<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 9)*
E.I. du Pont de Nemours and Company
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $0.60 per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
263534 10 9
---------------------------------------------------------
(CUSIP Number)
Stephen E. Banner
Joseph E. Seagram & Sons, Inc.
375 Park Avenue, New York, New York 10152 (212) 572-7000
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
April 6, 1995
--------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with the statement / /. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
<PAGE> 2
SCHEDULE 13D
CUSIP No. 263534 10 9 Page 2 of 27 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
JES DEVELOPMENTS, INC.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00 (see item 3)
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
SHARES
BENEFICIALLY OWNED
BY 8 SHARED VOTING POWER
EACH
REPORTING 164,222,031 (including shares issuable upon
PERSON exercise of warrants)
WITH
9 SOLE DISPOSITIVE POWER
10 SHARED DISPOSITIVE POWER
164,222,031 (including shares issuable upon
exercise of warrants)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
164,222,031 (including shares issuable upon exercise of
warrants)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/ /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.1% (including shares issuable upon exercise of warrants)
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION
<PAGE> 3
SCHEDULE 13D
CUSIP No. 263534 10 9 Page 3 of 27 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
THE SEAGRAM COMPANY LTD.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00 (see item 3)
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
7 SOLE VOTING POWER
NUMBER OF
SHARES
BENEFICIALLY OWNED
BY 8 SHARED VOTING POWER
EACH
REPORTING 164,222,031 (including shares issuable upon
PERSON exercise of warrants)
WITH
9 SOLE DISPOSITIVE POWER
10 SHARED DISPOSITIVE POWER
164,222,031 (including shares issuable upon
exercise of warrants)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
164,222,031 (including shares issuable upon exercise of
warrants)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/ /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.1% (including shares issuable upon exercise of warrants)
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION
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Page 4 of 27 Pages
The Statement on Schedule 13D, as amended (the "Schedule
13D"), filed pursuant to Rule 13d-1 of the Rules and Regulations under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), by The
Seagram Company Ltd., a Canadian corporation ("Seagram"), and by JES
Developments, Inc., a Delaware corporation and wholly owned subsidiary of
Seagram ("Developments"), with respect to the common stock of E.I. du Pont de
Nemours and Company, a Delaware corporation ("DuPont") is hereby amended and
restated as set forth below:
Item 1. Security and Issuer.
This Schedule 13D relates to the Common Stock, par value $0.60
per share ("Common Stock"), of DuPont. The principal executive offices of
DuPont are located at 1007 Market Street, Wilmington, Delaware 19898.
Item 2. Identity and Background.
This Schedule 13D is filed by Seagram and by Developments.
The principal executive offices of Seagram are located at 1430 Peel Street,
Montreal, Quebec, Canada H3A 1S9. The principal executive offices of
Developments are located at 1105 North Market Street, Suite 1300, P.O. Box
8985, Wilmington, Delaware 19899.
Seagram is a leading global producer and marketer of distilled
spirits, wines, fruit juices, coolers, and mixers, and sells its brands in more
than 150 countries and territories. Affiliates and joint ventures in 41
countries
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and territories comprise the largest distribution system in the spirits and
wine industry.
Developments is a wholly owned subsidiary of Joseph E. Seagram
& Sons, Inc., an Indiana corporation and wholly owned subsidiary of J.E.
Seagram Corp. J.E. Seagram Corp. is a Delaware corporation and wholly owned
subsidiary of Seagram.
As of March 31, 1995, descendants of the late Samuel Bronfman
and trusts established for their benefit (collectively, the "Bronfman Family")
beneficially owned directly or indirectly approximately 36.41% of the
outstanding common shares without nominal or par value of Seagram ("Common
Shares"). Of that amount, Bronfman Associates, a partnership of which Edgar M.
Bronfman, his children and a trust established for the benefit of Edgar M.
Bronfman and his descendants are the sole partners and of which Edgar M.
Bronfman is the managing partner, along with a second trust established for the
benefit of Edgar M. Bronfman and his descendants, owned directly approximately
16.78% of the Common Shares, trusts for the benefit of Charles R. Bronfman and
his descendants owned directly approximately 15.64% of the Common Shares,
trusts for the benefit of the family of the late Minda de Gunzburg and members
of her immediate family owned directly or indirectly approximately 3.30% of the
Common Shares, Phyllis Lambert owned indirectly approximately 0.37% of the
Common Shares, a charitable foundation of which Charles R. Bronfman is among
the
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directors owned approximately 0.16% of the Common Shares, a charitable
foundation of which Edgar M. Bronfman and Charles R. Bronfman are among the
trustees owned approximately 0.06% of the Common Shares, and Edgar M. Bronfman,
Charles R. Bronfman and their respective children owned directly approximately
0.10% of the Common Shares. In addition, such persons held currently
exercisable options to purchase an additional 0.53% of the Common Shares,
calculated pursuant to Rule 13d-3 of the Rules and Regulations under the
Exchange Act). Edgar M. Bronfman is Chairman of the Board of Seagram and a
director of Seagram. Charles R. Bronfman is Co-Chairman of the Board and
Chairman of the Executive Committee of Seagram and a director of Seagram.
