EXHIBIT (4)(b)
XXXXXXX XXXXX & CO., INC.
and
JPMORGAN CHASE BANK, as Warrant Agent
--------------------
WARRANT AGREEMENT
dated as of October 27, 2004
--------------------
GLOBAL EQUITY PERFORMANCE WEIGHTED WARRANTS, SERIES 2
EXERCISABLE OCTOBER 27, 2011
TABLE OF CONTENTS
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Page
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PARTIES......................................................................1
RECITALS.....................................................................1
ARTICLE I
ISSUANCE, FORM, EXECUTION, DELIVERY AND REGISTRATION OF WARRANTS
SECTION 1.01. Issuance of Warrants; Book-Entry Procedures; Successor
Depository..................................................1
SECTION 1.02. Form, Execution, Authentication and Delivery of Global
Warrant Certificate.........................................2
SECTION 1.03. Registration of Transfers and Exchanges.....................3
SECTION 1.04. Warrant Certificates........................................4
ARTICLE II
DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. General.....................................................7
SECTION 2.02. The Regional Baskets........................................7
SECTION 2.03. Duration, Exercise and Delivery of Warrants.................7
SECTION 2.04. Adjustments to the Basket Indices..........................12
SECTION 2.05. Discontinuance of the Basket Indices.......................12
SECTION 2.06. Denominations..............................................13
SECTION 2.07. Return of Global Warrant Certificate.......................13
SECTION 2.08. Return of Property Held Unclaimed for Two Years............13
SECTION 2.09. Designation of Agent for Receipt of Notice.................14
SECTION 2.10. Market Disruption Events...................................14
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
SECTION 3.01. Holder of Warrant May Enforce Rights.......................16
SECTION 3.02. Merger, Consolidation, Sale, Transfer or Conveyance........16
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ARTICLE IV
CANCELLATION OF WARRANTS
SECTION 4.01. Cancellation of Warrants...................................17
SECTION 4.02. Treatment of Holders.......................................17
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent..............................................18
SECTION 5.02. Conditions of Warrant Agent's Obligations..................18
SECTION 5.03. Resignation and Appointment of Successor...................21
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendment..................................................23
SECTION 6.02. Notices and Demands to the Company and Warrant Agent.......24
SECTION 6.03. Addresses for Notices......................................24
SECTION 6.04. Notices to Holders.........................................24
SECTION 6.05. Applicable Law.............................................25
SECTION 6.06. Obtaining of Governmental Approvals........................25
SECTION 6.07. Persons Having Rights Under Warrant Agreement..............25
SECTION 6.08. Headings...................................................25
SECTION 6.09. Counterparts...............................................25
SECTION 6.10. Inspection of Agreement....................................25
SIGNATURES
EXHIBIT A - Form of Global Warrant Certificate
ii
WARRANT AGREEMENT
THIS AGREEMENT, dated as of October 27, 2004, between XXXXXXX
XXXXX & CO., INC., a corporation duly organized and existing under the laws of
the State of Delaware (the "Company"), and JPMORGAN CHASE BANK, a New York
banking corporation, as Warrant Agent (the "Warrant Agent").
W I T N E S S E T H T H A T :
WHEREAS, the Company proposes to sell warrants (the "Warrants" or,
individually, a "Warrant") constituting a call option in respect of three
Regional Baskets (as defined below), exercisable on the Exercise Date (as
defined below) and representing the right to receive from the Company (i) a
cash settlement amount equal to the Redemption Amount (as defined below), in
Canadian dollars, computed by reference to changes in the value of the three
Regional Baskets or, (ii) in certain circumstances, physical settlement by
delivery of certain securities; and
WHEREAS, the Company desires to appoint the Warrant Agent to act
on behalf of the Company in connection with the issuance, transfer and
exercise of the Warrants, and desires to set forth herein, among other things,
the provisions of the Warrants and the terms and conditions on which they may
be issued, transferred, exercised and cancelled.
NOW, THEREFORE, in consideration of the promises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE, FORM, EXECUTION,
DELIVERY AND REGISTRATION OF WARRANTS
SECTION 1.01. Issuance of Warrants; Book-Entry Procedures;
Successor Depository. (a) The Warrants shall be issued in book-entry form and
shall initially be represented by a single fully-registered global certificate
(the "Global Warrant Certificate"). Each Warrant shall represent the right,
subject to the provisions contained herein and in the Global Warrant
Certificate, to receive from the Company (i) the Redemption Amount or, (ii) in
certain circumstances, physical settlement of such Warrant by delivery of
certain securities. Beneficial owners of interests in the Global Warrant
Certificate shall not be entitled to receive definitive Warrants evidencing
the Warrants; provided, however, that if (i) the Depository (as defined below)
is at any time unwilling or unable to continue as Depository for the Warrants
and a successor Depository is not appointed by the Company within 60 days,
(ii) the Company determines not to have the Warrants represented by a Global
Warrant Certificate, and executes and delivers to the Warrant Agent a Company
order to the effect that the Warrants shall no longer be represented by the
Global Warrant Certificate or (iii) in the event the Company shall be adjudged
bankrupt or insolvent or make an assignment for the benefit of its creditors
or institute proceedings to be adjudicated bankrupt or shall consent to the
filing of a bankruptcy proceeding against it, or shall file a petition or
answer or consent seeking reorganization under applicable
law, or shall consent to the filing of any such petition, or shall consent to
the appointment of a receiver or custodian of all or any substantial part of
its property, or shall admit in writing its inability to pay or meet its debts
as they mature, or if a receiver or custodian of it or all or any substantial
part of its property shall be appointed, or if any public officer shall have
taken charge or control of the Company or of its property or affairs, for the
purpose of rehabilitation, conservation or liquidation, provided any such
event does not result in the automatic exercise of the Warrants as described
in Section 2.03, the Company shall issue Warrants in definitive form in
exchange for the Global Warrant Certificate. In any such instance, and in
accordance with the provisions of this Agreement, each beneficial owner of an
interest in the Global Warrant Certificate shall be entitled to have a number
of Warrants equivalent to such owner's beneficial interest in the Global
Warrant Certificate registered in its name and shall be entitled to physical
delivery of such Warrants in definitive form by the Depository Participant (as
defined below) through which such owner's beneficial interest is reflected.
The provisions of Section 1.04 shall apply only if, and when, Warrants in
definitive form ("Warrant Certificates") are issued hereunder. Unless the
context shall otherwise require, all references in this Agreement to the
Global Warrant Certificate shall include the Warrant Certificates in the event
that Warrant Certificates are issued.
(b) Upon the issuance of the Warrants by the Company, the Global
Warrant Certificate shall be deposited with the Depository or its nominee (the
"Depository"), for credit to the accounts of the Depository Participants as
shown on the records of the Depository from time to time. As used herein, the
term "Depository" initially refers to The Canadian Depository for Securities
Limited and includes any successor Depository selected by the Company as
provided in Section 1.01(d).
(c) The Global Warrant Certificate shall initially be registered
in the name of the Depository, or a nominee of the Depository, selected by the
Company for the Warrants. The Warrant holdings of Depository Participants
shall be recorded on the books of the Depository. The holdings of customers of
Depository Participants shall be reflected on the books and records of such
Depository Participants. "Depository Participants" include banks, investment
dealers and trust companies and may include Xxxxxxx Xxxxx Canada Inc. and
National Bank Financial Inc. The Global Warrant Certificate shall be held by
the Depository or its nominee.
(d) The Company may from time to time select a new entity to act
as Depository and, if such selection is made, the Company shall promptly give
the Warrant Agent and the acting Depository written notice to such effect
identifying the new Depository, and the Global Warrant Certificate shall be
delivered to the Warrant Agent and shall be transferred to the new Depository
as provided in Section 1.03 as promptly as possible. Appropriate changes may
be made in the Global Warrant Certificate, the notice of exercise and the
related notices delivered in connection with an exercise of Warrants to
reflect the selection of the new Depository.
SECTION 1.02. Form, Execution, Authentication and Delivery of
Global Warrant Certificate. The Global Warrant Certificate shall be in
fully-registered form and substantially in the form set forth in Exhibit A
hereto, with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Agreement. The
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Global Warrant Certificate may have imprinted or otherwise reproduced thereon
such letters, numbers or other marks of identification or designation and such
legends or endorsements as the officers of the Company executing the same may
approve (execution thereof to be conclusive evidence of such approval) and are
not inconsistent with the provisions of this Agreement (but which do not
affect the rights, duties or immunities of the Warrant Agent), or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrants may be listed or of the Depository, or to conform to usage. The
Global Warrant Certificate shall be signed manually on behalf of the Company
by its Chairman of the Board, President, Vice President serving as Chief
Financial Officer, Treasurer or Assistant Treasurer, and its corporate seal
shall be impressed, imprinted or engraved manually thereon, which shall be
attested manually by its Secretary or any Assistant Secretary. Typographical
and other minor errors or defects in any such reproduction of the seal or any
such signature shall not affect the validity or enforceability of the Global
Warrant Certificate that has been duly authenticated and delivered by the
Warrant Agent.
In case any officer of the Company who shall have signed the
Global Warrant Certificate shall cease to be such officer before the Global
Warrant Certificate so signed shall have been authenticated and delivered by
the Warrant Agent or delivered by the Company, such Global Warrant Certificate
nevertheless may be authenticated and delivered as though the person who
signed such Global Warrant Certificate had not ceased to be such officer of
the Company; and the Global Warrant Certificate may be signed on behalf of the
Company by such persons as, at the actual date of the execution of such Global
Warrant Certificate, shall be the proper officers of the Company, although at
the date of the execution of this Agreement any such person was not such
officer.
