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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K/A
AMENDMENT NO. 1
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported) April 6, 1995
E. I. du Pont de Nemours and Company
(Exact Name of Registrant as Specified in Its Charter)
Delaware 1-815 51-0014090
(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
1007 Market Street
Wilmington, Delaware 19898
(Address of principal executive offices)
Registrant's telephone number, including area code: (302) 774-1000
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Item 7. Financial Statements and Exhibits
In connection with Debt Securities that may be offered on a delayed or
continuous basis under Registration Statements on Form S-3 (No. 33-48128 and No.
33-53327), we hereby file the following documents.
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- ------- ----------------------------------------------
<S> <C>
99 Copies of Documents Relating to Registrant's
Share Repurchase on April 6, 1995, from JES
Developments, Inc., A Wholly-Owned Subsidiary
of The Seagram Company Ltd.
</TABLE>
1. Agreement
2. Warrant Agreement
3. Warrant Certificates
4. Forms of Warrant Certificates
5. Registration Rights Agreement
6. Form of Individual/Family Standstill Agreement
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this Form 8-K/A, Amendment No. 1, to its current
report on Form 8-K dated April 7, 1995 to be signed on its behalf by the
undersigned hereunto duly authorized.
E. I. DU PONT DE NEMOURS AND COMPANY
(Registrant)
/s/ D. B. Smith
------------------------------------
D. B. Smith
Assistant Controller
April 13, 1995
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EXHIBIT INDEX
Exhibit
Number Description of Exhibit
- --------- -----------------------------------------
99 Copies of Documents Relating to Registrant's Share
Repurchase on April 6, 1995, from JES Developments,
Inc., A Wholly-Owned Subsidiary of The Seagram Company
Ltd.
1. Agreement
2. Warrant Agreement
3. Warrant Certificates
4. Forms of Warrant Certificates
5. Registration Rights Agreement
6. Form of Individual/Family Standstill Agreement
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EXHIBIT 99.1
AGREEMENT
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This Agreement, dated as of April 6, 1995, is among E.I. du Pont de
Nemours and Company, a Delaware corporation (the "Company"), The Seagram Company
Ltd., a Canadian corporation ("S"), and JES Developments, Inc., a Delaware
corporation and a wholly-owned subsidiary of S("Subsidiary").
WHEREAS, Subsidiary currently owns an aggregate of 164,222,031 shares
of the Common Stock, par value $0.60 per share, of the Company (the "Common
Stock"); and
WHEREAS, the Company and S have determined that it is in their mutual
best interests for the Company to acquire from Subsidiary certain shares of
Common Stock held by Subsidiary, upon the terms and subject to the conditions
set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the parties hereto hereby agree as follows.
ARTICLE I
THE REDEMPTION
Section 1.1 Redeemed Shares. Simultaneously with the execution and
---------------
delivery of this Agreement, Subsidiary is transferring, assigning and delivering
to the Company an aggregate of 156,000,000 shares of Common Stock (the "Redeemed
Shares"), and the Company is acquiring the Redeemed Shares at the closing
described in Section 2.1 hereof (the "Closing"), free and clear of all liens,
claims, options, proxies, voting agreements, security interests, charges and
encumbrances. In consideration for such transfer, assignment and delivery, the
Company is paying and delivering to Subsidiary (i) an aggregate of
$1,000,000,000 in immediately available funds (the "Cash Price"), (ii) warrants
of the Company, in the forms of Exhibits A, B and C to this Agreement, to
purchase an aggregate of 156,000,000 shares of Common Stock (the "Warrants",
such term to include any warrants of the Company issued, pursuant to the warrant
agreement in the form of Exhibit D to this Agreement (the "Warrant Agreement"),
in substitution or exchange for the warrants
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being so delivered to Subsidiary) and (iii) promissory notes of the Company, in
the form of Exhibit E to this Agreement, in an aggregate principal amount of
$7,336,250,000 (the "Notes"). The foregoing transactions are collectively
referred to in this Agreement as the "Redemption Transaction".
ARTICLE II
THE CLOSING
Section 2.1 Time and Place. The Closing of the Redemption
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Transaction is taking place at the offices of Skadden, Arps, Slate, Meagher &
Flom, at 919 Third Avenue, New York, New York 10022 or One Rodney Square,
Wilmington, Delaware 19899, as specified by the Company, simultaneously with the
execution and delivery of this Agreement.
Section 2.2 Deliveries. At the Closing, (i) Subsidiary is
----------
delivering the Redeemed Shares to the Company, with documentation satisfactory
to the Company evidencing the transfer of the Redeemed Shares, in form
acceptable for transfer on the Company's books, (ii) the Company and Warco
Transfer Corporation, as Warrant Agent ("Warco"), are executing and delivering
the Warrant Agreement and (iii) the Company is (a) agreeing to cause the Cash
Price to be transferred to an account of Subsidiary designated by Subsidiary not
later than 12:00 Noon, New York City time, on April 7, 1995 and (b) delivering
the Warrants and the Notes to Subsidiary. In addition, at the Closing, (i) S is
delivering to the Company the written resignations of Edgar M. Bronfman, Charles
R. Bronfman, Edgar Bronfman, Jr. and John L. Weinberg from the Company's Board
of Directors, (ii) the Company is delivering to S the written resignations of
Edgar S. Woolard, Jr. and Richard E. Heckert from S's Board of Directors, (iii)
the Company, S and Subsidiary are executing and delivering the registration
rights agreement in the form of Exhibit F to this Agreement (the "Registration
Rights Agreement") and (iv) the Company and certain stockholders of S are
entering into the agreement in the form of Exhibit G to this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF S AND SUBSIDIARY
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S and Subsidiary hereby jointly and severally represent and warrant to
the Company as follows.
Section 3.1 Organization. S is a corporation duly organized and
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validly existing under the laws of Canada and has been duly qualified for the
transaction of business under the laws of the Province of Quebec. Subsidiary is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware.
Section 3.2 Authority Relative to this Agreement. Each of S and
------------------------------------
Subsidiary has all necessary corporate power and authority to execute and
deliver this Agreement and the Registration Rights Agreement and perform its
obligations hereunder and thereunder. The execution and delivery by each of S
and Subsidiary of this Agreement and the Registration Rights Agreement and the
performance by each of S and Subsidiary of its obligations hereunder and
thereunder have been duly and validly authorized by the Board of Directors of
each of S and Subsidiary, and by the sole stockholder of Subsidiary, and no
other corporate proceedings on the part of S or Subsidiary are necessary to
authorize the execution, delivery or performance of this Agreement or the
Registration Rights Agreement.
Section 3.3 Binding Agreement. This Agreement and the Registration
-----------------
Rights Agreement have been duly and validly executed and delivered by each of S
and Subsidiary and constitute valid and binding agreements of each of S and
Subsidiary, enforceable against each of S and Subsidiary in accordance with
their respective terms.
Section 3.4 Non-Contravention. The execution and delivery by S and
-----------------
Subsidiary of this Agreement and the Registration Rights Agreement do not, the
performance by S and Subsidiary of their obligations hereunder and thereunder
will not and the acquisition by Subsidiary of the Warrants and the Notes does
not (i) contravene or conflict with the certificate of incorporation, by-laws or
similar charter or other organizational documents of S or Subsidiary or (ii)
contravene or conflict with or constitute a violation of or default under or
give rise to a right of termination, cancellation or acceleration of any right
or obligation of S or Subsidiary under any provision of applicable law or
regulation of the United States
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or Canada or any state or province thereof or of any agreement, contract,
judgment, injunction, order, decree or other instrument binding upon S or
Subsidiary, which contravention, conflict, violation, default or right of
termination, cancellation or acceleration would result in the case of this
clause (ii) in a material adverse effect on the business, assets, results of
operations or financial condition of S and its subsidiaries, taken as a whole.
Section 3.5 Ownership of Securities. Except for the Redeemed Shares,
-----------------------
8,222,031 additional shares of Common Stock owned by Subsidiary (the "Retained
Shares") and an aggregate of not more than 500,000 additional shares of Common
Stock, neither S nor any corporation or entity controlled by it (any such
corporation or entity, an "Affiliate") Beneficially Owns (such term and like
terms meaning "beneficially owns" within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) or has any
right to acquire (whether currently, upon lapse of time, following the
satisfaction of any conditions, upon the occurrence of any event or any
combination of the foregoing) any Voting Securities. As used in this Agreement,
"Voting Securities" means any securities of the Company entitled, or which may
be entitled, to vote (whether or not entitled to vote generally in the election
of directors of the Company), or any securities convertible into or exercisable
or exchangeable for such securities (whether or not the right to convert,
exercise or exchange is subject to the passage of time or contingencies or
both).
Section 3.6 Title to Redeemed Shares. Subsidiary has good and
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marketable title to all of the Redeemed Shares, free and clear of all liens,
claims, options, proxies, voting agreements, security interests, charges and
encumbrances other than the Existing Standstill Agreement (as defined in Section
6.4 hereof), and has complete and unrestricted power to transfer, assign and
deliver the Redeemed Shares to the Company. Upon transfer of the Redeemed
Shares to the Company as provided herein, the Company will acquire good and
marketable title to the Redeemed Shares, free and clear of all liens, claims,
options, proxies, voting agreements, security interests, charges and
encumbrances.
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Section 3.7 Ownership of Subsidiary. S owns indirectly all of the
-----------------------
outstanding capital stock of Subsidiary, free and clear of all liens, claims,
options, proxies, voting agreements, security interests, charges and
encumbrances.
Section 3.8 Acquisition for Investment. Subject to Section 5.3(g)
--------------------------
hereof, Subsidiary is acquiring the Warrants and the Notes solely for its own
account for the purpose of investment and not with a view to or for sale in
connection with any distribution thereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to S and Subsidiary as
follows.
Section 4.1 Organization. Each of the Company and Warco is a
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corporation duly organized, validly existing and in good standing under the laws
of Delaware.
Section 4.2 Authority Relative to this Agreement. The Company has
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all necessary corporate power and authority to execute and deliver this
Agreement, the Warrant Agreement and the Registration Rights Agreement, to issue
the Warrants and the Notes and to perform its obligations hereunder and
thereunder. The execution and delivery by the Company of this Agreement, the
Warrant Agreement and the Registration Rights Agreement, the issuance of the
Warrants and the Notes and the performance by the Company of its obligations
hereunder and thereunder have been duly and validly authorized by the Board of
Directors of the Company and no other corporate proceedings on the part of the
Company are necessary to authorize the execution and delivery of this Agreement,
the Warrant Agreement or the Registration Rights Agreement, the issuance of the
Warrants or the Notes or the performance by the Company of its obligations
hereunder or thereunder. Warco has all necessary corporate power and authority
to execute and deliver the Warrant Agreement and to perform its obligations
thereunder. The execution and delivery by Warco of the Warrant Agreement and
the performance by Warco of its obligations thereunder have been duly and
validly authorized by the Board of Directors of Warco and no other corporate
proceedings on
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the part of Warco are necessary to authorize the execution and delivery of the
Warrant Agreement or the performance by Warco of its obligations thereunder.
Section 4.3 Binding Agreements. This Agreement, the Warrant
------------------
Agreement, the Registration Rights Agreement, the Warrants and the Notes have
been duly and validly executed and delivered by the Company and constitute valid
and binding agreements of the Company, enforceable against the Company in
accordance with their respective terms. The Warrant Agreement has been duly and
validly executed and delivered by Warco and constitutes a valid and binding
agreement of Warco, enforceable against Warco in accordance with its terms.
Section 4.4 Non-Contravention. The execution and delivery by the
-----------------
Company of this Agreement, the Warrant Agreement and the Registration Rights
Agreement and the issuance of the Warrants and the Notes do not, the performance
by the Company of its obligations hereunder and thereunder will not, the
execution and delivery by Warco of the Warrant Agreement do not, and the
performance by Warco of its obligations thereunder will not (i) contravene or
conflict with the certificate of incorporation or by-laws of the Company or
Warco or (ii) contravene or conflict with or constitute a violation of or
default under or give rise to a right of termination, cancellation or
acceleration of any right or obligation of the Company, Warco or any of the
Company's other subsidiaries under any provision of applicable law or regulation
of the United States or any state thereof or of any agreement, contract,
judgment, injunction, order, decree or other instrument binding upon the
Company, Warco or any of the Company's other subsidiaries, which contravention,
conflict, violation, default or right of termination, cancellation or
acceleration would result in the case of this clause (ii) in a material adverse
effect on the business, assets, results of operations or financial condition of
the Company and its subsidiaries, taken as a whole.
Section 4.5 Warrant Shares. The shares of Common Stock issuable upon
--------------
exercise of the Warrants have been duly authorized by all necessary corporate
action on the part of the Company and have been duly reserved for issuance.
When shares of Common Stock are issued and
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paid for upon exercise of the Warrants as provided therein, such shares will be
validly issued, fully paid and nonassessable, and the issuance of such shares
will not be subject to preemptive rights of any other stockholder of the
Company.
Section 4.6 Ownership of Warco. The Company owns directly all of the
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outstanding capital stock of Warco, free and clear of all liens, claims,
options, proxies, voting agreements, security interests, charges and
encumbrances.
ARTICLE V
ADDITIONAL AGREEMENTS
Section 5.1 Standstill. During the period (the "Standstill Period")
----------
commencing on the date hereof and ending on the 15th anniversary of the date
hereof (the "Termination Date"), S shall not, and shall cause its Affiliates not
to, directly or indirectly, alone or in concert with others:
(a) acquire, offer or propose to acquire or agree to acquire,
whether by purchase, tender or exchange offer, through the acquisition of
control of another person, by joining a partnership, limited partnership,
syndicate or other "group" (within the meaning of Section 13(d)(3) of the
Exchange Act) or otherwise, Beneficial Ownership of any Voting Securities or any
rights to acquire (whether currently, upon lapse of time, following the
satisfaction of any conditions, upon the occurrence of any event or any
combination of the foregoing) any Voting Securities, other than the Warrants and
other than as a result of the exercise of the Warrants or as a result of any
stock dividends or other distributions or offerings made available by the
Company to holders of Voting Securities generally; provided that any such Voting
--------
Securities shall be subject to the restrictions of this Agreement; provided,
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further, that the acquisition by Affiliates of S of Beneficial Ownership of not
- -------
more than an aggregate of 500,000 additional shares of Common Stock shall not be
deemed to breach this Section 5.1(a);
(b) propose or seek to effect any merger, business combination,
restructuring, recapitalization or
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similar transaction involving the Company or any of its subsidiaries or the sale
or other disposition of any material portion of the assets of the Company or any
of its subsidiaries; provided that, subject to Section 5.2 hereof, nothing
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contained in this clause (b) shall limit the right to vote as a stockholder in
connection with any such transaction;
(c) deposit any Voting Securities in a voting trust or subject
any Voting Securities to any arrangement or agreement with respect to the voting
of such Voting Securities, except as to voting on specific matters as to which S
or its Affiliates are permitted to solicit proxies pursuant to the proviso of
Section 5.1(e) hereof;
(d) seek election to, seek to place a representative on, or seek
the removal of any member of, the Company's Board of Directors, except pursuant
to Section 5.8 hereof;
(e) engage in any "solicitation" (within the meaning of Rule 14a-
1 under the Exchange Act) of proxies or consents (whether or not relating to the
election or removal of directors) with respect to the Company, or become a
"participant" in any "election contest" (within the meaning of Rule 14a-11 under
the Exchange Act) or execute any written consent in lieu of a meeting of the
holders of any class of Voting Securities; provided that (i) the limitation
--------
contained in this Section 5.1(e) shall not apply to any Significant Event (as
defined in Section 5.2 hereof) that is initiated or proposed by the Company and
(ii) if S opposes any solicitation by the Company's management with respect to
any such Significant Event and neither S nor any of its Affiliates otherwise
publishes or distributes solicitation material required to be filed with the
Securities and Exchange Commission by Regulation 14A under the Exchange Act, the
Company shall include in its proxy statement in connection with such
solicitation by the Company's management the fact that S opposes such
solicitation and a brief statement of S's reasons for such opposition;
(f) call or seek to have called any meeting of the stockholders
of the Company;
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(g) initiate, propose or otherwise solicit stockholders for the
approval of any stockholder proposal (as described in Rule 14a-8 under the
Exchange Act or otherwise) with respect to the Company;
(h) except for the purpose of voting on specific matters as to
which S or its Affiliates are permitted to solicit proxies pursuant to the
proviso of Section 5.1(e) hereof, form, join or in any way participate in or
assist in the formation of a "group" (within the meaning of Section 13(d)(3) of
the Exchange Act) with respect to any Voting Securities, other than any such
"group" consisting exclusively of S and/or wholly-owned subsidiaries of S, and
any Affiliates of S which shall have acquired additional shares of Common Stock
not in breach of Section 5.1(a) hereof; provided, that any such subsidiary which
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is not incorporated under the laws of any state of the United States of America
consents, pursuant to documentation reasonably satisfactory in form and
substance to the Company, to the jurisdiction and venue of any state or federal
court sitting in the Borough of Manhattan in the State of New York for purposes
of enforcing this Agreement;
(i) disclose any intention, plan or arrangement inconsistent
with the foregoing;
(j) advise, assist or encourage or finance any other persons in
connection with any of the foregoing types of activities; or
(k) request the Company (or its directors, officers, employees
or agents) to amend or waive any provision of this Agreement unless the Company
shall have previously notified S in writing that such request, if made, would
not require public disclosure by the Company.
Section 5.2 Voting. At all times during the Standstill Period, S
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shall, and shall cause each of its Affiliates to, vote all Voting Securities
which they Beneficially Own for the slate of nominees proposed by the Board of
Directors of the Company and on all other matters to be voted on by the holders
of Voting Securities, in the same proportion as the votes cast by the other
holders of Voting Securities; provided that Voting Securities Beneficially Owned
--------
by S or its Affiliates may
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be voted as they determine in their sole discretion on any Significant Event.
As used in this Agreement, "Significant Event" means any of the following, if
stockholder approval thereof is required by the General Corporation Law of the
State of Delaware, the rules of the New York Stock Exchange or the charter or
by-laws of the Company: any charter or by-law amendment (other than a proposal
to require cumulative voting in the election of directors), acquisition or
disposition of assets (by way of merger, consolidation or otherwise), change in
capitalization, liquidation, or other action out of the ordinary course of
business of the Company; provided that "Significant Event" shall not mean or
--------
include any proposals to approve, adopt or amend any bonus, profit sharing,
pension, retirement, thrift, savings, incentive, variable, stock purchase, stock
ownership, stock appreciation, stock option, dividend reinvestment or other
benefit or compensation plan, program, agreement or arrangement for employees or
directors of the Company or any of its subsidiaries. At all times during the
Standstill Period, S and its Affiliates, as the Beneficial Owners of Voting
Securities, shall be present, in person or by proxy, at all meetings of
stockholders of the Company, so that all Voting Securities which S or any of its
Affiliates Beneficially Owns may be counted for the purpose of determining the
presence of a quorum at all meetings of stockholders of the Company.
Section 5.3 Dispositions. During the Standstill Period, S shall not,
------------
and shall cause its Affiliates not to, directly or indirectly (including,
without limitation, through the disposition or transfer of control of another
person), sell, assign, transfer, pledge, hypothecate, grant any option with
respect to or otherwise dispose of any interest in (or enter into an agreement
or understanding with respect to the foregoing) the Notes or any Voting
Securities, including, without limitation, any of the Warrants (a
"Disposition"), except as set forth below in this Section 5.3. Without limiting
the generality of the foregoing, any sale of securities of S or any of its
Affiliates which is currently (or following the passage of time, the occurrence
of any event or the giving of notice), directly or indirectly, exchangeable or
exercisable for, or convertible into, any Voting Securities (an "S Security
Disposition") shall constitute a Disposition of such Voting Securities.
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(a) Dispositions may be made to wholly-owned subsidiaries of S;
provided, that such subsidiaries agree in writing to be bound by this Agreement
- --------
to the same extent as S and Subsidiary; provided, further, that any such
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subsidiary which is not incorporated under the laws of any state of the United
States of America consents, pursuant to documentation reasonably satisfactory in
form and substance to the Company, to the jurisdiction and venue of any state or
federal court sitting in the Borough of Manhattan in the State of New York for
purposes of enforcing this Agreement.
(b) Dispositions of Voting Securities may be made pursuant to a
public offering, effected in accordance with the Registration Rights Agreement,
or in privately-negotiated transactions; provided that prior to any such
--------
Disposition, S and its Affiliates shall have complied with the provisions of
Section 5.4(I) hereof and the Company shall have had the right pursuant to
Section 5.4(I) hereof to purchase the Voting Securities proposed to be subject
to such Disposition (or, in the case of Voting Securities issuable or
deliverable in the future upon the exercise, exchange or conversion of
securities of S or any Affiliate of S, to purchase the Voting Securities as to
which a Section 5.4(I) Transfer Notice is deemed to have been delivered pursuant
to Section 5.4(I)(a) hereof); provided, further, that (i) such Dispositions
-------- -------
shall not be made to any person who or which, together with such person's
affiliates and associates (as such terms are defined in Rule 12b-2 under the
Exchange Act) and the members of any "group" (within the meaning of Section
13(d)(3) of the Exchange Act) existing with respect to Voting Securities of
which such person is a part (any such person and its affiliates, associates and
group members being collectively referred to herein as a "Purchasing Person"),
would immediately thereafter, to the knowledge of S or any of its Affiliates
after reasonable inquiry, Beneficially Own Voting Securities representing 3% or
more of the total combined voting power in the election of directors of the
Company of all Voting Securities then outstanding; (ii) if any such Disposition
is made to any Purchasing Person who would immediately thereafter, to the
knowledge of S or any of its Affiliates after reasonable inquiry, Beneficially
Own Voting Securities representing more than 1%, but less than 3%, of the total
combined voting power in the election of directors of the Company of all Voting
Securities
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then outstanding, then, prior to and as a condition to the effectiveness of any
such Disposition, S shall obtain the written agreement (which agreement shall be
addressed to the Company and reasonably satisfactory in form and substance to
the Company) of each such Purchasing Person to be bound by Article V of this
Agreement (other than Section 5.6, Section 5.7 and Section 5.8 hereof) to the
same extent as S as if references to S in such Article were to such Purchasing
Person; and (iii) no such Disposition of Warrants shall be effected prior to May
15, 1996. Notwithstanding the foregoing provisions of this Section 5.3(b),
Dispositions of Voting Securities to investment advisors, investment companies,
insurance companies, mutual funds, pension funds, bank trust funds, foundations
and charitable trusts ("Designated Institutions") or to registered broker
dealers acting as principals ("Broker Principals") may be made pursuant to a
public offering, effected in accordance with the Registration Rights Agreement,
or in privately-negotiated transactions; provided that prior to any such
--------
Disposition, S and its Affiliates shall have complied with the provisions of
Section 5.4(I) hereof and the Company shall have had the right pursuant to
Section 5.4(I) hereof to purchase the Voting Securities proposed to be subject
to such Disposition (or, in the case of Voting Securities issuable or
deliverable in the future upon the exercise, exchange or conversion of
securities of S or an Affiliate of S, to purchase the Voting Securities as to
which a Section 5.4(I) Transfer Notice is deemed to have been delivered pursuant
to Section 5.4(I)(a) hereof); provided, further, that (i) such Dispositions
-------- -------
shall not be made to any Designated Institution or Broker Principal which,
together with such Designated Institution's or Broker Principal's affiliates and
associates (as such terms are defined in Rule 12b-2 under the Exchange Act) and
the members of any "group" (within the meaning of Section 13(d)(3) of the
Exchange Act) existing with respect to Voting Securities of which such
Designated Institution or Broker Principal, as the case may be, is a part, would
immediately thereafter, to the knowledge of S or any of its Affiliates after
reasonable inquiry, Beneficially Own Voting Securities representing 5% or more
(in the case of any Designated Institution and its affiliates, associates and
group members) or 10% or more (in the case of any Broker Principal and its
affiliates, associates and group members) of the total combined voting power in
the election of directors of the Company of all Voting Securities
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then outstanding; (ii) if any such Disposition is made to any Broker Principal
which (together with its affiliates, associates and group members) would
immediately thereafter, to the knowledge of S or any of its Affiliates after
reasonable inquiry, Beneficially Own Voting Securities representing more than
3%, but less than 10%, of the total combined voting power in the election of
directors of the Company of all Voting Securities then outstanding, then, prior
to and as a condition to the effectiveness of any such Disposition, S shall
obtain the written agreement (which agreement shall be addressed to the Company
and reasonably satisfactory in form and substance to the Company) of each such
Broker Principal to be bound by Article V of this Agreement (other than Section
5.6, Section 5.7 and Section 5.8 hereof) to the same extent as S as if
references to S in such Article were to such Broker Principal (except that,
notwithstanding any such agreement of any such Broker Principal, any such Broker
Principal may, without complying with the provisions of Section 5.4(I)(a)
hereof, effect short sales of Voting Securities to any Purchasing Person who
would not immediately thereafter, to the knowledge of such Broker Principal
after reasonable inquiry, Beneficially Own Voting Securities representing more
than 1% of the total combined voting power in the election of directors of the
Company of all Voting Securities then outstanding); and (iii) no such
Disposition of Warrants shall be effected prior to May 15, 1996. All Warrants
Beneficially Owned by a Purchasing Person, Designated Institution or Broker
Principal shall be assumed to have been fully exercised for purposes of
calculating, as described above in this Section 5.3(b), the voting power
represented by the Voting Securities Beneficially Owned by such Purchasing
Person, Designated Institution or Broker Principal, as the case may be.
(c) Dispositions of Voting Securities may be made pursuant to a
dividend or other distribution to stockholders of S generally; provided that
--------
prior to any such Disposition, S and its Affiliates shall have complied with the
provisions of Section 5.4(I) hereof and the Company shall have had the right
pursuant to Section 5.4(I) hereof to purchase the Voting Securities proposed to
be subject to such Disposition; provided, further, that (i) if any Purchasing
-------- -------
Person who or which is an affiliate or associate (as such terms are defined in
Rule 12b-2 under the Exchange Act) of S would receive in con-
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nection with such Disposition more than 5% of the Voting Securities disposed of
therein, then, prior to and as a condition to the effectiveness of any such
Disposition, S shall obtain the written agreement (which agreement shall be
addressed to the Company and reasonably satisfactory in form and substance to
the Company) of each such Purchasing Person to be bound by Article V of this
Agreement (other than Section 5.6, Section 5.7 and Section 5.8 hereof) to the
same extent as S as if references to S in such Article were to such Purchasing
Person; and (ii) no such Disposition of Warrants shall be effected prior to May
15, 1996.
(d) Dispositions may be made (i) to the Company in accordance
with Section 5.4 hereof and (ii) in accordance with Section 5.5 hereof.
(e) Dispositions may be made pursuant to a tender offer or
exchange offer or any other transaction which is recommended to stockholders of
the Company by a least a majority of the entire Board of Directors of the
Company.
(f) Dispositions of Common Stock or Warrants may be made
pursuant to a tender offer or exchange offer which is not recommended to
stockholders of the Company by a least a majority of the entire Board of
Directors of the Company (an "Unsolicited Offer"); provided, that such
--------
Unsolicited Offer is for at least a majority of the Common Stock outstanding on
a fully diluted basis; provided, further, that prior to any such Disposition, S
-------- -------
and its Affiliates shall have complied with the provisions of Section 5.4(II)
hereof and the Company (and/or its designees) shall have had the right pursuant
to Section 5.4(II) hereof to purchase the Common Stock and Warrants proposed to
be subject to such Disposition.
(g) After the 30th day following the date of this Agreement, a
pledge or pledges of the Notes, to secure bona fide loans, may be made to any
bank organized under the laws of the United States having stockholders' equity
of at least $1 billion, and upon any foreclosure in connection therewith, the
Notes may be transferred to the foreclosing bank or banks.
14
<PAGE>
The Company, S and Subsidiary agree that (i) Dispositions of the Retained Shares
shall not be subject to this Section 5.3, Section 5.4(I) or Section 5.4(II)
unless at the time of such Disposition, the S Voting Power (as defined in
Section 5.5 hereof) exceeds 5%; and (ii) neither S nor any of its Affiliates nor
any Purchasing Person shall, in connection with any proposed Disposition, be
required to make "reasonable inquiry" with respect to the Voting Securities
Beneficially Owned by the proposed transferee in such Disposition unless the
Voting Securities proposed to be subject to such Disposition represent more than
1/4 of 1% of the total combined voting power in the election of directors of the
Company of all Voting Securities then outstanding (assuming full exercise of any
Warrants included in such Voting Securities).
Section 5.4 Company's Right to Purchase Voting Securities. (I) Prior
---------------------------------------------
to any Disposition of Voting Securities pursuant to Section 5.3(b) or Section
5.3(c) hereof, the Company shall have the right, exercisable in accordance with
this Section 5.4(I), to purchase all, but not less than all, of the Voting
Securities intended to be subject to such Disposition by S or any of its
Affiliates; provided that with respect to any intended Disposition of fewer than
--------
all outstanding First S Warrants, Second S Warrants and/or Third S Warrants (as
such terms are defined in the Warrant Agreement), the Company shall also have
the right, exercisable in accordance with this Section 5.4(I), to purchase (i)
in the case of any intended Disposition of fewer than all outstanding First S
Warrants, all outstanding First S Warrants; (ii) in the case of any intended
Disposition of fewer than all outstanding Second S Warrants, all outstanding
Second S Warrants; and (iii) in the case of any intended Disposition of fewer
than all outstanding Third S Warrants, all outstanding Third S Warrants.
(a) If S or any of its Affiliates wishes to effect any
Disposition of Voting Securities pursuant to Section 5.3(b) or Section 5.3(c)
hereof, S shall give notice (a "Section 5.4(I) Transfer Notice") to the Company
of such intended Disposition, specifying the Voting Securities to be subject to
Disposition and the intended method of Disposition; provided that (i) any
--------
request for registration of Registrable Securities (as such term is defined in
the Registration Rights Agreement) shall be
15
<PAGE>
deemed a Section 5.4(I) Transfer Notice with respect to the Registrable
Securities requested to be registered (except that a request for registration of
Common Stock issuable or deliverable in the future upon the exercise, exchange
or conversion of securities of S or an Affiliate of S shall be deemed a request
to register (and shall require delivery of a Section 5.4(I) Transfer Notice with
respect to) such number of Warrants and shares of Common Stock (allocated as S
may specify in such request for registration among the First S Warrants, Second
S Warrants and Third S Warrants then outstanding (provided that no S Warrants so
specified will expire prior to the expiration of the Company's right to elect to
purchase such S Warrants pursuant to this Section 5.4(I)(a)) and the issued and
outstanding shares of Common Stock then Beneficially Owned by S and its
Affiliates or, if no such allocation is specified by S, as shall be so allocated
by the Company among such outstanding S Warrants and issued and outstanding
shares of Common Stock then Beneficially Owned by S and its Affiliates upon
notice to S) as shall equal the maximum number of shares of Common Stock so
issuable or deliverable; provided that if any such allocation by either S or the
Company includes Warrants and shares of Common Stock, such registration request
shall be deemed (x) a request to register (and shall require delivery of a
Section 5.4(I) Transfer Notice with respect to) all of the Warrants included in
such allocation and (y) a separate request to register (and shall require
delivery of a Section 5.4(I) Transfer Notice with respect to) all of the shares
of Common Stock included in such allocation) and (ii) an S Security Disposition
shall be deemed to be a Disposition of Warrants and/or Common Stock (and to
require Section 5.4(I) Transfer Notices with respect thereto) to the same extent
as is provided in the parenthetical exception to the preceding clause (i) in the
case where such S Security Disposition was proposed to be effected as a
registration of Registrable Securities; provided, further, that no Section
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5.4(I) Transfer Notice with respect to any Warrants may be given prior to May
15, 1996. With respect to any intended Disposition of Voting Securities
pursuant to Section 5.3(b) hereof (other than any intended Disposition of
Warrants or any intended Disposition in a public offering effected in accordance
with the Registration Rights Agreement), S must also set forth in the applicable
Section 5.4(I) Transfer Notice the terms of a bona fide third party offer (a
"Third Party Offer") to purchase
16
<PAGE>
such Voting Securities theretofore received and then remaining open (including
the identity of the offeror and the price offered). If the Company wishes to
purchase the Voting Securities specified in the Section 5.4(I) Transfer Notice,
then within fifteen business days following receipt of the Section 5.4(I)
Transfer Notice, the Company shall deliver a written notice (a "Section 5.4(I)
Acceptance Notice") to S indicating that the Company wishes to purchase such
Voting Securities (which Voting Securities may consist of or include, as
contemplated by the proviso to the first sentence of this Section 5.4(I), all of
the outstanding First S Warrants, Second S Warrants and/or Third S
Warrants)(such Voting Securities, the "Section 5.4(I) Securities"), a date for
the closing of such purchase, which shall not be more than sixty days after
delivery of such Section 5.4(I) Acceptance Notice (subject to extension as
provided in Section 5.4(I)(f) hereof), and a place for the closing of such
purchase (a "Section 5.4(I) Closing"). Upon delivery of a Section 5.4(I)
Acceptance Notice, a binding agreement shall be deemed to exist providing for
the purchase by the Company of the Section 5.4(I) Securities to which such
Section 5.4(I) Acceptance Notice relates, upon the terms and subject to the
conditions set forth in this Section 5.4(I); provided, that (i) the Company may
--------
rescind its Section 5.4(I) Acceptance Notice (in which event it will have no
obligation to purchase such Section 5.4(I) Securities) at any time within two
business days following any determination of (x) the value of any untraded
securities pursuant to Section 5.4(I)(b)(ii) hereof or (y) fair market value
pursuant to Section 5.4(I)(b)(iii) hereof; and (ii) S may rescind its Section
5.4(I) Transfer Notice (in which event it will have no obligation to sell such
Section 5.4(I) Securities) at any time within two business days following any
determination of fair market value pursuant to Section 5.4(I)(b)(iii) hereof if
the closing price of the Common Stock (as determined in accordance with the
second sentence of Section 5.4(I)(b)(i) hereof) on the date of such
determination is less than 95% of the closing price of the Common Stock on the
date that such Section 5.4(I) Transfer Notice is delivered to the Company.