Edgar M. Bronfman and Charles R. Bronfman are brothers, Phyllis Lambert is
their sister, and Alain de Gunzburg, the husband of the late Minda de Gunzburg,
is their brother-in-law.
Pursuant to a voting trust agreement, Charles R. Bronfman
serves as voting trustee for Common Shares beneficially owned directly or
indirectly by Bronfman Associates, the aforesaid trusts established for the
benefit of Edgar M. Bronfman and his descendants, the aforesaid trusts
established for the benefit of Charles R. Bronfman and his descendants, and the
first of the two aforesaid charitable foundations. Pursuant to another voting
trust agreement, Edgar M. Bronfman and Charles R. Bronfman are among the voting
trustees for Common Shares beneficially owned directly or indirectly by trusts
for the benefit of the
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family of the late Minda de Gunzburg and members of her immediate family.
Neither voting trust agreement contains restrictions on the right of the voting
trustees to vote the deposited Common Shares.
The Bronfman Family may be deemed to be in control of
Developments and Seagram. Information concerning the foregoing persons and
entities, together with information concerning the directors and executive
officers of Developments and Seagram, is contained in Schedule A attached
hereto.
During the last five years, none of Seagram or Developments
nor, to the best knowledge of Seagram and Developments, any director or
executive officer of Seagram or Developments (or any other person or entity set
forth in Schedule A) has been (i) convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) or (ii) a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and
as a result of such proceeding has been or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
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Item 3. Source and Amount of Funds or Other Consideration.
As described in Item 6 below, no funds were used by Seagram or
Developments in connection with the transactions described herein.
Item 4. Purpose of Transaction.
Pursuant to an agreement dated as of April 6, 1995 among
DuPont, Seagram and Developments (the "Redemption Agreement"), and concurrently
with the execution and delivery thereof, DuPont redeemed 156,000,000 of the
164,222,031 shares of Common Stock which were then owned by Developments. In
connection with such redemption, Developments received $1 billion in cash,
$7,336,250,000 aggregate principal amount of unsecured 90-day promissory notes
payable by DuPont (the "Notes"), and warrants to purchase an aggregate of
156,000,000 shares of Common Stock (the "Warrants"). Reference is made to Item
6 below for a description of the Redemption Agreement, the Notes and the
Warrants.
Pursuant to an agreement dated as of October 2, 1981, as
amended and restated as of March 26, 1986, between DuPont and Seagram (the
"1986 Agreement"), Seagram had been entitled to designate four nominees to
DuPont's Board of Directors, and DuPont had been entitled to designate two
nominees to Seagram's Board of Directors. Such nominees resigned from the
respective Boards of Directors of DuPont and Seagram on April 6, 1995,
concurrently with the execution and delivery of the Redemption Agreement. As
described in
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Page 9 of 27 Pages
Item 6, the Redemption Agreement provides that Seagram and DuPont each has the
right to nominate directors to the other's Board of Directors in certain
circumstances.
As described in Item 6, the Redemption Agreement generally
precludes Seagram or any entity controlled by it (the "Seagram Group") from
acquiring any DuPont voting securities (other than Common Stock issuable upon
exercise of the Warrants) during the term of the Redemption Agreement. To the
extent consistent with the Redemption Agreement, Developments may in the future
dispose of Common Stock and/or Warrants, depending upon market conditions and
other economic factors.
Except as set forth above, neither Seagram nor Developments
has any present plans or proposals that relate to or would result in any of the
actions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
(a) and (b) As of the date hereof, Developments beneficially
owns an aggregate of 164,222,031 shares of Common Stock, consisting of
8,222,031 shares currently owned by it (the "Retained Shares") and 156,000,000
shares issuable upon exercise of the Warrants. Such shares constitute
approximately 24.1% of the total number of shares of Common Stock stated to be
outstanding as of March 7, 1995 in DuPont's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994, assuming that the Warrants were exercised
<PAGE> 10
Page 10 of 27 Pages
in full. Developments has the power to vote and to dispose of the Retained
Shares, to vote and to dispose of the shares of Common Stock issuable upon
exercise of the Warrants, and to dispose of the Warrants, subject in each case
to the ultimate control of Seagram.
Except as set forth in this Item 5, to the best knowledge of
Seagram or Developments, no director or executive officer of Seagram or
Developments (or any other person or entity set forth in Schedule A)
beneficially owns any shares of Common Stock.