A Global Warrant Certificate relating to 31,030 units of the
Warrants originally issued may be executed by the Company and delivered to the
Warrant Agent on or after the date of execution of this Agreement. The Warrant
Agent is authorized, upon receipt of the Global Warrant Certificate from the
Company, duly executed on behalf of the Company, to authenticate such Global
Warrant Certificate. The Global Warrant Certificate shall be manually
authenticated and dated the date of its authentication by the Warrant Agent
and shall not be valid for any purpose unless so authenticated. The Warrant
Agent shall authenticate and deliver the Global Warrant Certificate to or upon
the written order of the Company.
SECTION 1.03. Registration of Transfers and Exchanges. Except as
otherwise provided herein or in the Global Warrant Certificate, the Warrant
Agent shall from time to time register the transfer of the Global Warrant
Certificate in the records of the Warrant Agent only to the Depository, to a
nominee of the Depository, to a successor Depository, or to a nominee of a
successor Depository, upon surrender of such Global Warrant Certificate, duly
endorsed and accompanied by a written instrument or instruments of transfer in
form satisfactory to the Warrant Agent and the Company, duly signed by the
registered Holder (as defined below) thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney. Upon any such
registration of transfer, the Company shall execute, and the Warrant Agent
shall authenticate and deliver in the name of the designated transferee, a new
Global Warrant Certificate of like tenor and evidencing a like number of
Warrants as evidenced by the Global Warrant Certificate at the time of such
registration of transfer.
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The Global Warrant Certificate may be transferred as provided
above at the option of the Holder thereof when surrendered to the Warrant
Agent at its office or agency maintained for the purpose of transferring and
exercising any of the Warrants, which shall be in Toronto, Canada, or at the
office or agency of any successor Warrant Agent as provided in Section 5.03,
in exchange for another Global Warrant Certificate of like tenor and
representing a like number of Warrants.
SECTION 1.04. Warrant Certificates.
(a) Form, Execution, Authentication and Delivery of Warrant
Certificates. Any Warrant Certificates issued in definitive form in accordance
with Section 1.01(a) shall be substantially in the form set forth in Exhibit A
hereto, with such appropriate insertions, omissions, substitutions and other
variations as are necessary or desirable for individual Warrant Certificates,
and may represent any integral multiple of Warrants. The Warrant Certificates
may have imprinted or otherwise reproduced thereon such letters, numbers or
other marks of identification or designation and such legends or endorsements
as the officers of the Company executing the same may approve (execution
thereof to be conclusive evidence of such approval) and are not inconsistent
with the provisions of this Agreement (but which do not affect the rights,
duties or immunities of the Warrant Agent), or as may be required to comply
with any law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which the Warrants may be listed
or of the Depository, or to conform to usage. Warrant Certificates shall be
signed on behalf of the Company upon the same conditions, in substantially the
same manner and with the same effect as the Global Warrant Certificate, as
described in Section 1.02.
Each Warrant Certificate, when so signed on behalf of the Company,
shall be delivered to the Warrant Agent, which shall manually authenticate and
deliver the same to the Holder upon the written order of the Company. Each
Warrant Certificate shall be dated the date of its authentication.
No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been authenticated by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
authenticated has been duly issued hereunder.
(b) Registration of Transfers and Exchanges of Warrant
Certificates. Warrant Certificates delivered in exchange for the Global
Warrant Certificate shall be registered in such names and addresses (including
tax identification numbers) and in such denominations as shall be requested in
writing by the Depository or its nominee in whose name the Global Warrant
Certificate is registered, upon written certification to the Company and the
Warrant Agent in form satisfactory to each of them of a beneficial ownership
interest in the Global Warrant Certificate.
The Company shall cause to be kept at an office or agency of the
Warrant Agent in Toronto, Canada, a register (the register maintained in such
office and in any other office or
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agency maintained by or on behalf of the Company for such purpose being herein
sometimes collectively referred to as the "Warrant Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Warrant Certificates and the transfer of
Warrant Certificates. The Warrant Agent is hereby appointed "Warrant
Registrar" for the purpose of registering Warrant Certificates and the
transfer of Warrant Certificates as herein provided.
Upon surrender for registration of a transfer of a Warrant
Certificate at an office or agency of the Company maintained for such purpose,
the Company shall execute, and the Warrant Agent shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Warrant Certificates of any authorized denominations and representing
Warrants of a like aggregate number.
At the option of the Holder, Warrant Certificates may be exchanged
for other Warrant Certificates of any authorized denominations and
representing units of the Warrants of a like aggregate number, upon surrender
of the Warrant Certificates to be exchanged at such office or agency. Whenever
any Warrant Certificates are so surrendered for exchange, the Company shall
execute, and the Warrant Agent shall authenticate and deliver, the Warrant
Certificates which the Holder making the exchange is entitled to receive.
All Warrant Certificates issued upon any registration of a
transfer or an exchange of Warrant Certificates shall be the valid obligations
of the Company, evidencing the same obligations of the Company, and entitled
to the same benefits under this Warrant Agreement, as the Warrant Certificates
surrendered upon such registration of a transfer or an exchange.
Every Warrant Certificate presented or surrendered for
registration of a transfer or for an exchange shall (if so required by the
Company or the Warrant Agent) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Warrant
Registrar duly executed, by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of a transfer
or an exchange of Warrant Certificates, but the Company or the Warrant Agent
may require payment of a sum sufficient from the beneficial owners of the
Warrants to cover any tax or other governmental charge that may be imposed in
connection with any registration of a transfer or an exchange of Warrant
Certificates.
Prior to due presentment of a Warrant Certificate for registration
of transfer, the Company, the Warrant Agent and any agent of the Company or
the Warrant Agent may treat the person in whose name such Warrant Certificate
is registered as the owner of such Warrant Certificate for all purposes
hereunder whatsoever, whether or not such Warrant Certificate has been
transferred, and neither the Company, the Warrant Agent nor any agent of the
Company or the Warrant Agent shall be affected by notice to the contrary.
All Warrant Certificates surrendered for exercise, registration of
transfer or exchange shall, if surrendered to any person other than the
Warrant Agent, be delivered to the
5
Warrant Agent and shall be promptly cancelled by it. The Company may at any
time deliver to the Warrant Agent for cancellation any Warrant Certificate
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and any Warrant Certificate so delivered
shall be promptly cancelled by the Warrant Agent. No Warrant Certificate shall
be authenticated in lieu of or in exchange for any Warrant Certificate
cancelled as provided in this Section 1.04, except as expressly permitted by
this Warrant Agreement. All cancelled Warrant Certificates held by the Warrant
Agent shall be disposed of as directed in writing by the Company.
(c) Mutilated, Destroyed, Lost or Stolen Warrant Certificates. If
any mutilated Warrant Certificate is surrendered to the Warrant Agent, the
Company shall execute and the Warrant Agent shall authenticate and deliver in
exchange therefor a new Warrant Certificate of like tenor representing
Warrants of a like number and bearing a number not contemporaneously
outstanding.
If there shall be delivered by a Holder to the Company and the
Warrant Agent (i) evidence to their satisfaction of the destruction, loss or
theft of any Warrant Certificate, (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless
and (iii) funds sufficient to cover any cost or expense to the Company
(including any fees and expenses, including legal fees and expenses, charged
by the Warrant Agent) relating to the issuance of a new Warrant Certificate,
then, in the absence of written notice to the Company or the Warrant Agent
that such Warrant Certificate has been acquired by a bona fide purchaser, the
Company shall execute and upon its written request the Warrant Agent shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Warrant Certificate, a new Warrant Certificate of like tenor representing
Warrants of a like number and bearing a number not contemporaneously
outstanding.
Every new Warrant Certificate issued pursuant to this Section
1.04(c) in lieu of any destroyed, lost or stolen Warrant Certificate shall
constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Warrant Certificate shall be at
any time enforceable by anyone, and shall be entitled to all the benefits of
this Warrant Agreement.
The provisions of this Section 1.04(c) are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Warrant
Certificates.
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ARTICLE II
DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. General. The Warrants constitute a call option in
respect of the three Regional Baskets (as defined in Section 2.02) exercisable
on the Exercise Date (as defined below). The Warrants are unsecured
contractual obligations of the Company and rank equally with its other
unsecured contractual obligations and unsecured and unsubordinated debt.
SECTION 2.02. The Regional Baskets. The "Regional Baskets" shall
be the North American Regional Basket, the European Regional Basket and the
Asian Regional Basket. The "North American Regional Basket" shall be an index
basket expressed in Canadian dollars that is 100% weighted to the S&P 500
Index. The "European Regional Basket" shall be an index basket expressed in
Canadian dollars that is 60% weighted to the Dow Xxxxx EURO STOXX 50 Index and
40% weighted to the FTSE 100 Index. The "Asian Regional Basket" shall be an
index basket expressed in Canadian dollars that is 55% weighted to the Nikkei
225 Index, 35% weighted to the MSCI Hong Kong Index, and 10% weighted to the
S&P/ASX 200 Index.
