Exhibit 99.3
FORM OF SUPPLEMENTAL VOTING AND EXCHANGE TRUST AGREEMENT
Dated as of the o day of o, 2001, among The CIT Group, Inc. ("CIT"), CIT
Exchangeco Inc. ("EXCHANGECO"), Tyco Acquisition Corp. XIX (NV) ("CIT HOLDINGS")
and Montreal Trust Company of Canada (interchangeably, the "TRUSTEE" or
"MONTREAL TRUST").
RECITALS
A. Pursuant to an amended and restated agreement and plan of reorganization
dated as of August 5, 1999 between Newcourt Credit Group Inc. ("NEWCOURT") and
CIT (the "NEWCOURT REORGANIZATION AGREEMENT"), CIT caused Exchangeco to issue
exchangeable shares (the "EXCHANGEABLE SHARES") to certain holders of common
shares of Newcourt pursuant to a plan of arrangement (the "NEWCOURT PLAN OF
ARRANGEMENT").
B. Pursuant to the Newcourt Reorganization Agreement, Exchangeco, CIT and the
Trustee entered into a voting and exchange trust agreement dated as of November
15, 1999 (the "VETA").
C. Section 11.1 of the VETA provides that, in the event of a merger or other
transaction whereby all or substantially all of CIT's undertaking, property and
assets become the property of another person or, in the case of a merger, the
continuing corporation resulting from the merger, such person or continuing
corporation (the "CIT SUCCESSOR") shall execute a supplemental trust agreement
to evidence the assumption by the CIT Successor of liability for all moneys
payable and property deliverable under the VETA and the covenant of such CIT
Successor to pay and deliver or cause to be delivered the same and its agreement
to observe and perform all the covenants and obligations of CIT under the VETA.
D. Pursuant to an agreement and plan of merger made as of March 12, 2001 between
CIT Holdings, a wholly-owned subsidiary of Tyco International Ltd. ("TYCO"), and
CIT (the "TYCO PLAN OF MERGER"), CIT will merge with and into CIT Holdings, and
CIT Holdings shall continue as the surviving corporation. It is intended that
following the merger, CIT Holdings will change its corporate name to "CIT
Holdings (NV) Inc.".
E. The Tyco Plan of Merger provides that each Exchangeable Share will remain
outstanding, that, after the effective time of the merger, each Exchangeable
Share shall, subject to the Tyco Plan of Merger, be exchangeable for 0.6907 of a
Tyco Common Share and that CIT Common Stock shall, for all purposes under the
VETA, mean Tyco Common Shares, proportionally adjusted.
F. CIT Holdings intends to become the CIT Successor within the meaning of
Section 11.1 of the VETA.
G. The parties wish to restate certain provisions of the VETA to reflect events
that have occurred since the original date thereof.
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H. Pursuant to an agreement in writing made as of the date hereof (the "TYCO VE
AGREEMENT"), Tyco is supporting the obligations of CIT Holdings under the VETA,
as supplemented by this Agreement.
I. The above recitals and statements of fact are made by CIT, Exchangeco and CIT
Holdings and not by the Trustee.
FOR VALUE RECEIVED, the parties agree, pursuant to Sections 11.1, 12.2(b), 12.4
and 12.5(b) and (c) of the VETA, to supplement and partially restate the VETA
with effect from the date hereof as follows:
ARTICLE 1 - DEFINITIONS AND INTERPRETATION
1.1 NATURE OF AGREEMENT
This Agreement is a supplemental agreement within the meaning of Sections
11.1, 12.2(b), 12.4 and 12.5(b) and (c) of the VETA.
1.2 DEFINITIONS
Capitalized terms used in this Agreement without definition shall have the
meanings assigned to them in the VETA or otherwise applicable to such terms in
the VETA. In addition:
(1) ESSA means the exchangeable share support agreement made as of November 15,
1999 among Exchangeco, CIT and Newco as supplemented by an agreement among those
parties and CIT Holdings made as of the date hereof.
(2) FRACTIONAL CASH AMOUNT means the cash payment to a holder of Exchangeable
Shares in lieu of a fractional interest in a Tyco Common Share upon the exchange
of such holder's Exchangeable Shares, which amount shall be equal to such
fractional interest multiplied by the closing price of Tyco Common Shares on the
New York Stock Exchange (as reported by Bloomberg Financial Markets (or if such
service is unavailable, a service providing similar information)) on the trading
day immediately preceding the date of surrender for exchange.