(c) Other than the redemption of Common Stock and the
issuance of Warrants described herein, neither Seagram nor Developments
effected any transactions in Common Stock during the past 60 days.
(d) No person other than Developments has the right to
receive dividends from the Retained Shares or the shares of Common Stock
issuable upon exercise of the Warrants, and no person other than Developments
has the right to receive the proceeds from the sale of the Retained Shares, the
shares issuable upon exercise of the Warrants, or the Warrants.
(e) Not applicable.
Item 6. Contracts, Arrangement or Understandings with
Respect to Securities of the Issuer.
As described in Item 4 above, DuPont issued Notes to
Developments in connection with the redemption transaction. Interest accrues
on the unpaid principal amount
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Page 11 of 27 Pages
of the Notes at a rate per annum equal to the sum of (i) the Federal Funds Rate
(as defined below) in effect from time to time plus (ii) the Applicable Spread
(as defined below) in effect from time to time. "Federal Funds Rate" means,
for any day, the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers. "Applicable Spread" means (i) on each day in the period
beginning on the date of issuance of the Notes to and including the 30th day
following such date, 1/4 of 1%, (ii) on each day in the period beginning on the
31st day following the date of issuance and including the 60th day following
such date, 3/8 of 1%, and (iii) on each day in the period beginning on the 61st
day following the date of issuance to but not including the date of payment in
full, 1/2 of 1%.
Three tranches of Warrants were issued to Developments by
DuPont, consisting of (i) Warrants to purchase 48 million shares of Common
Stock with an exercise price of $89.33 per share and an expiration date of
October 6, 1997, (ii) Warrants to purchase 54 million shares of Common Stock
with an exercise price of $101.14 per share and an expiration date of October
6, 1998, and (iii) Warrants to purchase 54 million shares of Common Stock with
an exercise price of $113.63 per share and an expiration date of October 6,
1999.
So long as Seagram holds the Warrants, the Warrants will be
exercisable during the 60 day period preceding their
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expiration, subject to acceleration in connection with Significant Events (as
defined below) and certain tender offers. Upon the transfer of Warrants to a
third party in accordance with the transfer restrictions described below, such
Warrants will become immediately exercisable.
The Redemption Agreement provides, among other things, that
during its term:
(a) No member of the Seagram Group shall acquire beneficial
ownership of any voting securities or any rights to acquire any voting
securities of DuPont (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 DuPont to holders of its voting
securities generally), except for the acquisition by affiliates of Seagram of
not more than 500,000 additional shares of Common Stock.
(b) No member of the Seagram Group shall propose or seek to
effect any merger, business combination, restructuring, recapitalization or
similar transaction involving DuPont or any of its subsidiaries or the sale or
other disposition of any material portion of the assets of DuPont or any of its
subsidiaries.
(c) No member of the Seagram Group shall seek election to,
seek to place a representative on, or seek the removal of any member of
DuPont's Board of Directors, except as described in paragraph (h) below.
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(d) No member of the Seagram Group shall engage in any
"solicitation" (within the meaning of Rule 14a-1 under the Exchange Act) of
proxies or consents with respect to DuPont, 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 DuPont voting securities, except that (i) this limitation shall not apply to
any Significant Event that is initiated or proposed by DuPont and (ii) if
Seagram opposes any solicitation by DuPont's management with respect to any
such Significant Event and no member of the Seagram Group otherwise publishes
or distributes solicitation material required to be filed with the Securities
and Exchange Commission under Regulation 14A under the Exchange Act, DuPont
shall include in its proxy statement in connection with such solicitation the
fact that Seagram opposes the solicitation and a brief statement of Seagram's
reasons for such opposition. "Significant Event" means, if stockholder
approval 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 DuPont:
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 DuPont,
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except that "Significant Event" shall not include proposals relating to certain
employment plans or arrangements.
(e) No member of the Seagram Group shall call or seek to have
called any meeting of the stockholders of DuPont or initiate, propose or
otherwise solicit stockholders for the approval of any stockholder proposal
with respect to DuPont.
(f) The members of the Seagram Group shall vote all DuPont
voting securities which they beneficially own for the slate of nominees
proposed by the Board of Directors of DuPont and on all other matters to be
voted on by the holders of DuPont voting securities, in the same proportion as
the votes cast by the other holders of DuPont voting securities, except that
voting securities beneficially owned by the members of the Seagram Group may be
voted in their sole discretion on any Significant Event.