SECTION 2.03. Duration, Exercise and Delivery of Warrants. (a)
Subject to the limitations described herein, each Warrant evidenced by the
Global Warrant Certificate shall be automatically exercised for no additional
consideration on the earlier of (i) the Index Business Day (as defined below)
immediately prior to the occurrence of certain events in bankruptcy,
insolvency or reorganization involving the Company as are set forth in
subsection (f) below and (ii) October 27, 2011 (any such day being the
"Exercise Date"). The Warrants are not exercisable at the option of the
Holders prior to the Exercise Date. On the Exercise Date, Holders shall be
entitled to receive, without payment of any further amount, a cash settlement
amount equal to the Redemption Amount or, if a Holder and the Company both
agree to physical settlement, to physical settlement in the manner agreed upon
by any such Holder and the Company. In the event that physical settlement is
agreed upon by the Company and a Holder, the Company shall provide notice to
the Holder and the Warrant Agent or the Paying Agent (as defined below), of
the terms of the physical settlement at least 60 days prior to the Exercise
Date. In such notice, the Company may also indicate that it will agree to a
combination of physical and cash settlement. Such notice shall indicate how a
Holder may accept the Company's offer of physical settlement.
(b) On or before the business day immediately preceding the
Exercise Date, the Warrant Agent shall (i) be informed by the Calculation
Agent (as defined below) of the Redemption Amount, (ii) be informed by the
Company of any agreement, including the terms of such agreement, between it
and any Holder for the Holder to receive physical settlement by delivery of
certain securities in full or partial satisfaction of the Company's obligation
to pay the Redemption Amount to such Holder, (iii) advise the Company of the
aggregate Redemption Amount and (iv) advise the Company of such other matters
relating to the Warrants as the Company shall reasonably request in writing.
Any notice to be given to the Company by the Warrant Agent pursuant to this
Section 2.03 shall be by telephone and shall promptly be confirmed in writing.
Any notice to be given by the Company or the Calculation Agent to the
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Warrant Agent pursuant to this Section 2.03(b) shall be by facsimile
transmission to the Warrant Agent as set forth in Section 6.03 or by such
other means as is acceptable to the Warrant Agent.
(c) Except as provided in Section 2.03(h), the Company shall make
available to the Warrant Agent or a paying agent appointed by the Company (the
"Paying Agent"), no later than 10:00 A.M., Toronto time, on the Exercise Date
funds in an amount sufficient to pay such aggregate Redemption Amount and/or
securities sufficient to physically settle any such agreement for physical
settlement of the Warrants. Provided that the Company has made adequate funds
and securities available to the Warrant Agent or the Paying Agent in such
manner, the Warrant Agent or the Paying Agent shall make payment, and deliver
any such securities, to the Depository against receipt by the Warrant Agent
from the Depository of the Global Warrant Certificate, after 10:00 A.M.,
Toronto time, but prior to 2:00 P.M. Toronto time, on such Exercise Date. Any
such payment shall be in the amount of the aggregate Redemption Amount and any
such delivery of securities shall be as provided in any such agreement for
physical settlement, and in the case of Warrants issued in definitive form,
the aggregate Redemption Amount, and any such delivery of securities, in
respect of exercised Warrants for which delivery has been accepted by the
Warrant Agent or the Paying Agent.
(d) The "Redemption Amount" shall be determined by the Calculation
Agent in accordance with the following formula:
$100 x [W1P1+ W2P2 + W3P3] - AF
Where:
W1 equals the weighting of the best performing Regional Basket over the
term of the Warrants (after giving effect to the conversion of the
Regional Basket into Canadian dollars) which shall be equal to 44.45%.
W2 equals the weighting of the second best performing Regional Basket
over the term of the Warrants (after giving effect to the conversion of
the Regional Basket into Canadian dollars) which shall be equal to
33.33%.
W3 equals the weighting of the third best performing Regional Basket
over the term of the Warrants (after giving effect to the conversion of
the Regional Basket into Canadian dollars) which shall be equal to
22.22%.
P1 equals the performance of the best performing Regional Basket.
P2 equals the performance of the second best performing Regional Basket.
P3 equals the performance of the third best performing Regional Basket.
AF equals the Adjustment Fee (as defined below).
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The performance of the North American Regional Basket equals:
IE1
---
IS1
The performance of the European Regional Basket equals:
[60% x IE2] + [40% x IE3]
--- ---
IS2 IS3
The performance of the Asian Regional Basket equals:
[55% x IE4] + [35% x IE5] + [10% x IE6]
--- --- ---
IS4 IS5 IS6
The index values are:
ISi equals the Starting Value (as defined below) of Indexi.
IEi equals the Ending Value (as defined below) of Indexi.
The underlying equity indices (each, a "Basket Index") are:
Index1 = S&P 500 Index
Index2 = Dow Xxxxx EURO STOXX 50 Index
Index3 = FTSE 100 Index
Index4 = Xxxxxx 000 Index
Index5 = MSCI Hong Kong Index
Index6 = S&P/ASX 200 Index
The "Adjustment Fee" shall be calculated by the Calculation Agent for
each calendar day and accrue over the term of the Warrants at an annual rate
of 1.0% of the amount that would be the Redemption Amount for the Warrants on
such calendar day (determined without regard to the Adjustment Fee) if such
calendar day was the Exercise Date.
The "Starting Value" for each Basket Index shall be the following:
S&P 500 Index = 1,339.2688
Dow Xxxxx EURO STOXX 50 Index = 4,277.1016
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FTSE 100 Index = 10,275.1460
Xxxxxx 000 Index = 122.3031
MSCI Hong Kong Index = 1,059.9144
S&P/ASX 200 Index = 3,365.7187
The "Ending Value" for each Basket Index shall be determined by Xxxxxxx
Xxxxx International (the "Calculation Agent") and shall equal the average,
arithmetic mean, of the closing values of such Basket Index determined by the
designated Index Calculation Agent (as defined below) on each of the ten
Calculation Days (as defined in this Section 2.03(d)) during the Calculation
Period (as defined below) multiplied by the then current exchange rate between
the Canadian dollar and the relevant Index Currency (as defined below). If
there are fewer than ten Calculation Days during the Calculation Period, then
the Ending Value shall equal the average, arithmetic mean, of the closing
values of the Basket Index on those Calculation Days. If there is only one
Calculation Day during the Calculation Period, then the Ending Value shall
equal the closing value of the Basket Index on that Calculation Day. If no
Calculation Days occur during the Calculation Period, then the Ending Value
shall equal the closing value of the Basket Index determined on the last
scheduled Index Business Day in the Calculation Period, regardless of the
occurrence of a Market Disruption Event (as defined below) on that scheduled
Index Business Day.
"Calculation Period" means the period from and including the thirteenth
scheduled Index Business Day prior to the Exercise Date to and including the
third scheduled Index Business Day prior to the Exercise Date.
"Calculation Day" means any Index Business Day during the Calculation
Period on which a Market Disruption Event has not occurred.
"Index Business Day" means, for each Basket Index, a day on which the
Basket Index or any Successor Index (as defined below) is calculated and
published.
"Index Calculation Agent" means, with respect to the S&P 500 Index and
the S&P/ASX 200 Index, Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc. ("S&P"), with respect to the Dow Xxxxx EURO STOXX 50 Index,
STOXX Limited ("STOXX"), with respect to the FTSE 100 Index, FTSE
International Limited ("FTSE"), with respect to the Nikkei 225 Index, Nihon
Keizai Shimbun ("NKS"), and with respect to the MSCI Hong Kong Index, Xxxxxx
Xxxxxxx Capital International Inc. ("MSCI").
"Index Currency" means, for each Basket Index, the currency in which
that Basket Index is denominated.
For purposes of determining the Redemption Amount, the exchange rate
between the Canadian dollar and each Index Currency shall be the amount of
Canadian dollars (or part thereof) for which one unit of the relevant Index
Currency could be purchased as quoted at 12:00 noon (Toronto time) by the Bank
of Canada on the applicable Bloomberg page (or its successor
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page for the purpose of displaying such rate) on each Calculation Day in
respect of all Index Currencies. In the event that the applicable Bloomberg
page (or successor page) should not be available or no rate is quoted on such
page on a Calculation Day at the applicable time, the exchange rate shall be
the rate of exchange as determined by the Calculation Agent.
All determinations made by the Calculation Agent and each Index
Calculation Agent shall be at its sole discretion and, absent manifest error,
shall be conclusive for all purposes and binding on the Company and the
Holders and beneficial owners of the Warrants. Whenever the Calculation Agent
is required to act, it shall do so in good faith using its reasonable
judgement. The Warrant Agent shall have no duty or obligation to review or
confirm any of the calculations of the Calculation Agent hereunder.
(e) In case of default in payment of the Warrants on the Exercise
Date, from and after such date the Warrants shall bear interest, payable upon
demand of the Holders, at the rate of 2.00% per annum on the unpaid amount due
and payable on such date in accordance with the terms of Section 2.03(d) to
the date payment of such amount has been made or duly provided for.
(f) The Warrants shall expire on the date that either of the
following events occur and the Warrants shall be automatically exercised as of
the Index Business Day immediately preceding such date:
(i) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an
involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereinafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of the Company or for any substantial part
of its property, or ordering the winding-up or liquidation of its
affairs, and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(ii) the Company commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereinafter in effect, or shall consent to the entry of an order
for relief in an involuntary case under any such law, or shall
consent to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of its
property, or shall make any general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become
due or shall take any corporate action in furtherance of any of
the foregoing.
(g) Upon the occurrence of any of the events described in
subsection (f) above, the Redemption Amount, if any, shall be determined by
the Calculation Agent pursuant to subsection (d) above.