(3) NEWCO means 3026192 Nova Scotia Company, an unlimited company existing under
the laws of Nova Scotia and a wholly-owned subsidiary of CIT.
(4) TYCO means Tyco International Ltd., a Bermuda company, and its successors.
(5) TYCO AFFILIATES means Affiliates of Tyco.
(6) TYCO COMMON SHARES means the common shares of Tyco, par value US$0.20 per
share, in the capital of Tyco, and any other securities into which such shares
may be changed.
(7) TYCO CONSENT means written consents sought by Tyco from its shareholders
including the holders of Tyco Common Shares.
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(8) TYCO MEETING means all meetings of shareholders of Tyco at which holders of
Tyco Common Shares are entitled to vote.
(9) TYCO SVP SHARE means the special voting preference share of Tyco, par value
US$1.00, which entitles the holder of record to a number of votes at meetings of
holders of Tyco Common Shares equal to the number of Tyco Common Shares for
which Exchangeable Shares outstanding from time to time are exchangeable (other
than Exchangeable Shares (a) held by Tyco and Tyco Affiliates and (b) in respect
of which no instructions are received), which share is to be issued to,
deposited with and voted by the Trustee as described in the VETA.
1.3 SUCCESSOR CONCEPTS
(1) Except as otherwise provided herein, the existing references in the VETA
to:
(a) "CIT" are restated by substituting therefor references to "CIT
Holdings";
(b) "CIT Affiliates" are restated by substituting therefor references to
"Tyco Affiliates";
(c) "CIT Common Stock", "one share of CIT Common Stock" and "a share of
CIT Common Stock" are restated by substituting therefor references
to "Tyco Common Shares" when referred to in the aggregate and
"0.6907 of a Tyco Common Share, subject to adjustment in accordance
with the provisions of the ESSA", when referred to individually;
(d) "CIT Consent" are restated by substituting therefor references to
"Tyco Consent";
(e) "CIT Meeting" are restated by substituting therefor references to
"Tyco Meeting";
(f) "CIT Special Voting Share" are restated by substituting therefor
references to "Tyco SVP Share"; and
(g) "CIT Successor" are restated by substituting therefor references to
"Tyco Successor".
(2) References in this Agreement to substitutions are applicable whether the
existing references are contained in the VETA or are incorporated therein by
reference to the Exchangeco Share Provisions or the terms of the Newcourt Plan
of Arrangement.
1.4 RULES OF INTERPRETATION
The provisions on construction and interpretation set forth in Sections
1.2, 1.3, and 1.4 of the VETA shall apply to this Agreement. The provisions of
Sections 14.1, 14.2, 14.5, 14.6 and 14.7 of the VETA are incorporated by
reference into and form part of this Agreement as if fully restated herein.
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ARTICLE 2 - VOTING AND EXCHANGE TRUST AGREEMENT
2.1 ARTICLE 1
The definitions in Section 1.1 are restated:
(a) notwithstanding Section 1.3(1)(a) of this Agreement, by substituting
"Tyco" for the reference to "CIT" in the definitions of
"Beneficiaries" and "Board of Directors";
(b) without the definitions of "CIT Affiliates", "CIT Common Stock",
"CIT Consent", "CIT Meeting", "CIT Special Voting Share", "CIT
Successor" and "Support Agreement".
(c) notwithstanding Section 1.3(1)(c) of this Agreement, by substituting
"Tyco Common Shares" or "a Tyco Common Share", as the context
requires, for all references to "CIT Common Stock" in the definition
of "Current Market Price"; and
(d) substituting "Exchangeco" for the reference to "Newcourt" in the
definition of "Insolvency Event".
2.2 ARTICLE 3
The first two sentences in Section 3.1 are restated as follows:
"CIT Holdings will cause Tyco to take all corporate action necessary to
issue to and deposit with the Trustee the Tyco SVP Share to be hereafter
held of record by the Trustee as trustee for and on behalf of, and for the
use and benefit of, the Beneficiaries and in accordance with the
provisions of this trust agreement. CIT Holdings hereby acknowledges on
behalf of Tyco receipt from the Trustee as trustee for and on behalf of
the Beneficiaries of good and valuable consideration (and the adequacy
thereof) for the issuance of the Tyco SVP Share by Tyco to the Trustee."