(g) Subject to DuPont's right of first refusal, Seagram may
dispose of Warrants or Common Stock in privately- negotiated transactions or in
public offerings as contemplated by a registration rights agreement dated as of
April 6, 1995 between the parties. However, no dispositions may be made to any
person who would thereafter own more than 1% of the Common Stock (including
shares issuable upon exercise of the Warrants), except for (i) dispositions to
a person who would thereafter own less than 3% if such person agrees to be
bound by the standstill provisions of the Redemption Agreement summarized in
paragraphs (a) through (g)
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of this Item 6, (ii) dispositions to specified types of financial institutions
if such institution would thereafter own less than 5%, and (iii) dispositions
to broker dealers acting as principals if any such broker dealer would
thereafter own less than 10%, except that if such broker dealer would
thereafter own more than 3%, such broker dealer agrees to be bound by such
standstill provisions. In addition, no disposition of Warrants may be effected
prior to May 15, 1996.
At any time that Seagram offers DuPont the right to purchase
Warrants, DuPont may purchase such Warrants at their then fair market value
calculated using the valuation methodology contemplated by the Redemption
Agreement. At any such time, DuPont may elect to purchase the entire tranche
relating to such Warrants, at the lesser of (i) their then fair market value
and (ii) the fair market value of such Warrants as of April 6, 1995 plus 90% of
any increase in such value. For such purposes, the parties agreed that the
fair market value of the three tranches of Warrants as of April 6, 1995 was
$135 million, $151.875 million and $151.875 million for the Warrants expiring
in 1997, 1998 and 1999, respectively.
The members of the Seagram Group may also tender Warrants or
Common Stock into a tender offer recommended by a majority of DuPont's Board of
Directors. With respect to a tender offer that is not recommended by a
majority of DuPont's Board of Directors (an "Unsolicited Offer"), the
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Seagram Group may tender its Common Stock and/or Warrants, subject to DuPont's
right of first refusal, provided that (i) such Unsolicited Offer is for at
least a majority of the Common Stock outstanding on a fully diluted basis and
(ii) to the extent the Unsolicited Offer is for a percentage which is less than
100% of the outstanding Common Stock on a fully diluted basis, the Seagram
Group may only tender up to that percentage of its Common Stock and/or Warrants
(assuming full exercise thereof). Even if DuPont were to exercise its right of
first refusal, DuPont would not be required to purchase Seagram's shares unless
at least a majority of the fully diluted shares (excluding Common Stock or
Warrants then held by Seagram) had been tendered into the Unsolicited Offer.
Dispositions of the Retained Shares currently held by
Developments are not subject to any transfer restrictions, unless, at the time
of such disposition, the Seagram Group beneficially owns more than 5% of the
Common Stock (excluding shares subject to unexercised Warrants).
(h) At any time the Seagram Group beneficially owns more than
10% of the Common Stock (excluding shares subject to unexercised Warrants),
Seagram may designate 6% of DuPont's Board of Directors and of its Strategic
Direction Committee (or any successor thereto). If the Seagram Group
beneficially owns more than 15%, 20%, or 24% of the Common Stock (excluding
shares subject to unexercised Warrants), Seagram may designate 9%, 12%, or 15%,
respectively, of the members of DuPont's Board and such committee. DuPont may
<PAGE> 17
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designate two members of Seagram's Board of Directors at any time that the
Seagram Group beneficially owns more than 10% of the Common Stock (excluding
shares subject to unexercised Warrants). Subject to exceptions, Seagram and
DuPont must consult with each other prior to designating nominees to the
other's Board of Directors.
(i) DuPont shall not take or recommend to its stockholders
any action which would impose limitations on the legal rights of the Seagram
Group as DuPont stockholders other than those imposed pursuant to the express
terms of the Redemption Agreement.
(j) At any time that Seagram shall account for its investment
in DuPont pursuant to the equity method, DuPont shall furnish to Seagram all
information required to enable Seagram to account for its investment in such
manner. To the extent reasonably requested by Seagram, DuPont shall provide
information to Seagram so as to enable Seagram to prepare its financial
statements and to comply with its reporting and disclosure obligations.
The Redemption Agreement terminates on April 6, 2010. DuPont
may terminate the Redemption Agreement if the members of the Seagram Group no
longer beneficially own any Warrants and the members of the Seagram Group
beneficially own less than 2% of the Common Stock. Seagram may terminate the
Redemption Agreement (i) if DuPont breaches certain of its obligations or (ii)
on or after the third anniversary of
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the date on which all of the Warrants shall have expired unexercised or shall
have been reacquired by DuPont.
Pursuant to the Redemption Agreement, the parties terminated
the 1986 Agreement and related agreements which were previously filed as
exhibits to the Schedule 13D.
The preceding summary of certain provisions of the Redemption
Agreement and related agreements is not intended to be complete and is
qualified in its entirety by reference to the full text of such agreements,
copies of which are filed as Exhibits hereto.
Except as set forth herein, neither Seagram or Developments,
nor, to the best knowledge of Seagram or Developments, any director or
executive officer of Seagram or Developments (or any other person or entity set
forth in Schedule A), has any contract, arrangement, understanding or
relationship (legal or otherwise) with any person with respect to any
securities of DuPont, including, but not limited to, transfer or voting of any
securities of DuPont, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, division of profits or loss
or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits.