(b) The purchase price for any Section 5.4(I) Securities (the
"Section 5.4(I) Price") shall be determined as set forth below.
17
<PAGE>
(i) With respect to any Section 5.4(I) Securities (other than
Warrants) for which no Third Party Offer is disclosed or for which a Third
Party Offer consisting of other than solely cash and/or readily marketable
securities is disclosed, in each case in the applicable Section 5.4(I)
Transfer Notice (including, without limitation, Section 5.4(I) Securities
requested to be registered pursuant to the Registration Rights Agreement),
the Section 5.4(I) Price per share or other unit of such Section 5.4(I)
Securities shall equal the lower of (A) the average closing price per share
or per unit of the Section 5.4(I) Securities during the 30 consecutive
trading days immediately preceding the Company's receipt of the Section
5.4(I) Transfer Notice and (B) the average closing price per share or per
unit of Section 5.4(I) Securities during the ten consecutive trading days
immediately following the Company's receipt of the Section 5.4(I) Transfer
Notice. The closing price for each such day shall be the last sale price
regular way, or, in case no such sale takes place on such day, the average
of the closing bid and asked prices regular way, in either case on the New
York Stock Exchange, or, if the Section 5.4(I) Securities are not listed or
admitted to trading on such exchange, on the principal national securities
exchange on which the Section 5.4(I) Securities are listed or admitted to
trading, or, if the Section 5.4(I) Securities are not listed or admitted to
trading on any national securities exchange but are designated as national
market system securities by the National Association of Securities Dealers
("NASD"), the last sale price, or, in case no such sale takes place on such
day, the average of the closing bid and asked prices, in either case as
reported on the NASD Automated Quotation/National Market System, or if the
Section 5.4(I) Securities are not so designated as national market system
securities, the average of the highest reported bid and lowest reported
asked prices as furnished by the NASD or similar organization if the NASD
is no longer reporting such information.
18
<PAGE>
(ii) With respect to any Section 5.4(I) Securities (other than
Warrants) for which a Third Party Offer is disclosed in the applicable
Section 5.4(I) Transfer Notice which provides for consideration consisting
solely of cash and/or marketable securities, the Section 5.4(I) Price per
share or other unit of such Section 5.4(I) Securities shall equal the per
share or per unit price specified in such Third Party Offer. The value of
any readily marketable securities identified in such Third Party Offer
shall equal the average closing price per share or per unit of such
securities during the 30 consecutive trading days immediately preceding the
Company's receipt of the Section 5.4(I) Transfer Notice. The closing price
for each such day shall be the last sale price regular way, or, in case no
such sale takes place on such day, the average of the closing bid and asked
prices regular way, in either case on the New York Stock Exchange, or, if
such securities are not listed or admitted to trading on such exchange, on
the principal national securities exchange on which such securities are
listed or admitted to trading, or, if such securities are not listed or
admitted to trading on any national securities exchange but are designated
as national market system securities by the NASD, the last sale price, or,
in case no such sale takes place on such day, the average of the closing
bid and asked prices, in either case as reported on the NASD Automated
Quotation/National Market System, or if such securities are not so
designated as national market system securities, the average of the highest
reported bid and lowest reported asked prices as furnished by the NASD or
similar organization if the NASD is no longer reporting such information.
In the case of any securities not theretofore traded, such securities must
be issued or proposed to be issued by an entity which has been subject to
the reporting requirements of the Exchange Act for at least one year, and
the value of such securities shall be determined by two nationally
recognized investment banking firms, one firm to be selected by each of S
and the Compa-
19
<PAGE>
ny, or in the event such firms are unable to agree, by a third nationally
recognized investment banking firm selected by such firms. S and the
Company shall use their best efforts to cause any such determination of
value to be made within five business days following the Company's receipt
of the applicable Section 5.4(I) Transfer Notice. In connection with any
determination of fair market value pursuant to this Section 5.4(I)(b)(ii),
each party will bear the fees and expenses of the investment banking firm
selected by it and the parties will bear equally the fees and expenses of
any third investment banking firm.
(iii) With respect to any Warrants constituting Section 5.4(I)
Securities, the Section 5.4(I) Price shall be the fair market value of such
Warrants at the close of business on the Warrant Valuation Date (as
determined below); provided that if the Company exercises its right
--------
pursuant to the proviso to the first sentence of this Section 5.4(I), or if
the Warrants specified in the Section 5.4(I) Transfer Notice include all
outstanding First S Warrants, Second S Warrants and/or Third S Warrants,
the Section 5.4(I) Price for any such Warrants shall not exceed the sum of
(A) the fair market value of such Warrants as of the date hereof plus (B)
90% of the positive difference, if any, between (x) the fair market value
of such Warrants at the close of business on the Warrant Valuation Date
minus (y) the fair market value of such Warrants as of the date hereof.
For purposes of the foregoing, the parties agree that the aggregate fair
market value of the First S Warrants, the Second S Warrants and the Third S
Warrants issued as of the date hereof is, as of the date hereof, $135
million, $151.875 million and $151.875 million, respectively. The fair
market value of the Warrants at the close of business on the Warrant
Valuation Date shall be determined by two nationally recognized investment
banking firms, one firm to be selected by each of S and the Company, or in
the event such firms are unable to agree, by a third nationally recog-
20
<PAGE>
nized investment banking firm selected by such firms as provided below.
Such investment banking firms or firm shall be required to use the
valuation methodology set forth in Exhibit H to this Agreement in
determining the fair market value of the Warrants at the close of business
on the Warrant Valuation Date. The parties will select their respective
investment banking firms and instruct such firms to review and agree upon
all data relevant to the valuation methodology set forth in Exhibit H to
this Agreement on the business day following the Company's receipt of the
applicable Section 5.4(I) Transfer Notice. In the event such firms do so
agree, the Warrant Valuation Date shall be the 14th business day following
the Company's receipt of such Section 5.4(I) Transfer Notice. If such
firms have not so agreed by the 14th business day following such receipt,
then on the 15th business day following such receipt, such firms shall
select a third investment banking firm. Such third investment banking firm
shall be required to determine the fair market value of the Warrants at the
close of business on the 17th business day following the Company's receipt
of such Section 5.4(I) Transfer Notice and in such event, the Warrant
Valuation Date shall be the 17th business day following the Company's
receipt of such Section 5.4(I) Transfer Notice. In connection with any
determination of fair market value pursuant to this Section 5.4(I)(b)(iii),
each party will bear the fees and expenses of the investment banking firm
selected by it and the parties will bear equally the fees and expenses of
any third investment banking firm.
(iv) The purchase price for any Section 5.4(I) Securities with
respect to which S or any of its Affiliates wishes to effect a Disposition
and which are deemed to have been requested to be registered or are deemed
to have been subject to Disposition pursuant to the first sentence of
Section 5.4(I)(a) shall, notwithstanding anything to the contrary contained
in this Section 5.4(I), be determined in accordance with Section
5.4(I)(b)(iii) in the
21
<PAGE>
case of Warrants and Section 5.4(I)(b)(i) in the case of Section 5.4(I)
Securities other than Warrants.
(c) At any Section 5.4(I) Closing, the Company shall pay to S
(or its designees) the aggregate Section 5.4(I) Price for the Section 5.4(I)
Securities by wire transfer of immediately available funds, and S shall deliver
or cause to be delivered to the Company such Section 5.4(I) Securities, with
documentation satisfactory to the Company evidencing the transfer of such
Section 5.4(I) Securities, in form acceptable for transfer on the Company's
books. In the event a Section 5.4(I) Closing occurs after the 30th day following
delivery of the applicable Section 5.4(I) Acceptance Notice, then, in addition
to the aggregate Section 5.4(I) Price, the Company shall pay to S (or its
designees) interest on the aggregate Section 5.4(I) Price for the period from
and after such 30th day to and including the date of such Section 5.4(I)
Closing. Such interest shall accrue at the Federal Funds Rate (as defined in the
Notes) as in effect from time to time, plus 1/4 of 1%. Such interest shall not
be compounded and shall be calculated on the basis of a 360-day year and the
actual number of days elapsed.
(d) If the Company does not exercise its right to purchase
Voting Securities specified in a Section 5.4(I) Transfer Notice, or if the
Company exercises its right to rescind as described in the proviso to the last
sentence of Section 5.4(I)(a) hereof, or if any agreement deemed to exist with
respect to Voting Securities upon delivery of the applicable Section 5.4(I)
Acceptance Notice is terminated pursuant to Section 5.4(I)(f) hereof, then the
party giving such Section 5.4(I) Transfer Notice shall be free to effect the
Disposition of such Voting Securities, subject to Section 5.3 hereof (other than
the restrictions contained therein relating to the Company's purchase rights
under this Section 5.4); provided that, with respect to any such Disposition
--------
other than a public offering of Voting Securities pursuant to the Registration
Rights Agreement, such Disposition is completed within 60 days following the
expiration of the period in which the Company had the right to elect to purchase
such Voting Securities or such rescission or termination, as the case may be
(which 60
22
<PAGE>
day period may be extended day by day by S if as of such 60th day or any day
thereafter on which such period is extended (x) all waiting periods, if any,
applicable to such Disposition under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), shall not have expired or
been terminated or (y) any statute, rule, regulation, executive order, decree,
ruling, injunction or other order shall have been enacted, entered, promulgated
or enforced by any court or governmental authority of competent jurisdiction
which prohibits such Disposition or makes such Disposition illegal, provided
that no such extension shall be for more than 60 days in the aggregate);
provided, further, that such Disposition is effected in accordance with the
- -------- -------
intended method of Disposition described in the applicable Section 5.4(I)
Transfer Notice; provided, further, that with respect to any such Disposition of
-------- -------
Voting Securities (other than Warrants) for which a Third Party Offer is
disclosed in the applicable Section 5.4(I) Transfer Notice, the Disposition of
such Voting Securities is to the third party offeror identified in such Section
5.4(I) Transfer Notice at the price specified therein or at any price in excess
thereof. If any such Disposition (other than a public offering of Voting
Securities pursuant to the Registration Rights Agreement) is not completed
within the 60 day period specified in the first proviso of the preceding
sentence, any Voting Securities specified in the applicable Section 5.4(I)
Transfer Notice and not disposed of in such Disposition shall again be subject
to the Company's purchase rights under this Section 5.4, to the extent provided
in Section 5.3 hereof. In the case of a Disposition intended to be effected
through a public offering pursuant to the Registration Rights Agreement, the
Company's purchase rights under this Section 5.4, to the extent provided in
Section 5.3 hereof, shall again apply to (i) all Voting Securities specified in
the applicable Section 5.4(I) Transfer Notice, if S or any of its Affiliates
declines to proceed with such public offering and (ii) any Voting Securities
which remain unsold at the time the Company is entitled to terminate the
effectiveness of the Registration (as defined in the Registration Rights
Agreement) with respect to such Voting Securities.
(e) Without limiting the provisos of Section 5.3(b) and 5.3(c)
hereof, if any Disposition is made in accordance with Section 5.3(b) or Section
5.3(c)
23
<PAGE>
hereof to any Purchasing Person (other than a Designated Institution or Broker
Principal) who immediately thereafter Beneficially Owns Voting Securities
representing more than 1% of the total combined voting power in the election of
directors of the Company of all Voting Securities then outstanding, then such
person shall be deemed to have consented to be bound by Article V of this
Agreement (other than Section 5.6, Section 5.7 and Section 5.8 hereof) to the
same extent as S as if references to S in such Article were to such Purchasing
Person. All Warrants Beneficially Owned by a Purchasing Person shall be assumed
to have been fully exercised for purposes of calculating, as described above in
this Section 5.4(I)(e), the voting power represented by the Voting Securities
Beneficially Owned by such Purchasing Person.
(f) The obligations of the parties to effect any Section 5.4(I)
Closing shall be subject to the satisfaction of the following conditions: (i)
all waiting periods, if any, applicable to the transactions occurring at such
Section 5.4(I) Closing under the HSR Act, shall have expired or been terminated
and (ii) no statute, rule, regulation, executive order, decree, ruling,
injunction or other order shall have been enacted, entered, promulgated or
enforced by any court or governmental authority of competent jurisdiction which
prohibits such transactions or makes such transactions illegal. If, as of any
date on which a Section 5.4(I) Closing is scheduled to occur, the foregoing
conditions relating thereto have not been satisfied, then such Section 5.4(I)
Closing shall occur as promptly as practicable following such satisfaction, and
the parties shall use their reasonable best efforts to cause the satisfaction of
such conditions; provided that if the foregoing conditions relating to any
--------
Section 5.4(I) Closing are not satisfied within 120 days following the delivery
of the applicable Section 5.4(I) Acceptance Notice, then S or the Company may
terminate the agreement deemed to exist upon delivery of the applicable Section
5.4(I) Acceptance Notice.
(II) Prior to any Disposition of Common Stock or Warrants pursuant to
Section 5.3(f) hereof, the Company (and/or its designees) shall have the right,
exercisable in accordance with this Section 5.4(II), to purchase all of the
Common Stock and/or Warrants permitted to be subject to such Disposition by S or
any of its Affiliates.
24
<PAGE>
(a) If S or any of its Affiliates wishes to effect any
Disposition of Common Stock or Warrants pursuant to Section 5.3(f) hereof, S
shall give notice (a "Section 5.4(II) Transfer Notice") to the Company of such
intended Disposition at least seven business days prior to the latest date, as
provided below, on which the Company (and/or its designees) is entitled to
exercise its right to purchase the securities specified in such Section 5.4(II)
Transfer Notice; provided that S may rescind such Section 5.4(II) Transfer
--------
Notice at any time prior to delivery of a Section 5.4(II) Acceptance Notice (as
defined below). The Section 5.4(II) Transfer Notice shall specify the Common
Stock and/or Warrants to be subject to Disposition, which Common Stock and/or
Warrants (assuming full exercise thereof) shall represent not more than that
percentage of the total number of shares of Common Stock Beneficially Owned by S
and its Affiliates which equals the percentage of the shares of Common Stock
outstanding on a fully diluted basis that the bidder in the Unsolicited Offer is
offering to purchase; provided that a Section 5.4(II) Transfer Notice shall not
--------
so specify any Warrants unless Warrants are being tendered for by the bidder in
the Unsolicited Offer; provided, further, that all shares of Common Stock
-------- -------
specified in a Section 5.4(II) Transfer Notice shall be issued and outstanding
(which shares may be shares issued in connection with the accelerated exercise
of Warrants pursuant to the terms thereof). If the Company (and/or its
designees) wishes to purchase the securities specified in the Section 5.4(II)
Transfer Notice, then not later than 24 hours prior to the latest time by which
such securities must be tendered in order to be accepted in the Unsolicited
Offer, the Company shall deliver a written notice (a "Section 5.4(II) Acceptance
Notice") to S specifying that the Company (and/or its designees) wishes to
purchase such securities (such securities, the "Section 5.4(II) Securities"), a
date for the closing of such purchase, which shall not be more than sixty days
after delivery of such Section 5.4(II) Acceptance Notice (subject to extension
as provided in Section 5.4(II)(e) hereof), and a place for the closing of such
purchase (a "Section 5.4(II) Closing"). Upon delivery of a Section 5.4(II)
Acceptance Notice, a binding agreement shall be deemed to exist providing for
the purchase by the Company (and/or its designees) of the Section 5.4(II)
Securities to which such Section 5.4(II) Acceptance Notice relates, upon the
terms and subject to the conditions set forth in this
25
<PAGE>
Section 5.4(II); provided, that if following delivery of a Section 5.4(II)
--------
Acceptance Notice, the price per share of Common Stock or the price per Warrant
offered in the Unsolicited Offer is increased, the Company may, not later than
24 hours prior to the latest time by which Common Stock and/or Warrants must be
tendered in order to be accepted in the Unsolicited Offer, rescind its Section
5.4(II) Acceptance Notice (in which event it will have no obligation to purchase
such Section 5.4(II) Securities). Notwithstanding anything to the contrary
contained in this Section 5.4(II), for so long as the agreement deemed to exist
upon delivery of a Section 5.4(II) Acceptance Notice remains in effect, S shall
not and shall cause its Affiliates not to, tender any shares of Common Stock or
Warrants pursuant to the Unsolicited Offer.
(b) The purchase price for any Section 5.4(II) Securities (the
"Section 5.4(II) Price") shall be the per share price of Common Stock paid in
the Unsolicited Offer (in the case of Common Stock) or the excess of the per
share price of Common Stock paid in the Unsolicited Offer over the exercise
price of the Warrants (in the case of Warrants). The value of any securities
offered in the Unsolicited Offer shall equal the average closing price per share
or per unit of such securities during the 30 consecutive trading days
immediately preceding the Company's receipt of the Section 5.4(II) Transfer
Notice. The closing price for each such day shall be the last sale price
regular way, or, in case no such sale takes place on such day, the average of
the closing bid and asked prices regular way, in either case on the New York
Stock Exchange, or, if such securities are not listed or admitted to trading on
such exchange, on the principal national securities exchange on which such
securities are listed or admitted to trading, or, if such securities are not
listed or admitted to trading on any national securities exchange but are
designated as national market system securities by the NASD, the last sale
price, or, in case no such sale takes place on such day, the average of the
closing bid and asked prices, in either case as reported on the NASD Automated
Quotation/National Market System, or if such securities are not so designated as
national market system securities, the average of the highest reported bid and
lowest reported asked prices as furnished by the NASD or similar organization if
the NASD is no longer reporting such information. In the case of any securities
not thereto-
26
<PAGE>
fore traded, the value of such securities shall be determined by two nationally
recognized investment banking firms, one firm to be selected by each of S and
the Company, or in the event such firms are unable to agree, by a third
nationally recognized investment banking firm selected by such firms. S and the
Company shall use their best efforts to cause any such determination of value to
be made within five business days following the Company receipt of a Section
5.4(II) Transfer Notice. In connection with any determination of value pursuant
to this Section 5.4(II)(b), each party will bear the fees and expenses of the
investment banking firm selected by it and the parties will bear equally the
fees and expenses of any third investment banking firm.
(c) At any Section 5.4(II) Closing, the Company (and/or its
designees) shall pay to S (or its designees) the aggregate Section 5.4(II) Price
for the Section 5.4(II) Securities by wire transfer of immediately available
funds, and S shall deliver or cause to be delivered to the Company (and/or its
designees) such Section 5.4(II) Securities, with documentation satisfactory to
the Company evidencing the transfer of such Section 5.4(II) Securities, in form
acceptable for transfer on the Company's books. In the event a Section 5.4(II)
Closing occurs after the 30th day following delivery of the applicable Section
5.4(II) Acceptance Notice, then, in addition to the aggregate Section 5.4(II)
Price, the Company (and/or its designees) shall pay to S (or its designees)
interest on the aggregate Section 5.4(II) Price for the period from and after
such 30th day to and including the date of such Section 5.4(II) Closing. Such
interest shall accrue at the Federal Funds Rate (as defined in the Notes) as in
effect from time to time, plus 1/4 of 1%. Such interest shall not be compounded
and shall be calculated on the basis of a 360-day year and the actual number of
days elapsed.
(d) If the Company (and/or its designees) does not exercise its
right to purchase the securities specified in a Section 5.4(II) Transfer Notice,
then the party giving such Section 5.4(II) Transfer Notice shall be free to
effect the Disposition pursuant to the Unsolicited Offer of such securities, but
only such securities, so specified in such Section 5.4(II) Transfer Notice
(without being subject to the restrictions contained in Section 5.3(f) hereof
relating to the Company's
27
<PAGE>
purchase rights under this Section 5.4(II)); provided that (i) such Disposition
--------
is effected at a price equal to or in excess of the price offered in the
Unsolicited Offer at the time that the Company's right to purchase such
securities expires and (ii) the foregoing shall not apply with respect to any
shares as to which the Company shall have delivered a Section 5.4(II) Acceptance
Notice in the event that the agreement deemed to exist with respect to such
securities upon delivery of the applicable Section 5.4(II) Acceptance Notice is
terminated pursuant to Section 5.4(II)(e) hereof. If any such Disposition is
not completed within 60 days following the expiration of the Company's right to
purchase the securities specified in a Section 5.4(II) Transfer Notice, any
securities specified in such Section 5.4(II) Transfer Notice and not disposed of
in such Disposition shall again be subject to the Company's purchase rights
under this Section 5.4(II), to the extent provided in Section 5.3(f) hereof.
(e) The obligations of the parties to effect any Section 5.4(II)
Closing shall be subject to the satisfaction of the following conditions: (i)
all waiting periods, if any, applicable to the transactions occurring at such
Section 5.4(II) Closing under the HSR Act, shall have expired or been terminated
and (ii) no statute, rule, regulation, executive order, decree, ruling,
injunction or other order shall have been enacted, entered, promulgated or
enforced by any court or governmental authority of competent jurisdiction which
prohibits such transactions or makes such transactions illegal. The obligation
of the Company (and/or its designees) to effect any Section 5.4(II) Closing
shall be further subject to the condition that a majority of the shares of
Common Stock outstanding on a fully diluted basis (excluding for purposes of
calculating such number of shares outstanding on a fully diluted basis all
issued and outstanding shares of Common Stock Beneficially Owned by S and its
Affiliates and all shares of Common Stock issuable upon exercise of S Warrants)
shall have been paid for or shall simultaneously with such Section 5.4(II)
Closing be paid for pursuant to the Unsolicited Offer. If, as of any date on
which a Section 5.4(II) Closing is scheduled to occur, the foregoing conditions
relating thereto have not been satisfied, then such Section 5.4(II) Closing
shall occur as promptly as practicable following such satisfaction, and, with
respect to
28
<PAGE>
the conditions set forth in the first sentence of this Section 5.4(II)(e), the
parties shall use their reasonable best efforts to cause the satisfaction of
such conditions. If (x) the conditions relating to any Section 5.4(II) Closing
are not satisfied within 120 days following the delivery of the applicable
Section 5.4(II) Acceptance Notice, or (y) the Unsolicited Offer is terminated
without the condition set forth in the second sentence of this Section
5.4(II)(e) being satisfied, then S or the Company in the case of the preceding
clause (x), or the Company in the case of the preceding clause (y), may
terminate the agreement deemed to exist upon delivery of the applicable Section
5.4(II) Acceptance Notice by delivering written notice to the other.
Section 5.5 Required Dispositions.
---------------------
(a) If at any time S Voting Power (as defined below) is at least
24% and as a result of a repurchase of Common Stock by the Company ("Company
Repurchase"), S Voting Power immediately following such Company Repurchase S
Voting Power shall be greater than S Voting Power immediately prior to such
Company Repurchase, then, if and to the extent requested by the Company by
written notice to S, S shall, within six months after such request, dispose of
or cause its Affiliates to dispose of (a "Required Disposition") such number of
shares of Common Stock (to such parties and in such manner as shall be requested
by the Company) as shall be necessary to reduce S Voting Power to no more than S
Voting Power immediately prior to such Company Repurchase; provided, that in no
--------
event shall S or any of its Affiliates be required to dispose of any of the
Retained Shares; provided, further, that if any Required Disposition during such
-------- -------
six-month period would result in liability to S or any of its Affiliates under
Section 16(b) of the Exchange Act or any similar successor statute by reason of
the purchase of Common Stock upon exercise of the Warrants, then such six-month
period shall begin on the first date on which such Required Disposition may be
effected without liability under Section 16(b) of the Exchange Act. As used in
this Agreement, "S Voting Power" means, as of any particular time, the
percentage of all of the then issued and outstanding shares of Common Stock
represented by the issued and outstanding shares of Common Stock which are then
Beneficially Owned by S and its Affiliates (it being agreed that, for pur-
29
<PAGE>
poses of calculating the S Voting Power, the issued and outstanding shares of
Common Stock Beneficially Owned by S and its Affiliates shall specifically
exclude any shares subject to unexercised Warrants).
(b) The Company agrees to indemnify S and its Affiliates against
any Loss (as defined below) incurred by them as a result of any Required
Disposition. For purposes of this Section 5.5, shares of Common Stock disposed
of in a Required Disposition shall be deemed to be the shares (other than the
Retained Shares) purchased at the earliest time by S or its Affiliates. "Loss"
means the amount, if any, by which (i) the purchase price of the Common Stock
disposed of by S or its Affiliates in a Required Disposition (excluding any out-
of-pocket expenses incurred in connection with such purchase), exceeds (ii) the
proceeds received by S and its Affiliates from the sale of such Common Stock in
such Required Disposition (net of any out-of-pocket expenses incurred in
connection with such sale); provided, that if the Company Repurchase is effected
--------
through a tender offer, and the Company in its sole discretion shall have
consented in writing (which consent may be rescinded at any time) to the tender
pursuant to such offer by S and its Affiliates of all of the shares of Common
Stock owned by them, and S and its Affiliates tender pursuant to such offer
fewer than all of the shares of Common Stock owned by them (other than as a
result of the rescission of such consent), then, with respect to each share sold
in such Required Disposition, such Required Disposition shall be deemed to have
been effected at the price per share paid in such tender offer (but only if
greater than the average price per share actually received in such Required
Disposition); provided, further, that if the Company Repurchase is effected
-------- -------
through an open market purchase program and the Company in its sole discretion
shall have consented in writing (which consent may be rescinded at any time) to
the sale by S and its Affiliates of a greater number of shares than S and its
Affiliates actually sell during such program (and such consent remains effective
for at least 30 days during such program), then, with respect to each share sold
in such Required Disposition, such Required Disposition shall be deemed to have
been effected at the average price per share paid by the Company during such
program (but only if greater than the average price per share actually received
in such Required Disposition).
30
<PAGE>
Section 5.6 No Restrictions. So long as Section 5.1, Section 5.2,
---------------
Section 5.3, Section 5.4, Section 5.5 and Section 5.9 hereof are in full force
and effect, the Company will not take or recommend to its stockholders any
action during the term of this Agreement which would (i) impose limitations on
the legal rights of S or its Affiliates as Company stockholders other than those
imposed pursuant to the express terms of this Agreement, including, without
limitation, any action which would impose restrictions (A) based upon the size
of security holding, nationality of a security holder, the business in which a
security holder is engaged or other considerations applicable to S or its
Affiliates and not to security holders generally, or (B) with reference to
Common Stock generally, by means of the issuance of or proposal to issue any
other class of securities having voting power disproportionately greater than
the equity investment in the Company represented by such securities; (ii)
involve the issuance or corporate action providing for the issuance of any
warrant, capital stock or other security (A) which is, or under specified
circumstances will become, convertible into or represent the right to acquire
any securities of S or its Affiliates (other than pursuant to customary
provisions for adjusting the securities for which any such warrant is
exercisable or into which any such stock or security is convertible) or (B) any
other rights of which (including rights of redemption) are dependent upon the
amount of Voting Securities owned by S or its Affiliates; (iii) deny any benefit
to S or its Affiliates proportionately as holders of any class of Voting
Securities that is made available to other holders of the same class of Voting
Securities generally; or (iv) alter voting or other rights of the holders of any
class of Voting Securities so that any such rights (or the vote required with
respect to any matter) are determined with reference to the amount of Voting
Securities held by S or its Affiliates; provided, that this Section 5.6 shall
--------
not prohibit the Company from taking any action otherwise prohibited hereby
(including, without limitation, adopting a stockholder rights plan or similar
plan), so long as S and its Affiliates are, either expressly or as part of a
class of stockholders which includes S and its Affiliates, exempted from such
action or the limitations on legal rights imposed thereby.
Section 5.7 Information.
-----------
31
<PAGE>
(a) At any time that S shall account for its investment in the
Company pursuant to the equity method, the Company will furnish to S all
information that is required by generally accepted accounting principles to
enable S to account for its investment in such manner. To the extent reasonably
requested by S, the Company will, and will cause its employees, independent
public accountants and other representatives to, provide information regarding
the Company to, and otherwise cooperate with, S so as to enable S to prepare
financial statements in accordance with accounting principles generally accepted
in the United States and/or Canada, and to comply with its reporting
requirements and other disclosure obligations under applicable United States and
Canadian securities laws and regulations.
(b) If the Company so requests, S shall deliver to the Company,
no less frequently than quarterly, accurate written reports as to the amount of
each class of Voting Securities then Beneficially Owned by S and its Affiliates.
The Company shall be entitled to rely on the most recently delivered such report
for all purposes of this Agreement.
(c) If S so requests, the Company shall deliver to S no less
frequently than quarterly accurate written reports as to the amount of each
class of Voting Securities then outstanding. S shall be entitled to rely on the
most recently delivered such report for all purposes of this Agreement.
(d) Each of the Company, S and Subsidiary will provide the
other, and shall cause each of their respective subsidiaries to provide the
other, with such assistance as may reasonably be requested by them in connection
with the preparation of any tax return, any audit or other examination by any
taxing authority, or any judicial or administrative proceedings relating to
liability for taxes relating to the Redemption Transaction, and each will retain
and provide the other with any records or information which may be relevant to
such return, audit or examination, proceedings or determination. The party
requesting assistance hereunder shall reimburse the other party for all
reasonable expenses incurred in providing such assistance, including any
expenses of third parties. Any information obtained pursuant to this Section
5.7(d) shall be kept strictly
32
<PAGE>
confidential by the parties hereto. Notwithstanding the foregoing, neither the
Company nor any of its affiliates shall have any obligation to make available or
provide a copy of any tax return filed by the Company or its affiliates or any
related materials.
Section 5.8 Board Representation.