2.3 ARTICLE 4
(1) Notwithstanding Section 1.3(1)(a) of this Agreement, Section 4.1 is
restated by substituting "Tyco" for the reference therein to "CIT".
(2) Section 4.2 is restated as follows:
"With respect to each Tyco Meeting and each Tyco Consent, each Beneficiary
shall be entitled to instruct the Trustee to cast and exercise in the
manner instructed 0.6907 of the votes, subject to adjustment in accordance
with the provisions of the ESSA, comprised in the Voting Rights for each
Exchangeable Share owned of record by such Beneficiary on the record date
established by Tyco or by applicable law for such Tyco Meeting or Tyco
Consent, as the case may be (the "BENEFICIARY VOTES"), in respect of each
matter,
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question, proposal or transaction to be voted on or at such Tyco Meeting
or Tyco Consent."
(3) Notwithstanding Section 1.3(1)(a) of this Agreement, Sections 4.3 and
4.4(a) and (b) are restated by substituting "Tyco" for references therein to
"CIT", except with respect to the last sentence of Section 4.3 which is restated
as follows:
"CIT Holdings will cause Tyco to notify the Trustee of any decision of the
board of directors of Tyco with respect to the calling of any Tyco Meeting
and provide all necessary information and materials to the Trustee in each
case promptly and in any event in sufficient time to enable the Trustee to
perform its obligations contemplated by this section 4.3.".
(4) The first sentence of Section 4.5 is restated as follows:
"As soon as reasonably practicable after receipt by Tyco or shareholders
of Tyco (if such receipt is known by Tyco) of any material sent or given
by or on behalf of a third party to holders of Tyco Common Shares
generally, including without limitation, dissident proxy and information
circulars (and related information and material) and tender and exchange
offer circulars (and related information and material), CIT Holdings shall
cause Tyco to use its reasonable efforts to obtain and deliver to the
Trustee copies thereof in sufficient quantities so as to enable the
Trustee to forward such material (unless the same has been provided
directly to Beneficiaries by such third party) to each Beneficiary as soon
as possible thereafter."
(5) Notwithstanding Section 1.3(1)(a) of this Agreement, Section 4.6 is
restated by substituting "Tyco" for the first reference therein to "CIT".
(6) Notwithstanding Section 1.3(1)(a) of this Agreement, Section 4.9 is
restated by substituting "Tyco" for the reference therein to "CIT".
(7) The phrase in parenthesis in Section 4.10 is restated as follows:
"(unless in either case, CIT Holdings shall not have delivered the
requisite Tyco Common Shares and a cheque for any Fractional Cash Amount
issuable in exchange therefor to the Trustee for delivery to the
Beneficiaries)".
2.4 ARTICLE 5
(1) Section 5.4 is restated as follows:
"The purchase price payable by CIT Holdings for each Exchangeable Share to
be purchased by CIT Holdings under the Exchange Right shall be in an
amount per share equal to the Current Market Price of 0.6907 of a Tyco
Common Share (subject to adjustment in accordance with the provisions of
the ESSA) on the last Business Day prior to the date of closing of the
purchase and sale of such Exchangeable Shares under the
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Exchange Right, which shall be satisfied in full by CIT Holdings causing
to be sent to such holder 0.6907 of a Tyco Common Share (subject to
adjustment in accordance with the provisions of the ESSA) except that,
where the aggregate purchase price payable to the holder of such
Exchangeable Shares would otherwise entitle the holder to receive delivery
of a fractional share, CIT Holdings shall pay the Fractional Cash Amount
to such holder in lieu of such fractional share. For greater certainty, it
is hereby confirmed that such holders will also be entitled to continue to
receive from Exchangeco, on the designated payment date therefor, the full
amount of all declared but unpaid dividends on each such Exchangeable
Share held by such holder on any dividend record date which occurred prior
to the closing of the purchase and sale and, to the extent such amount is
not paid by Exchangeco on the designated payment date therefor, such
amount shall be paid by CIT Holdings on such date for and on behalf of
Exchangeco. The purchase price for each such Exchangeable Share so
purchased may be satisfied only by CIT Holdings causing Tyco to issue and
deliver or cause to be delivered to the Trustee, on behalf of the relevant
Beneficiary, 0.6907 of a Tyco Common Share (subject to adjustment in
accordance with the provisions of the ESSA) and, where the holder of such
Exchangeable Share would otherwise be entitled to receive delivery of a
fractional share, as aforesaid, the Fractional Cash Amount in lieu of such
fractional share. On the applicable payment date, CIT Holdings shall
deliver or cause to be delivered to the Trustee, on behalf of the relevant
Beneficiary, a cheque for the amount, if any, of the declared but unpaid
dividends referred to above, without interest (but less any amounts
withheld pursuant to section 5.13)."