A. Redemption Agreement dated as of April 6, 1995 among
DuPont, Seagram and Developments.
B. Registration Rights Agreement dated as of April 6, 1995
among DuPont, Seagram and Developments.
<PAGE> 19
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C. Warrant Agreement dated as of April 6, 1995 between DuPont
and Warco Transfer Corporation, as Warrant Agent.
D. Forms of Warrants.
E. Agreement dated as of April 6, 1995 among DuPont and
certain stockholders of Seagram.
F. Joint Filing Agreement dated as of April 10, 1995 between
Seagram and Developments.
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Page 20 of 27 Pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this Statement is true,
complete and correct.
DATED: April 10, 1995
JES DEVELOPMENTS, INC.
By: /s/ Daniel R. Paladino
----------------------
Daniel R. Paladino
Vice President
THE SEAGRAM COMPANY LTD.
By: /s/ Daniel R. Paladino
----------------------
Daniel R. Paladino
Vice President, Legal
and Environmental
Affairs
<PAGE> 21
Page 21 of 27 Pages
SCHEDULE A
----------
1. Set forth below are the names and positions with
Developments of each director and executive officer of Developments. The name
of each person who is a director of Developments is marked with an asterisk.
The address, principal occupation or employment and citizenship of each person,
except for Ann M. Giambusso, Paul Buscemi and Howard Miller, each of whom is a
U.S. citizen and whose address is 800 Third Avenue, New York, New York 10022,
is set forth in Part 2 below.
<TABLE>
<CAPTION>
Name Position
---- --------
<S> <C>
STEPHEN E. BANNER* President
DANIEL R. PALADINO* Vice President
ANN M. GIAMBUSSO* Vice President and Secretary
PAUL BUSCEMI Vice President
EDWARD FALKENBERG* Treasurer
HOWARD MILLER Assistant Secretary
</TABLE>
2. Set forth below are the name, business address, principal
occupation or employment and citizenship of each director and executive officer
of Seagram. The name of each person who is a director of Seagram is marked
with an asterisk. Unless otherwise indicated, the business address of each
person listed below is 375 Park Avenue, New York, New York 10152.
<PAGE> 22
Page 22 of 27 Pages
<TABLE>
<CAPTION>
Name and Principal Occupation
Business Address or Employment Citizenship
---------------- -------------------- -----------
<S> <C> <C>
EDGAR M. BRONFMAN* Chairman of the Board of Seagram United States
THE HON. CHARLES R. Co-Chairman of the Board and Chairman Canada
BRONFMAN, P.C., C.C.* of the Executive Committee of Seagram
1170 Peel Street
8th Floor
Montreal, Quebec
Canada H3B 4P2
EDGAR BRONFMAN, JR.* Chief Executive Officer and President United States
of Seagram
SAMUEL BRONFMAN II* President of The Seagram Classics Wine United States
2600 Campus Drive Company (a division of a subsidiary of
Suite 160 Seagram)
San Mateo, CA 94403
STEPHEN E. BANNER* Senior Executive Vice President of United States
Seagram
DAVID M. CULVER, C.C.* Chairman of CAI Capital Corporation Canada
3429 Drummond Street (an equity investment fund)
Suite 200
Montreal, Quebec
Canada H3G 1X6
THE HON. WILLIAM G. Counsel to Tory Canada
DAVIS, P.C., C.C., Tory DesLauriers & Binnington
Q.C.* (attorneys)
Suite 3000
Toronto-Dominion Center
Toronto, Ontario
Canada M5K 1N2
THE HON. PAUL DESMARAIS, Chairman and Chief Executive Officer Canada
P.C., C.C.* of Power Corporation of Canada (a
751 Victoria Square holding and management company)
Montreal, Quebec
Canada H2Y 2J3
ALAIN DE GUNZBURG* Chairman of the Board of G.H. Mumm & France
17-19, avenue Montaigne Cie (a subsidiary of Seagram)
Paris, France 75008
</TABLE>
<PAGE> 23
Page 23 of 27 Pages