--------------------
(a) So long as Section 5.1, Section 5.2, Section 5.3, Section
5.4, Section 5.5 and Section 5.9 hereof are in full force and effect, if at any
time the S Voting Power is increased to more than 10% as a result of the
exercise of Warrants, and for so long thereafter as the S Voting Power is more
than 10%, S shall be entitled to designate up to such number of persons for
election to the Company's Board of Directors and the Strategic Direction
Committee (or any successor thereto) of the Company's Board of Directors as
shall be equal to 6% (rounded to the nearest whole number, but not less than
one) of the total numbers of members of such board and committee, respectively,
at each annual meeting of stockholders of the Company after the date hereof. The
numbers of persons S shall be entitled to designate for election to the
Company's Board of Directors and the Strategic Direction Committee (or any
successor thereto) of such Board shall be increased to the whole number closest
to the following applicable percentage of the total numbers of members of such
Board and committee, respectively:
(i) 9%, if the S Voting Power is increased to more than 15%
as a result of the exercise of Warrants and for so long thereafter as the S
Voting Power is more than 15%,
(ii) 12%, if the S Voting Power is increased to more than
20% as a result of the exercise of Warrants and for so long thereafter as
the S Voting Power is more than 20%, or
(iii) 15%, if the S Voting Power is increased to more than
24% as a result of the exercise of Warrants and for so long thereafter as
the S Voting Power is more than 24%
33
<PAGE>
(b) The designation by S of any person for election to the
Company's Board of Directors, other than those persons serving on such Board
immediately prior to the date hereof, shall be made after consultation with the
Company, and any person designated by S for election to the Strategic Direction
Committee (or any successor thereto) of the Company's Board of Directors, other
than Edgar M. Bronfman, Charles R. Bronfman and Edgar Bronfman, Jr. (or if none
of them are directors of the Company, the person serving as chairman of the
board or chief executive officer of S), shall be a person agreed to by the
Company (which agreement will not be unreasonably withheld). The Company's
nominating committee shall recommend to the Company's Board of Directors that
all persons designated by S for election to the Company's Board of Directors in
accordance with the provisions of this Section 5.8 (and any additional designees
as the parties may agree) be included in the slate of nominees recommended by
such Board to the Company's stockholders for election as directors at each
annual meeting of the stockholders of the Company, and there shall be a
recommendation to the Board of Directors that all persons designated by S for
election to the Strategic Direction Committee (or any successor thereto) of the
Company's Board of Directors in accordance with the provisions of this Section
5.8 (and any additional designees as the parties may agree) be elected to such
committee. In the event that any designee of S for election to the Company's
Board of Directors or its Strategic Direction Committee (or any successor
thereto) pursuant to the foregoing provisions shall cease to serve as a director
or committee member for any reason, the vacancy resulting therefrom shall be
filled according to the procedures described above.
(c) At any time that the S Voting Power is increased to more
than 10%, and for so long thereafter as the S Voting Power is more than 10%, S's
management shall recommend to its Board of Directors that the person serving as
the chief executive officer of the Company and one other person designated by
such chief executive officer after consultation with S, or any two other persons
designated by the Company after consultation with S (and any additional
designees as the parties may agree) be included in the slate of nominees
recommended by the Board of Directors of S to shareholders for election as
directors at each annual meeting of shareholders of S.
34
<PAGE>
In the event that any of such designees shall cease to serve as a director for
any reason, the vacancy resulting thereby shall be filled according to the
procedures described above.
(d) The Company will furnish to S's designees on the Company's
Board of Directors all information that is provided to the other directors of
the Company. S will furnish to the Company's designees on S's Board of Directors
all information that is provided to the other directors of S.
Section 5.9 Spinoff Distributions. In the event that the Company
---------------------
makes any Spinoff Distribution, then, whether or not Spinoff Warrants are issued
in connection therewith, effective as of the date of such Spinoff Distribution,
without any action on the part of the Company, the Spinoff Company or S, there
shall be deemed to exist between S and the Spinoff Company a binding agreement
(the "Spinoff Agreement") containing provisions substantially identical to
Article V and Article VI hereof, including the definitions of any capitalized
terms used in such Articles but defined in other Articles of this Agreement;
provided that, for purposes of the Spinoff Agreement, (i) references to the
- --------
Company shall mean the Spinoff Company; (ii) references to the Common Stock, the
Warrants and the Warrant Agreement shall mean the common stock of the Spinoff
Company, the Spinoff Warrants (if any) and the warrant agreement pursuant to
which the Spinoff Warrants (if any) are issued, respectively, and references to
the Notes, the Retained Shares, the Existing Standstill Agreement and the
Existing Registration Rights Agreement shall be disregarded; (iii) references to
"the date hereof" and "the date of this Agreement" shall mean the date of the
Spinoff Distribution; (iv) references to the General Corporation Law of the
State of Delaware and the New York Stock Exchange in the definition of
Significant Event shall mean, respectively, the general corporation law of the
state in which the Spinoff Company is incorporated and the rules of the
principal national securities exchange on which the common stock of the Spinoff
Company is listed or admitted to trading (or, if the common stock of the Spinoff
Company is not listed or admitted to trading on any national securities exchange
but is designated as a national market system security by the NASD, the NASD
35
<PAGE>
rules applicable to companies so designated); (v) references to the fair market
value of the Warrants as of the date hereof (as contemplated by Section
5.4(I)(b)(iii) hereof) shall mean the fair market value of the Spinoff Warrants
(if any) as of the date of the Spinoff Distribution, as determined by two
nationally recognized investment banking firms, one firm to be selected by each
of S and the Company, or in the event such firms are unable to agree, by a third
nationally recognized investment banking firm selected by such firms; (vi) the
reference to valuation methodology (as contemplated by Section 5.4 (b)(iii)
hereof) shall mean valuation methodology relating to the Spinoff Warrants (if
any), as determined by two nationally recognized investment banking firms, one
firm to be selected by each of S and the Company, or in the event such firms are
unable to agree, by a third nationally recognized investment banking firm
selected by such firms (which valuation methodology shall in any event be
consistent with the valuation methodology set forth in Exhibit H to this
Agreement, except as appropriate to reflect differences between the Company and
the Spinoff Company or their respective equity securities); (vii) the
Termination Date shall be the 15th anniversary of the date of this Agreement;
and (viii) if Spinoff Warrants are not issued in connection with the Spinoff
Distribution, then, in addition to the termination rights contemplated by
Section 6.1 hereof, the Spinoff Company in its discretion may terminate the
Spinoff Agreement by written notice to S at any time after the first anniversary
of the Spinoff Distribution. Prior to any Spinoff Distribution, S shall, and
the Company shall cause the Spinoff Company to, enter into an agreement
memorializing the Spinoff Agreement. Capitalized terms used but not defined in
this Section 5.9 shall have the meanings assigned to such terms in the Warrant
Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Termination. This Agreement shall terminate on the
-----------
Termination Date; provided that the Company shall have the right to terminate
--------
this Agreement in whole or in part upon written notice to S if, at the time such
notice is given, (i) neither S nor any of its Affiliates Beneficially Owns any
Warrants which are or may thereafter be exercisable in accordance with their
36
<PAGE>
terms and (ii) the S Voting Power is less than 2%; provided, further, that S
-------- -------
shall have the right to terminate this Agreement upon written notice to the
Company if the Company materially breaches any of its obligations hereunder
(other than Section 6.11 hereof) or under the Notes; provided, further, that S
-------- -------
shall have the right to terminate this Agreement upon written notice to the
Company given on or after third anniversary of the date on which all of the
Warrants shall have expired unexercised or shall have been reacquired by the
Company. In the event of any such termination of this Agreement, unless the
parties otherwise agree, S and the Company shall cause all of their respective
designees serving on the Board of Directors or any committee thereof of the
other party pursuant to Section 5.8 hereof, if any, to resign from such Board of
Directors and committee, effective as of the date of such termination.
Section 6.2 Survival of Representations and Warranties. The
------------------------------------------
representations and warranties made herein shall survive through the term of
this Agreement.
Section 6.3 Legends. If requested in writing by the Company, S shall
-------
present or cause to be presented promptly all certificates representing Voting
Securities Beneficially Owned by S or any of its Affiliates, for the placement
thereon of a legend substantially to the following effect, which legend will
remain thereon as long as such Voting Securities are subject to the restrictions
contained in this Agreement:
"The securities represented by this certificate are subject to the
provisions of an Agreement, dated as of April 6, 1995, among E.I. du
Pont de Nemours and Company, The Seagram Company Ltd. and JES
Developments, Inc. and may not be sold, pledged, hypothecated or
otherwise transferred except in accordance therewith. A copy of said
Agreement is on file at the office of the Corporate Secretary of E.I.
du Pont de Nemours and Company."
The Company may enter a stop transfer order with the transfer agent or agents of
Voting Securities against any Disposition not in compliance with the provisions
of this Agreement.
37
<PAGE>
Section 6.4 Entire Agreement; Termination of Existing Agreement.
---------------------------------------------------
This Agreement, the Warrant Agreement, the Registration Rights Agreement, the
Warrants and the Notes constitute the entire agreement among the parties hereto
with respect to the subject matter hereof and supersede all other prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof. Without limiting the foregoing, upon the
execution and delivery of this Agreement by the parties hereto, the Existing
Standstill Agreement and the Existing Registration Rights Agreement shall
terminate; provided that termination of the Existing Standstill Agreement and
--------
the Existing Registration Rights Agreement shall not relieve any party thereto
from liability for breach of any provision thereof prior to such termination.
As used in this Agreement, (i) "Existing Standstill Agreement" means the
agreement, dated as of October 2, 1981, as amended and restated as of March 26,
1986, between the Company and S, and (ii) "Existing Registration Rights
Agreement" means the registration rights agreement, dated as of October 2, 1981,
between the Company and S.
Section 6.5 Specific Performance. The parties hereto agree that
--------------------
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to an injunction or injunctions to prevent breaches of the provisions
of this Agreement and to specific performance of the terms hereof, in addition
to any other remedy at law or in equity.
Section 6.6 Expenses. Except as otherwise expressly provided herein,
--------
all costs and expenses incurred in connection with the transactions contemplated
by this Agreement shall be paid by the party incurring such expenses.
Section 6.7 Assignment. This Agreement shall be binding upon and
----------
inure to the benefit of the parties hereto and their successors by operation of
law, but may not otherwise be assigned by any party hereto without the prior
written consent of the other parties hereto.
Section 6.8 Validity. If any provision of this Agreement, or the
--------
application thereof to any person or circumstance is held invalid or
unenforceable, the re-
38
<PAGE>
mainder of this Agreement, and the application of such provision to other
persons or circumstances, shall not be affected thereby, and to such end, the
provisions of this Agreement are agreed to be severable.
Section 6.9 Notices. All notices, requests, claims, demands and
-------
other communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly given if so given) by delivery in person, by fax
(receipt of which is confirmed), or by reputable overnight courier (receipt of
which is confirmed) to the other party as follows:
if to the Company:
E.I. du Pont de Nemours and Company
1007 Market Street
Wilmington, Delaware 19898
Telephone: (302) 773-0177
Fax: (302) 773-4679
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
Attn: Roger S. Aaron, Esq.
and
Lou R. Kling, Esq.
Telephone: (212) 735-3000
Fax: (212) 735-2000
if to S or Subsidiary to:
The Seagram Company Ltd.
1430 Peel Street
Montreal, Quebec
Canada H3A 1S9
Attn: Laura Falk Scott, Esq.
Telephone: (514) 849-5271
Fax: (514) 849-1430
and
39
<PAGE>
JES Developments, Inc.
c/o Joseph E. Seagram & Sons, Inc.
375 Park Avenue
New York, New York 10152
Attn: Daniel R. Paladino, Esq.
Vice President and General Counsel
Telephone: (212) 572-1345
Fax: (212) 572-1398
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attn: Edgar M. Masinter, Esq.
and
Sarah E. Cogan, Esq.
Telephone: (212) 455-2000
Fax: (212) 455-2502
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above.
Section 6.10 Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of Delaware, without regard
to the principles of conflicts of law thereof.
Section 6.11 Registration Rights Agreement. The Company will comply
-----------------------------
in all material respects with all of its obligations under the Registration
Rights Agreement.
Section 6.12 Descriptive Headings. The descriptive headings herein
--------------------
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
Section 6.13 No Third Party Beneficiaries. This Agreement shall be
----------------------------
binding upon and inure solely to the benefit of each party hereto and its
successors and permitted assigns, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other person any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement. Without
40
<PAGE>
limiting the generality of the foregoing, and notwithstanding anything in this
Agreement to the contrary, the parties expressly agree that the rights, benefits
and remedies conferred upon S and its Affiliates under Section 5.6, Section 5.7
and Section 5.8 hereof are conferred exclusively upon S and its Affiliates, and
accordingly, the Company shall not be obligated to confer any of such rights,
benefits or remedies upon, and none of such rights, benefits or remedies shall
be enforceable by or on behalf of, any other person or entity.
Section 6.14 Investment Banking Firms. The parties agree that
------------------------
whenever investment banking firms are to be selected pursuant to this Agreement
or the Registration Rights Agreement, (i) the Company may so select from among
James D. Wolfensohn Incorporated or The First Boston Corporation (or any other
firm reasonably acceptable to S); and (ii) S and its Affiliates may so select
from among Goldman, Sachs & Co. and Lazard Freres & Co. (or any other firm
reasonably acceptable to the Company).
Section 6.15 Counterparts. This Agreement may be executed in two or
------------
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
41
<PAGE>
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed on its behalf by its representatives thereunto duly authorized, all
as of the day and year first above written.
E.I. du Pont de Nemours and Company
By /s/ Edgar S. Woolard, Jr.
--------------------------
Name: Edgar S. Woolard, Jr.
Title:Chairman of the Board and Chief
Executive Officer
The Seagram Company Ltd.
By /s/ Edgar Bronfman, Jr.
------------------------
Name: Edgar Bronfman, Jr.
Title:President and Chief Executive
Officer
JES Developments, Inc.
By /s/ Daniel R. Paladino
-----------------------
Name: Daniel R. Paladino
Title:Vice President
42
<PAGE>
Exhibit A
---------
Form of 2 1/2 Year Warrant
--------------------------
43
<PAGE>
Exhibit B
---------
Form of 3 1/2 Year Warrant
--------------------------
44
<PAGE>
Exhibit C
---------
Form of 4 1/2 Year Warrant
--------------------------
45
<PAGE>
Exhibit D
---------
Form of Warrant Agreement
-------------------------
46
<PAGE>
Exhibit E
---------
Form of Notes
-------------
47
<PAGE>
Exhibit F
---------
Form of Registration Rights Agreement
-------------------------------------
48
<PAGE>
Exhibit G
---------
Form of S Stockholder Agreement
-------------------------------
49
<PAGE>
Exhibit H
---------
Warrant Valuation
-----------------
Initial Fair Market Value
- -------------------------
2 1/2 Year Warrant: $2.8125 per share of Common Stock issuable thereunder, or
$135 million in the aggregate for 48 million underlying shares.
3 1/2 Year Warrant: $2.8125 per share of Common Stock issuable thereunder, or
$151.875 million in the aggregate for 54 million underlying shares.
4 1/2 Year Warrant: $2.8125 per share of Common Stock issuable thereunder, or
$151.875 million in the aggregate for 54 million underlying shares.
Aggregate initial fair market value of all Warrants: $438.75 million.
Valuation Methodology.
- ----------------------
[see following page]
50
<PAGE>
Valuation Methodology
- ---------------------
* Use Goldman, Sachs & Co. ("Goldman") " OCCAM-OPTIONS CALCULATOR" (Version
3.1 March 17, 1992). A diskette copy of such model has been delivered to
James D. Wolfensohn Incorporated (Wolfensohn") and Wolfensohn has signed a
Software License Agreement with Goldman with respect thereto. Goldman will
deliver additional copies of the diskette to the Company, S or other
investment banking firms selected by the Company or S in connection with
the valuation of the Warrants upon the execution by the Company, S or such
other investment banking firm of a Software License Agreement in form
reasonably satisfactory to Goldman.
* Use the following assumptions:
<TABLE>
<CAPTION>
Initial
Model Inputs Description Assumptions
------------ ----------- -----------
<S> <C> <C>
(1) Underlyer Price Closing common stock price $63.125
--------------- on the NYSE on the Warrant
Valuation Date.
(2) Expiration Expiration Date of the A: 10/6/97
---------- Warrant in question. B: 10/6/98
C: 10/6/99
(3) Today's Date: Warrant Valuation Date 4/5/95
------------
(4) Riskless Rate: Interpolated U.S. Treasury A: 6.73%(1)
------------- rate input as a semi-annual B. 6.82&(1)
rate and computed with the C. 6.90%(1)
continuously compounded
equivalent of the semi-
annual rate for the period
from the Warrant Valuation
Date to the Expiration and
rounded to two significant
digits. U.S. Treasury rate
interpolated based on
closing prices and yields
for relevant "on-the-run"
U.S. Treasuries.
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
(5) Dividend Yield: The annualized dividend yield on $2.04(2)/
-------------- the common stock based on the
current or announced quarterly 63.125
dividend and the common stock
price determined in (1) above =3.23%
using annual compounding and
rounded to two significant digits.
(6) Option Type: European Style Warrants European
-----------
(7) Volatility: 21.50% (to be used in all subse- 21.50%
---------- quent valuations)
</TABLE>
- ----------
(1) Semi-annual yields to maturity based on closing prices and yields (2-year
rate 6.68%; 3-year rate 6.78%; and 5-year rate 6.94%) as of April 5, 1995.
To obtain the valuation, such semi-annual yields need to be converted to
their continuously compounded equivalents.
(2) The $2.04/share annualized rate being a negotiated amount based on a
current quarterly dividend of $.47/share plus a potential increase of
$.04/share.
2
<PAGE>
EXHIBIT 99.2
WARRANT AGREEMENT
-----------------
This Warrant Agreement, dated as of April 6, 1995, is between E.I. du Pont
de Nemours and Company, a Delaware corporation (the "Company"), and Warco
Transfer Corporation, a Delaware corporation and a wholly-owned subsidiary of
the Company, as Warrant Agent (the "Warrant Agent").
WHEREAS, simultaneously with the execution and delivery of this Agreement,
the Company, The Seagram Company Ltd., a Canadian corporation ("S"), and JES
Developments, Inc., a Delaware corporation and a wholly-owned subsidiary of S
("Subsidiary"), are entering into an agreement (the "Redemption Agreement")
which provides for, among other things, the Company to acquire from Subsidiary
certain shares of the Common Stock, par value $0.60 per share (the "Common
Stock"), of the Company;
WHEREAS, pursuant to the Redemption Agreement, the Company proposes to
issue to Subsidiary warrants entitling Subsidiary to purchase an aggregate of
156,000,000 shares of Common Stock; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance of the certificates evidencing such warrants and other matters as
provided herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereto agree as follows:
Section 1. Certain Definitions. As used in this Agreement, the
-------------------
following terms, unless otherwise expressly provided, shall have the following
meanings:
(a) "Acceleration Event Period" shall mean (a) the period commencing
on the tenth Business Day (but not earlier than the second Business Day
following public announcement of the record date hereinafter described) and
ending on the third Business Day preceding
<PAGE>
the record date established by the Company for purposes of determining the
stockholders of the Company who are (i) entitled to vote on any Significant
Event or on any Significant Distribution which is submitted to a vote of the
stockholders of the Company or (ii) entitled to receive a Significant
Distribution which is not submitted to a vote of the stockholders of the
Company; provided that if, in connection with a Spinoff Distribution which is
--------
not submitted to a vote of the stockholders of the Company, the Company elects
to issue Spinoff Warrants to the registered holders of one or more classes of
Warrants, as provided in Section 13 hereof, then no Acceleration Event Period
shall be deemed to occur with respect to any S Warrants of such class or
classes; (b) the period commencing on the first Business Day following
commencement of an Unsolicited Offer (as defined in the Redemption Agreement)
which satisfies the requirements of the first proviso contained in Section
5.3(f) thereof and ending upon the termination or expiration of such Unsolicited
Offer; and (c) the period commencing on the first Business Day following
commencement of a tender or exchange offer which is recommended to stockholders
of the Company by at least a majority of the entire Board of Directors of the
Company and ending upon the termination or expiration of such offer.
(b) "Affiliate" shall mean any corporation or entity controlled by S;
provided that if, in accordance with Section 5.3(c) of the Redemption Agreement,
- --------
a Disposition of any Warrants is made pursuant to a dividend or other
distribution to stockholders of S generally, then "Affiliate" shall also mean
and include any affiliate or associate (as such terms are defined in Rule 12b-2
under the Exchange Act) of S who or which, together with such affiliate's or
associate's respective affiliates and associates (as such terms are defined in
Rule 12b-2 under the Exchange Act) and the members of any "group" (within the
meaning of Section 13(d)(3) of the Exchange Act) with respect to securities of S
of which such affiliate or associate is a part, Beneficially Owns securities of
S representing more than 5% of the total combined voting power in the election
of directors of S of all securities of S outstanding immediately prior to such
Disposition.
2
<PAGE>
(c) "Beneficially Owns" and like terms shall mean "beneficially owns"
within the meaning of Rule 13d-3 under the Exchange Act.
(d) "Business Day" shall mean any day other than a Saturday or a
Sunday or a day on which commercial banking institutions in the City of New York
are authorized by law to be closed. Any reference in this Agreement to "days"
(unless Business Days are specified) shall mean calendar days.
(e) "Derivative Exercise Period" shall mean any period during which
an outstanding Derivative S Security is exchangeable or exercisable for, or
convertible into, shares of Common Stock.
(f) "Derivative S Security" shall mean any security of S or any
Affiliate thereof which is currently (or following the passage of time, the
occurrence of any event or the giving of notice), directly or indirectly,
exchangeable or exercisable for, or convertible into, Common Stock, and in
respect of which the Company had been entitled to purchase (but did not
purchase), prior to the Disposition of such security by S or an Affiliate
thereof, Warrants exercisable for the Common Stock deliverable upon exercise,
exchange or conversion of such security.
(g) "Disposition" shall mean any direct or indirect (including,
without limitation, through the disposition or transfer of control of another
person), sale, assignment, transfer, pledge, hypothecation, granting of any
option with respect to or other disposition of any interest in (or the entering
into of an agreement or understanding with respect to the foregoing) any
Warrants.
(h) "European Exercise Period" shall mean (i) with respect to the
First S Warrants, the period commencing on August 6, 1997 and ending at the
Expiration Time, (ii) with respect to the Second S Warrants, the period
commencing on August 6, 1998 and ending at the Expiration Time and (iii) with
respect to the Third S Warrants, the period commencing on August 6, 1999 and
ending at the Expiration Time.
3
<PAGE>
(i) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
(j) "Exercise Price" shall mean, subject to adjustment as provided in
this Agreement, (i) $89.33 in the case of each First Warrant, (ii) $101.14 in
the case of each Second Warrant and (iii) $113.63 in the case of each Third
Warrant.
(k) "Expiration Time" shall mean 5:00 P.M., New York City time, on
(i) October 6, 1997, in the case of the First Warrants, (ii) October 6, 1998, in
the case of the Second Warrants and (iii) October 6, 1999, in the case of the
Third Warrants.
(l) "First Warrants", "Second Warrants" and "Third Warrants" shall
have the respective meanings assigned to such terms in Section 3 hereof.
(m) "First Non-S Warrants", "Second Non-S Warrants" and "Third Non-S
Warrants" shall have the respective meanings assigned to such terms in Section 3
hereof.
(n) "First S Warrants", "Second S Warrants" and "Third S Warrants"
shall have the respective meanings assigned to such terms in Section 3 hereof.
(o) "HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended.
(p) "Non-S Person" shall mean any person or entity which is not an S
Group Member.
(q) "Non-S Warrant" shall mean any Warrant which is, and the Shares
issuable upon exercise of which would be, Beneficially Owned exclusively by one
or more Non-S Persons.
(r) "S Group Member" shall mean S or any of its Affiliates, including
without limitation, Subsidiary.
(s) "S Warrant" shall mean any Warrant which is, or the Shares
issuable upon exercise of which
4
<PAGE>
(whether or not such Warrant is exercisable at such time) would be, Beneficially
Owned by one or more S Group Members.
(t) "Shares" shall mean the Common Stock issuable upon exercise
of any Warrant.
(u) "Significant Distribution" shall mean any distribution to all
holders of Common Stock which requires an adjustment to the Exercise Price
pursuant to Section 12(c) hereof, whether or not such distribution is submitted
to a vote of the stockholders of the Company.
(v) "Significant Event" shall mean any of the following which are
submitted to a vote of the stockholders of the Company, if stockholder approval
thereof is required by the General Corporation Law of the State of Delaware or
the rules of the New York Stock Exchange or the charter or by-laws of the
Company: any charter or by-law amendment (other than a proposal to require
cumulative voting in the election of directors), acquisition or disposition of
assets (by way of merger, consolidation or otherwise), change in capitalization,
liquidation, or other action out of the ordinary course of business of the
Company; provided that "Significant Event" shall not mean or include any
--------
proposals to approve, adopt or amend any bonus, profit sharing, pension,
retirement, thrift, savings, incentive, variable, stock purchase, stock
ownership, stock appreciation, stock option, dividend reinvestment or other
benefit or compensation plan, program, agreement or arrangement for employees or
directors of the Company or any of its subsidiaries; provided, further, that
-------- -------
"Significant Event" shall not mean or include any Significant Distribution.
(w) "Spinoff Company" shall mean the corporation or other entity the
capital stock or other equity interests of which are distributed in a Spinoff
Distribution.
(x) "Spinoff Distribution" shall mean any Significant Distribution in
which the Company distributes capital stock of or other equity interests in any
corporation or entity other than Company.
5
<PAGE>
(y) "Spinoff Warrants" shall have the meaning set forth in Section 13
(a) hereof.
(z) "Voting Securities" shall mean any securities of the Company
entitled, or which may be entitled, to vote (whether or not entitled to vote
generally in the election of directors of the Company), or any securities
convertible into or exercisable or exchangeable for such securities (whether or
not the right to convert, exercise or exchange is subject to the passage of time
or contingencies or both).
(aa) "Warrants" shall mean the warrants initially issued to
Subsidiary pursuant to the Redemption Agreement and initially exercisable for an
aggregate of 156,000,000 shares of Common Stock, and any warrants issued upon
transfer, division or combination thereof or in substitution thereof pursuant to
this Agreement.
(ab) "Warrant Certificates" shall mean the certificates evidencing
the Warrants, as more particularly described in Section 2 hereof.
Section 2. Appointment of Warrant Agent. The Company hereby appoints
----------------------------
the Warrant Agent to act as agent for the Company in accordance with the
instructions set forth hereinafter in this Agreement, and the Warrant Agent
hereby accepts such appointment.
Section 3. Form of Warrant Certificates. The Warrant Certificates to
----------------------------
be delivered pursuant to this Agreement shall be in registered form only. The
Warrant Certificates evidencing the S Warrants shall be substantially in the
forms set forth in Exhibit S-1 (such S Warrants, the "First S Warrants"),
Exhibit S-2 (such S Warrants, the "Second S Warrants") or Exhibit S-3 (such S
Warrants, the "Third S Warrants") attached hereto, as applicable. The Warrant
Certificates evidencing the Non-S Warrants, if any, shall be substantially in
the forms set forth in Exhibit NS-1 (such Non-S Warrants, the "First Non-S
Warrants"), Exhibit NS-2 (such Non-S Warrants, the "Second Non-S Warrants") or
Exhibit NS-3 (such Non-S Warrants, the "Third Non-S Warrants") attached hereto,
as applicable. The First S Warrants and any
6
<PAGE>
First Non-S Warrants are collectively referred to herein as the "First
Warrants", the Second S Warrants and any Second Non-S Warrants are collectively
referred to herein as the "Second Warrants", and the Third S Warrants and any
Third Non-S Warrants are collectively referred to herein as the "Third
Warrants."
Section 4. Execution of Warrant Certificates.
---------------------------------
(a) Warrant Certificates shall be signed on behalf of the Company by
its Chairman of the Board, President, Vice Chairman, Senior Vice President-
Finance or Vice President and Treasurer and by its Secretary or an Assistant
Secretary under its corporate seal. Each such signature upon the Warrant
Certificates may be in the form of a facsimile signature of the present or any
future Chairman of the Board, President, Vice Chairman, Senior Vice President-
Finance, Vice President and Treasurer, Secretary or Assistant Secretary and may
be imprinted or otherwise reproduced on the Warrant Certificates and for that
purpose the Company may adopt and use the facsimile signature of any person who
shall have been Chairman of the Board, President, Vice Chairman, Senior Vice
President-Finance, Vice President and Treasurer, Secretary or an Assistant
Secretary notwithstanding the fact that at the time the Warrant Certificates
shall be countersigned and delivered or disposed of he shall have ceased to hold
such office. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
(b) In case any officer of the Company who shall have signed any of
the Warrant Certificates shall cease to be such officer before the Warrant
Certificates so signed shall have been countersigned by the Warrant Agent
pursuant to Section 5 hereof, or disposed of by the Company, such Warrant
Certificates nevertheless may be countersigned and delivered or disposed of as
though such person had not ceased to be such officer of the Company; and any
Warrant Certificate may be signed on behalf of the Company by any person who, at
the actual date of the execution of such Warrant Certificate, shall be a proper
officer of the Company to sign such Warrant Certificate, although at the date of
the execution of
7
<PAGE>
this Warrant Agreement any such person was not such officer.
(c) Warrant Certificates shall be dated the date of countersignature
by the Warrant Agent pursuant to Section 5 hereof.
Section 5. Registration and Countersignature. Warrant Certificates
---------------------------------
distributed as provided in Section 12 shall be registered in the names of the
record holders of the Warrant Certificates to whom they are to be distributed.
Warrant Certificates shall be manually countersigned by the Warrant Agent and
shall not be valid for any purpose unless so countersigned. The Company and the
Warrant Agent may deem and treat the registered holder of a Warrant Certificate
as the absolute owner thereof (notwithstanding any notation of ownership or
other writing thereon made by anyone), for the purpose of any exercise thereof
and any distribution to the holder thereof and for all other purposes, and
neither the Company nor the Warrant Agent shall be affected by any notice to the
contrary.
Section 6. Registration of Transfers and Exchanges.
---------------------------------------
(a) Subject to the transfer restrictions contained in the Redemption
Agreement, the Warrant Agent shall from time to time register the transfer of
any outstanding Warrant Certificates upon the records to be maintained by it for
that purpose, upon surrender thereof accompanied by (i) a written instrument of
transfer in the form of the assignment appearing at the end of the forms of the
Warrant Certificates, duly executed by the registered holder or holders thereof
or by the duly appointed legal representative thereof or by a duly authorized
attorney and (ii) in the case of any transfer by an S Group Member, or by any
other party bound by any of the provisions of Article V of the Redemption
Agreement, (A) an officer's certificate, in form and substance reasonably
satisfactory to the Warrant Agent and the Company, certifying that such transfer
would not violate any provision of the Redemption Agreement and (B) duly
executed consents to jurisdiction and/or agreements of Purchasing Persons (as
such term is defined in the Re-
8
<PAGE>
demption Agreement), to the extent required by Section 5.3(a), Section 5.3(b) or
Section 5.3(c) of the Redemption Agreement. Upon any such registration of
transfer, a new Warrant Certificate of like tenor and representing in the
aggregate a like number of Warrants shall be issued to the transferee and the
surrendered Warrant Certificate shall be cancelled by the Warrant Agent. For
purposes of this Agreement, but without limiting the provisions of Section 2 of
this Agreement, the Warrant Certificates in the forms set forth in Exhibits S-1
and NS-1 attached hereto shall be deemed "of like tenor", the Warrant
Certificates in the forms set forth in Exhibits S-2 and NS-2 shall be deemed "of
like tenor", and the Warrant Certificates set forth in Exhibits S-3 and NS-3
shall be deemed "of like tenor". S Group Members may only hold S Warrants;
holders of Warrants who are Non-S Persons will have the right to exchange First
S Warrants for First Non-S Warrants, Second S Warrants for Second Non-S Warrants
and Third S Warrants for Third Non-S Warrants, in each case representing the
same number of Warrants and Shares subject thereto as that exchanged.
(b) Warrant Certificates may be exchanged at the option of the
holders thereof, when surrendered to the Warrant Agent at its office maintained
for the purpose of exchanging, transferring or exercising the Warrants in
Wilmington, Delaware or such other office in New York, New York, in either case
as the Warrant Agent may designate from time to time (the "Warrant Agent
Office"), for another Warrant Certificate or other Warrant Certificates of like
tenor and representing in the aggregate a like number of Warrants. Warrant
Certificates surrendered for exchange, transfer or exercise shall be cancelled
by the Warrant Agent. Warrant Certificates cancelled as provided in this
Section 6 shall then be disposed of by the Warrant Agent in a manner
satisfactory to the Company.