(2) Section 5.6 is restated as follows:
"Promptly after receipt of the certificates representing the Exchangeable
Shares which the Beneficiary desires CIT Holdings to purchase under the
Exchange Right, together with such documents and instruments of transfer
and a duly completed form of notice of exercise of the Exchange Right (and
payment of taxes, if any, payable as contemplated by section 5.8 or
evidence thereof), duly endorsed for transfer to CIT Holdings, the Trustee
shall notify CIT Holdings and Exchangeco of its receipt of the same, which
notice to CIT Holdings and Exchangeco shall constitute exercise of the
Exchange Right by the Trustee on behalf of the holder of such Exchangeable
Shares, and CIT Holdings shall cause Tyco to promptly thereafter deliver
or cause to be delivered to the Trustee, for delivery to the Beneficiary
of such Exchangeable Shares (or to such other persons, if any, properly
designated by such Beneficiary) certificates representing the number of
Tyco Common Shares issuable in connection with the exercise of the
Exchange Right (and, where such holder of the Exchangeable Shares is
entitled to receive delivery of a fractional share, payment of the
Fractional Cash Amount in lieu of such fractional share), which shares
shall be duly issued as fully paid and non-assessable and shall be free
and clear of any liens, and, on the applicable payment date, cheques for
the amount, if any, of the declared but unpaid dividends referred to in
section 5.6 without interest (but less any amounts withheld pursuant to
section 5.13); provided, however, that no such delivery shall be made
unless and until the Beneficiary requesting the same have paid (or
provided evidence satisfactory to the Trustee, Exchangeco and CIT of the
payment of ) the taxes (if
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any) payable as contemplated by section 5.8 of this trust agreement.
Immediately upon the giving of notice by the Trustee to CIT Holdings and
Exchangeco of the exercise of the Exchange Right as provided in this
section 5.6, the closing of the transaction of purchase and sale
contemplated by the Exchange Right shall be deemed to have occurred, and
the holder of such Exchangeable Shares shall be deemed to have transferred
to CIT Holdings all of such holder's right, title and interest in and to
such Exchangeable Shares and the related interest in the Trust Estate and
shall cease to be a holder of such Exchangeable Shares and shall not be
entitled to exercise any of the rights of a holder in respect thereof,
other than the right to receive any declared but unpaid dividends as
provided in section 5.6 and other than the right to receive his
proportionate part of the total purchase price therefor, unless the
requisite number of Tyco Common Shares is not allotted and issued by Tyco
and delivered by CIT Holdings to the Trustee (and the Fractional Cash
Amount payable in lieu of any fractional shares is not paid) within five
Business Days of the date of the giving of such notice by the Trustee, in
which case the rights of the Beneficiary shall remain unaffected until
such Tyco Common Shares are so allotted and issued by Tyco and delivered
by CIT Holdings and payment of the Fractional Cash Amount in lieu of any
fractional share is paid by CIT Holdings. Upon delivery by CIT Holdings to
the Trustee of such Tyco Common Shares and payment of the Fractional Cash
Amount in lieu of any fractional shares, the Trustee shall deliver such
Tyco Common Shares and payment of such Fractional Cash Amount in lieu of
any fractional share to such Beneficiary (or to such other persons, if
any, properly designated by such Beneficiary). Concurrently with such
Beneficiary ceasing to be a holder of Exchangeable Shares, the Beneficiary
shall be considered and deemed for all purposes to be the holder of Tyco
Common Shares delivered to it pursuant to the Exchange Right. The Trustee
shall not be responsible or liable in any manner whatsoever for the
sufficiency, correctness, genuiness or validity of any security deposited
with it. The Trustee shall incur no liability with respect to the delivery
or non-delivery of any certificate or certificates, whether delivered by
hand, mailed or other means."