<TABLE>
<CAPTION>
Name and Principal Occupation
Business Address or Employment Citizenship
---------------- -------------------- -----------
<S> <C> <C>
DAVID L. JOHNSTON, Professor of Law at McGill University Canada
O.C.* (an educational institution)
James Administration
Building
845 Sherbrooke St. West
Montreal, Quebec
Canada H3A 2T5
THE HON. E. LEO KOLBER, Member of The Senate of Canada Canada
SENATOR*
1170 Peel Street
8th Floor
Montreal, Quebec
Canada H3B 4P2
MARIE-JOSEE KRAVIS* Fellow of The Hudson Institute of Canada and Switzerland
666 Sherbrooke St. West Canada Inc. (a non-profit economics
Suite 600 research institute)
Montreal, Quebec
Canada H3A 1E7
EDWARD F. McDONNELL* Executive Vice President of Seagram United States
and President, The Seagram Spirits And
Wine Group (a division of a subsidiary
of Seagram)
C. EDWARD MEDLAND* President of Beauwood Investments Inc. Canada
150 King Street West (a private investment company)
Suite 1505
Toronto, Ontario
Canada M5H 1J9
NEIL F. PHILLIPS, Resident Senior Counsel (New York) of Canada
Q.C.* Goodman Phillips & Vineberg
430 Park Avenue (attorneys)
10th Floor
New York, NY 10022
JOHN L. WEINBERG* Senior Chairman of Goldman, Sachs & United States
85 Broad Street Co. (investment bankers)
New York, NY 10004
STEPHEN E. HERBITS Executive Vice President, Corporate United States
Policy and External Affairs of Seagram
</TABLE>
<PAGE> 24
Page 24 of 27 Pages
<TABLE>
<CAPTION>
Name and Principal Occupation
Business Address or Employment Citizenship
---------------- -------------------- -----------
<S> <C> <C>
ELLEN R. MARRAM Executive Vice President of Seagram United States
and President, The Seagram Beverage
Group (a division of a subsidiary of
Seagram)
C. RICHARD COFFEY Senior Vice President, Human Resources United States
of Seagram
EDWARD FALKENBERG Vice President and Controller of United States
800 Third Avenue Seagram
New York, NY 10022
JEANANNE K. HAUSWALD Vice President and Treasurer of United States
Seagram
GABOR JELLINEK Vice President, Production of Seagram Canada
1430 Peel Street and Executive Vice President,
Montreal, Quebec Manufacturing, The Seagram Spirits and
Canada H3A 1S9 Wine Group (a division of a subsidiary
of Seagram)
ARNOLD M. LUDWICK Vice President of Seagram and Canada
1170 Peel St. President and Chief Executive Officer
8th Floor of Claridge Inc.
Montreal, Quebec
Canada H3B 4P2
DANIEL R. PALADINO Vice President, Legal and United States
Environmental Affairs of Seagram
MICHAEL C.L. HALLOWS Secretary of Seagram Canada
</TABLE>
3. The trustees of the trusts for the benefit of Edgar M. Bronfman and
his descendants are Edgar M. Bronfman, Edgar Bronfman, Jr., Matthew Bronfman,
Stephen E. Banner, Harold R. Handler and John L. Weinberg. The trustees of the
trusts for the benefit of
<PAGE> 25
Page 25 of 27 Pages
Charles R. Bronfman and his descendants are Charles R. Bronfman, Phyllis
Lambert, Stephen R. Bronfman, Ellen J. Bronfman, E. Leo Kolber, Samuel
Minzberg, Robert S. Vineberg, Gary J. Gartner, Lawrence F. Gilberti, Steven H.
Levin and Arnold M. Ludwick. The trustees of the trusts for the benefit of the
family of the late Minda de Gunzburg are Stanley N. Bergman and Dr. Guido
Goldman. The directors of the first charitable foundation referenced in Item 2
include Charles R. Bronfman, E. Leo Kolber and Arnold M. Ludwick, and the
trustees of the second charitable foundation include Edgar M. Bronfman, Charles
R. Bronfman, Samuel Bronfman II and Stephen E. Banner. Set forth below or
under Part 2 above are the address, principal occupation or employment and
citizenship of each person named in this Part 3.