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(h) The Warrant Agent shall, as soon as practicable after the
Exercise Date determined pursuant to subsection (f) above, (i) be informed by
the Calculation Agent of the Redemption Amount, (ii) be informed by the
Company of any agreement, including the terms of such agreement, between it
and any Holder for the Holder to receive physical settlement by delivery of
certain securities in full or partial satisfaction of the Company's obligation
to pay the Redemption Amount to such Holder, (iii) advise the Company of the
Redemption Amount and (iv) advise the Company of such other matters relating
to the Warrants as the Company shall reasonably request in writing. Notices to
be given pursuant to this Section 2.03(h) shall be given in the same manner
set forth in Section 2.03(b). Provided that the Company has made the adequate
funds and/or securities sufficient to physically settle any such agreement for
physical settlement available to the Warrant Agent or the Paying Agent in a
timely manner which shall, in no event, be later than 10:00 A.M., New York
City time, on the fifth Business Day (as defined below) following the Exercise
Date determined in accordance with subsection (f) of this Section 2.03, the
Warrant Agent or the Paying Agent shall make payment, and deliver any such
securities, to the Depository against receipt by the Warrant Agent from the
Depository of the Global Warrant Certificate on the fifth Business Day
following such Exercise Date. Any such payment shall be in the amount of the
aggregate Redemption Amount and any such delivery of securities shall be as
provided in any such agreement for physical settlement, and in respect of
Warrants issued in definitive form, the aggregate Redemption Amount, and any
such delivery of securities, in respect of exercised Warrants for which
delivery has been accepted by the Warrant Agent or the Paying Agent.
SECTION 2.04. Adjustments to the Basket Indices. If at any time
S&P, STOXX, FTSE, NKS or MSCI (each, an "Index Publisher") makes a material
change in the formula for or the method of calculating its respective Basket
Index or any Successor Index or in any other way materially modifies such
Index so that such Index does not, in the opinion of the Calculation Agent,
fairly represent the value of such Index had such changes or modifications not
been made, then, from and after such time, the Calculation Agent shall, at the
close of business in New York, New York, on each date that the closing value
of such Index is to be calculated, make those adjustments as, in the good
faith judgment of the Calculation Agent, may be necessary in order to arrive
at a calculation of a value of a stock index comparable to such Index as if
such changes or modifications had not been made, and calculate such closing
value with reference to such Index, as so adjusted.
SECTION 2.05. Discontinuance of the Basket Indices. If an Index
Publisher discontinues publication of its respective Basket Index and the
Index Publisher or another entity publishes a successor or substitute index
that the Calculation Agent determines, in its sole discretion, to be
comparable to that Basket Index (a "Successor Index"), then, upon the
Calculation Agent's notification of such determination to the Warrant Agent
and the Company, the Calculation Agent shall substitute the Successor Index,
as calculated by the relevant Index Publisher or any other entity for that
Basket Index and calculate the Ending Value as set forth in Section 2.03(d).
Upon any selection by the Calculation Agent of a Successor Index, the Company
shall cause notice to be given to the Holders of the Warrants.
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In the event that an Index Publisher discontinues publication of
its respective Basket Index and:
(i) the Calculation Agent does not select a Successor Index; or
(ii) the Successor Index is no longer published on any of the
Calculation Days,
the Calculation Agent shall compute a substitute value for that Basket Index
in accordance with the procedures last used to calculate that Basket Index
before any discontinuance. If a Successor Index is selected or the Calculation
Agent calculates a value as a substitute for that Basket Index as described
below, the Successor Index or value shall be used as a substitute for that
Basket Index for all purposes, including for purposes of determining whether a
Market Disruption Event exists.
If an Index Publisher discontinues publication of its respective
Basket Index before the Calculation Period and the Calculation Agent
determines that no Successor Index is available at that time, then on each
Business Day until the earlier to occur of:
(i) the determination of the Ending Value; and
(ii) a determination by the Calculation Agent that a Successor
Index is available,
the Calculation Agent shall determine the value that would be used in
computing the Redemption Amount as described in the preceding paragraph as if
that day were a Calculation Day. The Calculation Agent shall cause notice of
each value to be published not less often than once each month in the national
edition of a major English language Canadian newspaper and a French language
newspaper of general circulation in the Province of Quebec, and arrange for
information with respect to these values to be made available by telephone.
A "Business Day" is any day other than a Saturday or Sunday that
is neither a legal holiday nor a day on which banking institutions in London
are authorized or required by law, regulation or executive order to close and
those banks are open for dealing in a foreign exchange and foreign currency
deposits.
SECTION 2.06. Denominations. The Warrants shall be issued in
denominations of whole units, each at an initial price of Cdn. $100 per unit.
SECTION 2.07. Return of Global Warrant Certificate. At such time
as all of the Warrants have been automatically exercised or otherwise
cancelled, the Warrant Agent shall destroy the cancelled Global Warrant
Certificate unless the Company directs the Warrant Agent in writing to return
such cancelled Global Warrant Certificate to it.
SECTION 2.08. Return of Property Held Unclaimed for Two Years. Any
money deposited with or paid, or securities delivered, to the Warrant Agent
for the payment of the Redemption Amount or physical settlement of any
Warrants and not applied but remaining
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unclaimed for two years after the date upon which such Redemption Amount shall
have become due and payable or such physical settlement had been due to occur,
shall be repaid or delivered by the Warrant Agent to the Company and the
Holder of such Warrants shall thereafter look only to the Company for any
payment or delivery which such Holder may be entitled and all liability of the
Warrant Agent with respect to such property shall thereupon cease; provided,
however, that the Warrant Agent, before making any such repayment or delivery,
may at the expense of the Company notify the Holders concerned that said
property has not been so applied and remains unclaimed and that after a date
named therein any unclaimed property then remaining shall be returned to the
Company.
SECTION 2.09. Designation of Agent for Receipt of Notice. The
Company may from time to time designate in writing to the Warrant Agent a
designee for receipt of all notices required to be given by the Warrant Agent
to the Company pursuant to this Article II and all such notices thereafter
shall be given in the manner herein provided by the Warrant Agent to such
designee.
SECTION 2.10. Market Disruption Events.
"Market Disruption Event" means either of the following events as
determined by the Calculation Agent:
(i) the suspension of or material limitation on trading for
more than two hours of trading, or during the one-half hour period
preceding the close of trading, on the applicable exchange
(without taking into account any extended or after-hours trading
session), in 20% or more of the stocks which then comprise a
Basket Index or any Successor Index; or
(ii) the suspension of or material limitation on trading, in
each case, for more than two hours of trading, or during the
one-half hour period preceding the close of trading, on the
applicable exchange (without taking into account any extended or
after-hours trading session), whether by reason of movements in
price otherwise exceeding levels permitted by the relevant
exchange or otherwise, in option contracts or futures contracts
related to the applicable Basket Index, or any Successor Index.
For the purpose of determining whether a Market Disruption Event
has occurred:
(i) a limitation on the hours in a trading day and/or number
of days of trading shall not constitute a Market Disruption Event
if it results from an announced change in the regular business
hours of the relevant exchange;
(ii) a limitation on trading imposed during the course of a
day by reason of movements in price otherwise exceeding levels
permitted by the relevant exchange shall constitute a Market
Disruption Event;
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(iii) a decision to permanently discontinue trading in the
relevant futures or options contracts related to the applicable
Basket Index, or any Successor Index, shall not constitute a
Market Disruption Event;
(iv) a suspension in trading in a futures or options contract
on the applicable Basket Index, or any Successor Index, by a major
securities market by reason of (a) a price change violating limits
set by that securities market, (b) an imbalance of orders relating
to those contracts or (c) a disparity in bid and ask quotes
relating to those contracts shall constitute a suspension or
material limitation of trading in futures or options contracts
related to that Basket Index; and
(v) an absence of trading on the related exchange shall not
include any time when that exchange is closed for trading under
ordinary circumstances.
15
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
SECTION 3.01. Holder of Warrant May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any Holder, without
the consent of the Warrant Agent, may, in and for his own behalf, enforce, and
may institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, his right to exercise, and to
receive payment or delivery for, his Warrants as provided in the Global
Warrant Certificate and in this Agreement.
SECTION 3.02. Merger, Consolidation, Sale, Transfer or Conveyance.
The Company may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into any other entity,
provided that, in any such case, (i) either the Company shall be the
continuing entity, or the successor entity shall be organized and existing
under the laws of the United States of America or a State thereof and such
successor entity shall expressly assume (a) the payment of the Redemption
Amount with respect to the Warrants, according to their tenor, and (b) the due
and punctual performance and observance of all of the covenants and conditions
of this Agreement and the Global Warrant Certificate to be performed by the
Company and (ii) the Company or such successor entity, as the case may be,
shall not, immediately after such merger or consolidation, or such sale, lease
or conveyance, be in default in the performance of any such covenant or
condition. Such successor or assuming entity thereupon may cause to be signed,
and may issue either in its own name or in the name of the Company, a new
Global Warrant Certificate in exchange and substitution for the Global Warrant
Certificate theretofore issued. Such Global Warrant Certificate shall in all
respects have the same legal rank and benefit under this Agreement as the
Global Warrant Certificate theretofore issued in accordance with the terms of
this Agreement as though such new Global Warrant Certificate had been issued
at the date of the execution hereof. In any case of any such consolidation,
merger, sale, lease or conveyance of substantially all of the assets of the
Company, such changes in phraseology and form (but not in substance) may be
made in the new Global Warrant Certificate as may be appropriate.
The Warrant Agent shall receive a written opinion of legal counsel
as conclusive evidence that any such consolidation, merger, sale, lease or
conveyance of substantially all of the assets of the Company complies with the
provisions of this Section 3.02 and that the assumption of this Agreement by
the successor or assuming corporation is binding and effective.