(c) The Warrant Agent is hereby authorized to countersign, in
accordance with the provisions of this Section 6 and of Section 5, the new
Warrant Certificates required pursuant to the provisions of such Sections, and
for the purpose of any distribution of Warrant Certificates contemplated by
Section 12.
9
<PAGE>
Section 7. Duration and Exercise of Warrants.
---------------------------------
(a) S Warrants may be exercised only (i) during an Acceleration Event
Period, (ii) to the extent necessary to enable S or an Affiliate thereof to
obtain shares of Common Stock which it is required at such time to deliver upon
the exchange, exercise or conversion of an outstanding Derivative S Security
held by a Non-S Person during a Derivative Exercise Period (to the extent either
such period in (i) or (ii) occurs prior to the respective Expiration Times of
the S Warrants) or (iii) during the respective European Exercise Periods of the
S Warrants. Non-S Warrants may be exercised at any time or from time to time
until their respective Expiration Times (the "American Exercise Period").
Notwithstanding the foregoing, if at any time a registration statement shall be
in effect with respect to Shares issuable upon exercise of any Non-S Warrants,
then the Company shall have the right to suspend the exercisability of such Non-
S Warrants for up to 30 days if the Company furnishes the Warrant Agent with an
opinion of counsel to the Company (who may be an employee of the Company) to the
effect that the prospectus included in such registration statement is reasonably
likely to be deemed to contain a material misstatement or omission by reason of
its failure to disclose material information concerning a pending or
contemplated financing, acquisition, disposition of assets or stock, merger or
other transaction, which information was not at such time otherwise publicly
disclosed.
(b) Subject to the provisions of this Agreement, including Section
12, on or after the date of this Agreement the holder of each Warrant shall have
the right to purchase from the Company (and the Company shall issue and sell to
such holder) one fully paid and non-assessable Share at the Exercise Price, upon
the surrender to the Warrant Agent at the Warrant Agent Office of the Warrant
Certificate evidencing such Warrant, with the form of election to purchase on
the reverse thereof properly completed and executed, together with any other
documents required by this Agreement, and upon payment of the Exercise Price in
lawful money of the United States of America. Any Warrants evidenced by a
Warrant Certificate may be exercised either as an entirety or from time
10
<PAGE>
to time for part of the number of Warrants specified in such Warrant
Certificate. In the event that less than all the Warrants evidenced by a
Warrant Certificate surrendered upon the exercise of Warrants are exercised, a
new Warrant Certificate or Certificates of like tenor will be issued for the
remaining number of Warrants evidenced by the Warrant Certificate so
surrendered. Except as otherwise expressly provided in this Agreement, no
adjustments shall be made for any cash dividends on Shares issuable on the
exercise of a Warrant.
(c) Subject to Section 7(b) and Section 8 hereof, upon such surrender
of a Warrant Certificate, delivery of any such documents and payment of the
Exercise Price, the Warrant Agent shall cause to be issued and delivered to or
upon the written order of the registered holder of such Warrant Certificate and
in such name or names as such registered holder may designate, a certificate for
the Share or Shares issuable upon the exercise of the Warrant or Warrants
evidenced by such Warrant Certificate. Such certificate shall be deemed to have
been issued and any person so designated to be named therein shall be deemed to
have become the holder of record of such Share or Shares as of close of business
on the date of the surrender of such Warrant Certificate and payment of the
Exercise Price. The Warrant Agent is hereby authorized to countersign any
required new Warrant Certificate or Certificates pursuant to the provisions of
this Section 7 and of Section 5.
(d) The obligation of the Company and the Warrant Agent to issue and
deliver shares of Common Stock upon any exercise of Warrants shall be subject to
the satisfaction of the following conditions: (i) all waiting periods, if any,
applicable to such issuance and delivery under the HSR Act shall have expired or
been terminated and (ii) no statute, rule, regulation, executive order, decree,
ruling, injunction or other order shall have been enacted, entered, promulgated
or enforced by any court or governmental authority of competent jurisdiction
which prohibits such issuance and delivery or makes such issuance and delivery
illegal.
Section 8. Payment of Taxes. The Company will pay taxes and other
----------------
governmental charges that may be
11
<PAGE>
imposed by the laws of the United States of America or any state thereof with
respect to the initial issuance of Shares upon the exercise of Warrants, unless
such tax or charge is imposed by law upon the holder of any Warrant, in which
case such taxes or charges shall be paid by such holder; provided that the
--------
Company shall not be required to pay any tax or taxes which may be payable in
respect of any transfer involved in the issue of any Warrant Certificates or any
certificates for Shares in a name other than that of the registered holder of a
Warrant Certificate surrendered upon the exercise of a Warrant, and the Company
shall not be required to issue or deliver such Warrant Certificates or
certificates unless and until the person or entity requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
Section 9. Mutilated or Missing Warrant Certificates. In case any
-----------------------------------------
Warrant Certificate shall be mutilated, lost, stolen or destroyed, the Company
shall issue, and the Warrant Agent shall countersign, in exchange and
substitution for and upon cancellation of the mutilated Warrant Certificate, or
in lieu of and substitution for the Warrant Certificate lost, stolen or
destroyed, a new Warrant Certificate of like tenor and representing an
equivalent number of Warrants, but only upon receipt of evidence reasonably
satisfactory to the Company and the Warrant Agent of such loss, theft or
destruction of such Warrant Certificate and indemnity or bond, if requested,
also reasonably satisfactory to them (it being understood that the written
agreement of S shall be sufficient indemnity); provided, in the case of
--------
mutilation, no indemnity shall be required if the Warrant Certificate or Warrant
Certificates in identifiable form are surrendered to the Warrant Agent for
cancellation. Applicants for such substitute Warrant Certificates shall also
comply with such other reasonable regulations and pay such other reasonable
charges as the Company or the Warrant Agent may prescribe.
Section 10. Reservation of Shares.
---------------------
(a) The Company will at all times reserve and keep available, free
from preemptive rights, out of
12
<PAGE>
Common Stock held in its treasury and/or its authorized but unissued Common
Stock, for the purpose of enabling it to satisfy any obligation to issue Shares
upon exercise of Warrants, the number of Shares deliverable upon the exercise of
all outstanding unexercised Warrants. The Warrant Agent is hereby irrevocably
authorized to requisition from time to time from the Transfer Agent for the
Common Stock certificates issuable upon exercise of Warrants, and the Company
will supply such Transfer Agent with duly executed stock certificates for such
purpose.
(b) Before taking any action which would cause an adjustment pursuant
to Section 12 in either the Exercise Price or the number of Shares issuable upon
exercise of such Warrant, the Company will take any corporate action which may,
in the opinion of its counsel (which may be counsel employed by the Company), be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable Shares at the Exercise Price as so adjusted.
(c) The Company represents and warrants that all Shares will, upon
issuance in accordance with the terms of this Agreement, be fully paid and
nonassessable and, except for any applicable restrictions contained in the
Redemption Agreement, will be free and clear from all taxes, liens, charges,
security interests or other encumbrances created by the Company with respect to
the issuance thereof.
Section 11. Stock Exchange Listing. The Company agrees, at its
----------------------
expense, to ensure that all Shares are, prior to issuance, listed on the New
York Stock Exchange or, if the Shares are no longer listed on the New York Stock
Exchange, the principal national securities exchange or national market system
on which the Shares are primarily traded or quoted, as specified in Section
12(d).
Section 12. Adjustment of Exercise Price and Number of Shares
-------------------------------------------------
Purchasable or Number of Warrants. The Exercise Price and the number of shares
- ---------------------------------
of Common Stock purchasable upon the exercise of each Warrant are subject to
adjustment from time to time upon the occurrence of the events enumerated in
this Section 12.
13
<PAGE>
(a) In case the Company shall at any time after the date of this
Agreement (i) declare a dividend on the Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the
outstanding Common Stock into a smaller number of shares, or (iv) other than in
a transaction to which Section 12(i) applies, issue any shares of its capital
stock in a reclassification of the Common Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), the Exercise Price in effect at the time
of the record date for such dividend or of the effective date of such
subdivision, combination or reclassification, and the number and kind of shares
of capital stock issuable on such date shall be proportionately adjusted so that
the holder of any Warrant upon exercising such Warrant after such time shall be
entitled to receive the aggregate number and kind of shares of capital stock
which, if such Warrant had been exercisable and exercised immediately prior to
such date, such holder would have owned upon such exercise and been entitled to
receive by virtue of such dividend, subdivision, combination or
reclassification. Such adjustment shall be made successively whenever any event
listed above in this Section 12(a) shall occur.
(b) In case the Company shall issue rights, warrants, options or
other securities to all holders of Common Stock entitling them (for a period
expiring within 60 calendar days after the date of issuance) to subscribe for or
purchase Common Stock (or securities convertible into Common Stock) at a price
per share of Common Stock (or having a conversion price per share of Common
Stock, if a security convertible into Common Stock) less than the current market
price per share of Common Stock (as defined in Section 12(d) hereof) on the
record date mentioned below, the Exercise Price to be in effect after such
record date shall be determined by multiplying the Exercise Price in effect
immediately prior to such record date by a fraction, of which the numerator
shall be the number of shares of Common Stock outstanding on such record date
plus the number of shares of Common Stock which the aggregate offering price of
the total number of shares of Common Stock so to be offered (or the aggregate
initial conver-
14
<PAGE>
sion price of the convertible securities so to be offered) would purchase at
such current market price and of which the denominator shall be the number of
shares of Common Stock outstanding on such record date plus the number of
additional shares of Common Stock to be offered for subscription or purchase (or
into which the convertible securities to be offered are initially convertible).
In case such subscription price may be paid in a consideration part or all of
which shall be in a form other than cash, the value of such consideration shall
be determined by the Board of Directors of the Company, whose determination
shall be conclusive and described in a statement filed with the Warrant Agent.
Shares of Common Stock owned by or held for the account of the Company or any
majority-owned subsidiary of the Company shall not be deemed outstanding for the
purpose of any such computation. Such adjustment shall be made successively
whenever such a record date is fixed; and in the event that such rights,
warrants, options or other securities are not so issued, the Exercise Price
shall again be adjusted to be the Exercise Price which would then be in effect
if such record date had not been fixed. In the event that any of such rights,
warrants, options or other securities expire or otherwise terminate and shall
not have been exercised, the Exercise Price shall again be adjusted to be the
Exercise Price which would then be in effect if such unexercised rights,
warrants, options or other securities had not been issued.
(c) In case the Company shall fix a record date for the making of a
distribution to all holders of Common Stock (including any such distribution
made in connection with a consolidation or merger in which the Company is the
continuing corporation) of evidences of indebtedness or assets (other than
ordinary cash dividends or ordinary cash distributions payable out of surplus or
net profits or dividends payable in Common Stock) or subscription rights or
warrants (excluding those referred to in Section 12(b) hereof), the Exercise
Price to be in effect after such record date shall be determined by multiplying
the Exercise Price in effect immediately prior to such record date by a
fraction, of which the numerator shall be the current market price per share of
Common Stock (as defined in Section 12(d) hereof) on such record date, less the
fair market value (as
15
<PAGE>
determined in good faith by the Board of Directors of the Company, whose
determination shall be conclusive and described in a statement filed with the
Warrant Agent) of the portion of the assets or evidence of indebtedness so to be
distributed or of such subscription rights or warrants applicable to one share
of Common Stock, and of which the denominator shall be such current market price
per share of Common Stock; provided, that in case the Company shall fix a record
--------
date for the making of a distribution to all holders of Common Stock (including
any such distribution made in connection with a consolidation or merger in which
the Company is the continuing corporation) of cash or evidences of indebtedness
(other than ordinary cash dividends or ordinary cash distributions payable out
of surplus or net profits), then, at the option of the Company, and upon notice
to S and the Warrant Agent prior to such record date, in lieu of the foregoing
adjustment to the Exercise Price and any adjustment to the number of shares of
Common Stock issuable upon exercise of the Warrants pursuant to Section 12(g)
hereof, the Exercise Price to be in effect after such record date shall be the
Exercise Price in effect immediately prior to such record date minus the amount
of cash or the face amount of indebtedness so to be distributed applicable to
one share of Common Stock. The adjustments set forth in this Section 12(c)
shall be made successively whenever such a record date is fixed; and in the
event that such distribution is not so made, the Exercise Price shall again be
adjusted to be the Exercise Price which would then be in effect if such record
date had not been fixed.
(d) For the purpose of any computation under Section 12(b) and
Section 12(c), the current market price per share of Common Stock on any date
shall be deemed to be the average of the closing prices for the five consecutive
trading days on the New York Stock Exchange commencing seven trading days before
such date. The closing price for each day shall be the last sale price regular
way, or, in case no such sale takes place on such day, the average of the
closing bid and asked prices regular way, in either case on the New York Stock
Exchange, or, if the Common Stock is not listed or admitted to trading on such
exchange, on the principal national securities exchange on which the Common
Stock is
16
<PAGE>
listed or admitted to trading, or, if the Common Stock is not listed or admitted
to trading on any national securities exchange but is designated as a national
market system security by the National Association of Securities Dealers
("NASD"), the last sale price, or, in case no such sale takes place on such day,
the average of the closing bid and asked prices, in either case as reported on
the NASD Automated Quotation/National Market System, or, if the Common Stock is
not so designated as a national market system security, the average of the
highest reported bid and lowest reported asked prices as furnished by the NASD
or similar organization if the NASD is no longer reporting such information.
(e) No adjustment in the Exercise Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in such price;
provided, that any adjustments which by reason of this Section 12(e) are not
- --------
required to be made shall be carried forward and taken into account in any
subsequent adjustment; provided, further, that any such adjustment of less than
-------- -------
1% which is so carried forward shall be given effect at the time the aggregate
of all such adjustments is at least 1% and any Warrant is exercised if any such
adjustments had not theretofore been given effect. All calculations under this
Section 12 shall be made to the nearest cent or to the nearest one-hundredth of
a share, as the case may be, but in no event shall the Company be obligated to
issue any fractional share of Common Stock upon exercise of any Warrant.
(f) In the event that at any time, as a result of an adjustment made
pursuant to Section 12(a) hereof, the holder of any Warrant shall become
entitled to receive any shares of capital stock of the Company other than shares
of Common Stock, thereafter the number of such other shares of capital stock so
receivable upon exercise of such Warrant shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Common Stock contained in Section 12(a) through
Section 12(c) hereof, inclusive, and the provisions of Sections 7, 8, 10, 11,
12(e), 12(i), 13 and 14 hereof with respect to the Common Stock shall apply on
like terms to any such other shares.
17
<PAGE>
(g) Upon each adjustment of the Exercise Price as a result of the
calculations made in Section 12(a), Section 12(b) or Section 12(c) hereof
(subject to the proviso in Section 12(c) hereof), each Warrant outstanding
immediately prior to the making of such adjustment shall thereafter evidence the
right to purchase (during any Acceleration Event Period, Derivative Exercise
Period, European Exercise Period or American Exercise Period, as the case may
be), at the adjusted Exercise Price, that number of shares of Common Stock
(calculated to the nearest hundredth) obtained by (A) multiplying the number of
shares purchasable upon exercise of such Warrant immediately prior to such
adjustment of the number of shares by the Exercise Price in effect immediately
prior to such adjustment of the Exercise Price and (B) dividing the product so
obtained by the Exercise Price in effect immediately after such adjustment of
the Exercise Price; provided that if, in connection with a Spinoff Distribution,
--------
the Company elects to issue Spinoff Warrants to the registered holders of one or
more classes of Warrants, as provided in Section 13 hereof, then no adjustment
pursuant to this Section 12(g) shall be made to any Warrants of such class or
classes.
(h) The Company may elect on or after the date of any adjustment of
the Exercise Price to adjust the number of Warrants, in substitution for an
adjustment in the number of Shares purchasable upon the exercise of a Warrant as
provided in Section 12(g) hereof; provided that if, in connection with a Spinoff
--------
Distribution, the Company elects to issue Spinoff Warrants to the registered
holders of one or more classes of Warrants, as provided in Section 13 hereof,
then no adjustment pursuant to this Section 12(h) shall be made to any Warrants
of such class or classes. The Company will cause to be distributed to
registered holders of Warrant Certificates either Warrant Certificates
representing the additional Warrants issued pursuant to any such adjustment or
substitute Warrant Certificates to replace all outstanding Warrant Certificates.
(i) In case of any capital reorganization of the Company, or of any
reclassification of the Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par value,
18
<PAGE>
or as a result of subdivision or combination), or in the case of consolidation
of the Company with or the merger of the Company with or into any other
corporation or of the sale of the properties and assets of the Company as, or
substantially as, an entirety to any other corporation, each Warrant shall after
such reorganization, reclassification, consolidation, merger or sale be
exercisable (but only during any Acceleration Event Period, Derivative Exercise
Period, European Exercise Period or American Exercise Period, as the case may
be), upon the terms and conditions specified in this Agreement, for the number
of shares of stock or other securities or property to which a holder of the
number of shares of Common Stock purchasable (at the time of such
reorganization, reclassification, consolidation, merger or sale) upon exercise
of such Warrant would have been entitled upon such reorganization,
reclassification, consolidation, merger or sale; and in any such case, if
necessary, the provisions set forth in this Section 12 with respect to the
rights and interests thereafter of the holders of Warrants shall be
appropriately adjusted so as to be applicable, as nearly as may reasonably be,
to any shares of stock or other securities or property thereafter deliverable on
the exercise of the Warrants; provided that this Section 12(i) shall not apply
--------
to any Spinoff Distribution which is effected by means of any such
reclassification, consolidation or merger (it being agreed that any such Spinoff
Distribution shall be subject to Section 12(c) hereof and, to the extent the
Company so elects, Section 13 hereof). The subdivision or combination of shares
of Common Stock at any time outstanding into a greater or lesser number of
shares shall not be deemed to be a reclassification of the Common Stock for the
purposes of this Section 12(i). The Company shall not effect any such
consolidation, merger or sale, unless prior to or simultaneously with the
consummation thereof the successor corporation (if other than the Company)
resulting from such consolidation or merger or the corporation purchasing such
assets or other appropriate corporation or entity shall assume, by written
instrument executed and delivered to the Warrant Agent, the due and punctual
performance of every covenant and obligation in this Agreement to be performed
and observed by the Company and all other liabilities and obligations of the
Company hereunder, including without limitation the obligation to
19
<PAGE>
deliver to the holder of each Warrant such shares of stock, securities or assets
as, in accordance with the foregoing provisions, such holder may be entitled to
purchase under this Agreement.
(j) In any case in which this Section 12 shall require that an
adjustment in the Exercise Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuing to the holder of any Warrant exercised after such record date
the Shares and other capital stock of the Company, if any, issuable upon such
exercise over and above the Shares and other capital stock of the Company, if
any, issuable upon such exercise on the basis of the Exercise Price in effect
prior to such adjustment; provided, that the Company shall deliver to such
--------
holder a due bill or other appropriate instrument evidencing such holder's right
to receive such additional shares upon the occurrence of the event requiring
such adjustment.
(k) If, during the period commencing on the date of this Agreement
and ending on the date that is three months thereafter, the Company intends in
good faith to make any public or private offering of Voting Securities for cash,
other than an offering of Voting Securities to a "Flexitrust" or employee
benefit plan or trust (an "Offering"), and if at such time any S Warrants are
outstanding and unexercised, then the Company shall promptly notify the Warrant
Agent and S of such intended Offering (the "Offering Notice"). The Offering
Notice shall describe the Voting Securities intended to be sold in the Offering
and the anticipated timing of the Offering. If, in connection with any such
Offering, S desires that the Exercise Price and the number of Shares subject to
such S Warrants be adjusted as described below, then S shall so notify the
Company within five Business Days following delivery of the Offering Notice.
Any such election by S Group shall be irrevocable. If S elects to have such
adjustment made, then, as of the time at which the Offering is consummated, each
S Warrant shall be adjusted as follows: (i) the Exercise Price shall be
increased to equal the product of the Exercise Price in effect immediately prior
to the consummation of the Offering, multiplied by a fraction (the "Adjustment
20
<PAGE>
Fraction"), the numerator of which is the number of shares of Common Stock
outstanding on a fully diluted basis immediately following the consummation of
the Offering and the denominator of which is the number of shares of Common
Stock outstanding on a fully diluted basis immediately prior to the consummation
of the Offering and (ii) the number of Shares issuable upon exercise of each S
Warrant shall be increased to equal the product of the number of the Shares
issuable upon exercise of such S Warrant immediately prior to the consummation
of such Offering, multiplied by the Adjustment Fraction. Adjustments to the S
Warrants pursuant to this Section 12(k) shall be made successively if the
Company consummates more than one Offering and S requests such adjustments in
accordance with the terms hereof. Notwithstanding the foregoing provisions of
this Section 12(k), (i) no such adjustment shall be made in connection with any
Offering if the Company does not file a registration statement relating to such
Offering with the Securities and Exchange Commission within three months
following the date of this Agreement and (ii) no such adjustment in connection
with any particular Offering shall be made if such Offering is consummated more
than five months following the date of this Agreement.
(l) In case the Company shall, by dividend or otherwise, at any time,
distribute to all holders of its Common Stock cash (including any distribution
of cash out of the retained earnings of the Company but excluding any cash that
is distributed as part of a distribution requiring an adjustment pursuant to
Section 12(c)) in an aggregate amount that, together with (i) the aggregate
amount of any other distributions to all holders of the Common Stock made
exclusively in cash within the 12 months preceding the date of payment of such
distribution and in respect of which no adjustment pursuant to Section 12(c) or
pursuant to this Section 12(l) has been made and (ii) the portion of the
aggregate of any cash plus the fair market value (as determined in good faith by
the Board of Directors, whose determination shall be conclusive and described in
a statement filed with the Warrant Agent) of consideration payable in respect of
any tender offer by the Company for all or any portion of the Common Stock
concluded within the 12 months preceding the date of payment of such
distribution
21
<PAGE>
that is in excess of an amount equal to the product of (x) the number of shares
of Common Stock with respect to which the aggregate tender offer consideration
is payable times (y) the current market price of Common Stock on the tenth
business day next succeeding the date of expiration of the tender offer, exceeds
12 1/2 % of the product of the current market price per share on the date fixed
for stockholders entitled to receive such distribution times the number of
shares of Common Stock outstanding on such date (excluding shares held in the
treasury of the Company), the Exercise Price after such payment shall be equal
to the Exercise Price determined by multiplying the Exercise Price in effect
immediately prior to the effectiveness of the change contemplated by this
Section 12(l) by a fraction of which the numerator shall be the current market
price per share of the Common Stock on the date of such effectiveness less the
amount of cash so distributed applicable to one share of Common Stock and the
denominator shall be such current market price per share of the Common Stock on
the date of such distribution, such reduction to become effective immediately
prior to the opening of business on the day following the date fixed for the
payment of such distribution.
(m) If the Company becomes subject to a third party tender offer
followed by a merger or any other action of the Company the result of which is
to entitle holders of the Common Stock to receive cash or other property such
that the Common Stock ceases to exist, each Warrant will terminate on the date
the Common Stock ceases to exist and be unwound at its fair market value based
on the unexpired term of the Warrant. The settlement price of each such Warrant
shall be payable promptly after such termination and will be determined using
the valuation methodology described in Exhibit H to the Redemption Agreement,
using the tender price per share as the prevailing price of Common Stock. To
the extent property other than cash is offered in the tender offer, the parties
agree that such property will be valued in accordance with the provisions of
Section 5.4(II)(b) of the Redemption Agreement.
Section 13. Special Provisions Relating to Spinoff Distributions.
----------------------------------------------------
22
<PAGE>
(a) In connection with any Spinoff Distribution, the Company shall
have the right, but not the obligation, to cause the Spinoff Company to issue
warrants to purchase capital stock or other equity interests of the Spinoff
Company ("Spinoff Warrants") to the registered holders of one class, two classes
or all three classes of Warrants (the classes of Warrants for purposes of this
Agreement being the First Warrants, the Second Warrants and the Third Warrants),
in the Company's sole and absolute discretion; provided that Spinoff Warrants,
--------
if issued to the registered holders of any class of Warrants, shall be issued to
all of the registered holders of such class of Warrants. If Spinoff Warrants
are issued to the registered holders of any class of Warrants, then no
adjustment to the number of Shares purchasable upon the exercise of any Warrant
of such class or to the number of Warrants comprising such class shall be made
pursuant to Section 12(g) or Section 12(h) hereof, respectively, as a result of
the Spinoff Distribution. If Spinoff Warrants are issued in connection with a
Spinoff Distribution, then the Company shall cause to be filed with the Warrant
Agent and shall cause to be given to each of the registered holders of the
Warrant Certificates written notice of such election (which notice may, where
appropriate, be included as a part of any notice required to be given pursuant
to Section 15(b) or 15(c) hereof). Such notice shall be given not later than 10
calendar days prior to the record date established by the Company for purposes
of determining the stockholders of the Company who are (i) entitled to vote on
any Spinoff Distribution which is submitted to a vote of the stockholders of the
Company or (ii) entitled to receive a Spinoff Distribution which is not
submitted to a vote of the stockholders of the Company. Any such election shall
be irrevocable and binding upon the Company.
(b) The Spinoff Warrants shall have terms and conditions
substantially similar to the terms and conditions of the class or respective
classes of Warrants to the registered holders of which Spinoff Warrants are
issued (including, without limitation, terms and conditions relating to
exercisability, antidilution and expiration as set forth in this Agreement).
The number of shares of capital stock or other equity interests of a
23
<PAGE>
Spinoff Company issuable upon exercise of each Spinoff Warrant shall equal the
number of such shares or interests to which a holder of the number of Shares
purchasable (at the time of such Spinoff Distribution) upon exercise of one
Warrant of the applicable class would have been entitled upon such Spinoff
Distribution. The exercise price of each Spinoff Warrant shall equal the amount
by which the Exercise Price of the applicable class of Warrants is reduced
pursuant to Section 12(c) hereof as a result of the Spinoff Distribution. The
Company shall deliver certificates evidencing the Spinoff Warrants to the
registered holders of Warrants entitled thereto concurrently with the notice
required by Section 15(a) hereof.
(c) Notwithstanding anything in this Agreement to the contrary, no S
Warrant of a particular class may be exercised in connection with any Spinoff
Distribution which is not submitted to a vote of the stockholders of the Company
if Spinoff Warrants are issued as provided in this Section 13 to the registered
holders of the class of Warrants of which such S Warrant is a part; provided
--------
that this Section 13(c) shall not limit the exercisability of any S Warrants
during their respective European Exercise Periods.
Section 14. Fractional Warrants and Fractional Shares.
-----------------------------------------
(a) The Company shall not be required to issue fractions of Warrants
on any distribution of Warrants to holders of Warrant Certificates pursuant to
Section 12(h) hereof or to distribute Warrant Certificates which evidence
fractional Warrants. In lieu of such fractional Warrants there shall be paid to
the registered holders of the Warrant Certificates with regard to which such
fractional Warrants would otherwise be issuable, an amount in cash equal to the
same fraction of the fair market value of a full Warrant (as determined by the
Board of Directors of the Company, whose determination shall be conclusive and
described in a statement filed with the Warrant Agent).
(b) Notwithstanding an adjustment pursuant to Section 12(g) hereof in
the number of Shares pur-
24
<PAGE>
chasable upon the exercise of a Warrant, the Company shall not be required to
issue fractions of Shares upon exercise of the Warrants or to distribute
certificates which evidence fractional Shares. In lieu of fractional Shares,
there shall be paid to the registered holders of Warrant Certificates at the
time the Warrants evidenced by such Warrant Certificates are exercised as herein
provided an amount in cash equal to the same fraction of the current market
value of a share of Common Stock. For purposes of this Section 14(b), the
current market value of a share of Common Stock shall be determined in the
manner set forth in Section 12(d) hereof
Section 15. Notice to Warrantholders.
------------------------
(a) Upon any adjustment of the Exercise Price pursuant to Section 12
hereof, the Company within 20 Business Days thereafter shall (i) cause to be
-
filed with the Warrant Agent a certificate of a firm of independent public
accountants of recognized standing selected by the Board of Directors of the
Company (who may be the regular auditors of the Company) setting forth the
Exercise Price after such adjustment and setting forth in reasonable detail the
method of calculation and the facts upon which such calculations are based and
setting forth the number of Shares purchasable upon exercise of a Warrant after
such adjustment in the Exercise Price, which certificate shall be conclusive
evidence of the correctness of the matters set forth therein (except as
otherwise provided in the second succeeding sentence) and (ii) cause to be given
--
to each of the registered holders of the Warrant Certificates written notice of
such adjustments. Where appropriate, such notice may be given in advance and
included as a part of the notice required to be mailed under the other
provisions of this Section 15. In the event that any registered holder of S
Warrants disagrees with any such adjustment, it shall notify the Company and the
Warrant Agent thereof and any disagreement shall be resolved jointly by two
independent accounting firms of recognized standing, one such firm to be
selected by each of the Company and S, or, in the event such firms are unable to
agree, by a third independent accounting firm of recognized standing to be
selected by such firms. Each of the Company and S shall bear all of the fees
and expenses of the accounting firm
25
<PAGE>
selected by it, and shall bear 50% of the fees and expenses of any third
accounting firm.
(b) In case:
(i) the Company shall authorize the issuance to all holders of
Common Stock of rights or warrants to subscribe for or purchase capital
stock of the Company or of any other subscription rights or warrants;
(ii) the Company shall authorize the distribution to all holders
of Common Stock of evidences of its indebtedness or assets (other than cash
dividends or cash distributions payable out of consolidated earnings or
earned surplus or dividends payable in Common Stock);
(iii) of any consolidation or merger to which the Company is a
party and for which approval of any stockholders of the Company is
required, or of the conveyance or transfer of the properties and assets of
the Company substantially as an entirety, or of any capital reorganization
or any reclassification of the Common Stock (other than a change in par
value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination);
(iv) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(v) the Company proposes to take any other action which would
require an adjustment of the Exercise Price pursuant to Section 12 hereof;
then the Company shall cause to be filed with the Warrant Agent and shall cause
to be given to each of the registered holders of the Warrant Certificates, at
least 10 calendar days prior to the applicable record date herein-
26
<PAGE>
after specified, a written notice stating (i) the date as of which the holders
of record of shares of Common Stock to be entitled to receive any such rights,
warrants or distribution are to be determined or (ii) the date on which any such
consolidation, merger, conveyance, transfer, reorganization, reclassification,
dissolution, liquidation, or winding up is expected to become effective, and the
date as of which it is expected that holders of record of shares of Common Stock
shall be entitled to exchange such shares for securities or other property, if
any, deliverable upon such consolidation, merger, conveyance, transfer,
reorganization, reclassification, dissolution, liquidation or winding up. Where
appropriate, such notice may be included as a part of any notice required under
Section 15(c) hereof.
(c) Without limiting the provisions of Section 15(a) or Section 15(b)
hereof, so long as any S Warrants are outstanding and unexercised, the Company
shall cause to be filed with the Warrant Agent and shall cause to be given to
each of the registered holders of Warrant Certificates evidencing Warrants,
written notice of the commencement of any Acceleration Event Period. Any such
notice shall be so filed and given not later than the fifth Business Day
preceding the date of such commencement. S shall give the Company and the
Warrant Agent notice at least five Business Days prior to the Commencement of
any Derivative Exercise Period and prompt notice following expiration of any
Derivative Exercise Period.
(d) The failure to give any notice required by Section 13 hereof or
this Section 15 or any defect in any such notice shall not affect the legality
or validity of any distribution, right, warrant, consolidation, merger,
conveyance, transfer, reorganization, reclassification, dissolution,
liquidation, or winding up or the vote upon any action.
(e) Nothing contained in this Agreement or in any of the Warrant
Certificates shall be construed as conferring upon the holders thereof the right
to vote or to consent or to receive notice as stockholders in respect of the
meetings of stockholders or the election of
27
<PAGE>
directors of the Company or any other matter, or any rights whatsoever as
stockholders of the Company.
Section 16. Legends.