<TABLE>
<CAPTION>
Name and Principal Occupation
Business Address or Employment Citizenship
---------------- -------------------- -----------
<S> <C> <C>
PHYLLIS LAMBERT Architect Canada
1920 Baile Street
Montreal, Quebec
Canada H3H 2S6
MATTHEW BRONFMAN Managing Individual, Bronfman United States
155 E. 71 Street Associates II (an investment
New York, NY 10021 partnership)
STEPHEN R. BRONFMAN Corporate Director Canada
1170 Peel Street
8th Floor
Montreal, Quebec
Canada H3B 4P2
ELLEN J. BRONFMAN Special Assistant to the Executive Canada
375 Park Avenue Vice President of Seagram
New York, NY 10152
</TABLE>
<PAGE> 26
Page 26 of 27 Pages
<TABLE>
<CAPTION>
Name and Principal Occupation
Business Address or Employment Citizenship
---------------- -------------------- -----------
<S> <C> <C>
HAROLD R. HANDLER Attorney whose professional United States
425 Lexington Avenue corporation is a partner of Simpson
New York, NY 10017 Thacher & Bartlett (attorneys)
SAMUEL MINZBERG Partner of Goodman Phillips & Canada
5 Place Ville Marie Vineberg (barristers and solicitors)
Montreal, Quebec
Canada H3B 2G2
ROBERT S. VINEBERG Partner of Goodman Phillips & Vineberg Canada
5 Place Ville Marie (barristers and solicitors)
Montreal, Quebec
Canada H3B 2G2
GARY J. GARTNER Partner of Goodman Phillips & Vineberg Canada
430 Park Avenue (attorneys)
10th Floor
New York, NY 10022
LAWRENCE F. GILBERTI Partner of Fischbein Badillo Wagner United States
909 Third Avenue Itzler (attorneys)
17th Floor
New York, NY 10022
STEVEN H. LEVIN Partner of Goodman Phillips & Vineberg United States
430 Park Avenue (attorneys)
10th Floor
New York, NY 10022
STANLEY N. BERGMAN Partner of Bergman, Horowitz & United States
157 Church Street Reynolds, P.C. (attorneys)
New Haven, CT 06510
DR. GUIDO GOLDMAN Director of the Center for European United States
First Spring Corporation Studies at Harvard University and
499 Park Avenue Chairman of First Spring Corporation
New York, NY 10022 (an investment company)
</TABLE>
<PAGE> 27
Page 27 of 27 Pages
EXHIBIT INDEX
A. Redemption Agreement dated as of April 6, 1995 among DuPont, Seagram
and Developments.
B. Registration Rights Agreement dated as of April 6, 1995 among DuPont,
Seagram and Developments.
C. Warrant Agreement dated as of April 6, 1995 between DuPont and Warco
Transfer Corporation, as Warrant Agent.
D. Forms of Warrants.
E. Agreement dated as of April 6, 1995 among DuPont and certain
stockholders of Seagram.
F. Joint Filing Agreement dated as of April 10, 1995 between Seagram and
Developments.
<PAGE> 1
EXHIBIT A
<PAGE> 2
AGREEMENT
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
<PAGE> 3
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 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
2
<PAGE> 4
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 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
3
<PAGE> 5
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 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.
4
<PAGE> 6
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 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 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
5
<PAGE> 7
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
6
<PAGE> 8
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 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,
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
7
<PAGE> 9
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 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;
8
<PAGE> 10
(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
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 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
9
<PAGE> 11
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.
10
<PAGE> 12
(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 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
11
<PAGE> 13
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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<PAGE> 15
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.
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<PAGE> 16
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> 17
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 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> 18
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.
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<PAGE> 19
(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.
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<PAGE> 20
(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-
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<PAGE> 21
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> 22
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
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<PAGE> 23
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
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<PAGE> 24
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)
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<PAGE> 25
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.
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<PAGE> 26
(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
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<PAGE> 27
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-
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<PAGE> 28
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
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<PAGE> 29
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
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<PAGE> 30
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> 31
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).
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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.
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<PAGE> 33
(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
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<PAGE> 34
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%
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<PAGE> 35
(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.
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<PAGE> 36
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
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<PAGE> 37
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
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<PAGE> 38
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.
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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-
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<PAGE> 40
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
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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
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<PAGE> 42
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.
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<PAGE> 43
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> 1
EXHIBIT B
<PAGE> 2
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> 3
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,
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<PAGE> 4
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> 5
(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> 6
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> 7
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> 8
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> 9
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> 10
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> 11
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> 12
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.
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<PAGE> 13
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> 14
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
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<PAGE> 15
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> 16
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> 17
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> 18
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> 19
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.
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<PAGE> 20
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> 1
EXHIBIT C
<PAGE> 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> 3
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> 4
(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> 5
(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> 6
(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> 7
(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> 8
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> 9
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> 10
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> 11
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> 12
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> 13
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
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<PAGE> 14
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.
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<PAGE> 15
(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-
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<PAGE> 16
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
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<PAGE> 17
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
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<PAGE> 18
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.
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<PAGE> 19
(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> 20
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
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<PAGE> 21
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
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<PAGE> 22
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
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<PAGE> 23
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.
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<PAGE> 24
(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> 25
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-
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<PAGE> 26
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
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<PAGE> 27
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-
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<PAGE> 28
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> 29
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> 30
may also be subject to certain restrictions contained in the Agreement,
dated as of April 6, 1995 (the "Redemption Agree- ment"), 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> 31
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> 32
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> 33
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> 34
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> 35
(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> 36
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> 37
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> 38
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.
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<PAGE> 39
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> 40
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> 1
EXHIBIT D
<PAGE> 2
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> 3
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> 4
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> 5
[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> 6
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> 7
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> 8
[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> 9
Warrant Certificate is registered,
the signature of the holder hereof
must be guaranteed.
Signature Guaranteed:
S-1-8
<PAGE> 10
[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> 11
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> 12
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> 13
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> 14
[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> 15
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> 16
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> 17
[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> 18
Warrant Certificate is registered,
the signature of the holder hereof
must be guaranteed.