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ARTICLE IV
CANCELLATION OF WARRANTS
SECTION 4.01. Cancellation of Warrants. In the event the Company
shall purchase or otherwise acquire Warrants, such Warrants may, at the option
of the Company and upon written notification to the Warrant Agent, be
surrendered free through a Depository Participant for credit to the account of
the Warrant Agent and if so credited, the Warrant Agent shall promptly note
the cancellation of such Warrants by notation on the records of the Warrant
Agent. No Warrant shall be issued in lieu of or in exchange for any Warrant
which is cancelled as provided by this Section 4.01, except as otherwise
expressly permitted by this Agreement.
SECTION 4.02. Treatment of Holders. The Company, the Warrant Agent
and any agent of the Company or the Warrant Agent may deem and treat the
person in whose name a Warrant Certificate or the Global Warrant Certificate
shall be registered in the records of the Warrant Agent as the absolute owner
of such Warrant Certificate or Global Warrant Certificate, as the case may be
(notwithstanding any notation of ownership or other writing thereon) (the
"Holder") for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidenced hereby, and neither the Company nor the
Warrant Agent, nor any agent of the Company or the Warrant Agent shall be
affected by any notice to the contrary, except that the Warrant Agent and the
Company and any agent of the Company or the Warrant Agent shall be entitled to
conclusively rely on and act pursuant to instructions of the Depository or the
Depository Participants, as applicable, as contemplated by Article II of this
Agreement. This Section 4.02 shall be without prejudice to the rights of
Holders as described elsewhere herein.
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ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. (a) The Company hereby appoints
JPMorgan Chase Bank as Warrant Agent of the Company in respect of the Warrants
and Global Warrant Certificate upon the terms and subject to the conditions
set forth herein and in the Global Warrant Certificate; and JPMorgan Chase
Bank hereby accepts such appointment. The Warrant Agent shall have the powers
and authority granted to and conferred upon it in the Global Warrant
Certificate and hereby and such further powers and authority acceptable to it
to act on behalf of the Company as the Company may hereafter grant to or
confer upon it. All of the terms and provisions with respect to such powers
and authority contained in the Global Warrant Certificate are subject to and
governed by the terms and provisions hereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof and of the Global Warrant Certificates, including the
following, to all of which the Company agrees and to all of which the rights
hereunder of the Holders and beneficial owners from time to time of the
Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the
compensation to be agreed upon with the Company in writing for all services
rendered by the Warrant Agent and to reimburse the Warrant Agent for its
reasonable out-of-pocket expenses (including counsel fees and expenses)
incurred by the Warrant Agent without negligence or bad faith on its part in
connection with the services rendered by it hereunder. The Company also agrees
to indemnify the Warrant Agent and its officers, directors, agents and
employees for, and to hold it and them harmless against, any loss, damage,
cost, penalty, liability or expense (including reasonable attorneys' fees and
expenses) incurred without negligence or bad faith on the part of the Warrant
Agent or them, arising out of or in connection with it acting as Warrant Agent
hereunder or with respect to the Warrants or the Global Warrant Certificate
and any transactions or documents contemplated herewith or therewith, as well
as the reasonable costs and expenses of defending against any claim of
liability in the premises.
(b) In acting under this Agreement and in connection with the
Global Warrant Certificate, the Warrant Agent is acting solely as agent of the
Company and does not assume any obligation or relationship of agency or trust
for or with any of the beneficial owners or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it,
and the advice or opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in accordance with the advice or opinion of such
counsel.
(d) The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or omitted or any thing
suffered by it in reliance upon any Global Warrant Certificate, notice,
direction, consent, certificate, affidavit, statement or other paper or
18
document reasonably believed by it to be genuine and to have been presented or
signed by the proper parties. Notwithstanding anything in this Agreement to
the contrary, the Warrant Agent shall not be liable in any event for special,
punitive, indirect, incidental or consequential losses or damages of any kind
whatsoever (including but not limited to lost profits), even if the Warrant
Agent has been advised of the likelihood of such loss or damage and regardless
of the form of action.
(e) The Warrant Agent, and its officers, directors and employees,
may become the owner of, or acquire an interest in, any Warrants or other
obligations of the Company, with the same rights that it or they would have if
it were not the Warrant Agent hereunder, and, to the extent permitted by
applicable law, it or they may engage or be interested in any financial or
other transaction with the Company and may act on, or as Depository, trustee
or agent for, any committee or body of Holders of Warrants or other
obligations of the Company as freely as if it were not the Warrant Agent
hereunder.
(f) The Warrant Agent shall not be under any liability for
interest on any monies at any time received by it pursuant to any of the
provisions of this Agreement or of the Global Warrant Certificate nor shall it
be obligated to segregate such monies from other monies held by it, except as
required by law. The Warrant Agent shall not be responsible for advancing
funds on behalf of the Company and shall have no duty or obligation to make
any payments if it has not timely received sufficient funds to make timely
payments.
(g) The Warrant Agent shall not be under any responsibility with
respect to the validity or sufficiency of this Agreement or the execution and
delivery hereof (except the due execution and delivery hereof by the Warrant
Agent) or with respect to the validity or execution of the Global Warrant
Certificate (except its authentication thereof).
(h) The recitals contained herein and in the Global Warrant
Certificate (except as to the Warrant Agent's authentication thereon) shall be
taken as the statements of the Company and the Warrant Agent assumes no
responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such
duties as are expressly set forth herein and in the Global Warrant Certificate
and no implied duties or obligations shall be read into this Agreement or the
Global Warrant Certificate against the Warrant Agent. The Warrant Agent shall
not be under any obligation to take any action hereunder likely to involve it
in any expense or liability, the payment of which or indemnity satisfactory to
it is not, in its reasonable opinion, assured to it. The Warrant Agent shall
not be accountable or under any duty or responsibility for the use by the
Company of the Global Warrant Certificate authenticated by the Warrant Agent
and delivered by it to the Company pursuant to this Agreement or for the
application by the Company of any proceeds. The Warrant Agent shall have no
duty or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in the Global
Warrant Certificate or in the case of the receipt of any written demand from a
Holder of a Warrant with respect to such default, except as provided in
Section 6.02 hereof, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or to make any demand upon the Company.
19
(j) Unless otherwise specifically provided herein or in the Global
Warrant Certificate, any order, certificate, notice, request, direction or
other communication from the Company made or given by the Company under any
provision of this Agreement shall be sufficient if signed by its Chairman of
the Board, President, a Vice President or by the Treasurer, and by an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company
and delivered to the Warrant Agent.
(k) In the absence of bad faith on the part of the Warrant Agent,
the Warrant Agent may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Warrant Agent which conform to the requirements of
this Agreement.
(l) The Warrant Agent shall not be liable for any error of
judgment made by an officer or officers of the Warrant Agent, unless it shall
be conclusively determined by a court of competent jurisdiction that the
Warrant Agent was negligent in ascertaining the pertinent facts.
(m) The Warrant Agent shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with any direction of
the Company given under this Agreement.
(n) Whenever in the administration of the provisions of this
Agreement the Warrant Agent shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering any action to be taken
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Warrant Agent, be deemed to be conclusively proved and established
by a certificate signed by one of Company's officers, as the case may be, and
delivered to the Warrant Agent and such certificate, in the absence of
negligence or bad faith on the part of the Warrant Agent, shall be full
warrant to the Warrant Agent for any action taken, suffered or omitted by it
under the provisions of this Agreement upon the faith thereof.
(o) The Warrant Agent shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, entitlement order,
approval or other paper or document delivered to it pursuant to the terms of
this Agreement.
(p) In the event the Warrant Agent believes any ambiguity or
uncertainty exists hereunder or in any notice, instruction, direction, request
or other communication, paper or document received by the Warrant Agent
hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking
any action, and shall be fully protected and shall not be liable in any way to
the Company, any Holders or any other person or entity for refraining from
taking such action, unless the Warrant Agent receives written instructions
signed by the Company which eliminates such ambiguity or uncertainty to the
satisfaction of the Warrant Agent.
20
SECTION 5.03. Resignation and Appointment of Successor. (a) The
Company agrees, for the benefit of the Holders from time to time of the
Warrants, that there shall at all times be a Warrant Agent hereunder until all
the Warrants are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving at least 60 days written notice to the Company of such intention on its
part, specifying the date on which its desired resignation shall become
effective, subject to the appointment of a successor Warrant Agent, and
acceptance of such appointment by such successor Warrant Agent, as hereinafter
provided. The Warrant Agent hereunder may be removed at any time by the filing
with it of an instrument in writing signed by or on behalf of the Company and
specifying such removal and the date when it shall become effective. Such
resignation or removal shall take effect upon the appointment by the Company,
as hereinafter provided, of a successor Warrant Agent, which shall be a
corporation authorized to carry on the business of a trust company under the
laws of Canada or the provinces thereof, or a banking institution (or an
affiliate thereof) organized under the laws of the United States of America,
or one of the states thereof and having an office or an agent's office in the
Borough of Manhattan, The City of New York, and the acceptance of such
appointment by such successor Warrant Agent. In the event a successor Warrant
Agent has not been appointed and accepted its duties within 90 days of the
Warrant Agent's notice of resignation or removal, the Warrant Agent may apply
to any court of competent jurisdiction for the designation of a successor
Warrant Agent. The indemnification obligation of the Company under Section
5.02(a) shall continue to the extent set forth therein notwithstanding the
resignation, replacement or removal of the Warrant Agent and shall survive the
termination of this Agreement.