-------
(a) Each Warrant Certificate evidencing S Warrants shall be stamped
or otherwise imprinted with a legend in substantially the following form:
"These Warrants and any shares of capital stock or other securities
issuable upon the exercise of these Warrants have not been registered under
the Securities Act of 1933, as amended, or the securities laws of any
state. The sale, pledge, hypothecation or other transfer of these Warrants
and such shares or other securities is subject to compliance with
applicable securities laws.
The sale, pledge, hypothecation or other transfer of these Warrants and
such shares or other securities is also subject to certain restrictions
contained in the Agreement, dated as of April 6, 1995 (the "Redemption
Agreement"), among E.I. du Pont de Nemours and Company, The Seagram Company
Ltd. and JES Developments, Inc. The holder of these Warrants by acceptance
hereof agrees to be bound by such restrictions. A copy of the Redemption
Agreement is on file with the Corporate Secretary of E.I. du Pont de
Nemours and Company."
(b) Each Warrant Certificate evidencing Non-S Warrants shall be
stamped or otherwise imprinted with a legend in substantially the following
form:
"These Warrants and any shares of capital stock or other securities
issuable upon the exercise of these Warrants have not been registered under
the Securities Act of 1933, as amended, or the securities laws of any
state. The sale, pledge, hypothecation or other transfer of these Warrants
and such shares or other securities is subject to compliance with
applicable securities laws.
The sale, pledge, hypothecation or other transfer of these Warrants and
such shares or other securities
28
<PAGE>
may also be subject to certain restrictions contained in the Agreement,
dated as of April 6, 1995 (the "Redemption Agreement"), among E.I. du Pont
de Nemours and Company, The Seagram Company Ltd. and JES Developments, Inc.
The holder of these Warrants by acceptance hereof agrees to be bound by
such restrictions. A copy of the Redemption Agreement is on file with the
Corporate Secretary of E.I. du Pont de Nemours and Company."
(c) Each certificate for Common Stock (or other securities) issued
upon the exercise of S Warrants shall be stamped or otherwise imprinted with a
legend in substantially the following form:
"These securities have not been registered under the Securities Act of
1933, as amended, or the securities laws of any state. The sale, pledge,
hypothecation or other transfer of these securities is subject to
compliance with applicable securities laws.
The sale, pledge, hypothecation or other transfer of these securities is
also subject to certain restrictions contained in the Agreement, dated as
of April 6, 1995 (the "Redemption Agreement"), among E.I. du Pont de
Nemours and Company, The Seagram Company Ltd. and JES Developments, Inc.
The holder of these securities by acceptance hereof agrees to be bound by
such restrictions. A copy of the Redemption Agreement is on file with the
Corporate Secretary of E.I. du Pont de Nemours and Company."
(d) Each certificate for Common Stock (or other securities) issued
upon the exercise of Non-S Warrants shall be stamped or otherwise imprinted with
a legend in substantially the following form:
"These securities have not been registered under the Securities Act of
1933, as amended, or the securities laws of any state. The sale, pledge,
hypothecation or other transfer of these securities is subject to
compliance with applicable securities laws.
29
<PAGE>
The sale, pledge, hypothecation or other transfer of these securities may
also be subject to certain restrictions contained in the Agreement, dated
as of April 6, 1995 (the "Redemption Agreement"), among E.I. du Pont de
Nemours and Company, The Seagram Company Ltd. and JES Developments, Inc.
The holder of these securities by acceptance hereof agrees to be bound by
such restrictions, if applicable. A copy of the Redemption Agreement is on
file with the Corporate Secretary of E.I. du Pont de Nemours and Company."
(e) Notwithstanding the provisions of Section 16(a), Section 16(b),
Section 16(c) and Section 16(d) hereof, (i) the Warrant Agent shall deliver
Warrant Certificates or certificates for shares of Common Stock, as the case may
be, without the first paragraph of the legend set forth in any such Section if
the securities referred to in such paragraph shall have been registered under
the Securities Act or if such legend is otherwise not required under the
Securities Act, and if such legend has been set forth on any previously
delivered certificates, such legend shall be removed from any certificate at the
request of the holder thereof if the securities referred to in such paragraph
shall have been registered under the Securities Act of 1933, or if such legend
is otherwise not required under the Securities Act, and (ii) the Company shall
cause the Warrant Agent to issue certificates without the second paragraph of
the legend set forth in any such Section if the Company receives evidence
reasonably satisfactory to it that the securities referred to in such paragraph
are not subject to any restrictions contained in the Redemption Agreement. The
Company agrees that it will provide the Warrant Agent with notice of the
effectiveness of any registration statement relating to Registrable Securities
(as defined below), which notice shall identify the Registrable Securities
registered pursuant thereto.
Section 17. Registration Rights. Subject to the terms of the
-------------------
Registration Rights Agreement, dated as of April 6, 1995 (the "Registration
Rights Agreement"), among the Company, S and Subsidiary, the Warrants and the
Shares issuable upon exercise of the Warrants shall con-
30
<PAGE>
stitute Registrable Securities (as such term is defined in the Registration
Rights Agreement).
Section 18. Merger, Consolidation or Change of Name of Warrant Agent.
--------------------------------------------------------
(a) Any corporation into which the Warrant Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Warrant Agent shall be
a party, or any corporation succeeding to the business of the Warrant Agent,
shall be the successor to the Warrant Agent hereunder without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
provided that such corporation would be eligible for appointment as a successor
Warrant Agent under the provisions of Section 21 hereof. In case at the time
such successor to the Warrant Agent shall succeed to the agency created by this
Agreement, and in case at that time any of the Warrant Certificates shall have
been countersigned but not delivered, any such successor to the Warrant Agent
may adopt the countersignature of the original Warrant Agent; and in case at
that time any of the Warrant Certificates shall not have been countersigned, any
successor to the Warrant Agent may countersign such Warrant Certificates either
in the name of the predecessor Warrant Agent or in the name of the successor
Warrant Agent; and in all such cases such Warrant Certificates shall have the
full force provided in the Warrant Certificates and in this Agreement.
(b) In case at any time the name of the Warrant Agent shall be
changed and at such time any of the Warrant Certificates shall have been
countersigned but not delivered, the Warrant Agent whose name has changed may
adopt the countersignature under its prior name, and in case at that time any of
the Warrant Certificates shall not have been countersigned, the Warrant Agent
may countersign such Warrant Certificates either in its prior name or in its
changed name, and in all such cases such Warrant Certificates shall have the
full force provided in the Warrant Certificates and in this Agreement.
31
<PAGE>
Section 19. Warrant Agent. The Warrant Agent undertakes the duties
-------------
and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Warrants, by their
acceptance thereof, shall be bound:
(a) The statements contained herein and in the Warrant Certificates
shall be taken as statements of the Company and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as describe
the Warrant Agent or action taken or to be taken by it. The Warrant Agent
assumes no responsibility with respect to the distribution of the Warrant
Certificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrant Certificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Warrant Agent
shall incur no liability or responsibility to the Company or to any holder of
any Warrant Certificate in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with the opinion or the advice of
such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to
the Company or to any holder of any Warrant Certificate for any action taken in
reliance on any notice, resolution, waiver, consent, order, certificate, or
other paper, document or instrument believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the performance
of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and
governmental charges and other charges of any kind and nature incurred by the
Warrant Agent in the execution of this Agreement and to indemnify the Warrant
32
<PAGE>
Agent and save it harmless against any and all liabilities, including judgments,
costs and counsel fees, for anything done or omitted by the Warrant Agent in the
execution of this Agreement except as a result of its negligence or bad faith.
(f) The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expense unless the Company or one or more registered holders of Warrant
Certificates shall furnish the Warrant Agent with reasonable security and
indemnity for any costs and expenses which may be incurred, but this provision
shall not affect the power of the Warrant Agent to take such action as it may
consider proper, whether with or without any such security or indemnity. All
rights of action under this Agreement or under any of the Warrants may be
enforced by the Warrant Agent without the possession of any of the Warrant
Certificates or the production thereof at any trial or other proceeding relative
thereto, and any such action, suit or proceeding instituted by the Warrant Agent
shall be brought in its name as Warrant Agent, and any recovery of judgment
shall be for the ratable benefit of the registered holders of the Warrants, as
their respective rights or interests may appear.
(g) The Warrant Agent, and any stockholder, director, officer or
employee thereof, may buy, sell or deal in any of the Warrants or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were not Warrant Agent
under this Agreement. Nothing herein shall preclude the Warrant Agent from
acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the
Company, and its duties shall be determined solely by the provisions hereof.
The Warrant Agent shall not be liable for anything which it may do or refrain
from doing in connection with this Agreement except for its own negligence or
bad faith.
33
<PAGE>
(i) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
by the Warrant Agent for the carrying out or performing of the provisions of
this Agreement. Subject to the provisions of the Registration Rights Agreement
and the other provisions of this Agreement, if the Company is required under
applicable federal or state securities laws to deliver a prospectus upon
exercise of Warrants, the Company will furnish to the Warrant Agent sufficient
copies of a prospectus, and the Warrant Agent agrees that upon the exercise of
any Warrant Certificate by the holder thereof, the Warrant Agent will deliver to
such holder, prior to or concurrently with the delivery of the certificate or
certificates for the Shares issued upon such exercise, a copy of the prospectus.
Section 20. Disposition of Proceeds of Exercise of Warrants. The
-----------------------------------------------
Warrant Agent shall account promptly to the Company with respect to Warrants
exercised and concurrently pay to the Company all moneys received by the Warrant
Agent on the purchase of Shares through the exercise of Warrants.
Section 21. Change of Warrant Agent. If the Warrant Agent shall
-----------------------
become incapable of acting as Warrant Agent, the Company shall appoint a
successor. If at the time of such incapacity any Non-S Warrants are outstanding
and unexercised and the Company shall fail to make such appointment within a
period of 30 days after it has been notified in writing of such incapacity by
the incapacitated Warrant Agent or by any registered holder of a Warrant
Certificate, then the registered holder of any Warrant Certificate may apply to
any court of competent jurisdiction for the appointment of a successor to the
incapacitated Warrant Agent. Pending appointment of a successor to the Warrant
Agent, either by the Company or by such a court, the duties of the Warrant Agent
shall be carried out by the Company. Any successor warrant agent whether
appointed by the Company or by such a court, shall be a bank or trust company,
in good standing, incorporated under the laws of the State of New York or of the
United States of America, and having its principal
34
<PAGE>
office in the Borough of Manhattan, The City of New York, State of New York and
must have at the time of its appointment as warrant agent a combined capital and
surplus of at least one billion dollars. After appointment the successor
warrant agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Warrant Agent without
further act or deed; but the former Warrant Agent shall deliver and transfer to
the successor warrant agent any property at the time held by it hereunder and
execute and deliver any further assurance, conveyance, act or deed necessary for
the purpose. Failure to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the legality or validity of the
removal of the Warrant Agent or the appointment of a successor warrant agent as
the case may be.
Section 22. Methods of Giving Notices.
-------------------------
(a) Any notice pursuant to this Agreement to be given to the Company
shall be given (and shall be deemed to have been duly given if so given) by
delivery in person, by fax (receipt of which is confirmed), or by reputable
overnight courier (receipt of which is confirmed) as follows:
E.I. du Pont de Nemours and Company
1007 Market Street
Wilmington, Delaware 19898
Telephone: (302) 773-0177
Fax: (302) 773-4679
Attention: General Counsel
and so long as any S Warrants are outstanding and unexercised, with a copy
to:
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
Attn: Roger S. Aaron, Esq.
and
Lou R. Kling, Esq.
Telephone: (212) 735-3000
Fax: (212) 735-2000
35
<PAGE>
or to such other address as the person to whom notice is given may have
previously furnished to S and the Warrant Agent in writing in the manner set
forth herein.
(b) Any notice pursuant to this Agreement to be given to any S Group
Member or any registered holder of S Warrants shall be given (and shall be
deemed to have been duly given if so given) by delivery in person, by fax
(receipt of which is confirmed), or by reputable overnight courier (receipt of
which is confirmed) as follows:
JES Developments, Inc.
c/o Joseph E. Seagram & Sons, Inc.
375 Park Avenue
New York, New York 10152
Attn: Daniel R. Paladino, Esq.
Vice President and General Counsel
Telephone: (212) 572-1345
Fax: (212) 572-1398
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attn: Edgar M. Masinter, Esq.
and
Sarah E. Cogan, Esq.
Telephone: (212) 455-2000
Fax: (212) 455-2502
or to such other address as the person to whom notice is given may have
previously furnished to the Company and the Warrant Agent in writing in the
manner set forth herein.
(c) Any notice pursuant to this Agreement to be given to the Warrant
Agent shall be given (and shall be deemed to have been duly given if so given)
by delivery in person, by fax (receipt of which is confirmed), or by reputable
overnight courier (receipt of which is confirmed) as follows::
36
<PAGE>
Warco Transfer Corporation
c/o E.I. du Pont de Nemours and Company
1007 Market Street
Wilmington, Delaware 19898
Telephone: (302) 773-0177
Fax: (302) 773-4679
Attention: General Counsel
or to such other address as the Warrant Agent may have previously furnished to
the Company and S in writing in the manner set forth herein.
(d) Any notice pursuant to this Agreement to be given to any
registered holder of Warrant Certificates evidencing Non-S Warrants shall be
given by first-class mail, postage pre-paid, to such holder at his address
appearing on the Warrant register (and shall be deemed to have been duly given
if so mailed).
Section 23. Supplements and Amendments. The Company and the Warrant
--------------------------
Agent may from time to time supplement or amend this Agreement without the
approval of any holders of Warrant Certificates in order to cure any ambiguity
or to correct or supplement any provision contained herein which may be
defective or inconsistent with any other provision herein, or to make any other
provisions in regard to matters or questions arising hereunder which the Company
and the Warrant Agent may deem necessary or desirable and which shall not
adversely affect the interests of the holders of Warrant Certificates. In
addition, (i) prior to the issuance of any Non-S Warrants, any provision of this
Agreement and the S Warrants may be amended with the written consent of the
Company and S and (ii) following the issuance of any Non-S Warrants, any
provision of this Agreement and any Warrant may be amended with the consent of
(a) the Company, (b) if any S Warrants are then outstanding, S, and (c) the
holders of a majority of the Non-S Warrants (calculated by reference to the
numbers of shares subject thereto) whose rights and obligations specified herein
or in the Warrants are adversely affected by such amendment; provided that no
--------
such amendment shall adversely affect the rights and obligations of the Warrant
Agent without its consent.
37
<PAGE>
Section 24. Successors. All the covenants and provisions of this
----------
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 25. Termination. This Agreement shall terminate at the close
-----------
of business on October 6, 1999. Notwithstanding the foregoing, this Agreement
will terminate on any earlier date if all Warrants have been exercised or
acquired by the Company or cancelled in accordance with the terms hereof. The
provisions of Section 19 shall survive such termination.
Section 26. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND
------------- -------------------------------------
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY,
- --------------------------------------------------------------------------------
THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
- -------------------------------------------------------------------------------
LAW THEREOF.
- -----------
Section 27. Benefits of This Agreement. Nothing in this Agreement
--------------------------
shall be construed to give to any person or corporation other than the Company,
the Warrant Agent and the registered holders of the Warrant Certificates any
legal or equitable right, remedy or claim under this Agreement; but this
Agreement shall be for the sole and exclusive benefit of the Company, the
Warrant Agent and the registered holders of the Warrant Certificates.
Section 28. Counterparts. This Agreement may be executed in any
------------
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
38
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
E.I. du Pont de Nemours and Company
By /s/ Edgar S. Woolard, Jr.
---------------------------------
Name: Edgar S. Woolard, Jr.
Title: Chairman of the Board and
Chief Executive Officer
Warco Transfer Corporation
By /s/ Louise B. Lancaster
---------------------------------
Name: Louise B. Lancaster
Title: Corporate Secretary
39
<PAGE>
EXHIBIT 99.3
These Warrants and any shares of capital stock or other securities issuable upon
the exercise of these Warrants have not been registered under the Securities Act
of 1933, as amended, or the securities laws of any state. The sale, pledge,
hypothecation or other transfer of these Warrants and such shares or other
securities is subject to compliance with applicable securities laws.
The sale, pledge, hypothecation or other transfer of these Warrants and such
shares or other securities is also subject to certain restrictions contained in
the Agreement, dated as of April 6, 1995 (the "Redemption Agreement"), among
E.I. du Pont de Nemours and Company, The Seagram Company Ltd. and JES
Developments, Inc. The holder of these Warrants by acceptance hereof agrees to
be bound by such restrictions. A copy of the Redemption Agreement is on file
with the Corporate Secretary of E.I. du Pont de Nemours and Company.
48,000,000 Warrants
Warrant Certificate
E.I. du Pont de Nemours and Company
This Warrant Certificate certifies that JES Developments, Inc., or
registered permitted assigns, is the registered holder of 48,000,000 Warrants
(the "Warrants") to purchase shares of Common Stock, $0.60 par value per share,
of E.I. du Pont de Nemours and Company, a Delaware corporation (the "Company").
Each Warrant entitles the holder to purchase from the Company one fully paid and
nonassessable share of Common Stock, $0.60 par value per share, of the Company
(the "Shares") at the initial exercise price (the "Exercise Price") of $89.33
payable in lawful money of the United States of America upon surrender of this
Warrant Certificate and payment of the Exercise Price at the office or agency of
the Warrant Agent (the "Warrant Agent Office"), subject to the conditions set
forth herein and in the Warrant Agreement. The Exercise Price and number of
Shares purchasable upon exercise of the Warrants are subject to adjustment upon
the occurrence of certain events set forth in the Warrant
<PAGE>
Agreement. Capitalized terms used but not defined in this Warrant Certificate
have the meanings assigned to such terms in the Warrant Agreement.
The Warrants evidenced hereby are First S Warrants and, accordingly,
are exercisable only (i) during an Acceleration Event Period, (ii) to the extent
necessary to enable S or an Affiliate thereof to obtain shares of Common Stock
which it is required at such time to deliver upon the exchange, exercise or
conversion of an outstanding Derivative S Security held by a Non-S Person during
a Derivative Exercise Period (to the extent either such period in (i) or (ii)
occurs prior to the Expiration Time of the Warrants evidenced hereby) or (iii)
during the European Exercise Period. No Warrant may be exercised after its
Expiration Time.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
2
<PAGE>
This Warrant Certificate shall not be valid unless countersigned by
the Warrant Agent, as such term is used in the Warrant Agreement.
WITNESS the facsimile seal of the Company and the facsimile signatures
of its duly authorized officers.
Dated: April 6, 1995
E.I. du Pont de Nemours and Company
By /S/ Edgar S. Woolard, Jr.
--------------------------
Name: Edgar S. Woolard, Jr.
Title: Chairman of the Board and
Chief Executive Officer
By /s/ Louise B. Lancaster
------------------------
Name: Louise B. Lancaster
Title: Corporate Secretary
Countersigned:
Warco Transfer Corporation
as Warrant Agent
By /s/ Louise B. Lancaster
-----------------------------------
Authorized Signature
3
<PAGE>
[Reverse]
E.I. du Pont de Nemours and Company
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants to purchase 156,000,000 shares of Common Stock,
$0.60 par value per share, of the Company, and are issued pursuant to the
Warrant Agreement dated as of April 6, 1995 (the "Warrant Agreement"), duly
executed and delivered by the Company to Warco Transfer Corporation, as Warrant
Agent (the "Warrant Agent"), which Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Warrant Agent, the Company and the holders (the
words "holders" or "holder" meaning the registered holders or registered holder)
of the Warrants.
The Warrants evidenced hereby are First S Warrants and, accordingly,
are exercisable only (i) during an Acceleration Event Period, (ii) to the extent
necessary to enable S or an Affiliate thereof to obtain shares of Common Stock
which it is required at such time to deliver upon the exchange, exercise or
conversion of an outstanding Derivative S Security held by a Non-S Person during
a Derivative Exercise Period (to the extent either such period in (i) or (ii)
occurs prior to the Expiration Time of the Warrants evidenced hereby) or (iii)
during the European Exercise Period, at the Exercise Price set forth on the face
hereof, subject to adjustment, as hereinafter referred to. The holder of
Warrants evidenced by this Warrant Certificate may exercise them by surrendering
the Warrant Certificate, with the form of election to purchase set forth hereon
properly completed and executed, together with payment of the Exercise Price and
delivery of any other documents required by the Warrant Agreement at the Warrant
Agent Office. In the event that upon any exercise of Warrants evidenced hereby
the number of Warrants exercised shall be less than the total number of Warrants
evidenced hereby, there shall be issued to the holder hereof or his assignee a
new Warrant Certificate evidencing the number
4
<PAGE>
of Warrants not exercised. Except as otherwise expressly provided in the Warrant
Agreement, no adjustment shall be made for any cash dividends on any Shares
issuable upon exercise of this Warrant.
No Warrant may be exercised after its Expiration Time.
The Warrant Agreement provides that, upon the occurrence of certain
events, the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that, at the election of the Company and except as otherwise
provided therein, either (i) the number of Shares purchasable upon the exercise
of each Warrant shall be adjusted or (ii) each outstanding Warrant shall be
adjusted to become a different number of Warrants. In the latter event, the
Company will cause to be distributed to registered holders of Warrant
Certificates either Warrant Certificates representing the additional Warrants
issuable pursuant to the adjustment, or substitute Warrant Certificates to
replace all outstanding Warrant Certificates. Notwithstanding the foregoing, no
adjustment to such number of Shares or Warrants shall be made upon the
occurrence of a Spinoff Distribution if Spinoff Warrants are issued in
connection therewith to the registered holder hereof.
The Company shall not be required to issue fractions of Warrants or
fractions of Shares or any certificates which evidence fractional Warrants or
fractional Shares. In lieu of such fractional Warrants and fractional Shares
there shall be paid to the registered holders of the Warrant Certificates with
regard to which such fractional Warrants or fractional Shares would otherwise be
issuable an amount in cash determined pursuant to the Warrant Agreement.
Warrant Certificates, when surrendered at the Warrant Agent Office, by
the registered holder thereof in person or by legal representative or by
attorney duly authorized in writing may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
5
<PAGE>
Upon due presentment for registration of transfer of this Warrant
Certificate at the Warrant Agent Office, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the registered
holder hereof as the absolute owner of this Warrant Certificate (notwithstanding
any notation of ownership or other writing hereon made by anyone), for the
purpose of any exercise hereof and for all other purposes, and neither the
Company nor the Warrant Agent shall be affected by any notice to the contrary.
6
<PAGE>
[Form of Election to Purchase]
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase ..... Shares and herewith
tenders payments for such Shares in the amount of $........... in accordance
with the terms hereof. The undersigned requests that a certificate representing
such Shares be registered in the name of ........................ whose address
is ........... ......................... and that such certificate be delivered
to ...................... whose address is .................. If said number of
Shares is less than all the Shares purchasable hereunder, the undersigned
requests that a new Warrant Certificate representing the balance of the Shares
be registered in the name of .............. whose address is ............. and
that such Warrant Certificate be delivered to ................................
whose address is .............................................................
Any cash payments to be paid in lieu of a fractional Share should be made to
......................... whose address is ................... and the check
representing payment thereof should be delivered to .................... whose
address is ..............................
Dated: .........., 19..
[Social Security Box]
Name of holder of Warrant Certificate:
......................................
(Please print)
Address: .............................
.............................
Signature: ...........................
Note: The above signature must
correspond with the name as
written upon the face of
this Warrant Certificate in
every particular, without
alteration or enlargement
or any change whatever and
if the certificate repre-
senting the Shares is to be
registered in a name other
than that in which this
7
<PAGE>
Warrant Certificate is
registered, the signature
of the holder hereof must
be guaranteed.
Signature Guaranteed:
8
<PAGE>
[Form of Assignment]
For value received ..................... hereby sells, assigns and
transfers unto ....................... all right, title and interest in the
within Warrant Certificate with respect to ............... Shares, and does
hereby irrevocably constitute and appoint ....................... attorney, to
transfer said Warrant Certificate on the books of the within-named Company, with
full power of substitution in the premises.
Dated: ................, 19__.
................................
Note: The above signature must
correspond with the name as
written upon the face of
this Warrant Certificate in
every particular, without
alteration or enlargement
or any change whatever.
Signature Guaranteed:
9
<PAGE>
These Warrants and any shares of capital stock or other securities issuable upon
the exercise of these Warrants have not been registered under the Securities Act
of 1933, as amended, or the securities laws of any state. The sale, pledge,
hypothecation or other transfer of these Warrants and such shares or other
securities is subject to compliance with applicable securities laws.
The sale, pledge, hypothecation or other transfer of these Warrants and such
shares or other securities is also subject to certain restrictions contained
in the Agreement, dated as of April 6, 1995 (the "Redemption Agreement"), among
E.I. du Pont de Nemours and Company, The Seagram Company Ltd. and JES
Developments, Inc. The holder of these Warrants by acceptance hereof agrees to
be bound by such restrictions. A copy of the Redemption Agreement is on file
with the Corporate Secretary of E.I. du Pont de Nemours and Company.
54,000,000 Warrants
Warrant Certificate
E.I. du Pont de Nemours and Company
This Warrant Certificate certifies that JES Developments, Inc., or
registered permitted assigns, is the registered holder of 54,000,000 Warrants
(the "Warrants") to purchase shares of Common Stock, $0.60 par value per share,
of E.I. du Pont de Nemours and Company, a Delaware corporation (the "Company").
Each Warrant entitles the holder to purchase from the Company one fully paid and
nonassessable share of Common Stock, $0.60 par value per share, of the Company
(the "Shares") at the initial exercise price (the "Exercise Price") of $101.14
payable in lawful money of the United States of America upon surrender of this
Warrant Certificate and payment of the Exercise Price at the office or agency of
the Warrant Agent (the "Warrant Agent Office"), subject to the conditions set
forth herein and in the Warrant Agreement. The Exercise Price and number of
Shares purchasable upon exercise of the Warrants are subject to adjustment upon
<PAGE>
the occurrence of certain events set forth in the Warrant Agreement. Capitalized
terms used but not defined in this Warrant Certificate have the meanings
assigned to such terms in the Warrant Agreement.
The Warrants evidenced hereby are Second S Warrants and, accordingly,
are exercisable only (i) during an Acceleration Event Period, (ii) to the extent
necessary to enable S or an Affiliate thereof to obtain shares of Common Stock
which it is required at such time to deliver upon the exchange, exercise or
conversion of an outstanding Derivative S Security held by a Non-S Person during
a Derivative Exercise Period (to the extent either such period in (i) or (ii)
occurs prior to the Expiration Time of the Warrants evidenced hereby) or (iii)
during the European Exercise Period. No Warrant may be exercised after its
Expiration Time.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
2
<PAGE>
This Warrant Certificate shall not be valid unless countersigned by
the Warrant Agent, as such term is used in the Warrant Agreement.
WITNESS the facsimile seal of the Company and the facsimile signatures
of its duly authorized officers.
Dated: April 6, 1995
E.I. du Pont de Nemours and Company
By /s/ Edgar S. Woolard, Jr.
--------------------------
Name: Edgar S. Woolard, Jr.
Title: Chairman of the Board
and Chief Executive
Officer
By /s/ Louise B. Lancaster
--------------------------
Name: Louise B. Lancaster
Title: Corporate Secretary
Countersigned:
Warco Transfer Corporation
as Warrant Agent
By /s/ Louise B. Lancaster
-----------------------------
Authorized Signature
3
<PAGE>
[Reverse]
E.I. du Pont de Nemours and Company
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants to purchase 156,000,000 shares of Common Stock,
$0.60 par value per share, of the Company, and are issued pursuant to the
Warrant Agreement dated as of April 6, 1995 (the "Warrant Agreement"), duly
executed and delivered by the Company to Warco Transfer Corporation, as Warrant
Agent (the "Warrant Agent"), which Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Warrant Agent, the Company and the holders (the
words "holders" or "holder" meaning the registered holders or registered holder)
of the Warrants.
The Warrants evidenced hereby are Second S Warrants and, accordingly,
are exercisable only (i) during an Acceleration Event Period, (ii) to the extent
necessary to enable S or an Affiliate thereof to obtain shares of Common Stock
which it is required at such time to deliver upon the exchange, exercise or
conversion of an outstanding Derivative S Security held by a Non-S Person during
a Derivative Exercise Period (to the extent either such period in (i) or (ii)
occurs prior to the Expiration Time of the Warrants evidenced hereby) or (iii)
during the European Exercise Period, at the Exercise Price set forth on the face
hereof, subject to adjustment, as hereinafter referred to. The holder of
Warrants evidenced by this Warrant Certificate may exercise them by surrendering
the Warrant Certificate, with the form of election to purchase set forth hereon
properly completed and executed, together with payment of the Exercise Price and
delivery of any other documents required by the Warrant Agreement at the Warrant
Agent Office. In the event that upon any exercise of Warrants evidenced hereby
the number of Warrants exercised shall be less than the total number of Warrants
evidenced hereby, there shall be issued to the holder hereof or his assignee a
new Warrant Certificate evidencing the number of Warrants not exer-
4
<PAGE>
cised. Except as otherwise expressly provided in the Warrant Agreement, no
adjustment shall be made for any cash dividends on any Shares issuable upon
exercise of this Warrant.
No Warrant may be exercised after its Expiration Time.
The Warrant Agreement provides that, upon the occurrence of certain
events, the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that, at the election of the Company and except as otherwise
provided therein, either (i) the number of Shares purchasable upon the exercise
of each Warrant shall be adjusted or (ii) each outstanding Warrant shall be
adjusted to become a different number of Warrants. In the latter event,
the Company will cause to be distributed to registered holders of Warrant
Certificates either Warrant Certificates representing the additional Warrants
issuable pursuant to the adjustment, or substitute Warrant Certificates to
replace all outstanding Warrant Certificates. Notwithstanding the foregoing, no
adjustment to such number of Shares or Warrants shall be made upon the
occurrence of a Spinoff Distribution if Spinoff Warrants are issued in
connection therewith to the registered holder hereof.
The Company shall not be required to issue fractions of Warrants or
fractions of Shares or any certificates which evidence fractional Warrants or
fractional Shares. In lieu of such fractional Warrants and fractional Shares
there shall be paid to the registered holders of the Warrant Certificates with
regard to which such fractional Warrants or fractional Shares would otherwise be
issuable an amount in cash determined pursuant to the Warrant Agreement.
Warrant Certificates, when surrendered at the Warrant Agent Office, by
the registered holder thereof in person or by legal representative or by
attorney duly authorized in writing may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
5
<PAGE>
Upon due presentment for registration of transfer of this Warrant
Certificate at the Warrant Agent Office, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without change except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the registered
holder hereof as the absolute owner of this Warrant Certificate (notwithstanding
any notation of ownership or other writing hereon made by anyone), for the
purpose of any exercise hereof and for all other purposes, and neither the
Company nor the Warrant Agent shall be affected by any notice to the contrary.
6
<PAGE>
[Form of Election to Purchase]
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase ..... Shares and herewith
tenders payments for such Shares in the amount of $ ........ in accordance with
the terms hereof. The undersigned requests that a certificate representing such
Shares be registered in the name of ......... whose address is ...............
and that such certificate be delivered to ............ whose address is
................. If said number of Shares is less than all the Shares
purchasable hereunder, the undersigned requests that a new Warrant Certificate
representing the balance of the Shares be registered in the name of ............
whose address is ................. and that such Warrant Certificate be
delivered to .................... whose address is .................. Any cash
payments to be paid in lieu of a fractional Share should be made to
.............. whose address is ................. and the check representing
payment thereof should be delivered to ................. whose address is
................
Dated: ................., 19..
[Social Security Box]
Name of holder of Warrant Certificate:
......................................
(Please print)
Address: .............................
.............................
Signature: ...........................
Note: The above signature must
correspond with the name as
written upon the face of
this Warrant Certificate in
every particular, without
alteration or enlargement
or any change whatever and
if the certificate repre-
senting the Shares is to be
registered in name other
than that in which this
7
<PAGE>
Warrant Certificate is
registered, the signature
of the holder hereof must
be guaranteed.
Signature Guaranteed:
8
<PAGE>
[Form of Assignment]
For value received ................ hereby
sells, assigns and transfers unto ....................
all right, title and interest in the within Warrant
Certificate with respect to ......... Shares, and does hereby
irrevocably constitute and appoint ........................
attorney, to transfer said Warrant Certificate on the
books of the within-named Company, with full power of
substitution in the premises.