Signature Guaranteed:
S-2-8
<PAGE> 19
[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> 20
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> 21
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> 22
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> 23
[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> 24
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> 25
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> 26
[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> 27
Warrant Certificate is registered,
the signature of the holder hereof
must be guaranteed.
Signature Guaranteed:
S-3-8
<PAGE> 28
[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> 29
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> 30
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> 31
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> 32
[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> 33
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> 34
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> 35
[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> 36
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> 37
[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> 38
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> 39
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> 40
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> 41
[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> 42
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> 43
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> 44
[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> 45
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> 46
[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> 47
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> 48
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> 49
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> 50
[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> 51
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> 52
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> 53
[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> 54
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> 55
[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> 1
EXHIBIT E
<PAGE> 2
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> 3
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> 4
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> 5
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
By /s/ Edgar S. Woolard, Jr.
--------------------------------
Name: Edgar S. Woolard, Jr.
Title:Chairman of the Board and
Chief Executive Officer
/s/ Edgar M. Bronfman
-----------------------------------
Edgar M. Bronfman
(individually and as trustee under trusts for the
benefit of the descendants of the late Samuel
Bronfman)
/s/ Charles R. Bronfman
-----------------------------------
Charles R. Bronfman
(individually and as trustee under a trust for the
benefit of the descendants of the late Samuel
Bronfman)
/s/ Phyllis Lambert
-----------------------------------
Phyllis Lambert
(individually and as trustee under a trust for the
benefit of the descendants of the late Samuel
Bronfman)
/s/ Edgar Bronfman, Jr.
-----------------------------------
Edgar Bronfman, Jr.
(individually and as trustee under trusts for the
benefit of the descendants of the late Samuel
Bronfman)
/s/ Matthew Bronfman
-----------------------------------
Matthew Bronfman
(individually and as trustee under trusts for the
benefit of the descendants of the late Samuel
Bronfman)
4
<PAGE> 6
/s/ Stephen R. Bronfman
-----------------------------------
Stephen R. Bronfman
(individually and as trustee under trusts for the
benefit of the descendants of the late Samuel
Bronfman)
/s/ Ellen J. Bronfman
-----------------------------------
Ellen J. Bronfman
(individually and as trustee under a trust for the
benefit of the descendants of the late Samuel
Bronfman)
/s/ Stephen E. Banner
-----------------------------------
Stephen E. Banner
(as trustee under trusts for the benefit of
the descendants of the late Samuel Bronfman)
/s/ Harold R. Handler
-----------------------------------
Harold R. Handler
(as trustee under trusts for the benefit of
the descendants of the late Samuel Bronfman)
/s/ John L. Weinberg
-----------------------------------
John L. Weinberg
(as trustee under trusts for the benefit of
the descendants of the late Samuel Bronfman)
/s/ E. Leo Kolber
-----------------------------------
E. Leo Kolber
(as trustee under trusts for the benefit of
the descendants of the late Samuel Bronfman)
/s/ Samuel Minzberg
-----------------------------------
Samuel Minzberg
(as trustee under a trust for the benefit of
the descendants of the late Samuel Bronfman)
5
<PAGE> 7
/s/ Robert S. Vineberg
-----------------------------------
Robert S. Vineberg
(as trustee under trusts for the benefit of
the descendants of the late Samuel Bronfman)
/s/ Gary J. Gartner
-----------------------------------
Gary J. Gartner
(as trustee under a trust for the benefit of
the descendants of the late Samuel Bronfman)
/s/ Lawrence F. Gilberti
-----------------------------------
Lawrence F. Gilberti
(as trustee under a trust for the benefit of
the descendants of the late Samuel Bronfman)
/s/ Steven H. Levin
-----------------------------------
Steven H. Levin
(as trustee under a trust for the benefit of
the descendants of the late Samuel Bronfman)
/s/ Arnold M. Ludwick
-----------------------------------
Arnold M. Ludwick
(as trustee under a trust for the benefit of
the descendants of the late Samuel Bronfman)
6
<PAGE> 1
EXHIBIT F
<PAGE> 2
AGREEMENT
---------
By this Agreement, the undersigned agree that the Amendment
No. 9 to Schedule 13D being filed on or about this date, with respect to the
ownership of shares of common stock of E.I. du Pont de Nemours and Company, and
any subsequent amendment to such Schedule 13D filed by any of the undersigned,
is being filed on behalf of each of us.
Dated: April 10, 1995
JES DEVELOPMENTS, INC.
By: /s/ Daniel R. Paladino
----------------------
Daniel R. Paladino
Vice President
THE SEAGRAM COMPANY LTD.
By: /s/ Daniel R. Paladino
----------------------
Daniel R. Paladino
Vice President, Legal
and Environmental
Affairs