(c) In case at any time the Warrant Agent shall resign, or shall
be removed, or shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or make an assignment for the benefit of its creditors or
consent to the appointment of a receiver or custodian of all or any
substantial part of its property, or shall admit in writing its inability to
pay or meet its debts as they mature, or if a receiver or custodian of it or
all or any substantial part of its property shall be appointed, or if any
public officer shall have taken charge or control of the Warrant Agent or of
its property or affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor Warrant Agent, qualified as aforesaid, shall be
appointed by the Company by an instrument in writing, filed with the successor
Warrant Agent. Upon the appointment as aforesaid of a successor Warrant Agent
and acceptance by the latter of such appointment, the Warrant Agent so
superseded shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay
over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
21
(e) Any entity into which the Warrant Agent hereunder may be
merged or converted or any entity with which the Warrant Agent may be
consolidated, or any entity resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any entity to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all of the corporate trust business of the Warrant Agent, provided that, it
shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
22
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Tax Treatment. The Company and the beneficial owners
of the of Warrants shall agree (in the absence of an administrative
determination or judicial ruling to the contrary) to treat each Warrant for
all U.S. tax purposes as a pre-paid forward contract subject to cash
settlement that is linked to the Regional Baskets.
SECTION 6.02. Amendment. This Agreement and the Global Warrant
Certificate may be amended by the Company and the Warrant Agent, without the
consent of the Holder of the Global Warrant Certificate or the beneficial
owners, for the purpose of:
(i) curing any ambiguity, or of curing, correcting or
supplementing any defective or inconsistent provision, or of
making any other provisions with respect to matters or questions
arising under this Agreement which are not inconsistent with the
provisions of this Agreement or of the Global Warrant
Certificates;
(ii) evidencing the succession to the Company and the
assumption by the successor of the Company's covenants contained
in this Agreement and the Global Warrant Certificates;
(iii) appointing a successor Depository;
(iv) evidencing and providing for the acceptance of
appointment by a successor warrant agent with respect to the
Warrants;
(v) adding to the covenants of the Company for the benefit of
the Holders or surrendering any right or power conferred upon the
Company under this Agreement;
(vi) issuing the Warrants in definitive form; or
(vii) amending this Agreement in any manner which the Company
may deem to be necessary or desirable and which will not
materially and adversely affect the interests of the Holders.
The Company and the Warrant Agent may also amend this Agreement
and the terms of the Global Warrant Certificates, by a supplemental agreement,
with the consent of the Holders holding not less than 66 2/3% of the then
outstanding unexercised Warrants affected by the amendment, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders; provided however, that without the consent of each Holder so
affected, no amendment shall be made that:
23
(i) changes the determination, or any aspects of the
determination, of the Redemption Amount or any payment or delivery
to be made on cancellation, of the Warrants so as to reduce the
payment or delivery to be made upon exercise or deemed exercise;
(ii) shortens the period of time during which the Warrants
may be exercised, or otherwise materially and adversely affects
the exercise rights of the Holders; or
(iii) reduces the number of outstanding Warrants, the consent
of whose Holders is required for amendment of this Agreement or
the terms of the Global Warrant Certificates.
The Warrant Agent shall be entitled to receive an opinion of
counsel (who may be an employee of or counsel for the Company, or other
counsel acceptable to the Warrant Agent) prior to executing any amendment,
modification or supplement under this Section 6.01.
SECTION 6.03. Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to
the Company by any Holder pursuant to the provisions of the Global Warrant
Certificate, the Warrant Agent shall promptly forward such notice or demand to
the Company.
SECTION 6.04. Addresses for Notices. Any communications from the
Company to the Warrant Agent with respect to this Agreement shall be addressed
to the Warrant Agent at JPMorgan Chase Bank, 0 Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx
Xxxx, XX 00000, Attention: Xxxxxx Xxxx, Institutional Trust Services,
telephone number 000-000-0000, facsimile number 000-000-0000; any
communications from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to (i) Xxxxxxx Xxxxx & Co., Inc., 0 Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxx Xxxxxxx, Treasury (first
copy), telephone number 000-000-0000, facsimile number 000-000-0000, (ii)
Xxxxxxx Xxxxx & Co., Inc., 000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxxx X. Xxxxxxxxxxxx, Corporate Secretary (second copy),
telephone 000-000-0000, facsimile 000-000-0000 and (iii) Xxxxxxx Xxxxx Canada
Inc., 000 Xxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx X0X 0X0 (third copy),
Attention: Xxxx Xxxxxxxxx, Office of the General Counsel, telephone number
000-000-0000, facsimile number 000-000-0000; and any communications from the
Warrant Agent to the Calculation Agent with respect to this Agreement shall be
addressed to Xxxxxxx Xxxxx International, 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx,
XX 00000, Attention: Xxxxx Xxxxxx, Treasury (or such other contact information
as shall be specified in writing by the Warrant Agent, the Company, Xxxxxxx
Xxxxx Canada Inc. or the Calculation Agent, respectively).
SECTION 6.05. Notices to Holders. The Company or the Warrant Agent
may cause to have notice given to the beneficial owners of interests in the
Global Warrant Certificate by providing the Depository with a form of notice
to be distributed by the Depository to Depository Participants in accordance
with the customs and practices of the Depository.
24
SECTION 6.06. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant issued hereunder and of the
respective terms and provisions thereof shall be governed by the laws of the
State of New York applicable to agreements made and to be performed in such
State.
SECTION 6.07. Obtaining of Governmental Approvals. The Company
shall from time to time take all actions which may be necessary to obtain and
keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under United States
Federal and State laws and Canadian Federal, Provincial and Territorial laws,
which may be or become requisite in connection with the issuance, sale,
trading, transfer or delivery of the Warrants, the Global Warrant Certificate
and the exercise of the Warrants.
SECTION 6.08. Persons Having Rights Under Warrant Agreement.
Nothing in this Agreement expressed or implied and nothing that may be
inferred from any of the provisions hereof is intended, or shall be construed,
to confer upon, or give to, any person or entity other than the Company, the
Warrant Agent and the Holders any right, remedy or claim under or by reason of
this Agreement or of any covenant, condition, stipulation, promise or
agreement hereof; and all covenants, conditions, stipulations, promises and
agreements in this Agreement contained shall be for the sole and exclusive
benefit of the Company and the Warrant Agent and their successors and of the
registered Holders of the Global Warrant Certificate.
SECTION 6.09. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.10. Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.11. Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the corporate trust office of
the Warrant Agent, during its normal business hours for inspection by the
Depository Participants and the Holders.
25
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
XXXXXXX XXXXX & CO., INC.
By ____________________________
Name: Xxxx Xxxx
Title: Assistant Treasurer
JPMORGAN CHASE BANK
By ___________________________
Name:
Title:
EXHIBIT A
Form of Global Warrant
THIS WARRANT IS A GLOBAL WARRANT WITHIN THE MEANING OF THE WARRANT AGREEMENT
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE CANADIAN DEPOSITORY FOR SECURITIES LIMITED ("CDS") TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IN RESPECT THEREOF IS REGISTERED IN THE NAME OF CDS &
CO., OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
CDS (AND ANY PAYMENT IS MADE TO CDS & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED HOLDER HEREOF, CDS & CO., HAS AN INTEREST HEREIN.
No. R-1 31,030 Units
CUSIP No. 59021S1179 (Each Unit representing Cdn. $100
original public offering price per Warrant)
XXXXXXX XXXXX & CO., INC.
Cdn. $3,103,000
Global Equity Performance Weighted Warrants, Series 2
exercisable October 27, 2011
This certifies that CDS & Co., as nominee of The Canadian
Depository for Securities Limited, or registered assigns is the registered
Holder of 31,030 units of Global Equity Performance Weighted Warrants, Series
2 exercisable October 27, 2011 (the "Warrants") or such lesser amount as is
indicated in the records of JPMorgan Chase Bank, as Warrant Agent. This Global
Warrant Certificate is issued under and in accordance with the Warrant
Agreement, dated as of October 27, 2004 (the "Warrant Agreement"), between the
Company and the Warrant Agent, and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions all
beneficial owners of the Warrants evidenced by this Global Warrant Certificate
and the Holder of this Global Warrant Certificate consent by acceptance hereof
by the Depository (as defined below). Copies of the Warrant Agreement are on
file at the office or agency of the Warrant Agent in Toronto, Canada.
Each Warrant entitles the beneficial owner thereof, subject to the
provisions contained herein and in the Warrant Agreement referred to below, to
receive from Xxxxxxx Xxxxx & Co., Inc. (the "Company"), without any further
payment on its behalf, the Redemption Amount specified in Section 2.03(d) of
the Warrant Agreement or, if a Holder and the Company both agree to physical
settlement, to physical settlement by delivery of certain securities in the
manner agreed. The Holder hereof shall not be entitled to any interest on any
Redemption Amount to which it is otherwise entitled (unless the Company shall
default in the payment of
such Redemption Amount, in which case, the Holder shall be entitled to
interest in accordance with Section 2.03(e) of the Warrant Agreement). Except
as provided in the Warrant Agreement, beneficial owners of the Warrants
evidenced by this Global Warrant Certificate shall not be entitled to receive
definitive Warrants evidencing their Warrants. Warrants shall be held through
a Depository selected by the Company which initially is The Canadian
Depository for Securities Limited (the "Depository", which term, as used
herein, includes any successor Depository selected by the Company as further
provided in the Warrant Agreement).
The Warrants are issuable only in registered form without coupons
in denominations of a single unit and integral multiples thereof, with a
minimum initial investment of Cdn. $2,000. Subject to the terms of the Warrant
Agreement, this Global Warrant shall remain in the form of a global security
held by a Depository.
The Warrants shall be automatically exercised for no additional
consideration on the earlier of (i) the Index Business Day immediately prior
to the occurrence of certain events in bankruptcy, insolvency or
reorganization involving the Company as set forth in Section 2.03(f) of the
Warrant Agreement and (ii) October 27, 2011 (any such day being the "Exercise
Date"). The Warrants may not be exercised at the option of the Holders or
beneficial owners prior to the Exercise Date.