Dated: ........, 19__.
..................................
Note: The above signature must
correspond with the name as
written upon the face of
this Warrant Certificate in
every particular, without
alteration or enlargement
or any change whatever.
Signature Guaranteed:
9
<PAGE>
These Warrants and any shares of capital stock or other securities issuable upon
the exercise of these Warrants have not been registered under the Securities Act
of 1933, as amended, or the securities laws of any state. The sale, pledge,
hypothecation or other transfer of these Warrants and such shares or other
securities is subject to compliance with applicable securities laws.
The sale, pledge, hypothecation or other transfer of these Warrants and such
shares or other securities is also subject to certain restrictions contained in
the Agreement, dated as of April 6, 1995 (the "Redemption Agreement"), among
E.I. du Pont de Nemours and Company, The Seagram Company Ltd. and JES
Developments, Inc. The holder of these Warrants by acceptance hereof agrees to
be bound by such restrictions. A copy of the Redemption Agreement is on file
with the Corporate Secretary of E.I. du Pont de Nemours and Company.
54,000,000 Warrants
Warrant Certificate
E.I. du Pont de Nemours and Company
This Warrant Certificate certifies that JES Developments, Inc., or
registered permitted assigns, is the registered holder of 54,000,000 Warrants
(the "Warrants") to purchase shares of Common Stock $0.60 par value per share,
of E.I. du Pont de Nemours and Company, a Delaware corporation (the "Company").
Each Warrant entitles the holder to purchase from the Company one fully paid and
nonassessable share of Common Stock, $0.60 par value per share, of the Company
(the "Shares") at the initial exercise price (the "Exercise Price") of $113.63
payable in lawful money of the United States of America upon surrender of this
Warrant Certificate and payment of the Exercise Price at the office or agency of
the Warrant Agent (the "Warrant Agent Office"), subject to the conditions set
forth herein and in the Warrant Agreement. The Exercise Price and number of
Shares purchasable upon exercise of the Warrants are subject to adjustment upon
the occurrence of certain events set forth in the Warrant
<PAGE>
Agreement. Capitalized terms used but not defined in this Warrant Certificate
have the meanings assigned to such terms in the Warrant Agreement.
The Warrants evidenced hereby are Third S Warrants and, accordingly, are
exercisable only (i) during an Acceleration Event Period, (ii) to the extent
necessary to enable S or an Affiliate thereof to obtain shares of Common Stock
which it is required at such time to deliver upon the exchange, exercise or
conversion of an outstanding Derivative S Security held by a Non-S Person during
a Derivative Period (to the extent either such period in (i) or (ii) occurs
prior to the Expiration Time of the Warrants evidenced hereby) of (iii) during
the European Exercise Period. No Warrant may be exercised after its Expiration
Time.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
<PAGE>
This Warrant Certificate shall not be valid unless countersigned by
the Warrant Agent, as such term is used in the Warrant Agreement.
WITNESS the facsimile seal of the Company and the facsimile signatures
of its duly authorized officers.
Dated: April 6, 1995
E.I. du Pont de Nemours and Company
By /s/ Edgar S. Woolard, Jr.
-------------------------
Name: Edgar S. Woolard, Jr.
Title: Chairman of the Board
and Chief Executive
Officer
By /s/ Louise B. Lancaster
-------------------------
Name: Louise B. Lancaster
Title: Corporate Secretary
Countersigned:
Warco Transfer Corporation
as Warrant Agent
By /s/ Louise B. Lancaster
-------------------------
Authorized Signature
3
<PAGE>
[Reverse]
E.I. du Pont de Nemours and Company
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants to purchase 156,000,000 shares of Common Stock,
$0.60 par value per share, of the company, and are issued pursuant to the
Warrant Agreement dated as of April 6, 1995 (the "Warrant Agreement"), duly
executed and delivered by the Company to Warco Transfer Corporation, as Warrant
Agent (the "Warrant Agent"), which Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Warrant Agent, the Company and the holders (the
words "holders" or "holder" meaning the registered holders of registered holder)
of the Warrants.
The Warrants evidenced hereby are Third S Warrants and, accordingly,
are exercisable only (i) during an Acceleration Event Period, (ii) to the extent
necessary to enable S or an Affiliate thereof to obtain shares of Common Stock
which it is required at such time to deliver upon the exchange, exercise or
conversion of an outstanding Derivative S Security held by a Non-S Person during
a Derivative Exercise Period (to the extent either such period in (i) or (ii)
occurs prior to the Expiration Time of the Warrants evidenced hereby) or (iii)
during the European Exercise Period, at the Exercise Price set forth on the face
hereof, subject to adjustment, as hereinafter referred to. The holder of
Warrants evidenced by this Warrant Certificate may exercise them by surrendering
the Warrant Certificate, with the form of election to purchase set forth hereon
properly completed and executed, together with payment of the Exercise Price and
delivery of any other documents required by the Warrant Agreement at the Warrant
Agent Office. In the event that upon any exercise of Warrants evidenced hereby
the number of Warrants exercised shall be less than the total number of Warrants
evidenced hereby, there shall be issued to the holder hereof or his assignee a
new Warrant Certificate evidencing the number of Warrants not exer-
4
<PAGE>
cised. Except as otherwise expressly provided in the Warrant Agreement, no
adjustment shall be made for any cash dividends on any Shares issuable upon
exercise of this Warrant.
No Warrant may be exercised after its Expiration Time.
The Warrant Agreement provides that, upon the occurrence of certain
events, the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that, at the election of the Company and except as otherwise
provided therein, either (i) the number of Shares purchasable upon the exercise
of each Warrant shall be adjusted or (ii) each outstanding Warrant shall be
adjusted to become a different number of Warrants. In the latter event, the
Company will cause to be distributed to registered holders of Warrant
Certificates either Warrant Certificates representing the additional Warrants
issuable pursuant to the adjustment, or substitute Warrant Certificates to
replace all outstanding Warrant Certificates. Notwithstanding the foregoing, no
adjustment to such number of Shares or Warrants shall be made upon the
occurrence of a Spinoff Distribution if Spinoff Warrants are issued in
connection therewith to the registered holder hereof.
The Company shall not be required to issue fractions of Warrants or
fractions of Shares or any certificates which evidence fractional Warrants or
fractional Shares. In lieu of such fractional Warrants and fractional Shares
there shall be paid to the registered holders of the Warrant Certificates with
regard to which such fractional Warrants or fractional Shares would otherwise
be issuable an amount in cash determined pursuant to the Warrant Agreement.
Warrant Certificates, when surrendered at the Warrant Agent Office, by
the registered holder thereof in person or by legal representative or by
attorney duly authorized in writing may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
5
<PAGE>
Upon due presentment for registration of transfer of this Warrant
Certificate at the Warrant Agent Office, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the registered
holder hereof as the absolute owner of this Warrant Certificate (notwithstanding
any notation or ownership or other writing hereon made by anyone), for the
purpose of any exercise hereof and for all other purposes, and neither the
Company not the Warrant Agent shall be affected by any notice to the contrary.
6
<PAGE>
[Form of Election to Purchase]
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase ...... Shares and herewith
tenders payments for such Shares in the amount of $....... in accordance with
the terms hereof. The undersigned requests that a certificate representing such
Shares be registered in the name of ............... whose address is ...........
and that such certificate be delivered to .................... whose address is
................. If said number of Shares is less than all the Shares
purchasable hereunder, the undersigned requests that a new Warrant Certificate
representing the balance of the Shares be registered in the name of ............
whose address is ................... and that such Warrant Certificate be
delivered to .................... whose address is ..................... Any
cash payments to be paid in lieu of a fractional Share should be made to .......
............. whose address is .................... and the check representing
payment thereof should be delivered to ................ whose address is........
...............
Dated:..................., 19..
[Social Security Box]
Name of holder of Warrant Certificate:
......................................
(Please print)
Address: .............................
.............................
Signature: ...........................
Note: The above signature must
correspond with the name
as written upon the face
of this Warrant Certifi-
cate in every particular,
without alteration or
enlargement or any change
whatever and if the cer-
tificate representing the
Shares is to be registered
in a name other than that
in which this
7
<PAGE>
Warrant Certificate is
registered, the signature
of the holder hereof must
be guaranteed.
Signature Guaranteed:
8
<PAGE>
[Form of Assignment]
For value received ................ hereby
sells, assigns and transfers unto ..................
all right, title and interest in the within Warrant
Certificate with respect to ..... Shares, and does
hereby irrevocably constitute and appoint .........
attorney, to transfer said Warrant Certificate on the
books of the within-named Company, with full power of
substitution in the premises.
Dated: .........., 19__.
. . . . . . . . . . . . . . . . . .
Note: The above signature must
correspond with the name as
written upon the face of
this Warrant Certificate in
every particular, without
alteration or enlargement
or any change whatever.
Signature Guaranteed:
9
<PAGE>
EXHIBIT 99.4
EXHIBIT S-1
[Form of Warrant Certificate for First S Warrants]
[Face]
These Warrants and any shares of capital stock or other securities issuable upon
the exercise of these Warrants have not been registered under the Securities Act
of 1933, as amended, or the securities laws of any state. The sale, pledge,
hypothecation or other transfer of these Warrants and such shares or other
securities is subject to compliance with applicable securities laws.
The sale, pledge, hypothecation or other transfer of these Warrants and such
shares or other securities is also subject to certain restrictions contained in
the Agreement, dated as of April 6, 1995 (the "Redemption Agreement"), among
E.I. du Pont de Nemours and Company, The Seagram Company Ltd. and JES
Developments, Inc. The holder of these Warrants by acceptance hereof agrees to
be bound by such restrictions. A copy of the Redemption Agreement is on file
with the Corporate Secretary of E.I. du Pont de Nemours and Company.
__________Warrants
Warrant Certificate
E.I. du Pont de Nemours and Company
This Warrant Certificate certifies that ______________, or registered
permitted assigns, is the registered holder of __________ Warrants (the
"Warrants") to purchase shares of Common Stock, $0.60 par value per share, of
E.I. du Pont de Nemours and Company, a Delaware corporation (the "Company").
Each Warrant entitles the holder to purchase from the Company one fully paid and
nonassessable share of Common Stock, $0.60 par value per share, of the Company
(the "Shares") at the initial exercise price (the "Exercise Price") of $_____
payable in lawful money of the United States of America upon
S-1-1
<PAGE>
surrender of this Warrant Certificate and payment of the Exercise Price at the
office or agency of the Warrant Agent (the "Warrant Agent Office"), subject to
the conditions set forth herein and in the Warrant Agreement. The Exercise
Price and number of Shares purchasable upon exercise of the Warrants are subject
to adjustment upon the occurrence of certain events set forth in the Warrant
Agreement. Capitalized terms used but not defined in this Warrant Certificate
have the meanings assigned to such terms in the Warrant Agreement.
The Warrants evidenced hereby are First S Warrants and, accordingly, are
exercisable only (i) during an Acceleration Event Period, (ii) to the extent
necessary to enable S or an Affiliate thereof to obtain shares of Common Stock
which it is required at such time to deliver upon the exchange, exercise or
conversion of an outstanding Derivative S Security held by a Non-S Person during
a Derivative Exercise Period (to the extent either such period in (i) or (ii)
occurs prior to the Expiration Time of the Warrants evidenced hereby) or (iii)
during the European Exercise Period. No Warrant may be exercised after its
Expiration Time.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
S-1-2
<PAGE>
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent, as such term is used in the Warrant Agreement.
WITNESS the facsimile seal of the Company and the facsimile signatures of
its duly authorized officers.
Dated:
E.I. du Pont de Nemours and Company
By___________________
Name:
Title:
By___________________
Name:
Title:
Countersigned:
Warco Transfer Corporation
as Warrant Agent
By_________________________
Authorized Signature
S-1-3
<PAGE>
[Form of Warrant Certificate for First S Warrants]
[Reverse]
E.I. du Pont de Nemours and Company
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants to purchase 156,000,000 shares of Common Stock,
$0.60 par value per share, of the Company, and are issued pursuant to the
Warrant Agreement dated as of April 6, 1995 (the "Warrant Agreement"), duly
executed and delivered by the Company to Warco Transfer Corporation, as Warrant
Agent (the "Warrant Agent"), which Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Warrant Agent, the Company and the holders (the
words "holders" or "holder" meaning the registered holders or registered holder)
of the Warrants.
The Warrants evidenced hereby are First S Warrants and, accordingly,
are exercisable only (i) during an Acceleration Event Period, (ii) to the extent
necessary to enable S or an Affiliate thereof to obtain shares of Common Stock
which it is required at such time to deliver upon the exchange, exercise or
conversion of an outstanding Derivative S Security held by a Non-S Person during
a Derivative Exercise Period (to the extent either such period in (i) or (ii)
occurs prior to the Expiration Time of the Warrants evidenced hereby) or (iii)
during the European Exercise Period, at the Exercise Price set forth on the face
hereof, subject to adjustment, as hereinafter referred to. The holder of
Warrants evidenced by this Warrant Certificate may exercise them by surrendering
the Warrant Certificate, with the form of election to purchase set forth hereon
properly completed and executed, together with payment of the Exercise Price and
delivery of any other documents required by the Warrant Agreement at the Warrant
Agent Office. In the event that upon any exercise of Warrants evidenced hereby
the number of Warrants exercised shall be less than the total number of Warrants
evidenced
S-1-4
<PAGE>
hereby, there shall be issued to the holder hereof or his assignee a new Warrant
Certificate evidencing the number of Warrants not exercised. Except as
otherwise expressly provided in the Warrant Agreement, no adjustment shall be
made for any cash dividends on any Shares issuable upon exercise of this
Warrant.
No Warrant may be exercised after its Expiration Time.
The Warrant Agreement provides that, upon the occurrence of certain
events, the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that, at the election of the Company and except as otherwise
provided therein, either (i) the number of Shares purchasable upon the exercise
of each Warrant shall be adjusted or (ii) each outstanding Warrant shall be
adjusted to become a different number of Warrants. In the latter event, the
Company will cause to be distributed to registered holders of Warrant
Certificates either Warrant Certificates representing the additional Warrants
issuable pursuant to the adjustment, or substitute Warrant Certificates to
replace all outstanding Warrant Certificates. Notwithstanding the foregoing, no
adjustment to such number of Shares or Warrants shall be made upon the
occurrence of a Spinoff Distribution if Spinoff Warrants are issued in
connection therewith to the registered holder hereof.
The Company shall not be required to issue fractions of Warrants or
fractions of Shares or any certificates which evidence fractional Warrants or
fractional Shares. In lieu of such fractional Warrants and fractional Shares
there shall be paid to the registered holders of the Warrant Certificates with
regard to which such fractional Warrants or fractional Shares would otherwise be
issuable an amount in cash determined pursuant to the Warrant Agreement.
Warrant Certificates, when surrendered at the Warrant Agent Office, by
the registered holder thereof in person or by legal representative or by
attorney duly authorized in writing may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of
S-1-5
<PAGE>
like tenor evidencing in the aggregate a like number of Warrants.
Upon due presentment for registration of transfer of this Warrant
Certificate at the Warrant Agent Office, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the registered
holder hereof as the absolute owner of this Warrant Certificate (notwithstanding
any notation of ownership or other writing hereon made by anyone), for the
purpose of any exercise hereof and for all other purposes, and neither the
Company nor the Warrant Agent shall be affected by any notice to the contrary.
S-1-6
<PAGE>
[Form of Election to Purchase]
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase ..... Shares and herewith
tenders payments for such Shares in the amount of $.......... in accordance with
the terms hereof. The undersigned requests that a certificate representing such
Shares be registered in the name of ............... whose address is ..........
............... and that such certificate be delivered to ............... whose
address is ............... If said number of Shares is less than all the Shares
purchasable hereunder, the undersigned requests that a new Warrant Certificate
representing the balance of the Shares be registered in the name of
............... whose address is .................... and that such Warrant
Certificate be delivered to ............... whose address is
.................... Any cash payments to be paid in lieu of a fractional Share
should be made to ............... whose address is .................... and the
check representing payment thereof should be delivered to ............... whose
address is ....................
Dated: ..............., 19..
[Social Security Box]
Name of holder of Warrant Certificate:
......................................
(Please print)
Address: .............................
.............................
Signature: ...........................
Note: The above signature must correspond with the name
as written upon the face of this Warrant
Certificate in every particular, without
alteration or enlargement or any change whatever
and if the certificate representing the Shares is
to be registered in a name other than that in
which this
S-1-7
<PAGE>
Warrant Certificate is registered, the signature
of the holder hereof must be guaranteed.
Signature Guaranteed:
S-1-8
<PAGE>
[Form of Assignment]
For value received ............... hereby sells, assigns and transfers
unto .................... all right, title and interest in the within Warrant
Certificate with respect to ........ Shares, and does hereby irrevocably
constitute and appoint .................... attorney, to transfer said Warrant
Certificate on the books of the within-named Company, with full power of
substitution in the premises.
Dated: .........., 19__.
.........................................................
Note: The above signature must correspond with the name
as written upon the face of this Warrant
Certificate in every particular, without
alteration or enlargement or any change whatever.
Signature Guaranteed:
S-1-9
<PAGE>
EXHIBIT S-2
[Form of Warrant Certificate for Second S Warrants]
[Face]
These Warrants and any shares of capital stock or other securities issuable upon
the exercise of these Warrants have not been registered under the Securities Act
of 1933, as amended, or the securities laws of any state. The sale, pledge,
hypothecation or other transfer of these Warrants and such shares or other
securities is subject to compliance with applicable securities laws.
The sale, pledge, hypothecation or other transfer of these Warrants and such
shares or other securities is also subject to certain restrictions contained in
the Agreement, dated as of April 6, 1995 (the "Redemption Agreement"), among
E.I. du Pont de Nemours and Company, The Seagram Company Ltd. and JES
Developments, Inc. The holder of these Warrants by acceptance hereof agrees to
be bound by such restrictions. A copy of the Redemption Agreement is on file
with the Corporate Secretary of E.I. du Pont de Nemours and Company.
__________Warrants
Warrant Certificate
E.I. du Pont de Nemours and Company
This Warrant Certificate certifies that ______________, or registered
permitted assigns, is the registered holder of __________ Warrants (the
"Warrants") to purchase shares of Common Stock, $0.60 par value per share, of
E.I. du Pont de Nemours and Company, a Delaware corporation (the "Company").
Each Warrant entitles the holder to purchase from the Company one fully paid and
nonassessable share of Common Stock, $0.60 par value per share, of the Company
(the "Shares") at the initial exercise price (the "Exercise Price") of $_____
payable
S-2-1
<PAGE>
in lawful money of the United States of America upon surrender of this Warrant
Certificate and payment of the Exercise Price at the office or agency of the
Warrant Agent (the "Warrant Agent Office"), subject to the conditions set forth
herein and in the Warrant Agreement. The Exercise Price and number of Shares
purchasable upon exercise of the Warrants are subject to adjustment upon the
occurrence of certain events set forth in the Warrant Agreement. Capitalized
terms used but not defined in this Warrant Certificate have the meanings
assigned to such terms in the Warrant Agreement.
The Warrants evidenced hereby are Second S Warrants and, accordingly,
are exercisable only (i) during an Acceleration Event Period, (ii) to the extent
necessary to enable S or an Affiliate thereof to obtain shares of Common Stock
which it is required at such time to deliver upon the exchange, exercise or
conversion of an outstanding Derivative S Security held by a Non-S Person during
a Derivative Exercise Period (to the extent either such period in (i) or (ii)
occurs prior to the Expiration Time of the Warrants evidenced hereby) or (iii)
during the European Exercise Period. No Warrant may be exercised after its
Expiration Time.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
S-2-2
<PAGE>
This Warrant Certificate shall not be valid unless countersigned by
the Warrant Agent, as such term is used in the Warrant Agreement.
WITNESS the facsimile seal of the Company and the facsimile signatures
of its duly authorized officers.
Dated:
E.I. du Pont de Nemours and Company
By___________________
Name:
Title:
By___________________
Name:
Title:
Countersigned:
Warco Transfer Corporation
as Warrant Agent
By_________________________
Authorized Signature
S-2-3
<PAGE>
[Form of Warrant Certificate for Second S Warrants]
[Reverse]
E.I. du Pont de Nemours and Company
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants to purchase 156,000,000 shares of Common Stock,
$0.60 par value per share, of the Company, and are issued pursuant to the
Warrant Agreement dated as of April 6, 1995 (the "Warrant Agreement"), duly
executed and delivered by the Company to Warco Transfer Corporation, as Warrant
Agent (the "Warrant Agent"), which Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Warrant Agent, the Company and the holders (the
words "holders" or "holder" meaning the registered holders or registered holder)
of the Warrants.
The Warrants evidenced hereby are Second S Warrants and, accordingly,
are exercisable only (i) during an Acceleration Event Period, (ii) to the extent
necessary to enable S or an Affiliate thereof to obtain shares of Common Stock
which it is required at such time to deliver upon the exchange, exercise or
conversion of an outstanding Derivative S Security held by a Non-S Person during
a Derivative Exercise Period (to the extent either such period in (i) or (ii)
occurs prior to the Expiration Time of the Warrants evidenced hereby) or (iii)
during the European Exercise Period, at the Exercise Price set forth on the face
hereof, subject to adjustment, as hereinafter referred to. The holder of
Warrants evidenced by this Warrant Certificate may exercise them by surrendering
the Warrant Certificate, with the form of election to purchase set forth hereon
properly completed and executed, together with payment of the Exercise Price and
delivery of any other documents required by the Warrant Agreement at the Warrant
Agent Office. In the event that upon any exercise of Warrants evidenced hereby
the number of Warrants exercised shall be less than the total number of Warrants
evidenced hereby, there shall be
S-2-4
<PAGE>
issued to the holder hereof or his assignee a new Warrant Certificate evidencing
the number of Warrants not exercised. Except as otherwise expressly provided in
the Warrant Agreement, no adjustment shall be made for any cash dividends on any
Shares issuable upon exercise of this Warrant.
No Warrant may be exercised after its Expiration Time.
The Warrant Agreement provides that, upon the occurrence of certain
events, the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that, at the election of the Company and except as otherwise
provided therein, either (i) the number of Shares purchasable upon the exercise
of each Warrant shall be adjusted or (ii) each outstanding Warrant shall be
adjusted to become a different number of Warrants. In the latter event, the
Company will cause to be distributed to registered holders of Warrant
Certificates either Warrant Certificates representing the additional Warrants
issuable pursuant to the adjustment, or substitute Warrant Certificates to
replace all outstanding Warrant Certificates. Notwithstanding the foregoing, no
adjustment to such number of Shares or Warrants shall be made upon the
occurrence of a Spinoff Distribution if Spinoff Warrants are issued in
connection therewith to the registered holder hereof.
The Company shall not be required to issue fractions of Warrants or
fractions of Shares or any certificates which evidence fractional Warrants or
fractional Shares. In lieu of such fractional Warrants and fractional Shares
there shall be paid to the registered holders of the Warrant Certificates with
regard to which such fractional Warrants or fractional Shares would otherwise be
issuable an amount in cash determined pursuant to the Warrant Agreement.
Warrant Certificates, when surrendered at the Warrant Agent Office, by
the registered holder thereof in person or by legal representative or by
attorney duly authorized in writing may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of
S-2-5
<PAGE>
like tenor evidencing in the aggregate a like number of Warrants.
Upon due presentment for registration of transfer of this Warrant
Certificate at the Warrant Agent Office, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the registered
holder hereof as the absolute owner of this Warrant Certificate (notwithstanding
any notation of ownership or other writing hereon made by anyone), for the
purpose of any exercise hereof and for all other purposes, and neither the
Company nor the Warrant Agent shall be affected by any notice to the contrary.
S-2-6
<PAGE>
[Form of Election to Purchase]
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase ..... Shares and herewith
tenders payments for such Shares in the amount of $.......... in accordance with
the terms hereof. The undersigned requests that a certificate representing such
Shares be registered in the name of ............... whose address is ..........
............... and that such certificate be delivered to ............... whose
address is ............... If said number of Shares is less than all the Shares
purchasable hereunder, the undersigned requests that a new Warrant Certificate
representing the balance of the Shares be registered in the name of
............... whose address is .................... and that such Warrant
Certificate be delivered to ............... whose address is ...................
Any cash payments to be paid in lieu of a fractional Share should be made to
............... whose address is .................... and the check representing
payment thereof should be delivered to ............... whose address is
....................
Dated: ..............., 19..
[Social Security Box]
Name of holder of Warrant Certificate:
......................................
(Please print)
Address: .............................
.............................
Signature: ...........................
Note: The above signature must correspond with the name
as written upon the face of this Warrant
Certificate in every particular, without
alteration or enlargement or any change whatever
and if the certificate representing the Shares is
to be registered in a name other than that in
which this
S-2-7
<PAGE>
Warrant Certificate is registered, the signature
of the holder hereof must be guaranteed.
Signature Guaranteed:
S-2-8
<PAGE>
[Form of Assignment]
For value received ............... hereby sells, assigns and transfers
unto .................... all right, title and interest in the within Warrant
Certificate with respect to ......Shares, and does hereby irrevocably constitute
and appoint .................... attorney, to transfer said Warrant Certificate
on the books of the within-named Company, with full power of substitution in the
premises.
Dated: .........., 19__.
........................................................
Note: The above signature must correspond with the name
as written upon the face of this Warrant
Certificate in every particular, without
alteration or enlargement or any change whatever.
Signature Guaranteed:
S-2-9
<PAGE>
EXHIBIT S-3
[Form of Warrant Certificate for Third S Warrants]
[Face]
These Warrants and any shares of capital stock or other securities issuable upon
the exercise of these Warrants have not been registered under the Securities Act
of 1933, as amended, or the securities laws of any state. The sale, pledge,
hypothecation or other transfer of these Warrants and such shares or other
securities is subject to compliance with applicable securities laws.
The sale, pledge, hypothecation or other transfer of these Warrants and such
shares or other securities is also subject to certain restrictions contained in
the Agreement, dated as of April 6, 1995 (the "Redemption Agreement"), among
E.I. du Pont de Nemours and Company, The Seagram Company Ltd. and JES
Developments, Inc. The holder of these Warrants by acceptance hereof agrees to
be bound by such restrictions. A copy of the Redemption Agreement is on file
with the Corporate Secretary of E.I. du Pont de Nemours and Company.
__________Warrants
Warrant Certificate
E.I. du Pont de Nemours and Company
This Warrant Certificate certifies that ______________, or registered
permitted assigns, is the registered holder of __________ Warrants (the
"Warrants") to purchase shares of Common Stock, $0.60 par value per share, of
E.I. du Pont de Nemours and Company, a Delaware corporation (the "Company").
Each Warrant entitles the holder to purchase from the Company one fully paid and
nonassessable share of Common Stock, $0.60 par value per share, of the Company
(the "Shares") at the initial exercise price (the "Exercise Price") of $_____
payable in lawful money of the United States of America upon
S-3-1
<PAGE>
surrender of this Warrant Certificate and payment of the Exercise Price at the
office or agency of the Warrant Agent (the "Warrant Agent Office"), subject to
the conditions set forth herein and in the Warrant Agreement. The Exercise
Price and number of Shares purchasable upon exercise of the Warrants are subject
to adjustment upon the occurrence of certain events set forth in the Warrant
Agreement. Capitalized terms used but not defined in this Warrant Certificate
have the meanings assigned to such terms in the Warrant Agreement.
The Warrants evidenced hereby are Third S Warrants and, accordingly,
are exercisable only (i) during an Acceleration Event Period, (ii) to the extent
necessary to enable S or an Affiliate thereof to obtain shares of Common Stock
which it is required at such time to deliver upon the exchange, exercise or
conversion of an outstanding Derivative S Security held by a Non-S Person during
a Derivative Exercise Period (to the extent either such period in (i) or (ii)
occurs prior to the Expiration Time of the Warrants evidenced hereby) or (iii)
during the European Exercise Period. No Warrant may be exercised after its
Expiration Time.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
S-3-2
<PAGE>
This Warrant Certificate shall not be valid unless countersigned by
the Warrant Agent, as such term is used in the Warrant Agreement.
WITNESS the facsimile seal of the Company and the facsimile signatures
of its duly authorized officers.
Dated:
E.I. du Pont de Nemours and Company
By___________________
Name:
Title:
By___________________
Name:
Title:
Countersigned:
Warco Transfer Corporation
as Warrant Agent
By_________________________
Authorized Signature
S-3-3
<PAGE>
[Form of Warrant Certificate for Third S Warrants]
[Reverse]
E.I. du Pont de Nemours and Company
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants to purchase ____________ shares of Common Stock,
$0.60 par value per share, of the Company, and are issued pursuant to the
Warrant Agreement dated as of April 6, 1995 (the "Warrant Agreement"), duly
executed and delivered by the Company to Warco Transfer Corporation, as Warrant
Agent (the "Warrant Agent"), which Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Warrant Agent, the Company and the holders (the
words "holders" or "holder" meaning the registered holders or registered holder)
of the Warrants.
The Warrants evidenced hereby are Third S Warrants and, accordingly,
are exercisable only (i) during an Acceleration Event Period, (ii) to the extent
necessary to enable S or an Affiliate thereof to obtain shares of Common Stock
which it is required at such time to deliver upon the exchange, exercise or
conversion of an outstanding Derivative S Security held by a Non-S Person during
a Derivative Exercise Period (to the extent either such period in (i) or (ii)
occurs prior to the Expiration Time of the Warrants evidenced hereby) or (iii)
during the European Exercise Period, at the Exercise Price set forth on the face
hereof, subject to adjustment, as hereinafter referred to. The holder of
Warrants evidenced by this Warrant Certificate may exercise them by surrendering
the Warrant Certificate, with the form of election to purchase set forth hereon
properly completed and executed, together with payment of the Exercise Price and
delivery of any other documents required by the Warrant Agreement at the Warrant
Agent Office. In the event that upon any exercise of Warrants evidenced hereby
the number of Warrants exercised shall be less than the total number of Warrants
evidenced hereby, there shall be
S-3-4
<PAGE>
issued to the holder hereof or his assignee a new Warrant Certificate evidencing
the number of Warrants not exercised. Except as otherwise expressly provided
in the Warrant Agreement, no adjustment shall be made for any cash dividends on
any Shares issuable upon exercise of this Warrant.
No Warrant may be exercised after its Expiration Time.
The Warrant Agreement provides that, upon the occurrence of certain
events, the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that, at the election of the Company and except as otherwise
provided therein, either (i) the number of Shares purchasable upon the exercise
of each Warrant shall be adjusted or (ii) each outstanding Warrant shall be
adjusted to become a different number of Warrants. In the latter event, the
Company will cause to be distributed to registered holders of Warrant
Certificates either Warrant Certificates representing the additional Warrants
issuable pursuant to the adjustment, or substitute Warrant Certificates to
replace all outstanding Warrant Certificates. Notwithstanding the foregoing, no
adjustment to such number of Shares or Warrants shall be made upon the
occurrence of a Spinoff Distribution if Spinoff Warrants are issued in
connection therewith to the registered holder hereof.
The Company shall not be required to issue fractions of Warrants or
fractions of Shares or any certificates which evidence fractional Warrants or
fractional Shares. In lieu of such fractional Warrants and fractional Shares
there shall be paid to the registered holders of the Warrant Certificates with
regard to which such fractional Warrants or fractional Shares would otherwise be
issuable an amount in cash determined pursuant to the Warrant Agreement.
Warrant Certificates, when surrendered at the Warrant Agent Office, by
the registered holder thereof in person or by legal representative or by
attorney duly authorized in writing may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of
S-3-5
<PAGE>
like tenor evidencing in the aggregate a like number of Warrants.
Upon due presentment for registration of transfer of this Warrant
Certificate at the Warrant Agent Office, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the registered
holder hereof as the absolute owner of this Warrant Certificate (notwithstanding
any notation of ownership or other writing hereon made by anyone), for the
purpose of any exercise hereof and for all other purposes, and neither the
Company nor the Warrant Agent shall be affected by any notice to the contrary.