(3) Section 5.8 is restated by removing the reference to "Newcourt".
(4) Section 5.10 is restated as follows:
"CIT Holdings covenants that, if any Tyco Common Shares to be issued and
delivered pursuant to the Exchange Right or the Automatic Exchange Rights
require registration or qualification with or approval of or the filing of
any document, including any prospectus or similar document, or the taking
of any proceeding with or the obtaining of any order, ruling or consent
from any governmental or regulatory authority under any Canadian,
Bermudian or United States federal, provincial or state law or regulation
or pursuant to the rules and regulations of any regulatory authority or
the fulfilment of any other Canadian, Bermudian or United States federal,
provincial or state legal requirement before such shares may be issued and
delivered by Tyco to the initial holder thereof or in order that such
shares may be freely traded thereafter (other than any restrictions of
general application on transfer by reason of a holder being a "control
person" of Tyco for purposes of Canadian provincial securities law or an
"affiliate" of
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Tyco for purposes of United States federal or state securities law), CIT
Holdings will cause Tyco to in good faith expeditiously take all such
actions and do all such things as are necessary or desirable to cause such
Tyco Common Shares to be and remain duly registered, qualified or
approved. CIT Holdings will cause Tyco to in good faith expeditiously take
all such actions and do all such things as are reasonably necessary or
desirable to cause all Tyco Common Shares to be delivered pursuant to the
Exchange Right or the Automatic Exchange Rights to be listed, quoted or
posted for trading on all stock exchanges and quotation systems on which
outstanding Tyco Common Shares have been listed by Tyco and remain listed
and are quoted or posted for trading at such time."
(5) Section 5.11 is restated as follows:
"CIT Holdings hereby represents, warrants and covenants to cause Tyco to
take all action required so that the Tyco Common Shares issuable as
described herein will be duly authorized and validly issued as fully paid
and non-assessable and free and clear of any lien, claim or encumbrance."
(6) Sections 5.12(a)(i) and (ii) are restated as follows:
"AUTOMATIC EXCHANGE ON LIQUIDATION OF TYCO
CIT Holdings will give the Trustee notice of each of the following events
at the time set forth below:
(i) in the event of any determination of the Board of Directors of
Tyco to institute voluntary liquidation, dissolution or
winding-up proceedings with respect to Tyco or to effect any
other distribution of assets of Tyco among its shareholders
for the purpose of winding-up its affairs, at least 60 days
prior to the proposed effective date of such liquidation,
dissolution, winding-up or other distribution; and
(ii) as soon as practicable following the earlier of (A) receipt by
Tyco of notice of, and (B) Tyco otherwise becoming aware of,
any threatened or instituted claim, suit, petition or other
proceedings with respect to the involuntary liquidation,
dissolution or winding-up of Tyco or to effect any other
distribution of assets of Tyco among its shareholders for the
purpose of winding-up its affairs."
(7) Section 5.12(c) is restated as follows:
"In order that the Beneficiaries will be able to participate on a PRO RATA
basis with the holders of Tyco Common Shares in the distribution of assets
of Tyco in connection with a Liquidation Event, on the fifth Business Day
prior to the Effective Date (the "LIQUIDATION EVENT EFFECTIVE DATE") of a
Liquidation Event, all of the then outstanding Exchangeable Shares shall
be automatically exchanged for Tyco Common Shares or, to
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the extent that the holder of Exchangeable Shares is entitled to receive
delivery of a fractional share, payment of the Fractional Cash Amount in
lieu of such fractional share. To effect such automatic exchange, CIT
Holdings shall purchase on the fifth Business Day prior to the Liquidation
Event Effective Date each Exchangeable Share then outstanding and held by
the Beneficiaries, and each Beneficiary shall sell the Exchangeable Shares
held by it at such time, for a purchase price per share equal to the
Current Market Price of 0.6907 of a Tyco Common Share (subject to
adjustment in accordance with the provisions of the ESSA) on the fifth
Business Day prior to the Liquidation Event Effective Date, which shall be
satisfied in full by CIT Holdings causing Tyco to issue and deliver or
caused to be delivered 0.6907 of a Tyco Common Share (subject to
adjustment in accordance with the provisions of the ESSA) except that,
where the aggregate purchase price payable to the holder of such
Exchangeable Shares would otherwise entitle the holder to receive delivery
of a fractional share, CIT Holdings shall pay the Fractional Cash Amount
to such holder in lieu of such fractional share. For greater certainty, it
is hereby confirmed that such holder shall also continue to be entitled to
receive from Exchangeco, on the designated payment date therefor, the full
amount of all declared but unpaid dividends on each such Exchangeable
Share held by such holder on any dividend record date which occurred prior
to the date of the exchange and, to the extent such amount is not paid by
Exchangeco on the designated payment date therefor, such amount shall be
paid by CIT Holdings on such date for and on behalf of Exchangeco."