All determinations made by the Calculation Agent and each Index
Calculation Agent shall be at its sole discretion and, absent manifest error,
shall be conclusive for all purposes and binding on the Company and the
Holders and beneficial owners of the Warrants. Whenever the Calculation Agent
is required to act, it shall do so in good faith using its reasonable
judgement.
In case of default in payment of this Global Warrant on the
Exercise Date, from and after such date the Warrants shall bear interest,
payable upon demand of the Holders, at the rate of 2.00% per annum on the
unpaid amount due and payable on such date in accordance with the terms of
Section 2.03(d) of the Warrant Agreement to the date payment of such amount
has been made or duly provided for.
On or before the business day immediately preceding the Exercise
Date, the Warrant Agent shall (i) be informed by the Calculation Agent of the
Redemption Amount, (ii) be informed by the Company of any agreement, including
the terms of such agreement, between it and any Holder for the Holder to
receive physical settlement by delivery of certain securities in full or
partial satisfaction of the Company's obligation to pay the Redemption Amount
to such Holder, (iii) advise the Company of the aggregate Redemption Amount
and (iv) advise the Company of such other matters relating to the Warrants as
the Company shall reasonably request in writing. Any notice to be given to the
Company by the Warrant Agent pursuant to the Warrant Agreement shall be by
telephone and shall promptly be confirmed in writing. Any notice to be given
by the Company or the Calculation Agent to the Warrant Agent pursuant to the
Warrant Agreement shall be by facsimile transmission to the Warrant Agent set
forth in the Warrant Agreement or by such other means as is acceptable to the
Warrant Agent.
The Company shall make available to the Warrant Agent or the
Paying Agent, no later than 10:00 A.M., Toronto time, on the Exercise Date
funds in an amount sufficient to pay
2
such aggregate Redemption Amount and/or securities sufficient to physically
settle any such agreement for physical settlement of the Warrants. Provided
that the Company has made adequate funds and securities available to the
Warrant Agent or the Paying Agent in such manner, the Warrant Agent or the
Paying Agent shall make payment, and deliver any such securities, to the
Depository against receipt by the Warrant Agent from the Depository of this
Global Warrant Certificate, after 10:00 A.M., Toronto time, but prior to 2:00
P.M. Toronto time, on such Exercise Date. Any such payment shall be in the
amount of the aggregate Redemption Amount and any such delivery of securities
shall be as provided in any such agreement for physical settlement, and in
respect of Warrants issued in definitive form, the aggregate Redemption
Amount, and any such delivery of securities, in respect of exercised Warrants
for which delivery has been accepted by the Warrant Agent or the Paying Agent.
The Company, the Warrant Agent and any agent of the Company or the
Warrant Agent may deem and treat the registered owner hereof as the absolute
owner of the Warrants evidenced hereby (notwithstanding any notation of
ownership or other writing hereon) for any purpose and as the person entitled
to exercise the rights represented by the Warrants evidenced hereby, and
neither the Company nor the Warrant Agent nor any agent of the Company or the
Warrant Agent shall be affected by any notice to the contrary, subject to
certain provisions of the Warrant Agreement, except that the Company and the
Warrant Agent and any agent of the Company or the Warrant Agent shall be
entitled to rely on and act pursuant to instructions of the Depository and/or
the Depository Participants, as applicable, as contemplated herein and in the
Warrant Agreement.
Subject to the terms of the Warrant Agreement and certain
restrictions set forth hereinabove, upon due presentment for registration of
transfer of this Global Warrant Certificate at the office or agency of the
Warrant Agent in Toronto, Canada, the Company shall execute and the Warrant
Agent shall authenticate and deliver in the name of the designated transferee
a new Global Warrant Certificate of like tenor and evidencing a like number of
Warrants as evidenced by this Global Warrant Certificate at the time of such
registration of transfer, which shall be issued to the designated transferee
in exchange for this Global Warrant Certificate, subject to the limitations
provided in the Warrant Agreement, without charge, but the Company may require
payment of a sum sufficient to cover any tax or governmental charge payable in
connection therewith.
License Agreements. The license agreements entered into by the
Company or Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, an affiliate of
the Company ("MLPF&S"), with the respective publishers of the Basket Indices
indicated below, require that the following language be included in this
Global Warrant Certificate in connection with the licensing of each such
Basket Index:
(a) S&P 500 Index.
"S&P, S&P 500 and Standard & Poor's are trademarks of The
XxXxxx-Xxxx Companies, Inc. and have been licensed for use by MLPF&S and the
Company."
"The Warrants are not sponsored, endorsed, sold or promoted by
Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P").
S&P makes no representation
3
or warranty, express or implied, to the holders of the Warrants or any member
of the public regarding the advisability of investing in securities generally
or in the Warrants particularly or the ability of the S&P 500 Index to track
general stock market performance. S&P's only relationship to MLPF&S and the
Company (other than transactions entered into in the ordinary course of
business) is the licensing of certain trademarks and trade names of S&P and of
the S&P 500 Index which is determined, composed and calculated by S&P without
regard to the Company or the Warrants. S&P has no obligation to take the needs
of the Company or the holders of the Warrants into consideration in
determining, composing or calculating the S&P 500 Index. S&P is not
responsible for and has not participated in the determination of the timing of
the sale of the Warrants, prices at which the Warrants are to initially be
sold, or quantities of the Warrants to be issued or in the determination or
calculation of the equation by which the Warrants are to be converted into
cash. S&P has no obligation or liability in connection with the
administration, marketing or trading of the Warrants."
"S&P DOES NOT GUARANTEE THE ACCURACY AND/OR THE COMPLETENESS OF
THE S&P 500 INDEX OR ANY DATA INCLUDED IN THE S&P 500 INDEX AND S&P SHALL HAVE
NO LIABILITY FOR ANY ERRORS, OMISSIONS OR INTERRUPTIONS THEREIN. S&P MAKES NO
WARRANTY, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY THE COMPANY,
MLPF&S, HOLDERS OF THE WARRANTS, OR ANY OTHER PERSON OR ENTITY FROM THE USE OF
THE S&P 500 INDEX OR ANY DATA INCLUDED IN THE S&P 500 INDEX IN CONNECTION WITH
THE RIGHTS LICENSED UNDER THE LICENSE AGREEMENT DESCRIBED IN THIS GLOBAL
WARRANT CERTIFICATE OR FOR ANY OTHER USE. S&P MAKES NO EXPRESS OR IMPLIED
WARRANTIES, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE S&P 500 INDEX OR ANY
DATA INCLUDED IN THE S&P 500 INDEX. WITHOUT LIMITING ANY OF THE ABOVE
INFORMATION, IN NO EVENT SHALL S&P HAVE ANY LIABILITY FOR ANY SPECIAL,
PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGE (INCLUDING LOST PROFITS) EVEN IF
NOTIFIED OF THE POSSIBILITY OF THESE DAMAGES."
(b) Dow Xxxxx EURO STOXX 50 Index.
"The Dow Xxxxx EURO STOXX 50 Index is proprietary and copyrighted
material. The Dow Xxxxx EURO STOXX 50 Index and the related trademarks have
been licensed for certain purposes by the Company."
"STOXX, Dow Xxxxx and Dow Xxxxx EURO STOXX 50 Index are trademarks
of Dow Xxxxx & Company, Inc. and have been licensed for use."
"STOXX Limited ("STOXX") and Dow Xxxxx & Company, Inc. ("Dow
Xxxxx") have no relationship to the Company, other than the licensing of the
Dow Xxxxx EURO STOXX 50 Index and the related trademarks for use in connection
with the Warrants. STOXX and Dow Xxxxx do not:
o Sponsor, endorse, sell or promote the Warrants.
o Recommend that any person invest in the Warrants or any other
securities.
4
o Have any responsibility or liability for or make any decisions
about the timing, amount or pricing of Warrants.
o Have any responsibility or liability for the administration,
management or marketing of the Warrants.
o Consider the needs of the Warrants or the owners of the Warrants
in determining, composing or calculating the Dow Xxxxx EURO STOXX 50 Index or
have any obligation to do so."
------------------------------------------------------------------------------
STOXX and Dow Xxxxx will not have any liability in connection with the
Warrants. Specifically,
o STOXX and Dow Xxxxx do not make any warranty, express or implied and
disclaim any and all warranty about:
o The results to be obtained by the Warrants, the owner of the Warrants or
any other person in connection with the use of the Dow Xxxxx EURO STOXX
50 Index and the data included in the Dow Xxxxx EURO STOXX 50 Index;
o The accuracy or completeness of the Dow Xxxxx EURO STOXX 50 Index; or
o The merchantability and the fitness for a particular purpose or use of
the Dow Xxxxx EURO STOXX 50 Index and its data;
o STOXX and Dow Xxxxx will have no liability for any errors, omissions or
interruptions in the Dow Xxxxx EURO STOXX 50 Index or its data; and
o Under no circumstances will STOXX or Dow Xxxxx be liable for any lost
profits or indirect, punitive, special or consequential damages or losses,
even if STOXX or Dow Xxxxx knows that they might occur.
The licensing agreement between the Company and STOXX is solely for their
benefit and not for the benefit of the beneficial owners of the Warrants or
any other third parties.
------------------------------------------------------------------------------
(c) MSCI Hong Kong Index.