S-3-6
<PAGE>
[Form of Election to Purchase]
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase ..... Shares and herewith
tenders payments for such Shares in the amount of $.......... in accordance with
the terms hereof. The undersigned requests that a certificate representing such
Shares be registered in the name of ............... whose address is ..........
............... and that such certificate be delivered to ............... whose
address is ............... If said number of Shares is less than all the Shares
purchasable hereunder, the undersigned requests that a new Warrant Certificate
representing the balance of the Shares be registered in the name of
............... whose address is .................... and that such Warrant
Certificate be delivered to ............... whose address is
.................... Any cash payments to be paid in lieu of a fractional Share
should be made to ............... whose address is .................... and the
check representing payment thereof should be delivered to ............... whose
address is ....................
Dated: ..............., 19..
[Social Security Box]
Name of holder of Warrant Certificate:
......................................
(Please print)
Address: .............................
.............................
Signature: ...........................
Note: The above signature must correspond with the name
as written upon the face of this Warrant
Certificate in every particular, without
alteration or enlargement or any change whatever
and if the certificate representing the Shares is
to be registered in a name other than that in
which this
S-3-7
<PAGE>
Warrant Certificate is registered, the signature
of the holder hereof must be guaranteed.
Signature Guaranteed:
S-3-8
<PAGE>
[Form of Assignment]
For value received ............... hereby sells, assigns and transfers
unto .................... all right, title and interest in the within Warrant
Certificate with respect to ..... Shares, and does hereby irrevocably constitute
and appoint .................... attorney, to transfer said Warrant Certificate
on the books of the within-named Company, with full power of substitution in the
premises.
Dated: .........., 19__.
........................................................
Note: The above signature must correspond with the name
as written upon the face of this Warrant
Certificate in every particular, without
alteration or enlargement or any change whatever.
Signature Guaranteed:
S-3-9
<PAGE>
EXHIBIT NS-1
[Form of Warrant Certificate for First Non-S Warrants]
[Face]
These Warrants and any shares of capital stock or other securities issuable upon
the exercise of these Warrants have not been registered under the Securities Act
of 1933, as amended, or the securities laws of any state. The sale, pledge,
hypothecation or other transfer of these Warrants and such shares or other
securities is subject to compliance with applicable securities laws.
The sale, pledge, hypothecation or other transfer of these Warrants and such
shares or other securities may also be subject to certain restrictions contained
in the Agreement, dated as of April 6, 1995 (the "Redemption Agreement"), among
E.I. du Pont de Nemours and Company, The Seagram Company Ltd. and JES
Developments, Inc. The holder of these Warrants by acceptance hereof agrees to
be bound by such restrictions. A copy of the Redemption Agreement is on file
with the Corporate Secretary of E.I. du Pont de Nemours and Company.
__________Warrants
Warrant Certificate
E.I. du Pont de Nemours and Company
This Warrant Certificate certifies that ______________, or registered
permitted assigns, is the registered holder of __________ Warrants (the
"Warrants") to purchase shares of Common Stock, $0.60 par value per share, of
E.I. du Pont de Nemours and Company, a Delaware corporation (the "Company").
Each Warrant entitles the holder to purchase from the Company one fully paid and
nonassessable share of Common Stock, $0.60 par value per share, of the Company
(the "Shares") at the initial
NS-1-1
<PAGE>
exercise price (the "Exercise Price") of $_____ payable in lawful money of the
United States of America upon surrender of this Warrant Certificate and payment
of the Exercise Price at the office or agency of the Warrant Agent (the "Warrant
Agent Office"), subject to the conditions set forth herein and in the Warrant
Agreement. The Exercise Price and number of Shares purchasable upon exercise of
the Warrants are subject to adjustment upon the occurrence of certain events set
forth in the Warrant Agreement. Capitalized terms used but not defined in this
Warrant Certificate have the meanings assigned to such terms in the Warrant
Agreement.
The Warrants evidenced hereby are First Non-S Warrants and,
accordingly, are exercisable at any time or from time to time until their
Expiration Time. Notwithstanding the foregoing, if at any time a registration
statement shall be in effect with respect to Shares issuable upon exercise of
the Warrants evidenced hereby, then the Company shall have the right to suspend
the exercisability of such Warrants for up to 30 days if the Company furnishes
the Warrant Agent with an opinion of counsel to the Company (who may be an
employee of the Company) to the effect that the prospectus included in such
registration statement could reasonably be deemed to contain a material
misstatement or omission by reason of its failure to disclose material
information concerning a pending or contemplated financing, acquisition,
disposition of assets or stock, merger or other transaction, which information
was not at such time otherwise publicly disclosed. No Warrant may be exercised
after its Expiration Time.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
NS-1-2
<PAGE>
This Warrant Certificate shall not be valid unless countersigned by
the Warrant Agent, as such term is used in the Warrant Agreement.
WITNESS the facsimile seal of the Company and the facsimile signatures
of its duly authorized officers.
Dated:
E.I. du Pont de Nemours and Company
By___________________
Name:
Title:
By___________________
Name:
Title:
Countersigned:
Warco Transfer Corporation
as Warrant Agent
By_________________________
Authorized Signature
NS-1-3
<PAGE>
[Form of Warrant Certificate for First Non-S Warrants]
[Reverse]
E.I. du Pont de Nemours and Company
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants to purchase 156,000,000 shares of Common Stock,
$0.60 par value per share, of the Company, and are issued pursuant to the
Warrant Agreement dated as of April 6, 1995 (the "Warrant Agreement"), duly
executed and delivered by the Company to Warco Transfer Corporation, as Warrant
Agent (the "Warrant Agent"), which Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Warrant Agent, the Company and the holders (the
words "holders" or "holder" meaning the registered holders or registered holder)
of the Warrants.
The Warrants evidenced hereby are First Non-S Warrants and,
accordingly, may be exercised to purchase Shares from the Company at any time or
from time to time until their Expiration Time at the Exercise Price set forth on
the face hereof, subject to adjustment, as hereinafter referred to.
Notwithstanding the foregoing, if at any time a registration statement shall be
in effect with respect to Shares issuable upon exercise of the Warrants
evidenced hereby, then the Company shall have the right to suspend the
exercisability of such Warrants for up to 30 days if the Company furnishes the
Warrant Agent with an opinion of counsel to the Company (who may be an employee
of the Company) to the effect that the prospectus included in such registration
statement could reasonably be deemed to contain a material misstatement or
omission by reason of its failure to disclose material information concerning a
pending or contemplated financing, acquisition, disposition of assets or stock,
merger or other transaction, which information was not at such time otherwise
publicly disclosed. The holder of Warrants evidenced by this Warrant
Certificate may exercise them by surrendering the
NS-1-4
<PAGE>
Warrant Certificate, with the form of election to purchase set forth hereon
properly completed and executed, together with payment of the Exercise Price and
delivery of any other documents required by the Warrant Agreement at the Warrant
Agent Office. In the event that upon any exercise of Warrants evidenced hereby
the number of Warrants exercised shall be less than the total number of Warrants
evidenced hereby, there shall be issued to the holder hereof or his assignee a
new Warrant Certificate evidencing the number of Warrants not exercised. Except
as otherwise expressly provided in the Warrant Agreement, no adjustment shall be
made for any cash dividends on any Shares issuable upon exercise of this
Warrant.
No Warrant may be exercised after its Expiration Time.
The Warrant Agreement provides that, upon the occurrence of certain
events, the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that, at the election of the Company and except as other wise
provided therein, either (i) the number of Shares purchasable upon the exercise
of each Warrant shall be adjusted or (ii) each outstanding Warrant shall be
adjusted to become a different number of Warrants. In the latter event, the
Company will cause to be distributed to registered holders of Warrant
Certificates either Warrant Certificates representing the additional Warrants
issuable pursuant to the adjustment, or substitute Warrant Certificates to
replace all outstanding Warrant Certificates. Notwithstanding the foregoing, no
adjustment to such number of Shares or Warrants shall be made upon the
occurrence of a Spinoff Distribution if Spinoff Warrants are issued in
connection therewith to the registered holder hereof.
The Company shall not be required to issue fractions of Warrants or
fractions of Shares or any certificates which evidence fractional Warrants or
fractional Shares. In lieu of such fractional Warrants and fractional Shares
there shall be paid to the registered holders of the Warrant Certificates with
regard to which such fractional Warrants or fractional Shares would otherwise be
issuable an amount in cash determined pursuant to the Warrant Agreement.
NS-1-5
<PAGE>
Warrant Certificates, when surrendered at the Warrant Agent Office, by
the registered holder thereof in person or by legal representative or by
attorney duly authorized in writing may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
Upon due presentment for registration of transfer of this Warrant
Certificate at the Warrant Agent Office, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the registered
holder hereof as the absolute owner of this Warrant Certificate (notwithstanding
any notation of ownership or other writing hereon made by anyone), for the
purpose of any exercise hereof and for all other purposes, and neither the
Company nor the Warrant Agent shall be affected by any notice to the contrary.
NS-1-6
<PAGE>
[Form of Election to Purchase]
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase ..... Shares and herewith
tenders payments for such Shares in the amount of $.......... in accordance with
the terms hereof. The undersigned requests that a certificate representing such
Shares be registered in the name of ............... whose address is ..........
............... and that such certificate be delivered to ............... whose
address is ............... If said number of Shares is less than all the Shares
purchasable hereunder, the undersigned requests that a new Warrant Certificate
representing the balance of the Shares be registered in the name of
............... whose address is .................... and that such Warrant
Certificate be delivered to ............... whose address is
.................... Any cash payments to be paid in lieu of a fractional Share
should be made to ............... whose address is .................... and the
check representing payment thereof should be delivered to ............... whose
address is ....................
Dated: ..............., 19..
[Social Security Box]
Name of holder of Warrant Certificate:
......................................
(Please print)
Address: .............................
.............................
Signature: ...........................
Note: The above signature must correspond with the name
as written upon the face of this Warrant
Certificate in every particular, without
alteration or enlargement or any change whatever
and if the certificate representing the Shares or
any Warrant Certificate representing Warrants not
exer-
NS-1-7
<PAGE>
cised is to be registered in a name other than
that in which this Warrant Certificate is
registered, the signature of the holder hereof
must be guaranteed.
Signature Guaranteed:
NS-1-8
<PAGE>
[Form of Assignment]
For value received ............... hereby sells, assigns and transfers
unto .................... all right, title and interest in the within Warrant
Certificate with respect to ..... Shares, and does hereby irrevocably constitute
and appoint .................... attorney, to transfer said Warrant Certificate
on the books of the within-named Company, with full power of substitution in the
premises.
Dated: .........., 19__.
.......................................................
Note: The above signature must correspond with the name
as written upon the face of this Warrant
Certificate in every particular, without
alteration or enlargement or any change whatever.
Signature Guaranteed:
NS-1-9
<PAGE>
EXHIBIT NS-2
[Form of Warrant Certificate for Second Non-S Warrants]
[Face]
These Warrants and any shares of capital stock or other securities issuable upon
the exercise of these Warrants have not been registered under the Securities Act
of 1933, as amended, or the securities laws of any state. The sale, pledge,
hypothecation or other transfer of these Warrants and such shares or other
securities is subject to compliance with applicable securities laws.
The sale, pledge, hypothecation or other transfer of these Warrants and such
shares or other securities may also be subject to certain restrictions contained
in the Agreement, dated as of April 6, 1995 (the "Redemption Agreement"), among
E.I. du Pont de Nemours and Company, The Seagram Company Ltd. and JES
Developments, Inc. The holder of these Warrants by acceptance hereof agrees to
be bound by such restrictions. A copy of the Redemption Agreement is on file
with the Corporate Secretary of E.I. du Pont de Nemours and Company.
__________Warrants
Warrant Certificate
E.I. du Pont de Nemours and Company
This Warrant Certificate certifies that ______________, or registered
permitted assigns, is the registered holder of __________ Warrants (the
"Warrants") to purchase shares of Common Stock, $0.60 par value per share, of
E.I. du Pont de Nemours and Company, a Delaware corporation (the "Company").
Each Warrant entitles the holder to purchase from the Company one fully paid and
nonassessable share of Common Stock, $0.60 par value per share, of the Company
(the "Shares") at the initial
NS-2-1
<PAGE>
exercise price (the "Exercise Price") of $_____ payable in lawful money of the
United States of America upon surrender of this Warrant Certificate and payment
of the Exercise Price at the office or agency of the Warrant Agent (the "Warrant
Agent Office"), subject to the conditions set forth herein and in the Warrant
Agreement. The Exercise Price and number of Shares purchasable upon exercise of
the Warrants are subject to adjustment upon the occurrence of certain events set
forth in the Warrant Agreement. Capitalized terms used but not defined in this
Warrant Certificate have the meanings assigned to such terms in the Warrant
Agreement.
The Warrants evidenced hereby are Second Non-S Warrants and,
accordingly, are exercisable at any time or from time to time until their
Expiration Time. Notwithstanding the foregoing, if at any time a registration
statement shall be in effect with respect to Shares issuable upon exercise of
the Warrants evidenced hereby, then the Company shall have the right to suspend
the exercisability of such Warrants for up to 30 days if the Company furnishes
the Warrant Agent with an opinion of counsel to the Company (who may be an
employee of the Company) to the effect that the prospectus included in such
registration statement could reasonably be deemed to contain a material
misstatement or omission by reason of its failure to disclose material
information concerning a pending or contemplated financing, acquisition,
disposition of assets or stock, merger or other transaction, which information
was not at such time otherwise publicly disclosed. No Warrant may be exercised
after its Expiration Time.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
NS-2-2
<PAGE>
This Warrant Certificate shall not be valid unless countersigned by
the Warrant Agent, as such term is used in the Warrant Agreement.
WITNESS the facsimile seal of the Company and the facsimile signatures
of its duly authorized officers.
Dated:
E.I. du Pont de Nemours and Company
By___________________
Name:
Title:
By___________________
Name:
Title:
Countersigned:
Warco Transfer Corporation
as Warrant Agent
By_________________________
Authorized Signature
NS-2-3
<PAGE>
[Form of Warrant Certificate for Second Non-S Warrants]
[Reverse]
E.I. du Pont de Nemours and Company
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants to purchase 156,000,000 shares of Common Stock,
$0.60 par value per share, of the Company, and are issued pursuant to the
Warrant Agreement dated as of April 6, 1995 (the "Warrant Agreement"), duly
executed and delivered by the Company to Warco Transfer Corporation, as Warrant
Agent (the "Warrant Agent"), which Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Warrant Agent, the Company and the holders (the
words "holders" or "holder" meaning the registered holders or registered holder)
of the Warrants.
The Warrants evidenced hereby are Second Non-S Warrants and,
accordingly, may be exercised to purchase Shares from the Company at any time or
from time to time until their Expiration Time at the Exercise Price set forth on
the face hereof, subject to adjustment, as hereinafter referred to.
Notwithstanding the foregoing, if at any time a registration statement shall be
in effect with respect to Shares issuable upon exercise of the Warrants
evidenced hereby, then the Company shall have the right to suspend the
exercisability of such Warrants for up to 30 days if the Company furnishes the
Warrant Agent with an opinion of counsel to the Company (who may be an employee
of the Company) to the effect that the prospectus included in such registration
statement could reasonably be deemed to contain a material misstatement or
omission by reason of its failure to disclose material information concerning a
pending or contemplated financing, acquisition, disposition of assets or stock,
merger or other transaction, which information was not at such time otherwise
publicly disclosed. The holder of Warrants evidenced by this Warrant
Certificate may exercise them by surrendering the
NS-2-4
<PAGE>
Warrant Certificate, with the form of election to purchase set forth hereon
properly completed and executed, together with payment of the Exercise Price and
delivery of any other documents required by the Warrant Agreement at the Warrant
Agent Office. In the event that upon any exercise of Warrants evidenced hereby
the number of Warrants exercised shall be less than the total number of Warrants
evidenced hereby, there shall be issued to the holder hereof or his assignee a
new Warrant Certificate evidencing the number of Warrants not exercised. Except
as otherwise expressly provided in the Warrant Agreement, no adjustment shall be
made for any cash dividends on any Shares issuable upon exercise of this
Warrant.
No Warrant may be exercised after its Expiration Time.
The Warrant Agreement provides that, upon the occurrence of certain
events, the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that, at the election of the Company and except as otherwise
provided therein, either (i) the number of Shares purchasable upon the exercise
of each Warrant shall be adjusted or (ii) each outstanding Warrant shall be
adjusted to become a different number of Warrants. In the latter event, the
Company will cause to be distributed to registered holders of Warrant
Certificates either Warrant Certificates representing the additional Warrants
issuable pursuant to the adjustment, or substitute Warrant Certificates to
replace all outstanding Warrant Certificates. Notwithstanding the foregoing, no
adjustment to such number of Shares or Warrants shall be made upon the
occurrence of a Spinoff Distribution if Spinoff Warrants are issued in
connection therewith to the registered holder hereof.
The Company shall not be required to issue fractions of Warrants or
fractions of Shares or any certificates which evidence fractional Warrants or
fractional Shares. In lieu of such fractional Warrants and fractional Shares
there shall be paid to the registered holders of the Warrant Certificates with
regard to which such fractional Warrants or fractional Shares would otherwise be
issuable an amount in cash determined pursuant to the Warrant Agreement.
NS-2-5
<PAGE>
Warrant Certificates, when surrendered at the Warrant Agent Office, by
the registered holder thereof in person or by legal representative or by
attorney duly authorized in writing may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
Upon due presentment for registration of transfer of this Warrant
Certificate at the Warrant Agent Office, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the registered
holder hereof as the absolute owner of this Warrant Certificate (notwithstanding
any notation of ownership or other writing hereon made by anyone), for the
purpose of any exercise hereof and for all other purposes, and neither the
Company nor the Warrant Agent shall be affected by any notice to the contrary.
NS-2-6
<PAGE>
[Form of Election to Purchase]
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase ..... Shares and herewith
tenders payments for such Shares in the amount of $.......... in accordance with
the terms hereof. The undersigned requests that a certificate representing such
Shares be registered in the name of ............... whose address is ..........
............... and that such certificate be delivered to ............... whose
address is ............... If said number of Shares is less than all the Shares
purchasable hereunder, the undersigned requests that a new Warrant Certificate
representing the balance of the Shares be registered in the name of
............... whose address is .................... and that such Warrant
Certificate be delivered to ............... whose address is
.................... Any cash payments to be paid in lieu of a fractional Share
should be made to ............... whose address is .................... and the
check representing payment thereof should be delivered to ............... whose
address is ....................
Dated: ..............., 19..
[Social Security Box]
Name of holder of Warrant Certificate:
......................................
(Please print)
Address: .............................
.............................
Signature: ...........................
Note: The above signature must correspond with the name
as written upon the face of this Warrant
Certificate in every particular, without
alteration or enlargement or any change whatever
and if the certificate representing the Shares or
any Warrant Certificate representing Warrants not
exer-
NS-2-7
<PAGE>
cised is to be registered in a name other than
that in which this Warrant Certificate is
registered, the signature of the holder hereof
must be guaranteed.
Signature Guaranteed:
NS-2-8
<PAGE>
[Form of Assignment]
For value received ............... hereby sells, assigns and transfers
unto .................... all right, title and interest in the within Warrant
Certificate with respect to ..... Shares, and does hereby irrevocably constitute
and appoint .................... attorney, to transfer said Warrant Certificate
on the books of the within-named Company, with full power of substitution in the
premises.
Dated: .........., 19__.
........................................................
Note: The above signature must correspond with the name
as written upon the face of this Warrant
Certificate in every particular, without
alteration or enlargement or any change whatever.
Signature Guaranteed:
NS-2-9
<PAGE>
EXHIBIT NS-3
[Form of Warrant Certificate for Third Non-S Warrants]
[Face]
These Warrants and any shares of capital stock or other securities issuable upon
the exercise of these Warrants have not been registered under the Securities Act
of 1933, as amended, or the securities laws of any state. The sale, pledge,
hypothecation or other transfer of these Warrants and such shares or other
securities is subject to compliance with applicable securities laws.
The sale, pledge, hypothecation or other transfer of these Warrants and such
shares or other securities may also be subject to certain restrictions contained
in the Agreement, dated as of April 6, 1995 (the "Redemption Agreement"), among
E.I. du Pont de Nemours and Company, The Seagram Company Ltd. and JES
Developments, Inc. The holder of these Warrants by acceptance hereof agrees to
be bound by such restrictions. A copy of the Redemption Agreement is on file
with the Corporate Secretary of E.I. du Pont de Nemours and Company.
__________Warrants
Warrant Certificate
E.I. du Pont de Nemours and Company
This Warrant Certificate certifies that ______________, or registered
permitted assigns, is the registered holder of __________ Warrants (the
"Warrants") to purchase shares of Common Stock, $0.60 par value per share, of
E.I. du Pont de Nemours and Company, a Delaware corporation (the "Company").
Each Warrant entitles the holder to purchase from the Company one fully paid and
nonassessable share of Common Stock, $0.60 par value per share, of the Company
(the "Shares") at the initial
NS-3-1
<PAGE>
exercise price (the "Exercise Price") of $_____ payable in lawful money of the
United States of America upon surrender of this Warrant Certificate and payment
of the Exercise Price at the office or agency of the Warrant Agent (the "Warrant
Agent Office"), subject to the conditions set forth herein and in the Warrant
Agreement. The Exercise Price and number of Shares purchasable upon exercise of
the Warrants are subject to adjustment upon the occurrence of certain events set
forth in the Warrant Agreement. Capitalized terms used but not defined in this
Warrant Certificate have the meanings assigned to such terms in the Warrant
Agreement.
The Warrants evidenced hereby are Third Non-S Warrants and,
accordingly, are exercisable at any time or from time to time until their
Expiration Time. Notwithstanding the foregoing, if at any time a registration
statement shall be in effect with respect to Shares issuable upon exercise of
the Warrants evidenced hereby, then the Company shall have the right to suspend
the exercisability of such Warrants for up to 30 days if the Company furnishes
the Warrant Agent with an opinion of counsel to the Company (who may be an
employee of the Company) to the effect that the prospectus included in such
registration statement could reasonably be deemed to contain a material
misstatement or omission by reason of its failure to disclose material
information concerning a pending or contemplated financing, acquisition,
disposition of assets or stock, merger or other transaction, which information
was not at such time otherwise publicly disclosed. No Warrant may be exercised
after its Expiration Time.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
NS-3-2
<PAGE>
This Warrant Certificate shall not be valid unless countersigned by
the Warrant Agent, as such term is used in the Warrant Agreement.
WITNESS the facsimile seal of the Company and the facsimile signatures
of its duly authorized officers.
Dated:
E.I. du Pont de Nemours and Company
By___________________
Name:
Title:
By___________________
Name:
Title:
Countersigned:
Warco Transfer Corporation
as Warrant Agent
By_________________________
Authorized Signature
NS-3-3
<PAGE>
[Form of Warrant Certificate for Third Non-S Warrants]
[Reverse]
E.I. du Pont de Nemours and Company
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants to purchase 156,000,000 shares of Common Stock,
$0.60 par value per share, of the Company, and are issued pursuant to the
Warrant Agreement dated as of April 6, 1995 (the "Warrant Agreement"), duly
executed and delivered by the Company to Warco Transfer Corporation, as Warrant
Agent (the "Warrant Agent"), which Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Warrant Agent, the Company and the holders (the
words "holders" or "holder" meaning the registered holders or registered holder)
of the Warrants.
The Warrants evidenced hereby are Third Non-S Warrants and,
accordingly, may be exercised to purchase Shares from the Company at any time or
from time to time until their Expiration Time at the Exercise Price set forth on
the face hereof, subject to adjustment, as hereinafter referred to.
Notwithstanding the foregoing, if at any time a registration statement shall be
in effect with respect to Shares issuable upon exercise of the Warrants
evidenced hereby, then the Company shall have the right to suspend the
exercisability of such Warrants for up to 30 days if the Company furnishes the
Warrant Agent with an opinion of counsel to the Company (who may be an employee
of the Company) to the effect that the prospectus included in such registration
statement could reasonably be deemed to contain a material misstatement or
omission by reason of its failure to disclose material information concerning a
pending or contemplated financing, acquisition, disposition of assets or stock,
merger or other transaction, which information was not at such time otherwise
publicly disclosed. The holder of Warrants evidenced by this Warrant
Certificate may exercise them by surrendering the
NS-3-4
<PAGE>
Warrant Certificate, with the form of election to purchase set forth hereon
properly completed and executed, together with payment of the Exercise Price and
delivery of any other documents required by the Warrant Agreement at the Warrant
Agent Office. In the event that upon any exercise of Warrants evidenced hereby
the number of Warrants exercised shall be less than the total number of Warrants
evidenced hereby, there shall be issued to the holder hereof or his assignee a
new Warrant Certificate evidencing the number of Warrants not exercised. Except
as otherwise expressly provided in the Warrant Agreement, no adjustment shall be
made for any cash dividends on any Shares issuable upon exercise of this
Warrant.
No Warrant may be exercised after its Expiration Time.
The Warrant Agreement provides that, upon the occurrence of certain
events, the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that, at the election of the Company and except as otherwise
provided therein, either (i) the number of Shares purchasable upon the exercise
of each Warrant shall be adjusted or (ii) each outstanding Warrant shall be
adjusted to become a different number of Warrants. In the latter event, the
Company will cause to be distributed to registered holders of Warrant
Certificates either Warrant Certificates representing the additional Warrants
issuable pursuant to the adjustment, or substitute Warrant Certificates to
replace all outstanding Warrant Certificates. Notwithstanding the foregoing, no
adjustment to such number of Shares or Warrants shall be made upon the
occurrence of a Spinoff Distribution if Spinoff Warrants are issued in
connection therewith to the registered holder hereof.
The Company shall not be required to issue fractions of Warrants or
fractions of Shares or any certificates which evidence fractional Warrants or
fractional Shares. In lieu of such fractional Warrants and fractional Shares
there shall be paid to the registered holders of the Warrant Certificates with
regard to which such fractional Warrants or fractional Shares would otherwise be
issuable an amount in cash determined pursuant to the Warrant Agreement.
NS-3-5
<PAGE>
Warrant Certificates, when surrendered at the Warrant Agent Office, by
the registered holder thereof in person or by legal representative or by
attorney duly authorized in writing may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
Upon due presentment for registration of transfer of this Warrant
Certificate at the Warrant Agent Office, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the registered
holder hereof as the absolute owner of this Warrant Certificate (notwithstanding
any notation of ownership or other writing hereon made by anyone), for the
purpose of any exercise hereof and for all other purposes, and neither the
Company nor the Warrant Agent shall be affected by any notice to the contrary.
NS-3-6
<PAGE>
[Form of Election to Purchase]
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase ..... Shares and herewith
tenders payments for such Shares in the amount of $.......... in accordance with
the terms hereof. The undersigned requests that a certificate representing such
Shares be registered in the name of ............... whose address is ..........
............... and that such certificate be delivered to ............... whose
address is ............... If said number of Shares is less than all the Shares
purchasable hereunder, the undersigned requests that a new Warrant Certificate
representing the balance of the Shares be registered in the name of
............... whose address is .................... and that such Warrant
Certificate be delivered to ............... whose address is
.................... Any cash payments to be paid in lieu of a fractional Share
should be made to ............... whose address is .................... and the
check representing payment thereof should be delivered to ............... whose
address is ....................
Dated: ..............., 19..
[Social Security Box]
Name of holder of Warrant Certificate:
......................................
(Please print)
Address: .............................
.............................
Signature: ...........................
Note: The above signature must correspond with the name
as written upon the face of this Warrant
Certificate in every particular, without
alteration or enlargement or any change whatever
and if the certificate representing the Shares or
any Warrant Certificate representing Warrants not
exer-
NS-3-7
<PAGE>
cised is to be registered in a name other than
that in which this Warrant Certificate is
registered, the signature of the holder hereof
must be guaranteed.
Signature Guaranteed:
NS-3-8
<PAGE>
[Form of Assignment]
For value received ............... hereby sells, assigns and transfers
unto .................... all right, title and interest in the within Warrant
Certificate with respect to ...... Shares, and does hereby irrevocably
constitute and appoint .................... attorney, to transfer said Warrant
Certificate on the books of the within-named Company, with full power of
substitution in the premises.
Dated: .........., 19__.
........................................................
Note: The above signature must correspond with the name
as written upon the face of this Warrant
Certificate in every particular, without
alteration or enlargement or any change whatever.
Signature Guaranteed:
NS-3-9
<PAGE>
EXHIBIT 99.5
REGISTRATION RIGHTS AGREEMENT
-----------------------------
This Registration Rights Agreement, dated as of April 6, 1995 (this
"Agreement"), is among E.I. du Pont de Nemours and Company, a Delaware
corporation (the "Company"), The Seagram Company Ltd., a Canadian corporation
("S"), and JES Developments, Inc., a Delaware corporation and a wholly-owned
subsidiary of S ("Subsidiary").
WHEREAS, pursuant to an Agreement, of even date herewith (the "Redemption
Agreement"), among the Company, S and Subsidiary, Subsidiary is transferring to
the Company certain shares of Common Stock, par value $0.60 per share, of the
Company (the "Common Stock"), in part in exchange for Warrants (as defined in
the Redemption Agreement); and
WHEREAS, in connection with the Redemption Agreement, the Company, S and
Subsidiary have agreed to enter into this registration rights agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
parties hereto hereby agree as follows.
Section 1. Definitions.
-----------
(a) Capitalized terms used but not defined in this Agreement
have the meanings assigned to such terms in the Redemption Agreement.
(b) "Holder" means any holder of Registrable Securities (other
than the Company).
(c) "Registrable Securities" means each of the following: (i)
the Warrants; (ii) any shares of Common Stock or other securities issued upon
exercise of the Warrants; (iii) the Retained Shares; and (iv) any other
securities of the Company issued in respect of any of the foregoing securities,
by way of stock dividend, stock split or other distribution, recapitalization or
reclassification. As to any particular Registrable Securities, such securities
shall cease to be Registrable Securities if (i) any Disposition of such
securities shall have been effected (other than a Disposition pursu-
<PAGE>
ant to Section 5.3(a) of the Redemption Agreement); (ii) a registration
statement with respect to such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement; or (iii) such securities shall have ceased to
be outstanding or, in the case of any Warrants and any shares of Common Stock or
other securities issuable upon exercise of such Warrants, such Warrants shall
have expired unexercised.
(d) "S Securities" means any options, rights, warrants or
securities issued by S or an Affiliate thereof.
(e) "SEC" means the United States Securities and Exchange
Commission.
(f) "Securities Act" means the Securities Act of 1933, as
amended.
Section 2. Request for Registration.
------------------------
(a) At any time after the date hereof, S may make a written
request to the Company for registration under the Securities Act with respect to
all or part of the Registrable Securities (a "Registration"); provided, that in
--------
the case of Registrable Securities consisting of securities other than Warrants,
the Company shall not be required to effect a Registration of part of such
Registrable Securities unless the Registrable Securities requested to be
registered have a fair market value of at least $500 million; provided, further,
-------- -------
that in the case of Warrants, the Company shall not be required to effect a
Registration of part of such Warrants unless the Warrants requested to be
registered have a fair market value of at least $40 million. For purposes of
this Section 2, the fair market value of Registrable Securities shall be based
on the closing price per share or per unit of such Registrable Securities during
the 20 consecutive trading days immediately preceding the Company's receipt of
the request for a Registration of such Registrable Securities. The closing
price for each such day shall be the last sale price regular way, or, in case no
such sale takes place on such day, the average of the closing bid and asked
prices regular way, in either case on the New York Stock Exchange, or, if such
Registrable Securities are not listed or admitted to trading on such exchange,
2
<PAGE>
on the principal national securities exchange on which such Registrable
Securities are listed or admitted to trading, or if such Registrable Securities
are not listed or admitted to trading on any national securities exchange but
are designated as national market system securities by the National Association
of Securities Dealers ("NASD"), the last sale price, or, in case no such sale
takes place on such day, the average of the closing bid and asked prices, in
either case as reported on the NASD Automated Quotation/National Market System,
or, if the Registrable Securities are not so designated as national market
system securities, the average of the highest reported bid and lowest reported
asked prices as furnished by the NASD or similar organization if the NASD is no
longer reporting such information. If none of the foregoing market data is
available for the Warrants, the fair market value of the Warrants shall be
determined by two nationally recognized investment banking firms, one firm to be
selected by each of S and the Company, or in the event such firms are unable to
agree, by a third nationally recognized investment banking firm selected by such
firms. Such determination shall be made using the valuation methodology set
forth in Exhibit H to the Redemption Agreement and such fair market value shall
be as of the date of the Company's receipt of the request for a Registration of
such Warrants. In connection with any determination of fair market value
pursuant to this Section 2(a), each party will bear the fees and expenses of the
investment banking firm selected by it and the parties will bear equally the
fees and expenses of any third investment banking firm. No request for
registration shall be made pursuant to this Section 2(a), (x) in respect of any
Registrable Securities unless S believes in good faith, based on consultation
with the proposed managing underwriter (or, if none has then been chosen, a
nationally recognized investment bank), that S or its Affiliates will be able to
sell such Registrable Securities (or S Securities exchangeable or exercisable
therefor) pursuant to such registration and (y) except with respect to Retained
Shares, prior to May 15, 1996.