(8) Section 5.12(d) is restated as follows:
"On the fifth Business Day prior to the Liquidation Event Effective Date,
the closing of the transaction of purchase and sale contemplated by the
automatic exchange of Exchangeable Shares for Tyco Common Shares (and
payment of the Fractional Cash Amount in lieu of any fractional share)
shall be deemed to have occurred, and each Beneficiary shall be deemed to
have transferred to CIT Holdings all of the Beneficiary's right, title and
interest in and to such Beneficiary's Exchangeable Shares and the related
interest in the Trust Estate and shall cease to be a holder of such
Exchangeable Shares and CIT Holdings shall cause Tyco to issue to the
Beneficiary the Tyco Common Shares issuable upon the automatic exchange of
Exchangeable Shares for Tyco Common Shares (and CIT Holdings shall pay to
the Beneficiary the Fractional Cash Amount in lieu of any fractional
share), and, on the applicable payment date, shall deliver to the Trustee
for delivery to the Beneficiary a cheque for the amount, if any, of the
declared but unpaid dividends as aforesaid for such Exchangeable Shares,
without interest but less any amounts withheld pursuant to section 5.13.
Concurrently with such Beneficiary ceasing to be a holder of Exchangeable
Shares, CIT Holdings shall cause Tyco to consider and deem the Beneficiary
for all purposes to be the holder of the Tyco Common Shares issued
pursuant to the automatic exchange of Exchangeable Shares for Tyco Common
Shares and the certificates held by the Beneficiary previously
representing the Exchangeable Shares exchanged by the Beneficiary with CIT
Holdings pursuant to such automatic exchange shall thereafter be deemed to
represent Tyco Common Shares issued to the Beneficiary by Tyco pursuant to
such automatic exchange. Upon the request of a
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Beneficiary and the surrender by the Beneficiary of Exchangeable Share
certificates deemed to represent Tyco Common Shares, duly endorsed in
blank and accompanied by such instruments of transfer as CIT Holdings may
reasonably require, CIT Holdings shall cause Tyco to deliver or cause to
be delivered to the Beneficiary certificates representing Tyco Common
Shares of which the Beneficiary is the holder and, where the Beneficiary
is entitled to receive a fractional share to fully satisfy the automatic
exchange obligation, CIT Holdings shall pay to such Beneficiary the
Fractional Cash Amount in lieu of any such fractional share."
2.5 ARTICLE 6
Section 6.1 is restated as follows:
"During the term of this trust agreement, CIT Holdings will ensure that
Tyco does not, without the consent of the holders at the relevant time of
Exchangeable Shares, given in accordance with section 10.2 of the Share
Provisions, issue more than one Tyco SVP Share."
2.6 ARTICLE 7
(1) Notwithstanding Section 1.3(1)(a) of this Agreement, Section 7.1 is
restated by substituting "Tyco" for the reference to "CIT" in Section 7.1(a).
(2) Section 7.3 is restated as follows:
"(1) CIT Holdings will cause Tyco to take all corporate action necessary
to irrevocably authorize the Trustee, from time to time, to:
(a) consult, communicate and otherwise deal with Tyco's registrar and
transfer agent, and with any such subsequent registrar or transfer
agent, of the Tyco Common Shares; and
(b) requisition, from time to time: (i) from any such registrar or
transfer agent any information readily available from the records
maintained by it which the Trustee may reasonably require for the
discharge of its duties and responsibilities under this trust
agreement; and (ii) from the transfer agent of Tyco Common Shares,
and any subsequent transfer agent of such shares, the share
certificates issuable upon the exercise from time to time of the
Exchange Right and pursuant to the Automatic Exchange Rights.