"THE WARRANTS ARE NOT SPONSORED, ENDORSED, SOLD OR PROMOTED BY
XXXXXX XXXXXXX CAPITAL INTERNATIONAL INC. ("MSCI"), ANY AFFILIATE OF MSCI OR
ANY OTHER PARTY INVOLVED IN, OR RELATED TO, MAKING OR COMPILING THE MSCI HONG
KONG INDEX. THE MSCI HONG KONG INDEX IS THE EXCLUSIVE PROPERTY OF MSCI. MSCI
AND THE MSCI HONG KONG INDEX NAMES ARE SERVICE XXXX(S) OF MSCI OR ITS
AFFILIATES AND HAVE BEEN LICENSED FOR USE FOR CERTAIN PURPOSES BY THE COMPANY.
NEITHER MSCI, ANY OF ITS AFFILIATES NOR ANY OTHER PARTY INVOLVED IN, OR
RELATED TO, MAKING OR COMPILING THE MSCI HONG KONG INDEX MAKES ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, TO THE HOLDERS OF THE WARRANTS
OR ANY MEMBER OF THE PUBLIC REGARDING THE ADVISABILITY OF INVESTING IN
FINANCIAL PRODUCTS GENERALLY OR IN THESE WARRANTS PARTICULARLY OR THE ABILITY
OF THE MSCI HONG KONG INDEX TO TRACK CORRESPONDING STOCK MARKET PERFORMANCE.
MSCI OR ITS AFFILIATES ARE THE LICENSORS OF CERTAIN TRADEMARKS, SERVICE
5
MARKS AND TRADE NAMES AND OF THE MSCI HONG KONG INDEX WHICH IS DETERMINED,
COMPOSED AND CALCULATED BY MSCI WITHOUT REGARD TO THESE WARRANTS OR THE ISSUER
OR OWNER OF THIS FINANCIAL PRODUCT. NEITHER MSCI, ANY OF ITS AFFILIATES NOR
ANY OTHER PARTY INVOLVED IN, OR RELATED TO, MAKING OR COMPILING THE MSCI HONG
KONG INDEX HAS ANY OBLIGATION TO TAKE THE NEEDS OF THE COMPANY OR HOLDERS OF
THE WARRANTS INTO CONSIDERATION IN DETERMINING, COMPOSING OR CALCULATING THE
MSCI HONG KONG INDEX. NEITHER MSCI, ITS AFFILIATES NOR ANY OTHER PARTY
INVOLVED IN, OR RELATED TO, MAKING OR COMPILING THE MSCI HONG KONG INDEX IS
RESPONSIBLE FOR OR HAS PARTICIPATED IN THE DETERMINATION OF THE TIMING OF,
PRICES AT, OR QUALITIES OF THESE WARRANTS TO BE ISSUED OR IN THE DETERMINATION
OR CALCULATION OF THE EQUATION BY WHICH THESE WARRANTS ARE REDEEMABLE FOR
CASH. NEITHER MSCI, ANY OF ITS AFFILIATES NOR ANY OTHER PARTY INVOLVED IN, OR
RELATED TO, THE MAKING OR COMPILING THE MSCI HONG KONG INDEX HAS ANY
OBLIGATION OR LIABILITY TO THE OWNERS OF THESE WARRANTS IN CONNECTION WITH THE
ADMINISTRATION, MARKETING OR OFFERING OF THESE WARRANTS."
"ALTHOUGH MSCI SHALL OBTAIN INFORMATION FOR INCLUSION IN OR FOR
USE IN THE CALCULATION OF THE MSCI HONG KONG INDEX FROM SOURCES WHICH MSCI
CONSIDERS RELIABLE, NEITHER MSCI, ANY OF ITS AFFILIATES NOR ANY OTHER PARTY
INVOLVED IN, OR RELATED TO MAKING OR COMPILING THE MSCI HONG KONG INDEX
WARRANTS OR GUARANTEES THE ORIGINALITY, ACCURACY AND/OR THE COMPLETENESS OF
THE MSCI HONG KONG INDEX OR ANY DATA INCLUDED THEREIN. NEITHER MSCI, ANY OF
ITS AFFILIATES NOR ANY OTHER PARTY INVOLVED IN, OR RELATED TO, MAKING OR
COMPILING THE MSCI HONG KONG INDEX MAKES ANY WARRANTY, EXPRESS OR IMPLIED, AS
TO RESULTS TO BE OBTAINED BY THE COMPANY, HOLDERS OF THE WARRANTS OR ANY OTHER
PERSON OR ENTITY, FROM THE USE OF THE MSCI HONG KONG INDEX OR ANY DATA
INCLUDED THEREIN IN CONNECTION WITH THE RIGHTS LICENSED UNDER THE LICENSE
AGREEMENT OR FOR ANY OTHER USE. NEITHER MSCI, ANY OF ITS AFFILIATES NOR ANY
OTHER PARTY INVOLVED IN, OR RELATED TO, MAKING OR COMPILING THE MSCI HONG KONG
INDEX SHALL HAVE ANY LIABILITY FOR ANY ERRORS, OMISSIONS OR INTERRUPTIONS OF
OR IN CONNECTION WITH THE MSCI HONG KONG INDEX OR ANY DATA INCLUDED THEREIN.
FURTHER, NEITHER MSCI, ANY OF ITS AFFILIATES NOR ANY OTHER PARTY INVOLVED IN,
OR RELATED TO, MAKING OR COMPILING THE MSCI HONG KONG INDEX MAKES ANY EXPRESS
OR IMPLIED WARRANTIES OF ANY KIND, AND MSCI, ANY OF ITS AFFILIATES AND ANY
OTHER PARTY INVOLVED IN, OR RELATED TO MAKING OR COMPILING THE MSCI HONG KONG
INDEX HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE MSCI HONG KONG INDEX AND ANY
DATA INCLUDED THEREIN. WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT
SHALL MSCI, ANY OF ITS AFFILIATES OR ANY OTHER PARTY INVOLVED IN, OR RELATED
TO, MAKING OR COMPILING ANY MSCI HONG KONG INDEX HAVE ANY LIABILITY FOR ANY
DIRECT, INDIRECT, SPECIAL,
6
PUNITIVE, CONSEQUENTIAL OR ANY OTHER DAMAGES (INCLUDING LOST PROFITS) EVEN IF
NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES."
(d) S&P/ASX 200 Index.
"S&P and S&P/ASX are trademarks of The XxXxxx-Xxxx Companies, Inc.
and have been licensed for use by MLPF&S and the Company."
"The Warrants are not sponsored, endorsed, sold or promoted by
Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P").
Neither S&P nor the Australian Stock Exchange ("ASX") makes any representation
or warranty, express or implied, to the holders of the Warrants or any member
of the public regarding the advisability of investing in securities generally
or in the Warrants particularly or the ability of the S&P/ASX 200 Index to
track general stock market performance. S&P's and ASX's only relationship to
MLPF&S and the Company (other than transactions entered into in the ordinary
course of business) is the licensing of certain trademarks and trade names of
S&P and ASX and of the S&P/ASX 200 Index which is determined, composed and
calculated by S&P without regard to the Company or the Warrants. S&P and ASX
have no obligation to take the needs of the Company or the holders of the
Warrants into consideration in determining, composing or calculating the
S&P/ASX 200 Index. S&P and ASX are not responsible for and have not
participated in the determination of the timing of the sale of the Warrants,
prices at which the Warrants are to initially be sold, or quantities of the
Warrants to be issued or in the determination or calculation of the equation
by which the Warrants are to be converted into cash. S&P and ASX have no
obligation or liability in connection with the administration, marketing or
trading of the Warrants."
"S&P AND ASX DO NOT GUARANTEE THE ACCURACY AND/OR THE COMPLETENESS
OF THE S&P/ASX INDEX OR ANY DATA INCLUDED THEREIN AND S&P AND ASX SHALL HAVE
NO LIABILITY FOR ANY ERRORS, OMISSIONS OR INTERRUPTIONS THEREIN. S&P AND ASX
MAKE NO WARRANTY, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY THE
COMPANY, MLPF&S, HOLDERS OF THE WARRANTS, OR ANY OTHER PERSON OR ENTITY FROM
THE USE OF THE S&P/ASX 200 INDEX OR ANY DATA INCLUDED IN THE S&P/ASX 200 INDEX
IN CONNECTION WITH THE RIGHTS LICENSED UNDER THE LICENSE AGREEMENT DESCRIBED
IN THIS GLOBAL WARRANT CERTIFICATE OR FOR ANY OTHER USE. S&P AND ASX MAKE NO
EXPRESS OR IMPLIED WARRANTIES, AND HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE
S&P/ASX 200 INDEX OR ANY DATA INCLUDED IN THE S&P/ASX 200 INDEX. WITHOUT
LIMITING ANY OF THE ABOVE INFORMATION, IN NO EVENT SHALL S&P AND ASX HAVE ANY
LIABILITY FOR ANY SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGE
(INCLUDING LOST PROFITS) EVEN IF NOTIFIED OF THE POSSIBILITY OF THESE
DAMAGES."
This Global Warrant Certificate and the Warrant Agreement are
subject to amendment as provided in the Warrant Agreement.
This Global Warrant Certificate shall not be valid or obligatory
for any purpose until authenticated by the Warrant Agent.
7
Capitalized terms included herein but not defined herein have the
same meaning assigned thereto in the Warrant Agreement.
8
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated: October 27, 2004
XXXXXXX XXXXX & CO., INC.
By:
------------------------------------
Assistant Treasurer
[SEAL] Attest:_________________________________
Secretary
This is one of the Warrants
referred to in the within-mentioned
Warrant Agreement:
JPMORGAN CHASE BANK, as Warrant Agent
By: _________________________
Authorized Officer
