515 $420 $(417) $(743)
Less: Cumulative
Effect of Change in
Accounting Principle* - 500 500 - - - -
_______________________________________________________________________________
Net Income (Loss)
Applicable to
Common Stock Before
Cumulative Effect
of Change in
Accounting
Principle $ 880 $ 44 $ 326 $ 515 $ 420 $ (417)$ (743)
Less: Equity in
Undistributed
Income (Loss) of
Unconsolidated
Subsidiaries and
Associated
Companies 7 21 36 11 (32) (40) (20)
Income Taxes (Benefits) 583 93 265 186 124 203 196
Fixed Charges,
Excluding
Interest on Deposits 1,832 2,070 2,810 2,401 2,088 3,273 4,016
_______________________________________________________________________________
Total Earnings,
Excluding Interest
on Deposits, as
Adjusted 3,288 2,186 3,365 3,091 2,664 3,099 3,489
Interest on Deposits 1,717 1,545 2,014 2,935 4,374 5,273 5,080
_______________________________________________________________________________
Total Earnings,
Including
Interest on
Deposits, as
Adjusted $5,005 $3,731 $5,379 $6,026 $7,038 $8,372 $8,569
================================================================================
FIXED CHARGES AND PREFERRED
STOCK DIVIDEND REQUIREMENTS:
Interest Expense and
Amortization of
Debt Discount and
Issuance Costs,
Excluding Interest
on Deposits $1,685 $1,907 $2,591 $2,205 $1,920 $3,115 $3,860
Preferred Stock
Dividend
Requirements
(Pre-Tax
Equivalent) 153 184 239 209 168 140 131
One-Third of Net
Rental Expense 51 54 79 72 68 75 78
________________________________________________________________________________
Total Fixed Charges
and Preferred Stock
Dividend
Requirements,
Excluding Interest
on Deposits 1,889 2,145 2,909 2,486 2,156 3,330 4,069
Interest on Deposits 1,717 1,545 2,014 2,935 4,374 5,273 5,080
_______________________________________________________________________________
Total Fixed Charges
and Preferred Stock
Dividend
Requirements,
Including Interest
on Deposits $3,606 $3,690 $4,923 $5,421 $6,530 $8,603 $9,149
================================================================================
RATIO OF EARNINGS TO FIXED CHARGES:
AND PREFERRED STOCK DIVIDEND REQUIREMENTS:
Excluding Interest
on Deposits 1.7x 1.0x 1.2x 1.2x 1.2x ** **
Including Interest
on Deposits 1.4x 1.0x 1.1x 1.1x 1.1x ** **
<FN>
* Represents the cumulative effect of change in accounting principle relating
to the adoption of SFAS 109 ("Accounting for Income Taxes") in the first
quarter of 1993.
** For the years ended December 31, 1990 and 1989, earnings did not cover fixed
charges and preferred stock dividend requirements by $231 million and $580
million, respectively, primarily as a result of large additions to the Reserve
for Possible Credit Losses and special charges.
</FN>
For purposes of computing the consolidated ratios, earnings represent net income
(loss) applicable to common stock plus applicable income taxes, fixed charges and
preferred stock dividend requirements, less cumulative effect of change in
accounting principle (for the first nine months of 1993 and the year ended
December 31, 1993) and equity in undistributed earnings (losses) of unconsolidated
subsidiaries and associated companies. Fixed charges and preferred stock dividend
requirements represent interest expense (exclusive of interest on deposits in one
case and inclusive of such interest in the other), amortization of debt discount
and issuance costs, one-third (the amount deemed to represent an interest factor)
of net rent expense under all lease commitments and dividend requirements on the
outstanding preferred stock.
ACE0267B
</TABLE>
<PAGE>1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this Registration Statement on Form
S-3 of our report dated January 19, 1994 appearing on page 57 of
The Chase Manhattan Corporation 1993 Annual Report to Stockholders
which is incorporated by reference in The Chase Manhattan
Corporation Annual Report on Form 10-K for the year ended December
31, 1993. We also consent to the reference to us under the heading
"Experts" in such Prospectus.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
New York, New York
November 23, 1994
ACE02499