(2) CIT Holdings will cause Tyco to take all corporate action necessary
to irrevocably authorize its registrar and transfer agent to comply
with all requests under Section 7.3(1). CIT Holdings will cause Tyco
to supply its transfer agent with duly executed share certificates,
upon the request of a holder of Exchangeable Shares, for the purpose
of completing the exercise from time to time of the Exchange Right
and the Automatic Exchange Rights.
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(3) Exchangeco irrevocably authorizes the Trustee, from time to time,
to:
(a) consult, communicate and otherwise deal with its registrar and
transfer agent, and with any such subsequent registrar or transfer
agent, of the Exchangeable Shares; and
(b) requisition, from time to time from any such registrar or transfer
agent any information readily available from the records maintained
by it which the Trustee may reasonably require for the discharge of
its duties and responsibilities under this trust agreement.
(4) Exchangeco irrevocably authorizes its registrar and transfer agent
to comply with all requests under Section 7.3(3). Exchangeco will
supply its transfer agent with duly executed share certificates for
the purpose of completing the exercise from time to time of the
Exchange Right and the Automatic Exchange Rights."
(3) Notwithstanding Section 1.3(1)(a) of this Agreement, Section 7.4 is
restated by substituting "Tyco" for the reference to "CIT" in Section 7.4(b).
2.7 ARTICLE 11
(1) Notwithstanding Section 1.3(1)(a) of this Agreement, the title of Article
11 is restated by substituting "Tyco" for the reference to "CIT".
(2) Section 11.1 is restated as follows:
"CIT Holdings will cause Tyco not to consummate any transaction (whether
by way of reconstruction, reorganization, consolidation, merger, transfer,
sale, lease or otherwise) whereby all or substantially all of its
undertaking, property and assets would become the property of any other
Person or, in the case of a merger, of the continuing corporation
resulting therefrom unless, but may do so if:
(a) such other Person or continuing corporation (herein called the "TYCO
SUCCESSOR"), by operation of law, becomes, without more, bound by
the terms and provisions of this trust agreement and the Tyco VE
Agreement or, if not so bound, executes, prior to or
contemporaneously with the consummation of such transaction, an
agreement supplemental hereto and such other instruments (if any) as
are satisfactory to the Trustee, acting reasonably, and in the
opinion of legal counsel to the Trustee are reasonably necessary or
advisable to evidence the assumption by the Tyco Successor of
liability for all moneys payable and property deliverable under this
trust agreement and the Tyco VE Agreement and the covenant of such
Tyco Successor to pay and deliver or cause to be delivered the same
and its agreement to observe and perform all the covenants and
obligations of CIT Holdings under this trust agreement and Tyco
under the Tyco VE Agreement; and
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(b) such transaction shall, to the satisfaction of the Trustee, acting
reasonably, and in the opinion of legal counsel to the Trustee, be
upon such terms and conditions as substantially to preserve and not
to impair in any material respect any of the rights, duties, powers
and authorities of the Trustee or of the Beneficiaries under this
trust agreement and the Tyco VE Agreement."
(3) Section 11.2 is restated as follows:
"Whenever the conditions of Section 11.1 have been duly observed and
performed, the Trustee and, if required by Section 11.1, Tyco Successor
and Exchangeco shall execute and deliver the supplemental agreement
provided for in Article 12, and thereupon Tyco Successor shall possess and
from time to time may exercise each and every right and power of Tyco or
CIT Holdings under this trust agreement in the name of CIT Holdings or
otherwise, the Tyco VE Agreement in the name of Tyco or otherwise, and any
act or proceeding by any provision of this trust agreement or the Tyco VE
Agreement, as the case may be, required to be done or performed by the
respective boards of directors of CIT Holdings or Tyco or any officers of
CIT Holdings or Tyco may be done and performed with like force and effect
by the directors or officers of such Tyco Successor."
(4) Section 11.3 is restated as follows:
"Nothing herein shall be construed as presenting the amalgamation or
merger of any wholly-owned direct or indirect subsidiary of Tyco with or
into Tyco or the winding-up, liquidation or dissolution of any
wholly-owned subsidiary of Tyco provided that all of the assets of such
subsidiary are transferred to Tyco or another wholly-owned direct or
indirect subsidiary of Tyco, Tyco or another wholly-owned direct or
indirect subsidiary of Tyco assumes liability for all monies payable and
property deliverable hereunder and agrees to observe and perform all the
covenants and obligations of CIT Holdings under this trust agreement and
any such transactions are expressly permitted by this Article 11."