(b) Each Registration (other than a Shelf Registration permitted
by subsection (d) below) shall be effected through an offering underwritten on a
"firm commitment" basis by one or more nationally recognized investment banking
firms (an "Underwritten Registration").
3
<PAGE>
(c) If S or an Affiliate thereof offers any options, rights,
warrants or other securities issued by S or an Affiliate thereof that are
offered with, or convertible into or exercisable or exchangeable for any
Registrable Securities (an "S Offering"), then such Registrable Securities shall
be eligible for Registration hereunder.
(d) At the request of S, a Registration shall be a shelf
registration pursuant to Rule 415 under the Securities Act or any successor rule
thereto (a "Shelf Registration"); provided that such Shelf Registration relates
--------
to (i) Registrable Securities issuable upon exercise of Non-S Warrants (as such
term is defined in the Warrant Agreement); (ii) Registrable Securities which are
deliverable by S or any of its Affiliates upon conversion, exercise or exchange
of S Securities previously sold; (iii) S Warrants which S or any of its
Affiliates has the right to dispose of following the Company's failure to
exercise its right to purchase such S Warrants pursuant to Section 5.4(I) of the
Redemption Agreement; or (iv) any other Registrable Securities deliverable by S
or any of its Affiliates upon conversion, exercise or exchange of S Securities
which are themselves being registered on a shelf registration.
Section 3. Number of Registrations. The Company shall not be
-----------------------
obligated to effect more than (i) ten Registrations with respect to the Warrants
or (ii) two Registrations during any 12 consecutive month period with respect to
Registrable Securities other than Warrants. The Company shall not be deemed to
have effected a Registration unless and until such Registration is declared
effective.
Section 4. Selection of Underwriters. The Company will select the
-------------------------
investment banker or bankers to administer the offering (other than an S
Offering) made in connection with each Underwritten Registration; provided, that
--------
such investment banker or bankers shall be reasonably satisfactory to S. S will
select the investment banker or bankers to administer any underwritten S
Offering made in connection with a Registration; provided, that such investment
--------
banker or bankers shall be reasonably satisfactory to the Company.
4
<PAGE>
Section 5. Registration Statements. Subject to the Company's right,
-----------------------
to the extent applicable pursuant to the Redemption Agreement, to purchase all
of the Registrable Securities requested to be registered (the "Company
Repurchase Right"), the Company agrees to file as soon as reasonably practicable
after a request for a Registration, but in no event later than the later of (x)
sixty days after such request for a Registration and (y) in the event the
Company exercises its privilege to delay the filing of a registration statement
pursuant to Section 6 hereof, the end of the period during which the Company
delays such filing, a registration statement on any appropriate form with
respect to all of the Registrable Securities requested to be included in such
Registration. Subject to Section 6 hereof, the Company agrees to use its
reasonable best efforts to have the Registration declared effective as soon as
practicable after such filing and to keep the Registration continuously
effective (i) in the case of a Registration other than a Shelf Registration,
until the ninetieth day following the date on which such Registration is
declared effective; (ii) in the case of a Shelf Registration described in
Section 2(d)(i), for so long as the Non-S Warrants to which such Shelf
Registration relates are exercisable; (iii) in the case of a Shelf Registration
described in Section 2(d)(ii), April 1, 2000; (iv) in the case of a Shelf
Registration described in Section 2(d)(iii), until the 60th day following the
last day on which the Company had the right to deliver a Section 5.4(I)
Acceptance Notice with respect to such S Warrants; and (v) in the case of a
Shelf Registration described in Section 2(d)(iv), until the earlier of (a) six
months after a registration statement with respect to such Shelf Registration is
filed and (b) the sale of all S Securities registered in such shelf
registration; provided, that the period in clause (v) shall be extended in
--------
respect of any Registrable Securities issuable upon exercise, exchange or
conversion of the S Securities registered under the Shelf Registration referred
to in Section 2(d)(iv) to the date on which a Shelf Registration described in
Section 2(d)(ii) in respect of such Registrable Securities is required to remain
effective pursuant to clause (iii) above so long as the Shelf Registration
described in Section 2(d)(iv) could, under the rules, regulations and policies
of the SEC, be used in lieu of one described in Section 2(d)(ii); provided
--------
further, that if for any reason the effectiveness of a Registration is
- -------
suspended, the period
5
<PAGE>
during which such Registration is required to be kept effective shall be
extended by the aggregate number of days of each such suspension; provided,
--------
further, that any Registration may be terminated at such time as all of the
- -------
Registrable Securities included therein cease to be Registrable Securities.
Section 6. Company's Ability to Postpone. The Company shall have the
-----------------------------
right to delay the filing of a registration statement under Section 5 hereof if
the Company furnishes S with a certificate signed by the Chief Executive Officer
of the Company stating that the Company has commenced registration procedures
with respect to, or intends in good faith to effect, a primary offering of
Common Stock (or securities convertible into or exchangeable or exercisable for
Common Stock). In such event, the Company may delay such filing under Section 5
hereof until the 90th day following the completion of the Company's offering
(but not more than 180 days in total). The Company shall also have the right to
delay the filing of a registration statement under Section 5 hereof, or the
filing of any amendments to any registration statement filed under Section 5
hereof (other than amendments effected by the filing of reports and documents
incorporated by reference in such registration statement), and shall not be
obligated to request or obtain effectiveness of any registration statement filed
under Section 5 hereof, for up to 90 days if the Company furnishes S with a
certificate signed by the Chief Executive Officer of the Company stating that he
has determined in good faith that effecting the registration at such time is
reasonably likely to interfere with a financing (other than a primary offering
of Common Stock (or securities convertible into or exchangeable or exercisable
for Common Stock)), acquisition, disposition of assets or stock, merger or other
transaction.
Section 7. Holdback Agreements. The Company agrees not to effect
-------------------
(except pursuant to a registration of securities on Form S-4 or Form S-8, or any
successor form) any public sale or distribution of any securities similar to
those being registered or issued, as the case may be, or any securities
convertible into or exchangeable or exercisable for such securities, during the
period from the (i) filing of a registration statement pursuant to Section 5
hereof until 90 days after the date on which such registration statement is
first declared
6
<PAGE>
effective; (ii) filing of a registration statement by S or any Affiliate of S
(other than a shelf registration pursuant to Rule 415 under the Securities Act
or any successor rule thereto (an "S Shelf")) in connection with an S Offering,
until 90 days after the date on which such registration statement is first
declared effective; and (iii) issuance of S Securities in an S Offering pursuant
to an S Shelf, until 90 days after such issuance; provided that such issuances
--------
shall be effected so as to permit the Company during at least two 90 consecutive
day periods in any 365 consecutive day period to effect the public sale or
distribution of securities similar to those being registered or issued, as the
case may be, or securities convertible into or exchangeable or exercisable for
such securities.
Section 8. Registration Procedures. Subject to Section 6 hereof and
-----------------------
to the Company Repurchase Right, whenever S has requested that any Registrable
Securities be registered pursuant to Section 2 of this Agreement, the Company
will use its reasonable best efforts to effect the registration of such
Registrable Securities in accordance with the intended method of disposition
thereof as promptly as practicable and, in connection with any such request, the
Company will:
(a) prepare and file with the SEC a registration statement, on
any appropriate form, with respect to such Registrable Securities and use its
reasonable best efforts to cause such registration statement to become
effective;
(b) prepare and file with the SEC such amendments and post-
effective amendments to the registration statement as may be necessary to keep
the registration statement effective for as long as such Registration is
required to remain effective pursuant to the terms hereof; cause the prospectus
included therein to be supplemented by any required prospectus supplement, and,
as so supplemented, to be filed pursuant to Rule 424 under the Securities Act;
and use its best efforts to comply with all provisions of the Securities Act,
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission thereunder applicable to it with respect to the disposition of
all securities covered by such registration statement in accordance with the in-
7
<PAGE>
tended methods of disposition thereof set forth in such registration statement;
(c) furnish to S and each underwriter at least one signed copy
of the registration statement and any post-effective amendment thereto, and such
number of conformed copies thereof and such number of copies of the prospectus
included therein (including each preliminary prospectus) and any amendments or
supplements thereto, and any documents incorporated by reference therein, as S
or any underwriter may request;
(d) on or prior to the date on which the registration statement
is declared effective, use its reasonable best efforts to register or qualify
the Registrable Securities covered thereby under such other securities or blue
sky laws of such jurisdictions as S or any underwriter reasonably requests and
do any and all other acts and things which may be reasonably necessary or
advisable to permit the disposition in such jurisdictions of such Registrable
Securities; provided, that the Company will not be required to (i) qualify
--------
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this paragraph (d), (ii) subject itself to general
taxation in any such jurisdiction or (iii) consent to general service of process
in any such jurisdiction;
(e) notify S and each underwriter, at any time when a prospectus
relating to Registrable Securities is required to be delivered by S or such
underwriter under the Securities Act, of the happening of any event as a result
of which the prospectus included in the registration statement relating to such
Registrable Securities contains an untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and the Company will prepare a supplement
or amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not contain an
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;
(f) notify S and each underwriter (i) when the registration
statement or any post-effective
8
<PAGE>
amendment to the registration statement, shall have become effective, or any
amendment or supplement to the prospectus shall have been filed, (ii) of the
receipt of any comments from the SEC, (iii) of any request of the SEC to amend
the registration statement or amend or supplement the prospectus or for
additional information and (iv) of any stop order issued or threatened by the
SEC in connection with the registration statement and take all reasonable
actions required to prevent the entry of any such stop order or to remove it if
entered;
(g) enter into customary agreements (including, if appropriate,
an underwriting agreement containing provisions relating to indemnification of,
and by, the Company, S and the underwriters) in form customary for the Company
and other issuers of similar size and quality or otherwise reasonably acceptable
to the Company) and take such other customary actions as S reasonably requests
in order to expedite or facilitate the disposition of such Registrable
Securities;
(h) use its reasonable best efforts to obtain a "cold comfort"
letter from the Company's independent public accountants in form customary for
the Company and other issuers of similar size and quality and covering such
matters as are customarily covered by "cold comfort" letters in connection with
the registration of securities of the Company and other issuers of similar size
and quality;
(i) use its reasonable best efforts to obtain an opinion or
opinions from counsel for the Company in form customary for the Company and
other issuers of similar size and quality;
(j) make available to its security holders, as soon as
reasonably practicable, earnings statements (which need not be audited),
covering a period of twelve months, beginning within three months after the
effective date of the registration statement, which earnings statements shall
satisfy the provisions of Section 11(a) of the Securities Act;
(k) cooperate with S and each underwriter to facilitate the
timely preparation and delivery of certificates (not bearing any restrictive
legends) representing securities to be sold under the registration
9
<PAGE>
statement and enable such securities to be in such amounts and registered in
such names as S and each underwriter may request;
(l) make available for inspection by representatives of S, by
any underwriter participating in any disposition to be effected pursuant to such
registration statement and by any attorney, accountant or other agent retained
by S or any underwriter, all pertinent financial and other records, pertinent
corporate documents and properties of the Company, and cause all of the
Company's officers, directors and employees to supply all information reasonably
requested by S, such underwriter, attorney, accountant or agent in connection
with the registration statement; provided, however, that (i) all non-public,
--------
confidential or proprietary information disclosed by the Company shall be held
by S, the participating underwriters and their respective representatives,
agents, employees, accountants and attorneys in confidence and not disclosed to
any other party except as required by law and (ii) the Company shall not be
required to disclose any information which it is prohibited by law, rule or
regulation or agreement from disclosing, or which could in its judgment result
in a waiver or loss of any attorney-client privilege to which it may be
entitled; and
(m) if requested by the managing underwriter or agent or S,
promptly incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or agent or S reasonably requests to be
included therein, including, without limitation, with respect to any other terms
of the underwritten offering of the Registrable Securities to be sold in such
offering; and make all required filings of such prospectus supplement or post-
effective amendment as soon as practicable after being notified of the matters
incorporated in such prospectus supplement or post-effective amendment.
The Company may require S to furnish to the Company such information regarding
the distribution of Registrable Securities and such other information relating
to S and the Holders as the Company may from time to time reasonably request in
writing.
10
<PAGE>
S agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 8(e) hereof, S will, and
will cause each Holder to, forthwith discontinue disposition of Registrable
Securities, if any, held by S or such Holders pursuant to the registration
statement covering such Registrable Securities until S's receipt of the copies
of the supplemented or amended prospectus contemplated by Section 8(e) hereof
and, if so directed by the Company, S will deliver to the Company all copies,
other than permanent file copies, of the prospectus covering such Registrable
Securities that is current at the time of receipt of such notice. In the event
the Company shall give any such notice, the Company shall extend the period
during which such registration statement is required to be maintained effective
pursuant to this Agreement by the number of days during the period from and
including the date of the giving of such notice pursuant to Section 8(e) hereof
to and including the date S shall have received the copies of the supplemented
or amended prospectus contemplated by Section 8(e) hereof.
Section 9. Registration Expenses. All expenses incident to the
---------------------
Company's performance of or compliance with this Agreement (excluding all
underwriting discounts, commissions or fees attributable to the sale of the
Registrable Securities, all registration and filing fees, all fees and expenses
of counsel, accountants and consultants for S and the Holders, and all fees and
expenses associated with filings required to be made with the NASD (including,
if applicable, the fees and expenses of any "qualified independent underwriter"
as such term is defined in Schedule E to the By-laws of the NASD, and of its
counsel)), including expenses of compliance with securities or blue sky laws
(including fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), printing expenses (including
expenses of printing certificates for the Registrable Securities in a form
eligible for deposit with the Depositary Trust Company and of printing
prospectuses), messenger and delivery expenses, and the fees and expenses of
counsel for the Company and its independent certified public accountants
(including the expenses of any special audit or "cold comfort" letters required
by or incident to such performance) will be borne by the Company.
11
<PAGE>
Section 10. Indemnification; Contribution
-----------------------------
(a) The Company agrees to indemnify S and the Holders of
Registrable Securities included in a registration statement effected pursuant to
this Agreement (other than any registration statement covering S Securities
offered in an S Offering) and each person who controls S or such Holders (within
the meaning of the Securities Act) and each of their respective directors,
officers, employees, agents, affiliates and general and limited partners
(including any director, officer, affiliate, employee, agent and controlling
person thereof) against any and all losses, claims, damages and liabilities,
joint or several, and expenses to which S, such Holder, any such director,
officer, employee, agent, affiliate or general or limited partner or any such
controlling person may become subject under the Securities Act, common law or
otherwise, insofar as such losses, claims, damages and liabilities (or actions
or proceedings in respect thereof, whether or not such indemnified party is a
party thereto) arise out of or are based upon any untrue or alleged untrue
statement of a material fact contained in any such registration statement or any
prospectus or preliminary prospectus included therein, or any amendment or
supplement thereto or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading (in the case of a prospectus or preliminary prospectus,
in light of the circumstances under which they are made), except to the extent
that such untrue or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with information furnished in writing by
S, any Affiliate of S or any Holder or any such controlling person to the
Company specifically for inclusion therein.
(b) S agrees to indemnify the Company and each person who
controls the Company (within the meaning of the Securities Act) and each of
their respective directors, officers, employees, agents, affiliates and general
and limited partners (including any director, officer, affiliate, employee,
agent and controlling person thereof) against any and all losses, claims,
damages and liabilities, joint or several, and expenses to which the Company or
any such director, officer, employee, agent, affiliate or general or limited
partner
12
<PAGE>
or any such controlling person may become subject under the Securities Act,
common law or otherwise, insofar as such losses, claims, damages and liabilities
(or actions or proceedings in respect thereof, whether or not such indemnified
party is a party thereto) arise out of or are based upon any untrue or alleged
untrue statement of a material fact contained in any registration statement
covering S Securities offered in an S Offering or any prospectus or preliminary
prospectus included therein, or any amendment or supplement thereto or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading (in
the case of a prospectus or preliminary prospectus, in light of the
circumstances under which they are made), except to the extent that such untrue
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with information furnished in writing by the Company or
any such controlling person to S or any such Affiliate specifically for
inclusion therein.
(c) S and the Holders of Registrable Securities covered by a
registration statement effected pursuant to this Agreement (other than any
registration statement covering S Securities offered in an S Offering) jointly
and severally agree to indemnify the Company and each person who controls the
Company (within the meaning of the Securities Act) and each of their respective
directors, officers, employees, agents, affiliates and general and limited
partners (including any director, officer, employee, agent, affiliate and
controlling person thereof) against any and all losses, claims, damages and
liabilities, joint or several, and expenses to which the Company or any such
director, officer, employee, agent, affiliate or general or limited partner or
any such controlling person may become subject under the Securities Act, common
law or otherwise, insofar as such losses, claims, damages and liabilities (or
actions or proceedings in respect thereof, whether or not such indemnified party
is a party thereto) arise out of or are based upon any untrue or alleged untrue
statement of a material fact contained in any such registration statement or any
prospectus or preliminary prospectus included therein, or any amendment or
supplement thereto or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading (in the case of a
13
<PAGE>
prospectus or preliminary prospectus, in light of the circumstances under which
they are made), to the extent that such untrue or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
information furnished in writing by S, any Holder or any person controlling S to
the Company specifically for inclusion therein.
(d) The Company agrees to indemnify S or any Affiliate of S and
each person who controls S or such Affiliate (within the meaning of the
Securities Act), and each of their respective directors, officers, employees,
agents and general and limited partners (including any director, officer,
affiliate, employee, agent and controlling person thereof) against any and all
losses, claims, damages and liabilities, joint or several, and expenses to which
S may become subject under the Securities Act, common law or otherwise, insofar
as such losses, claims, damages and liabilities (or actions or proceedings in
respect thereof, whether or not such indemnified party is a party thereto) arise
out of or are based upon any untrue or alleged untrue statement of a material
fact contained in any registration statement covering S Securities offered in an
S Offering or any prospectus or preliminary prospectus included therein, or any
amendment or supplement thereto or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading (in the case of a prospectus or preliminary
prospectus, in light of the circumstances under which they are made), to the
extent that such untrue or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with information furnished
in writing by the Company to S or such Affiliate specifically for inclusion
therein.
(e) Any person entitled to indemnification hereunder agrees to
give prompt written notice to the indemnifying party after the receipt by such
person of any written notice of the commencement of any action, suit or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Agreement; provided, that the failure to give, or any delay in
--------
giving, such notice shall not relieve the indemnifying party of its obligations
hereunder except to the extent that the indemnifying party is prejudiced by such
failure or delay. Unless in the reasonable judgment of such
14
<PAGE>
indemnified party a conflict of interest may exist between such indemnified
party and the indemnifying party with respect to such action, suit or
proceeding, the indemnified party shall permit the indemnifying party to assume
the defense of such action, suit or proceeding with counsel reasonably
satisfactory to such indemnified party. If the indemnifying party is not
entitled to, or elects not to, assume the defense thereof, then the indemnified
party shall have the right to undertake such defense; provided, that the
--------
indemnifying party will not be obligated to pay the fees and expenses of more
than one counsel to the indemnified party with respect to such defense. No
indemnifying party will consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to the indemnified party of a release from all
liability. The indemnifying party will not be subject to any liability for any
settlement made without its consent, which consent shall not be unreasonably
withheld.
(f) If the indemnification provided for in this Section 10 is
unavailable to, or insufficient to hold harmless, an indemnified party hereunder
in respect of any losses, claims, damages or liabilities referred to herein by
reason other than those set forth in the exceptions and provisos in Section
10(a) and (b) hereof, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect the relative benefits received by,
and the relative fault of, the indemnifying party and indemnified party in
connection with the actions or inactions which resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations.
The relative fault of the indemnifying party on the one hand and the indemnified
party on the other hand shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The parties
hereto agree that it
15
<PAGE>
would not be just and equitable if contribution pursuant to this Section 10(f)
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above.
The amount paid or payable by the indemnified party as a result of the losses,
claims, damages or liabilities referred to above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigations,
preparing to defend or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
Section 11. Spinoff Distributions. In the event that the Company
---------------------
issues Spinoff Warrants, then, effective as of the date of such Spinoff
Distribution, without any action on the part of the Company, the Spinoff Company
or S, there shall be deemed to exist between S and the Spinoff Company a binding
agreement (the "Spinoff Registration Rights Agreement") substantially identical
to this Agreement; provided that, for purposes of the Spinoff Registration
--------
Rights Agreement, (i) references to the Company shall mean the Spinoff Company;
(ii) references to the Common Stock, the Warrants and the Warrant Agreement
shall mean the common stock of the Spinoff Company, the Spinoff Warrants and the
warrant agreement pursuant to which the Spinoff Warrants are issued,
respectively, and references to the Redemption Agreement shall mean the Spinoff
Agreement deemed to exist between S and the Spinoff Company pursuant to Section
5.9 of the Redemption Agreement; and (iii) references to "the date hereof" and
"the date of this Agreement" shall mean the date of the Spinoff Distribution.
Capitalized terms used but not defined in this Section 11 shall have the
meanings assigned to such terms in the Warrant Agreement. Prior to any such
Spinoff Distribution, S shall, and the Company shall cause such Spinoff Company
to, enter into an agreement memorializing such Spinoff Registration Rights
Agreement.
Section 12. Termination by the Company. The Company may terminate
--------------------------
this Agreement at any time by giving written notice of such termination to S;
provided, that simultaneously with such notice of termination, the
- --------
16
<PAGE>
Company irrevocably waives all restrictions on the transfer of Registrable
Securities contained in the Redemption Agreement; provided, further, that the
-------- -------
aggregate fair market value of the Registrable Securities (including Common
Stock issuable upon exercise of Warrants) held by S and the Holders (determined
in a manner consistent with Section 2 hereof and, with respect to Registrable
Securities for which market data is available, during the 20 consecutive trading
days immediately preceding delivery of notice of termination) is less than $100
million. Notwithstanding the termination of this Agreement, (i) no existing
Shelf Registration shall be terminated prior to the time provided for in Section
5 hereof and (ii) the provisions of Section 10 with respect to misstatements and
omissions (actual or alleged) occurring prior to such termination shall survive
such termination.
Section 13. Specific Performance. The parties hereto agree that
--------------------
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
Section 14. Assignment. This Agreement shall be binding upon and
----------
inure to the benefit of the parties hereto and their successors by operation of
law, but may not otherwise be assigned by any party hereto without the prior
written consent of the other parties hereto; provided, that without the consent
--------
of the Company, S or any Holder may assign its rights hereunder to any wholly
owned subsidiary of S if S or any Holder shall have effected a Disposition of
Registrable Securities to such subsidiary in compliance with Section 5.3 of the
Redemption Agreement provided, further, that without the consent of the Company,
--------
S and Subsidiary may assign to any holders of Non-S Warrants their rights
hereunder to request a Shelf Registration pursuant to Section 2(d)(i) hereof.
Section 15. Validity. If any provision of this Agreement, or the
--------
application thereof to any person or circumstance is held invalid or
unenforceable, the remainder of this Agreement, and the application of such
provision to other persons or circumstances, shall not be
17
<PAGE>
affected thereby, and to such end, the provisions of this Agreement are agreed
to be severable.
Section 16. Notices. All notices and other communications under this
-------
Agreement shall be in writing and shall be given in the manner set forth in the
Redemption Agreement.
Section 17. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of Delaware, without regard
to the principles of conflicts of law thereof.
Section 18. Descriptive Headings. The descriptive headings herein
--------------------
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
Section 19. Parties in Interest. This Agreement shall be binding
-------------------
upon and inure solely to the benefit of each party hereto and its successors and
permitted assigns, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement.
Section 20. Counterparts. This Agreement may be executed in two or
------------
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
18
<PAGE>
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed on its behalf by its representatives thereunto duly authorized, all
as of the day and year first above written.
E.I. du Pont de Nemours and Company
By /s/ Edgar S. Woolard, Jr.
-------------------------
Name: Edgar S. Woolard, Jr.
Title:Chairman of the Board and
Chief Executive officer
The Seagram Company Ltd.
By /s/ Edgar Bronfman, Jr.
-----------------------
Name: Edgar Bronfman, Jr.
Title President and Chief
Executive Officer
JES Developments, Inc.
By /s/ Daniel R. Paladino
----------------------
Name: Daniel R. Paladino
Title: Vice President
19
<PAGE>
EXHIBIT 99.6
FORM OF AGREEMENT
-----------------
This Agreement, dated as of April 6, 1995, is among E.I. du Pont de
Nemours and Company, a Delaware corporation (the "Company"), and the individuals
and entities listed on the signature pages hereto (each a "Family
Representative" and collectively, the "Family Representatives").
WHEREAS, simultaneously with the execution and delivery of this
Agreement, the Company, The Seagram Company Ltd., a Canadian corporation ("S"),
and JES Developments, Inc., a Delaware corporation and a wholly-owned subsidiary
of S ("Subsidiary"), are entering into an agreement (the "Redemption
Agreement"), pursuant to which, among other things, Subsidiary is transferring
to the Company an aggregate of 156,000,000 shares of the Common Stock, par value
$0.60 per share, of the Company (the "Common Stock"); and
WHEREAS, in order to induce the Company to enter into the Redemption
Agreement and acquire shares of Common Stock as provided therein, the Family
Representatives are willing to agree to certain restrictions with respect to the
Company, as set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the parties hereto hereby agree as follows.
Section 1. Capitalized Terms. Capitalized terms used but not defined
-----------------
herein shall have the meanings assigned to such terms in the Redemption
Agreement.
Section 2. Representation of Family Representatives. Each Family
----------------------------------------
Representative represents and warrants as of the date hereof to the Company
that, except for the Redeemed Shares, the Retained Shares and the Warrants,
neither such Family Representative nor, to the knowledge of such Family
Representative, any of his, her or its Affiliates (as hereinafter defined),
Beneficially Owns or has any right to acquire (whether currently, upon lapse of
time, following the satisfaction of any conditions, upon the occurrence of any
event or any combination of the foregoing) any Voting Securities. The foregoing
representation and warranty shall survive through
<PAGE>
the term of this Agreement. As used in this Agreement, "Affiliate" means, with
respect to any Family Representative, any corporation or entity controlled by
such Family Representative, or by such Family Representative and one or more
other Family Representatives.
Section 3. Standstill. During the Standstill Period, each Family
----------
Representative agrees that, except for the possible acquisition by the Family
Representatives of not more than an aggregate of 300,000 shares of Common Stock,
he, she or it shall not, and shall use his, her or its best efforts (to the
extent consistent with his, her or its legal obligations) to cause his, her or
its respective Affiliates not to, directly or indirectly, alone or in concert
with others, take any action which S is prohibited from taking pursuant to
Section 5.1 of the Redemption Agreement or the corresponding section of any
Spinoff Agreement; provided that the acquisition of Voting Securities by any
--------
such Family Representative in connection with a distribution by S to its
stockholders pursuant to Section 5.3(c) of the Redemption Agreement shall not be
deemed a breach of this Section 3.
Section 4. Termination. This Agreement shall terminate upon the
-----------
termination of the Redemption Agreement in accordance with its terms.
Section 5. Specific Performance. The parties hereto agree that
--------------------
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to specific performance of the terms hereof, in addition to any other remedy
at law or in equity.
Section 6. Entire Agreement; Termination of Existing Agreement. This
---------------------------------------------------
Agreement constitutes the entire agreement among the parties hereto with respect
to the subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof. Without limiting the foregoing, upon the execution and
delivery of this Agreement by the parties hereto, the Existing Family
Representative Standstill Agreement shall terminate; provided that termination
--------
of the Existing Family Representative Standstill Agreement shall
2
<PAGE>
not relieve any party thereto from liability for breach of any provision thereof
prior to such termination. As used in this Agreement, "Existing Family
Representative Standstill Agreement" means the agreement, dated as of October 2,
1981, among the Company and the Family Representatives.
Section 7. Assignment. This Agreement shall be binding upon and
----------
inure to the benefit of the parties hereto and their successors by operation of
law, but may not otherwise be assigned by any party hereto without the prior
written consent of the other parties hereto.
Section 8. Validity. If any provision of this Agreement, or the
--------
application thereof to any person or circumstance is held invalid or
unenforceable, the remainder of this Agreement, and the application of such
provision to other persons or circumstances, shall not be affected thereby, and
to such end, the provisions of this Agreement are agreed to be severable.
Section 9. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of Delaware, without regard
to the principles of conflicts of law thereof.
Section 10. Descriptive Headings. The descriptive headings herein
--------------------
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
Section 11. Counterparts. This Agreement may be executed in two or
------------
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
3
<PAGE>
IN WITNESS WHEREOF, each of the parties has executed or caused this
Agreement to be executed on its behalf by its representatives thereunto duly
authorized, all as of the day and year first above written.
E.I. du Pont de Nemours and Company
--------------------------
Name: Edgar S. Woolard, Jr.
Title:Chairman of the Board and
Chief Executive Officer
-----------------------------
Edgar M. Bronfman
(individually and as trustee under trusts
for the benefit of the descendants of the
late Samuel Bronfman)
------------------------------
Charles R. Bronfman
(individually and as trustee under a trust
for the benefit of the descendants of the
late Samuel Bronfman)
------------------------------
Phyllis Lambert
(individually and as trustee under a trust
for the benefit of the descendants of the
late Samuel Bronfman)
------------------------------
Edgar Bronfman, Jr.
(individually and as trustee under trusts
for the benefit of the descendants of the
late Samuel Bronfman)
-------------------------------
Matthew Bronfman
(individually and as trustee under trusts
for the benefit of the descendants of the
late Samuel Bronfman)
4
<PAGE>
------------------------------
Stephen R. Bronfman
(individually and as trustee under trusts
for the benefit of the descendants of the
late Samuel Bronfman)
------------------------------
Ellen J. Bronfman
(individually and as trustee under a trust
for the benefit of the descendants of the
late Samuel Bronfman)
------------------------------
Stephen E. Banner
(as trustee under trusts for the benefit of
the descendants of the late Samuel Bronfman)
------------------------------
Harold R. Handler
(as trustee under trusts for the benefit of
the descendants of the late Samuel Bronfman)
-----------------------------
John L. Weinberg
(as trustee under trusts for the benefit of
the descendants of the late Samuel Bronfman)
------------------------------
E. Leo Kolber
(as trustee under trusts for the benefit of
the descendants of the late Samuel Bronfman)
------------------------------
Samuel Minzberg
(as trustee under a trust for the benefit of
the descendants of the late Samuel Bronfman)
5
<PAGE>
------------------------------
Robert S. Vineberg
(as trustee under trusts for the benefit of
the descendants of the late Samuel Bronfman)
------------------------------
Gary J. Gartner
(as trustee under a trust for the benefit of
the descendants of the late Samuel Bronfman)
------------------------------
Lawrence F. Gilberti
(as trustee under a trust for the benefit of
the descendants of the late Samuel Bronfman)
------------------------------
Steven H. Levin
(as trustee under a trust for the benefit of
the descendants of the late Samuel Bronfman)
-------------------------------
Arnold M. Ludwick
(as trustee under a trust for the benefit of
the descendants of the late Samuel Bronfman)
6