2.8 ARTICLE 12
(1) Section 12.4 is restated as follows:
"CHANGES IN CAPITAL OF TYCO AND EXCHANGECO
At all times after the occurrence of any event contemplated pursuant to
Section 2.7 or Section 2.8 of the ESSA, or otherwise, as a result of which
either Tyco Common Shares or the Exchangeable Shares or both are in any
way changed, this trust agreement and the Tyco VE Agreement shall
forthwith be amended and modified as necessary in order that they shall
apply with full force and effect, MUTATIS MUTANDIS, to all new securities
into which Tyco Common Shares or the Exchangeable Shares or both are so
changed, and the parties hereto shall execute and deliver supplemental
agreements giving effect to and evidencing such necessary amendments and
modifications."
SUPPLEMENTAL VOTING AND EXCHANGE TRUST
AGREEMENT
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(2) Notwithstanding Section 1.3(1)(a) of this Agreement, Section 12.5 is
restated by substituting "Tyco, CIT Holdings" for the reference to "CIT" in
Section 12.5(b).
2.9 ARTICLE 14
(1) Section 14.2 is restated as follows:
"This trust agreement and the Tyco VE Agreement shall be binding upon and
enure to the benefit of the parties hereto, the Tyco Successor and their
respective successors and assigns and to the benefit of the Beneficiaries.
The parties hereto acknowledge and agree, and any Beneficiaries hereunder
are hereby deemed to have acknowledged and agreed, that:
(a) Montreal Trust has sold its corporate trust business and that such
business is, as of the date of this trust agreement, owned and
operated by Computershare Trust Company of Canada ("COMPUTERSHARE");
and
(b) Montreal Trust may assign this trust agreement, the Tyco VE
Agreement and any ancillary agreements executed in connection
herewith, and all rights and obligations thereunder, to
Computershare.
Any such assignment shall be effective upon notice to without the need for
any further approval of any other person and without any further act or
formality whatsoever."
(2) Sections 14.3 (a), (b) and (c) are restated as follows:
(a) if to CIT Holdings:
c/o Tyco International (US) Inc.
Xxx Xxxx Xxxx
Xxxxxx, XX 00000
XXX
Attention: Secretary
Fax.: (000) 000-0000
With a copy (which shall not constitute notice) to:
XxXxxxxx Xxxxx
Xxxxx 0000, Xxxxx Xxxxx, Xxxxx Bank Plaza
Toronto, Ontario
M5J 2J7
Canada
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
SUPPLEMENTAL VOTING AND EXCHANGE TRUST
AGREEMENT
-14-
(b) if to Exchangeco:
c/o The CIT Group, Inc.
000 XXX Xxxxx
Xxxxxxxxxx, XX 00000
XXX
Attention: General Counsel
Fax: (000) 000-0000
(c) if to the Trustee:
Montreal Trust Company of Canada
000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Xxxxxx
Attention: Manager, Client Services
Fax: (000) 000-0000"
ARTICLE 3 - GENERAL
3.1 CONFIRMATION
Except as otherwise provided by this Agreement, the VETA remains in full
force and effect.
3.2 EFFECTIVE DATE
Notwithstanding the date of execution and delivery of this Agreement, it
shall only come into force and become effective as of the Effective Time as
defined in Section 1.02 of the Tyco Plan of Merger. If the Tyco Plan of Merger
is terminated and the transactions contemplated therein have been abandoned
pursuant to Section 7.01 of the Tyco Plan of Merger, then this Agreement shall
be terminated and shall be of no further force or effect.
SUPPLEMENTAL VOTING AND EXCHANGE TRUST
AGREEMENT
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The parties have executed this Agreement.
MONTREAL TRUST COMPANY OF
CANADA
By:
--------------------------------------
Authorized Signatory
--------------------------------------
Authorized Signatory
THE CIT GROUP, INC.
By:
--------------------------------------
Name:
Title:
CIT EXCHANGECO INC.
By:
--------------------------------------
Name:
Title:
TYCO ACQUISITION CORP. XIX (NV)
By:
--------------------------------------
Name:
Title:
SUPPLEMENTAL VOTING AND EXCHANGE TRUST
AGREEMENT
